APRIL 1991 

COMMISSION DECISIONS 

04-01-91 

04-16-91 

04-17-91 

Amos Hicks v. Cobra Mining, Inc., et al. 

Michael P. Damron v. Reynolds Metal Co. 

David Hatfield v. Colquest Energy, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-01-91 

04-01-91 

04-01-91 

04-01-91 

04-01-91 

04-01-91 

04-01-91 

04-01-91 

04-01-91 

04-01-91 

04-01-91 

04-03-91 

04-03-91 

04-03-91 

04-04-91 

04-09-91 

04-16-91 

04-19-91 

04-19-91 

04-26-91 

04-29-91 

04-30-91 

Stenson Begay v. Liggett Industries, Inc. 

Pittsburg & Midway Coal Mining Co. 

Pittsburg & Midway Coal Mining Co. 

Pittsburg & Midway Coal Mining Co. 

Pittsburg & Midway Coal Mining Co. 

Pittsburg & Midway Coal Mining Co. 

Pittsburg & Midway Coal Mining Co. 

Pittsburg & Midway Coal Mining Co. 

Pittsburg & Midway Coal Mining Co. 

Pittsburg & Midway Coal ':i1ining Co. 

Rochester & Pittsburgh Coal Company 

Beech Fork Processing, Inc. 

Pyro Mining Company 

Island Creek Coal Company 

J & R Coal Company, Inc. 

Sec. Labor for Richard Roethle v. Phelps 

Dodge Corporation 

Cody v. Texas Sand & Gravel Co. 

Ricky Hays v. Leeco, Inc. 

JED Mining Company, Inc. 

Pittsburg & Midway Coal Mining Co. 

Charles M. Lapoe v. Eastern Assoc. Coal Corp. 

Pyro Mining Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

04-04-91 

04-15-91 

04-26-91 

04-30-91 

Hobet Mining, Inc. 

Cyprus-Plateau Mining Corp. 

Michael E. Holland v. Consolidation Coal Co. 

Consolidation Coal Company 

VA 89-72-D 

CENT 89-131-DM 

SE 90-122-D 

CENT 88-126-D 

CENT 90-104 

CENT 90-105 

CENT 90-114 

CENT 90-116 

CENT 90-117 

CENT 90-120 

CENT 90-128 

CENT 90-131 

CENT 90-53 

PENN 88-284-R 

KENT 90-398 

KENT 90-403 

VA 91-47-R 

KENT 90-363 

CENT 90-124-DH 

CENT 90-167-DM 

KENT 90-59-D 

KENT 90-107 

CENT 90-25 

WEVA 91-72-D 

KENT 91-12 

WEVA 91-65 

WEST 91-44 

WEVA 90-315-D 

WEVA 91-43 

Pg. 523 

. 535 

Pg. 544 

Pg. 549 

• 552 

Pg. 558 

Pg. 559 

Pg. 560 

Pg. 562 

Pg. 564 

Pg. 566 

Pg. 568 

Pg. 573 

Pg. 574 

Pg. 576 

Pg. 584 

Pg. 592 

. 648 

Pg. 649 

Pg. 666 

Pg. 670 

Pg. 697 

698 

Pg. 703 

Pg. 704 

Pg. 711 

. 719 

. 729 

Pg. 748 

APRIL 1991 

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

Secretary of Labor, MSHA v. Mar-Land Industrial Contractor, Inc., Docket No. 

SE 90-117-M. (Judge Weisberger, March 6, 1991) 

Secretary of Labor, MSHA v. Drummond Company, Inc., Docket Nos. SE 90-125, 

etc. (Judge Merlin, March 6, 1991) 

Secretary of Labor, MSHA v. Drummond Company, Inc., Docket No. SE 90-126. 

(Judge Merlin, March 6, 1991) 

Secretary of Labor, MSHA v. Ideal Cement Company, Docket No. WEST 88-202-M. 

(Judge Morris, March 6, 1991) 

Gatliff Coal Company v. Secretary of Labor, MSHA, Docket No. KENT 89-242-R, 

etc. March 8, 1991), 

Secretary of Labor, MSHA v. Zeigler Coal Company, Docket No. LAKE 91-2. 

(Judge Merlin, March 12, 1991) 

of Labor, MSHA v. Texas Utilities r1ining Company, Docket No. 

CENT 91-26. Merlin, March 12, 1991) 

Secretary of Labor, MSHA v. Utah Power & Light Company, 

Docket Nos. WEST 90-320, etc. (Interlocutory Review of 

March 20, 1991 Order) 

Division, 

Lasher's. 

Labor" MSHA v, Bobet Mining, Inc., Docket No. WEVA 91-65. 

Rul of Judge Fauver 1 s April 4, 1991 Order) 

Secretary of Labor, MSHA v, James Roger Bell, Robert V. Swindall and Marion 

Rowland, Docket Nos. VA 90-53, etc. (Interlocutory Review of Judge 

Broderick's 7, 1991 Order) 

Review was denied in the fol the month of il: 

Arnold v, Elk Creek Coal Company, Docket No. KENT 89-147-D. 

Melick, March 19, 1991) 

COM ... M.ISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 1., 1991 

AMOS HICKS 

v. 

COBRA MINING, INC., 

JERRY K. LESTER, and 

CARTER MESSER 

Docket No. VA 89-72-D 

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

DECISION 

BY THE COMMISSION: 

This discrimination proceeding arises from a complaint of retaliatory 

discharge by Amos Hicks against Cobra Mining, Inc. and certain of its officers 

filed pursuant to section lOS(c) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et gg.. (the "Mine Act"). Hicks alleges that he was 

discharged on May 11, 1989, in retaliation for numerous and various safety 

complaints made to his section foreman, Garnett Sutherland, at Cobra's No. 1 

Mine located in Shortt Gap, Virginia. After investigation of Hicks' charges, 

the Secretary filed a complaint with the Commission under section 105(c)(2) of 

the Mine Act. 1 

Section 105(c)(2) provides as follows: 

Any miner or applicant for employment or representative of miners who believes that he has been 

discharged, interfered with, or otherwise 

discriminated against by any person in violation of 

this subsection may, within 60 days after such 

violation occurs, file a complaint with the Secretary 

alleging such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy of the 

complaint to the respondent and shall cause such 

investigation to be made as he deems appropriate. 

Such investigation shall commence within 15 days of 

the Secretary's receipt of the complaint, and if the 

Secretary finds that such complaint was not 

frivolously brought, the Commission, on an expedited 

basis upon application of the Secretary, shall order 

the immediate reinstatement of the miner pending final 

order on the complaint. If upon such investigation, 

the Secretary determines that the provisions of this 

subsection have been violated, he shall immediately 

523 
After a hearing on the merits was held on January 3, 1990, Commission 

Administrative Law Judge Avram Weisberger issued a March 22, 1990 decision in 

which he found that Hicks had established a prima facie case of 

discrimination, but that Hicks had not overcome Cobra's affirmative defense 

that it would have discharged Hicks in any event for certain unprotected 

activity. Accordingly, the judge dismissed the complaint. The Secretary 

elected not to continue Hicks, and Hicks filed, pro se, a 

petition for discretionary review, which the Commission granted by order 

issued May 1, 1990. For the reasons that follow, we vacate and remand the 

judge's decision. 

I. Factual and Procedural Background 

Amos Hicks is a miner with 15 years experience in the coal industry. In 

July of 1987 he was hired by Cobra Mining Company when Cobra took over the 

lease of the ~o. 1 Mine from Far West Coal Company, Hicks' employer since 

1981. Tr. 13-17. While Hicks was employed by Cobra, it was owned by Jerry 

Lester, Carl ~esser and Charles Davis. David Payne held the position of mine 

superintendent. Garnett Sutherland was section foreman on the number one 

section where Hicks worked as a shuttle car operator on the day shift. Tr, 

132-143, 305. 

It is undisputed, and the judge so found, that during the nearly two 

years during which Hicks worked for Cobra prior to his discharge in May of 

1989, he made frequent complaints to both Superintendent Payne and 

Foreman Sutherland. 12 FMSHRC 564-565. Hicks' complaints centered on four 

file a complaint with the Commission, with service 

upon the alleged violator and the miner, applicant for 

employment, or of miners alleging such 

discrimination or interference and propose an order 

granting relief. The Commission shall 

afford an opportunity for a hearing; (in accordance 

with section 554 of title 5, United States Code, but 

without regard to subsection (a)(3) of such section) 

and thereafter shall issue an order, based upon 

findings of fact, , modifying, or vacating 

the Secretary's proposed order, or directing other 

appropriate relief. Such order shall become final 30 

days after its issuance. The Commission shall have 

authority in such proceedings to require a person 

committing a violation of this subsection to take such 

affirmative action to abate the violation as the 

Commission deems appropriate, including, but not 

limited to, the or reinstatement of the miner 

to his former position with back pay and interest. 

The complaining miner, applicant, or representative of 

miner may present additional evidence on his own 

behalf during any hearing held pursuant to this 

paragraph. 

30 U.S.G. 815(c)(2). 

524 
specific areas: 

(1) That temporary roof support was not always installed 

in advance of roof bolting in the No. 1 Mine. In 

particular Hicks complained that when the bolting crew 

encountered higher than usual roof not within reach of 

the automated temporary roof support (ATRS) system, 

they often proceeded to bolt rather than sending out 

for timbers and other shoring materials to supplement 

the undersized temporary roof jacks. Tr. 20, 24, 194, 

250. 

(2) That there was inadequate and poorly-designed 

ventilation in the face area resulting in section crew 

members being exposed to excessive levels of dust. 

This condition was exacerbated during a brief period 

in 1989, when two continuous mining machines 

were being operated within the same split of air. 

Dust from the first continuous miner was being blown 

across to the crew members working on and around the 

second miner. Tr. 39-•0, 203, 250. 

(3) That when the designated mantrip (a mine car outfitted 

with skids and pulled by a scoop car) was unavailable, 

miners were transported in and out of the mine in the 

bucket of the scoop. Because of overcrowding, there 

was a danger, in the event the scoop and bucket 

bounced up against the roof, of being bounced out of 

the bucket or being pinned against the roof. Tr. 11, 

33, 35, 200, 255. 

(4) That loose roof existed throughout the mine, 

particularly along travelways, and was allowed to 

remain uncorrected even after Hicks' complaints. Tr. 

26-30, 140, 198, 252-253. 

It was Hicks' contention, supported by other testimony, that 

Superintendent was generally responsive to his complaints but that 

Foreman Sutherland was not so responsive, particularly with to loose 

roof conditions. Tr. 43, 103, 227-228, 232. 

On the day of his discharge, May 11, 1989, 2 Hicks and Douglas Lester 

were assigned to shuttle cars in the No. 1 section. At about 10:00 a.m., the 

continuous miner on the section broke down and Sutherland told Hicks and 

Lester to go to lunch while the machine was being repaired. The two miners 

travelled about 200 feet to the feeder area of the belt line to eat. 12 

2 The jridge's decision indicates that the discharge occurred on May 10, 

1989, 12 FMSHRC 567, but it appears that Thursday, May 11, 1989 was the correct 

date. Tr. 18, 258. The error apparently arose from Hicks' own confusion over 

days and dates during the week of May 7, 1989. Tr. 50, 79. 

525 
FMSHRC 567; Tr. 51, 258. 

Testimony as to the ensuing sequence and timing of events is somewhat at 

odds. It is agreed, however, that once the continuous miner was repaired, 

Sutherland walked back to the feeder area and told Hicks and Lester that they 

should get back to work. Hicks complained that they had not had enough time 

to eat, that Sutherland should be "ashamed" of himself and that Hicks hoped 

Sutherland "would prosper [or profit] from this." Sutherland replied that he 

wouldn't prosper but the "company might." Tr. 52-53, 120-121, 259. 

According to Sutherland, Hicks jumped up, threw out the remainder of his 

coffee and said, "well, kiss my ass." Tr. 260. Hicks admits that he made the 

statement but not until he had returned to his shuttle car and had started 

driving back to the face area. Tr. 53, 352. Hicks' version is corroborated 

by Douglas Lester. Tr. 229. In any event, Sutherland then told Hicks to "get 

[his] bucket and go to the outside" and arranged for Hicks' transportation out 

of the mine. Tr. 54, 260. 

Hicks returned to the mine the following morning, Friday, May 12, 1989, 

and met with Payne and Sutherland. Payne asked Sutherland why he had fired 

Hicks and Sutherland replied that H:i,cks had "bad-mouthed" him. Payne 

indicated that it was Sutherland's decision whether to discharge Hicks or 

allow him back into the mine, and Sutherland stood by his decision of the 

previous day. 12 FMSHRC 567; Tr. 179. Sometime later co-owner Messer arrived 

and spoke briefly with Payne and Hicks. He asked Hicks what had happened and 

Hicks told him that he'd been fired. Messer stated that he would stand behind 

Sutherland's decision. Tr. 58, 308. On the following day, Saturday May 13, 

1989, Payne and Sutherland met with co-owner Jerry Lester, who also decided to 

let Sutherland's decision stand. Tr. 154, 329, 331. 

Payne visited Hicks at his home that evening and informed him of Jerry 

Lester's decision to uphold the discharge. Hicks and Payne then prepared a 

list of hazardous and/or violative conditions that they alleged to exist in 

the No. 1 Mine, and on Monday, May 15, 1989, Hicks visited the local MSHA 

office and filed his section lOS(c) complaint. Tr. 50, 77-81, 181-182. 

The Commission has long held that a miner seeking to establish a prima 

facie case of discrimination under section 105(c) of the Mine Act bears the 

burden of persuasion that he engaged in protected activity and that the 

adverse action complained of was motivated in any part by that activity. 

Secretary o.b.o. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 

(October 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary o.b.o. Robinette v. United 

Castle Coal Company, 3 FMSHRC 803, 817-18 (April 1981). The operator may 

rebut the prima facie case by showing either that no protected activity 

occurred or that the adverse action was not motivated in any part by the 

protected activity. Failing that, the operator may defend affirmatively 

against the prima facie case by proving that it was also motivated by 

unprotected ac-tivity and that it would have taken the adverse action in any 

event for the unprotected activity alone. Pasula, supra; Robinette, supra. 

See also, ~' Eastern Assvc. 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. 

526 
Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically 

approving the Commission's Pasula-Robinette test). 

Applying the Pasula-Robinette test to the instant case, the judge 

determined that Hicks had engaged in protected activity by complaining 

directly to Sutherland (and to some extent Payne) about loose rock, improper 

ventilation, inadequate jack supports and riding in the bucket of the scoop. 

The judge further found that Hicks had obviously been adversely affected by 

being discharged by Sutherland on May 11, 1989. 12 FMSHRC at 565. 

In order to determine whether a retaliatory motive existed between the 

protected activity and the discharge, the judge went' on to make findings 

regarding the proximity in time between Hicks' various complaints and the date 

of his discharge. With respect to Hicks' complaint about inadequate jack 

supports, the judge credited Hicks' "uncontradicted direct testimony that a 

week before his discharge, he had complained to Sutherland about the failure 

to use safety jacks." 12 FMSHRC at 566. 

As to the other complaints, however, the judge found that "[t]he weight 

of evidence fails to establish that the balance of Hicks' complaints were made 

within close proximity to his disch<:irge." Id. Specifically, he determined 

that the complaint about loose rock appeared to have occurred a month before 

the discharge; that Hicks' testimony that he complained about ventilation a 

week before his discharge was not corroborated by his responses to 

interrogatories; and that Hicks' testimony that he complained about riding in 

the scoop bucket in April or May was not corroborated by his own witnesses and 

was contradicted by Sutherland, who testified that the complaint was made 

several months before the discharge. 

Nevertheless, from his findings that Hicks had complained about the 

safety jacks within a week before the discharge and that Sutherland "got mad 

on occasion" in response to Hicks' complaints, the judge concluded that "there 

is some evidence to support a finding that the firing of Hicks by Sutherland 

was based, in some part, on the safety complaints that Hicks had made." 12 

FMSHRC at 567. 

The judge went on to hold, however, that Cobra had affirmatively 

defended against Hicks' prima facia case of discrimination by proving that 

Sutherland (and Cobra) were motivated by Hicks' insubordinate swearing and 

would have discharged him for that unprotected activity alone. In arriving at 

that conclusion the judge determined that Messer and Jerry Lester, the coowners who endorsed Sutherland's firing of Hicks, were not aware of Hicks' 

safety complaints; that Superintendent Payne expressed no displeasure with 

Hicks' complaints; that Hicks did not indicate that Sutherland manifested any 

displeasure in response to his complaints regarding loose rock in the 

travelway in the days preceding the discharge; 3 that there was some evidence 

that Hicks had made "smart remarks" to Sutherland in the months prior to his 

discharge when he was asked to perform tasks; and that Hicks' discharge for 

swearing had~ precedent in that Mary Lou Ray, a member of the bolting crew, 

3 The record does not support this finding as will be discussed infra. 

527 
had been fired by Sutherland when she swore at him during an argument 

underground. 12 FMSHRC at 567-568. 

Based on these determinations of fact, the judge then concluded that 

"due to the nature of the words spoken by Hicks to Sutherland, his foreman, 

and the manner in which they were spoken, I find that a valid business reason 

existed for the firing of Hicks," and that Sutherland found Hicks "deserving 

of being fired ... for the manner in which he [Hicks] talked to him 

[Sutherland], and that he would have fired him for this action in any event." 

12 FMSHRC at 568. Having found that Cobra had established an affirmative 

defense with respect to Hicks' unprotected activity, the judge dismissed 

Hicks' complaint. 

II. Disposition of Issues 

A. Timing of Hicks' Complaints 

On review, Hicks argues essentially that substantial evidence does not 

support certain findings of fact that were material to the judge's ultimate 

holding against him. Hicks first takes issue with the judge's conclusion 

that, except for the complaint regaJ;:ding lack of safety jacks, none of the 

complaints was made in close proximity to the time of Hicks' discharge. For 

instance, the judge found that Hicks' witnesses did not corroborate Hicks' 

testimony that he had complained about loose roof in the travelway two days 

before his discharge, but Hicks notes that Mary Lou Ray testified that Hicks 

did complain about loose roof while travelling in and out of the mine and that 

such complaints occurred two or three times a week. Tr. 198. Hicks argues 

that, while Ray's testimony was not precisely corroborative, it is nonetheless 

supportive of his testimony. 

Perhaps Hicks' most significant assignment of error relates to one of 

the judge's findings with respect to Cobra's affirmative defense. At 12 

FMSHRC at 568 the judge states: 

I find that at least a week elapsed between Hicks' complaint about 

jacks and loose rock, and his being fired. It is s that 

Hicks did not indicate that Sutherland manifested any displeasure 

or anger at the complaint he (Hicks) had made about loose rock on 

May 8, 2 days (sic) before he was fired. 4 

Hicks out that he did indicate in his direct testimony that 

4 The judge's decision contains apparent inconsistencies regarding the 

timing of Hicks' complaints about loose roof in the The j appears 

to reject Hicks' contention that he made the complaint two days before his 

discharge, apparently accepting Sutherland's contention that the complaint was 

made a month before the discharge. 12 FMSHRC at 566. However, in the passage 

quoted above,:. the judge finds that "at least a week elapsed between Hicks' 

complaint about jacks and loose rock, and his being fired" but then appears to 

credit Hicks' testimony that the complaint was made two days before the 

discharge. 

528 
Sutherland manifested displeasure and anger in response to Hicks' complaint 

about loose rock: 

By Mr. Loos: 

Q. Do you remember any specific instances that you complained about 

loose roof to anyone from Cobra management? 

A. Yes, sir. I believe it was on May 8. 

Q. May 8? 

Judge Weisberger: Of what year, sir? 

The Witness: '89 

By Mr. Loos: 

Q. And to whom did you complain then? 

A. Garnett Sutherland. 

Q. And what happened? 

A. He told me to get out - he stopped. He 

trip off, told me to get out and pull it. 

Q. And then what? 

the man 

A. Then I got back in the car and went on to the section. 

But that had been about a month I had tried to get 

them to stop to pull that one specific of rock 

and he wouldn't. That morning he got mad and said, 

"well, go ahead and pull it." 

Q. Now, when you say .Mr. Sutherland got mad when you 

complained, what do you mean? Could you describe his 

reaction? 

A. 

Q. 

He just got furious. I mean, I don't 

can't really describe it. 

-- I 

How could you tell 

he say anything? 

did he act a certain way or did 

A. Yeah. He acted a certain way. I mean, he cussed and 

mumbled around there a little bit, but I don't know 

exactly what all he said. 

529 
Tr. 27-30. 

Hicks argues that the loose rock complaint and the ensuing tension 

between Hicks and Sutherland over its removal on May 8, 1989, were the· 

principal motivating factors in Hicks' subsequent discharge, and that the 

swearing episode was invoked as a pretext for the retaliatory action taken on 

May 11, 1989. 

Cobra argues that this case turns substantially on the judge's 

determinations of witness credibility, which determinations, absent clear 

error, should be sustaip.ed, on review. Cobra cites. a lack of evidence to show 

operator hostility toward Hicks for his safety complaints, a lack of 

coincidence in time between his complaints and the action taken against him, 

and a lack of evidence to show that Hicks was treated disparately with respect 

to his insubordinate swearing. In sum, Cobra argues that the judge's 

dismissal of the complaint is supported by the evidence and should not be 

reversed. 

The Commission in previous rulings has acknowledged the difficulty in 

establishing a motivational nexus between protected activity and the adverse 

action that is the subject of the c~~plaint. "Direct evidence of motivation 

is rarely encountered; more typically, the only available evidence is indirect 

... 'Intent is subjective and in many cases the discrimination can be proven 

only by the use of circumstantial evidence.'" Secretary o.b.o. Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other 

grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983 

quoting NLRB v. Melrose Processing Co., 351 F .2d 693, 698 (8th Cir. 1965). 

In Chacon, the Commission listed some of the more common circumstantial 

indicia of discriminatory intent: (1) knowledge of the protected activity; (2) 

hostility or animus towards the protected activity; (3) coincidence in time 

between the protected activity and the adverse action; and (4) disparate 

treatment of the complainant. 3 FMSHRC 2510. With respect to the first 

indicium, there is no dispute; Cobra and, in particular, Sutherland admit 

knowledge of Hicks' various safety complaints with respect to the four 

categories set forth above at pp. 2-3. With respect to the second indicium, 

the j found that Sutherland " mad on occasion, when presented with 

Hicks' complaints", 12 FMSHRC at 567. (As indicated above, however, the judge 

found, erroneously, that Hicks offered no testimony that Sutherland reacted 

with "displeasure or anger" to the specific complaint about loose rock that 

Hicks claimed he made on May 8, 1989. 12 FMSHRC at 568). 

It is with respect to the third and fourth indicia that questions arise 

in this case. The judge concluded that Hicks had satisfied the elements 

necessary to establish a prima facie case of discrimination, but only with 

respect to his complaints about the safety jacks. 12 FMSHRC at 567. The 

judge considered the other complaints too far removed in time to have 

motivated Sutherland's decision to discharge Hicks. As shown in note 4, 

supra, however, the judge's decision regarding Hicks' complaints of loose rock 

in the travelway is inconsistent. He discounts those complaints as a 

motivational factor in one instance (12 FMSHRC at 566) but later relies on 

them in conjunction with the safety jacks complaint. 

530 
The judge appears to have applied an overly narrow standard for 

recognizing proximity between the time of a complaint and the adverse action. 

In Chacon, for example, complaints ranging from four days to one and one-half 

months before the adverse action were deemed sufficiently coincidental in time 

to indicate illegal motive. 3 FMSHRC at 2511. In Stafford Construction, the 

D.C. Circuit Court of Appeals, noting that two weeks had elapsed between the 

alleged protected activity and the miner's dismissal, held that "[t]he fact 

that the Company's adverse action against [the miner] so closely followed the 

protected activity is itself evidence of an illicit motive." 732 F.2d at 960. 

also Everett v. Industrial Garnet Extractives, 6 FMSHRC 1306, 1310 (June 

1984)(ALJ Broderick), pet. for disc. rev. denied, June 23, 1984. 

The Commission applies no hard and fast criteria in determining 

coincidence in time between protected activity and subsequent adverse action 

when assessing an illegal motive. Surrounding factors and circumstances may 

influence the effect to be given to such coincidence in time. Nevertheless, 

we find that the judge erred in assessing Hicks' prima facie case by adhering 

to an overly restrictive time frame in deciding whether certain of Hicks' 

complaints were "within close proximity to his discharge." 12 FMSHRC 566-67. 

Furthermore, it was error fo:r::.the judge, in assessing retaliatory 

motives, to have considered each of the .four areas of complaint (safety jacks, 

loose rock, ventilation and riding in the scoop bucket) in isolation, 

determining in each instance how proximate in time the complaint was to the 

May 11, 1989, discharge. Under the circumstances it would have been 

appropriate to consider the complaints as a whole in order to establish 

whether a pattern of protected conduct existed that might have provided 

sufficient motivation for the May 11, 1989, discharge. 

Accordingly, we vacate the judge's determination that Hicks had 

established a prima facie case only with respect to his complaints about the 

safety jacks. On remand, the judge is directed to reconsider, in light of the 

principles expressed in Chacon and Stafford Construction, all areas of Hicks' 

complaints as motivating factors in Hicks' discharge. In the event that the 

judge continues to discount Hicks' complaints about poor ventilation, the 

judge is directed to explain the bases for that conclusion. The judge 

indicates that Hicks' hearing testimony regarding the timing of those 

complaints is not corroborated by his answers to interrogatories filed two and 

one-half months before the hearing. 12 FMSHRC at 566. without further 

elaboration, however, it is unclear whether the judge was determining the 

weight to be given Hicks' hearing testimony or whether he was making a 

credibility finding adverse to Hicks. 

B. Cobra's Affirmative Defense 

The Commission set forth the general principles for evaluating an 

operator's affirmative defense under the Pasula-Robinette test in Bradley v. 

Belva Coal Co"._, 4 FMSHRC 982 (June 1983): 

The operator must prove that it would have disciplined 

the miner anyway for the unprotected activity alone. 

Ordinarily, an operator can attempt to demonstrate 

531 
this by showing, for example, past discipline 

consistent with that meted out to the alleged 

discriminatee, the miner's unsatisfactory past work 

record, prior warnings to the miner or personnel rules 

or practices forbidding the conduct in question. Our 

function is not to pass on the wisdom or fairness of 

such asserted business justifications, but rather only 

to determine whether they are credible and, if so, 

whether they would have motivated the particular 

operator as claimed. 

4 FMSHRC at 993. 

Resolution of any factual issues according to the above principles will 

also bear on issues surrounding disparate treatment, the fourth indicium of 

discriminatory intent set forth in Chacon, supra. In Secretary o.b.o. John 

Cooley v. Ottawa Silica Corp., 6 FMSHRC 516, 520-21, the general principles of 

Bradley (set forth above) were tailored specifically to situations involving 

the use of profanity. In Cooley the Commission held that profanity is 

"opprobrious conduct" and is not protected under the Mine Act. We further 

held that when an operator asserts such unprotected conduct in its affirmative 

defense, the proper course-is to envision whether the adverse action would 

have been taken in the absence of any protected activity. The Commission then 

weighed certain factors for determining whether the opprobrious conduct, in 

and of itself, was grounds for dismissal: Had there been previous disputes 

with the miner involving profanity? Had anyone ever been discharged or 

otherwise disciplined for profanity? Was there a company policy prohibiting 

swearing, either generally or at a supervisor? Finding a negative answer to 

each question, the Commission, in Cooley, rejected the operator's affirmative 

defense. 

In this case there is corroborated testimony that swearing was a common 

occurrence in Cobra's No. 1 Mine and that some of it was directed by hourly 

employees at supervisors. Tr. 66-67, 155, 205-206, 261, 273. The judge 

found that was a common practice. He credited Sutherland's 

testimony, however, that there was a difference between swearing in a jocular 

manner and swearing in a serious manner. 12 FMSHRC at 567. 

The judge further found that Hicks' discharge for swearing was not 

pretextual because Sutherland had previously fired Ray for swearing. The 

judge's reliance upon the Ray discharge needs to be explained further. First, 

the record discloses that Ray's discharge was quickly rescinded on the 

instructions of Payne. 5 Second, the Ray incident could also be viewed as an 

aberration rather than as a precedent in support of the adverse action taken 

against Hicks. Given the context of widespread use of profanity in the No. 1 

Mine, the severe disciplinary action taken against Ray and Hicks could be 

viewed as disparate treatment insofar as swearing was neither prohibited nor, 

5 Sutherland testified that he rescinded the Ray firing because Payne 

threatened to fire Sutherland if he didn't. Tr. 264-265. 

532 
apparently, discouraged. 6 

The judge does, in fact, place emphasis on the "manner" in which the 

fateful words were spoken - seriously as opposed to jokingly -- but did not 

resolve the dispute over the context within which the exchange in question 

took place. Did Hicks make the statement while in the process of defying 

Sutherland's order to return to work, as Sutherland testified, or Did Hicks 

make the statement after he had already boarded his shuttle car and had 

started back to the face, as Hicks and Douglas Lester testified? Sutherland 

testified that both the swearing and Hicks' refusal to comply with the order 

to return to work motivated the discharge. Tr. 273. The judge did not 

resolve the conflicting testimonies of Hicks, Douglas Lester, and Sutherland 

on this factual issue and should do so on remand. 

As this Commission has often stated, it is bound by the substantial 

evidence test when an administrative law judge's decision. 30 

U.S.C. § 823(d)(2)(A)(ii)(I). This was succinctly stated in Donald F. Denu v. 

Amax Coal Co., 12 FMSHRC 602 (April 1980): 

"Substantial evidence means 'such relevant evidence as 

a reasonable mind might accept as adequate to support 

a conclusion~. Consolidation Edison Co v. NLRB, 305 

U.S. 197, 229 (1938). Nevertheless, 'substantiality 

of evidence must take into account whatever in the 

record fairly detracts from its weight.' 

Camera v. NLRB, 340 U.S. 474, 488 (1951)." 

610. 

Until the judge resolves the factual issues discussed above, we are 

unable to determine, at this , whether substantial evidence supports the 

judge's conclusion that Hicks' statement warranted in any event. 

This is particularly true in view of the testimony as to widespread use of 

profanity in Cobra's No. 1 mine, management's general tolerance of that 

, and the lack of disc meted out to Hicks for an earlier 

incident of profanity n.6, The judge is therefore directed to 

re-evaluate Cobra's affirmative defense in terms of the criteria set forth in 

.::.:=.::<:=-:::::,.1... and Cooley, and in of the discussion above. 

6 Al though the judge did not reference it, Sutherland testified to an 

earlier incident when Hicks directed an obscene comment to him. Rather than 

disciplining Hicks, Sutherland "shrugged it off. 11 Tr. 271 72. 

533 
I. Conclusion 

Accordingly, we vacate the Judge's decision and remand this matter for 

further proceedings consistent with this opinion. 

Dis ri ut Oil 

:fr. ,\.mos Hicks 

'-oute 2, Box 27 

sville, West Vi 

Kurt . Pomrenke, Esc. 

Whit , Elliott & Bundv 

.0. Box Sli.:JQ 

Bristo , \fir ni 242() 

Joyce A. Doyle, 

afiJ_ 

Arlene Holen, CommissionB?= 

L. Clair Nelson, Commissioner 

ia 24873 

Administrat ve Law Judge Avram Wei r 

Federal '.''.ine Safety S. Health Review Commission 

5203 ~ees Pike, Suite 1000 

Falls Church, Vi I1 i '"12041 

534 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 16, 1991 

MICHAEL P. DAMRON 

v. Docket No. CENT 89-131-DM 

REYNOLDS METAL COMPANY 

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

DECISION 

BY THE COMMISSION: 

This discrimination proceeding arises under the Federal Mine Safety 

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

issue presented is whether substantial evidence.of record supports a 

decision by Commission Administrative Law Judge James A. Broderick, 

dismiss a complaint of discrimination brought by Michael P. Damron 

pursuant to section l05(c)(3) of the Mine Act. In his decision, the judge 

concluded that Damron's work refusal on September 7, 1988, was not based on 

a reasonable, good faith belief that a hazard existed, and that therefore 

his discharge was not in violation of section lOS(c)(l) of the Mine Act. 

12 FMSHRC 414 (March 1990)(ALJ). 1 Damron petitioned for review asserting 

that the judge (1) misconstrued the testimony of a witness, (2) failed to 

state the basis for a credibility determination, and (3) failed to consider 

the testimony of another witness. The Commission granted Damron's petition 

for discretionary review. For the reasons that follow, we vacate the 

judge's decision and remand for further consideration. 

1 Section lOS(c)(l) provides in pertinent part: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[Act]. 

30 U.S.C. § 815(c)(l). 

535 
I. 

Background 

For more than nine years prior to September 1988, Michael P. Damron 

had been employed as a laborer at the Reynolds Metal Company ("Reynolds") 

Sherwin Plant, at which bauxite is processed into a derivative of aluminum 

called alumina. Scale, a by-product of the chemical process, is scraped 

from the alumina tanks and fed onto a conveyor belt to the ball mill, which 

crushes it into powder. The belt shuts down automatically, thus preventing 

damage to the mill, when a metallic object passes urtder a magnet affixed to 

the midpoint of the belt. The ball mill and belt are located outside and 

directly below the operating floor where the kilns are located. The 

operating floor is open and is approximately 30 feet above the belt and 

mill. 

In September 1988, Damron was working as a hydrate helper. His 

primary duties included removing metal and other foreign objects from the 

scale at the location of the magnet. He was also responsible for cleaning 

the head and tail pulleys that drive the conveyor belt, maintaining the 

general area, emptying wheelbarrows"filled with scale, making adjustments on 

the variable speed feeder,-operating the portable pump in the pit area where 

scale is fed onto the belt, and keeping the equipment in operating order. 

Tr. 292-94. 

In 1984, a shelter had been erected near the magnet. It was replaced 

by a new one about two years later. The shelters consisted of scaffolding 6 

feet high and 6 feet square, covered with 2' x 12' boards with an additional 

piece of plywood over the boards. Although Reynolds denied that the 

shelters had been constructed for safety purposes, to guard against 

materials falling from the operating floor, the judge found: 

During the period from 1984 until September 1988, on 

numerous occasions large cloth filters weighing in 

excess of 100 pounds were dropped from the 

floor to the ground below by operations 

employees. Metal rods, pieces of scaffold boards, 

bolts, tools, and pieces of corrugated metal siding 

also fell or were dropped; liquid hydrate spilled 

from the upper floor to the ball mill area. 

12 FMSHRC at 415. 

On 1, 1988, following an inspection by the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), Reynolds removed the 

shelter. The MSHA had pointed out that an electrical extension 

cord running to the shelter was not properly grounded, that the shelter area 

was dirty, and that the chair on which Damron sat was broken, but no 

citations were issued for conditions in the shelter. 12 FMSHRC at 416. 

Reynolds contends that the shed was removed because of numerous health and 

safety problems and to avoid future citations. Br. 3. Following a protest 

by Damron, a safety meeting between company and union representatives was 

536 
held on Friday, September 2, 1988, to discuss new protections at the work 

site. Reynolds agreed to erect a barrier against the handrail of the upper 

floor and to erect a metal shed in the area where the magnet was located in 

order to protect the ball mill operator. Reynolds also agreed not to 

operate the mill until the guardrail barrier was in place. 

On Monday and Tuesday, September 5 and 6, Damron, after expressing his 

concern about the lack of a shelter, was assigned to other duties and was 

not required to run the ball mill. During that time, he discussed his 

concerns about operating the belt without temporary overhead protection with 

General Supervisor Thomas Reynolds and Foreman Arlan Boatman. Supervisor 

Reynolds testified that, on Monday night, September 5, he instructed Damron 

as follows: 

Tr. 318-19. 

And I told him that, if he had any real safety 

concerns regarding the operation of the belt line, 

without that temporary shed, that he should go 

outside the building, down the tunnel, and operate 

the belt standing in that position. And that as 

metal came up the belt, he could shut the belt down 

and remove it. And without any further comment he 

left the offi:ce. 

Boatman testified that he was unaware of the safety meeting on Friday, 

September 2, but that on Monday and Tuesday, he and Damron discussed his 

concerns: 

Tr. 351 52. 

I also told Mike that ... in what he stated 

yesterday, that if he felt uneasy in standing at the 

metal detector area, that he could move to any 

position that he felt safe or would feel safer. And 

one thing that he did not say that I also told him, 

that should anything go through the detector, if for 

any reason it failed and we did get metal in the 

mill, that it would be my responsibility. 

When asked ir he had heard Reynolds' testimony giving him the option 

of working the mill from a safe distance, Damron stated: 

Tr. 460. 

A. Yes, I heard what he said. It's not true, he 

never given [sic] me any options, just to do it or 

else. 

Q. You'd disagree with his testimony? 

A. Yes, I do. 

537 
When asked if anyone, other than Boatman, had ever suggested any way 

of operating the mill other than standing by the magnet, Damron replied: 

A. No, they didn't. Nobody but Mr. Boatman. 

Tr. 460. 

Damron further testified that, when he reported for the afternoon 

shift on Wednesday, September 7, he was ordered by foreman Boatman to run 

the ball mill. Damron refused, stating that "there's still no overhead 

protection over there, it's unsafe, I don't want to do it." Tr. 231. 

Boatman thereafter suspended.Damron with intent to discharge. Tr. 358. 

When Boatman was asked whether he would have allowed Damron to work 

the mill from outside the building on Wednesday, September 7, when he 

suspended Damron, Boatman testified: 

Tr. 353. 

THE WITNESS: I would have allowed him to operate 

the mill as I had directed him to, which would have 

been under normal conditions, as we had been 

operating. And this would have. been his direction. 

MS. CUNNINGHAM: (To the witness) And had he 

objected to working or standing at the magnet, what 

about that? 

A. No. Because the situation, as far as me as a 

representative of the company, and as a supervisor, 

that if I gave him the direct order to operate the 

facility under normal conditions, standing where he 

needed to, if he needed to stand at the metal 

detector, if he needed to clean conveyor belts, tail 

pulleys or whatever, it would be the general 

operation, the regular general operation of the 

facility. 

Damron, when asked if Boatman suggested to him on Wednesday, September 

7, that he run the mill from a distance, testified: 

A. He made that suggestion on that Monday when I 

talked to him and we walked out into the area, 

not on a Wednesday. 

Q. Okay. Do you think that .... 

A. On Wednesday, there was no room for discussion. 

Q. Okay. But do you think if you'd told him that 

you'd run the Mill from outside the area that he 

538 
Tr. 251. 

was unwilling to go along with that? 

A. Well, I can't speak for Mr. Boatman, I don't 

know what he would say at that point in time. 

Q. He was simply asking you to run the Mill, 

though, wasn't he? 

A. He was directing me to run the Mill, yes. 

Q. Okay. 

A. He didn't direct me to run the Mill this way; he 

didn't direct me to run the Mill that way; 

he directed me to run the Mill. 

Two days later, the metal shed was erected at the magnet site. On 

September 12, 1988, Damron's discharge became effective. In October 1988, 

Damron filed a discrimination complaint with MSHA. On June 1, 1989, MSHA 

determined that no violation of section 105(c) of the Mine Act had occurred. 

On June 28, 1989, Damron filed his complaint with the Commission pursuant to 

section 105(c)(3) of the Mine Act. Following arbitration under the union 

contract, Damron was reinstated, without back pay, on November 21, 1989. 

Tr. 182. 

II. 

Disposition of Issues 

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 Mine Act, a complaining miner 

bears the burden of proof to establish that (1) he engaged in protected 

activity and (2) the adverse action complained of was motivated in any part 

by that activity. Secretary on behalf of Pasula v. Consolidation Coal Go., 

2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Go. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary 

on behalf of Robinette v. United Castle Coal Co., 3 FMSHRG 803, 817-18 

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

that no protected activity occurred or that the adverse action was in no 

part motivated by protected activity. If the operator cannot rebut the 

prima facie case, it nevertheless may defend affirmatively by proving that 

it also was motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected activity alone. 

Pasula, supra; Robinette, supra; Eastern Assoc. Goal Gorp. v. 

FMSHRG, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford Gonstr. Co., 

732 F.2d 954, 958 59 (D.G. Cir. 1984); Boich v. FMSHRG, 719 F.2d 194, 195-96 

(6th Cir. 1983)(specifically approving the Commission's Pasula-Robinette 

test). NLRB v. Transportation Management Gorp., 462 U.S. 393, 397-403 

(1983)(approving nearly identical test under National Labor Relations Act). 

539 
The Commission has held that a miner's refusal to perform work is 

protected activity under section 105(c)(l) of the Mine Act if it is based on 

a reasonable, good faith belief that the work involves a hazard. Pasula, 

supra, 2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 807-12; Secretary 

on behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126, 133-38 

(February 1982). See also Secretary on behalf of Cameron v. Consolidation 

Coal Co., 7 FMSHRC 319, 321-24 (March 1985), aff'd sub nom. Consolidation 

Coal Co. v. FMSHRC, 795 F.2d 364, 366-68 (4th Cir. 1986); Secretary of Labor 

v. Metric Constructors, Inc., 6 FMSHRC 226, 229-30 (1984), aff'd sub nom. 

Brock v. Metric Constructors, Inc., 766 F.2d 469 (11th Cir. 1985). If an 

operator takes an adverse action against a miner in any part because of a 

protected work refusal, a prima facie case of discrimination is established. 

lL..g_,_, Dunmire & Estle, supra, 4 FMSHRC at 132-33; Metric Constructors, 

supra, 6 FMSHRC at 229-30, aff'd, 766 F.2d at 472-73. 

The disposition of this case turns on the issue of whether Damron's 

refusal to operate the ball mill on September 7 was based on a reasonable, 

good faith belief that doing so involved a hazard. In his decision, the 

judge found that the Respondent was aware that on numerous occasions, large 

filters, rods, tracks, tools and other heavy objects had fallen or were 

dropped from the operating_floor to'the ground below. Accordingly, he 

concluded: "From the perspective of the ball mill operators, including 

Complainant, the hazard was real, and their perception of the hazard was 

reasonable." 12 FMSHRC at 420. The judge also found that Damron had 

communicated his safety concerns in the formal safety meeting held on 

September 2, 1988, and that "Respondent addressed the concerns by agreeing 

to put up a permanent barrier along the handrail of the operating floor 

above the ball mill and to erect a metal shed for the mill operator at or 

near the magnet." 12 FMSHRC at 420. As to Damron's concerns regarding the 

lack of overhead protection pending completion of the metal structure, the 

judge stated, "I find as a fact that Reynolds did tell Complainant that he 

could run the mill away from the building, 'down the tunnel.'" 12 FMSHRC at 

418. Although finding Boatman's testimony "ambiguous" on the issue of 

whether, on September 7, he would have permitted Damron to run the belt from 

a safe distance, the judge concluded: 

However, he [Boatman] did not withdraw his 

authorization given two days before that Complainant 

could have operated the ball mill away from the 

belt. Nor did Complainant testify that he [Damron] 

understood that it had been withdrawn. 

Having found that Respondent, through supervisors Reynolds and 

Boatman, had addressed Damron's reasonable fear of a safety hazard by 

permitting him to work outside the area of danger until the shed was 

erected, the judge concluded that "Damron's refusal to operate the ball mill 

on September 7, 1988, was not based on a reasonable, good faith belief that 

the work was hazardous. Respondent's action in discharging him was not in 

violation of section 105(c) of the Act." 12 FMSHRC at 421. 

540 
On review, Damron contends that there is not substantial evidence in 

the record to support the judge's finding that foreman Boatman authorized 

him on September 7, 1988, to operate the mill at a safe distance from the 

belt, in that Boatman's testimony, rather than being "ambiguous," is 

unequivocal to the effect that Damron was given no option but to operate the 

mill from the usual area. Damron further argues that the judge erred by 

failing to provide any basis for his credibility determination concerning 

the contradictory testimony of Reynolds and Damron and by failing to 

consider the testimony of another witness, Dalma Rogers. 

This Commission has frequently addressed the standard of review to be 

applied in determining whether the record contains substantial evidence to 

support a judge's findings. In Secretary v. Michael Brunson, 10 FMSHRC 594, 

598-99 (May 1988), the Commission stated: 

As we have consistently recognized, the term 

"substantial evidence" means "such relevant evidence 

as a reasonable mind might accept as adequate to 

support a conclusion." See,~. Mid-Continent 

Resources, Inc., 6 FMSHRC 1132, 1137 (May 1984) 

quoting Consolidated Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938). While we do not lightly overturn a 

judge's factual findings and credibility resolutions 

(~. Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 

1629-30 (November 1986)), neither are we bound to 

affirm such determinations if only slight or dubious 

evidence is present to support them. See, ~. 

Krispy Kreme Doughnut Gorp. v. NLRB, 732 F.2d 1288, 

1293 (6th Cir. 1984); Midwest Stock Exchange, Inc. 

v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). 

Commission Procedural Rule 65(a), 29 C.F.R. § 2700.65(a), states in 

pertinent part that a Commission judge's decision "shall be in writing and 

shall include findings of fact, conclusions of law, and the reasons or bases 

~or them, on all the material issues of fact, law or discretion presented by 

the record, and an order." (Emphasis added.) This is necessary, as the 

Commission explained in Secretary v. Anaconda Company, 3 FMSHRC 299 

(February 1981) "in order to prevent arbitrary decisions and to permit 

meaningful review." Further, in Anaconda, the Commission stated: 

Id. at 300. 

Without findings of fact and some justification for 

the conclusions reached by the judge, we cannot 

perform that function effectively. See Duane 

Smelser Roofing Co. v. Marshall, 617 F.2d 448, 449 

450 (6th Cir. 1980); ... UAW v. NLRB, 455 F.2d 1357, 

1369-1370 (D.C. Cir. 1971); Anglo-Canadian Shipping 

=-'---"=~.:;_,...-"'-""=' 310 F.2d 606, 615-617 (9th Cir. 

1962); R.W. Service Systems, Inc., 235 N.L.R.B. No. 

144~ 99 L.R.R.M. 1281, 1282 (1978). 

541 
In this case, the judge characterized as ambiguous the testimony of 

foreman Boatman on the critical issue of whether he would have permitted 

Damron to work at a safe distance from the belt on September 7, 1988. 12 

FMSHRC at 418. Notwithstanding this ambiguous testimony, the judge found 

that Boatman" ... did not withdraw his authorization given two days before 

that Complainant could have operated the ball mill away from the belt." Id. 

If Boatman's testimony is ambiguous, we find no record support for this 

crucial conclusion. Moreover, the decision.does not contain an explanation 

for the judge's apparent rejection of Damron's conflicting testimony on the 

substance of the same conversation on September 7, 1988, wherein Damron sets 

forth his understanding of Boatman's work order. Damron testified that in 

that conversation he received no indication that he had permission to work 

at a safe distance from the belt. Therefore, in accordance with Commission 

Procedural Rule 65(a), supra, and to ensure that· effective appellate review 

can be performed, we remand this matter to the judge with directions that he 

further analyze the relevant testimony and set forth the bases for his 

findings. 

We next address Damron's contention that the judge erred by failing to 

provide a basis for his credibility .. determination concerning the 

contradictory testimony .of Reynolds and Damron. In his decision, after 

setting out supervisor Reynolds testimony that he had specifically 

authorized Damron to run the mill from a safe distance and Damron's denial 

that Reynolds had ever given such permission, the judge found, without 

explanation, that Reynolds had given such authorization. 12 FMSHRC at 418. 

If the judge's finding on this issue is based upon a credibility 

determination, it should be so stated. 

As to Damron's third assignment of error, our review of the record 

convinces us that the judge did not abuse his discretion in choosing not to 

rely on the testimony of Dalma Rogers in reaching his decision. Fourteen 

witnesses testified at the hearing. It is within a judge's discretion to 

sift through the testimony presented and to base his decision on that which 

he deems to be credible, relevant and dispositive of the issues before him. 

542 
III. 

Conclusion 

On the foregoing bases, this case is remanded to the judge for further 

proceedings consistent with this opinion. 

Distribution 

R. Michael LaBelle, Esq. 

Powers & Lewis 

4201 Connecticut Ave., N.W. 

Suite 400 

Washington, D.C. 20008 

Jean W. Cunningham, Esq. 

Reynolds :':'letals Company 

P.O. Box 27003 

Richmond, Virginia 23261 

Richard V. Backley, Acting Chairman 

fo@:yl:u~ 

I 

Arlene Holen, Commissioner 

L. Clair Nelson, Commissioner 

Administrative Law Judge James A. Broderick 

Federal Hine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

543 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DAVID HATFIELD 

v. 

COLQUEST ENERGY, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

April 17, 1991 

Docket No. SE 90 122-D 

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

BY THE COMMISSION: 

Respondent Colquest Energy, Inc. ("Colquest") has filed a petition 

seeking interlocutory review of an Order issued by Commission Administrative 

Law Judge Roy J. Maurer on December 18, 1990. In that Order, the judge 

denied Colquest's motion for summary dismissal of a Complaint of 

DiscriminatiQn filed by David Hatfield with the Commission on July 11, 1990, 

pursuant to section l05(c)(3) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(c)(3)(1988), ("Mine Act" or "Act"). The Order further 

denied Colquest's motion to strike Hatfield's amended complaint filed on 

NovemQer 30, 1990. For the reasons that follow, we grant the petition, stay 

briefing, vacate the judge's order and remand for further proceedings. 

Hatfield's pro~ complaint of discrimination, as filed with the 

Commission repeats his written complaint of discrimination filed with the 

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

April 26, 1990. The Secretary of Labor. ("Secretary") determined, following 

an investigation of Hatfield's complaint, that no violation of the statute 

had occurred and declined to prosecute a discrimination complaint on his 

behalf. Hatfield then filed the subject section 105(c)(3) complaint with 

the Commission. 

In his complaint, Hatfield asserts that, as the result of an ury 

suffered while employed at Colquest's mine on November 17, 1989, he was 

unable to return to work until April 16, 1990. At that time, he was given a 

layoff slip by the company safety director, who informed him_that, under a 

company policy effective in January 1990, "anyone being off work for more 

than 30 days for any reason, would be terminated." The complaint further 

asserts that Hatfield had not been informed of this new policy prior to his 

return to work on April 16. 

Colquest subsequently filed with the judge a motion for summary 

dismissal of the complaint on the grounds that it failed to allege either 

protected activity or adverse action motivated at least in part by protected 

activity. On October 19, 1990,, the judge issued an Order to Show Cause why 

the complaint should not be dismissed for failure to state a claim for 

544 
relief under section lOS(c) of the Act. On November 1, 1990, counsel for 

the United Mine Workers of America ("UMWA") filed a response and amended 

complaint on behalf of Hatfield, alleging specific instances of protected 

activity that resulted in Hatfield's termination in violation of section 

lOS(c) of the Act. The judge denied Colquest's motion to dismiss. 

On November 13, 1990, Colquest filed motions to strike the amended 

complaint and to set aside the judge's Order of Dismissal. Colquest argued 

that the amended complaint was an untimely filing of a new discrimination 

complaint based on previously unasserted allegations of protected activity 

and that it constituted an attempt to circumvent the investigation by the 

Secretary mandated under section 105(c)(2) of the Act. Hatfield responded 

that the Commission, guided by the Federal Rules of Civil Procedure, should 

grant liberal leave to amend pleadings, particularly in the case of a pro se 

claimant. Hatfield also argued that the original complaint implicitly 

contended that the discharge resulted from protected activity and that the 

amended complaint merely provided specificity by describing examples of 

protected activity and retaliatory adverse action on the operator's part. 

As indicated above, the judge denied Colquest's motions. 

Colquest petitioned ,,.for interlocutory review of the judge's order, 

pursuant to Commission Rule 74(a). 29 C.F.R. § 2700.74(a). Hatfield 

opposed interlocutory review on the grounds that the petition did not meet 

the requirements of 29 C.F.R. § 2700.74. We grant interlocutory review 

based on Colquest's showing that the judge's ruling involves a controlling 

question of law and that immediate review may materially advance the 

disposition of this case. 

In its petition, Colquest renews its argument that the Mine Act and 

the regulations issued thereunder do not contemplate amendments of 

discrimination complaints, that the amended complaint is so substantially 

different from the complaint filed with MSHA that it does not relate back to 

the original complaint and that it represents an attempt by Hatfield to 

circumvent the Secretary's statutory role in investigating and determining 

discrimination claims in the first instance. 

The statutory scheme devised by Congress for addressing a miner's 

complaint of discrimination provides, pursuant to section 10S(c)(2) of the 

Mine Act, that upon receipt of such a complaint the Secretary "shall cause 

such investigation to be made as he deems appropriate," and that "[i]f upon 

such investigation, the Secretary determines that the provisions of this 

subsection have been violated, he shall immediately file a complaint with 

the Commission .... " 30 U.S.C. § 815(c)(2). Section 105(c)(3) of the Mine 

Act provides that, if the Secretary determines that no discriminatory 

violation has occurred, "the complainant shall have the right, within 30 

days of notice of the Secretary's determination, to file an action in his 

own behalf before the CoroJUission, charging discrimination or interference in 

violation of [section lOS(c)(l)] ." 30 U.S.C. § 815(c)(3). Thus, the 

statutory scheme provides to miners a full administrative investigation and 

evaluation of an allegation of discrimination, as well as the right to 

private action in the event that the administrative evaluation results in a 

determination that no discrimination has occurred. See Gilbert v. Sandy 

545 
Fork Mining Co .. Inc., 9 FMSHRC 1327 (August 1987), rev'd on other grounds, 

Gilbert v. FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989). 

The written discrimination complaint filed by Hatfield with MSHA is 

general in nature and alleges no specific protected activities. The present 

record contains no indication that the matters alleged in the amended 

complaint were part of the case reported to and investigated by MSHA. Nor 

is there evidence in the record that the Secretary's determination that the 

Act had not been violated was based on matters contained in the amended 

complaint. If the Secretary's determination was based upon an investigation 

that did not include consideration of the matters contained in the amended 

complaint, the statutory prerequisites for a complaint pursuant to 

§ 105(c)(3) have not been met. 

Accordingly, we vacate the judge's Order of December 18, 1990, and 

remand this matter to the judge for a determination of this issue. The 

complainant should be afforded an opportunity to demonstrate that the 

protected activities alleged in the amended complaint were part of the 

matter that was investigated by the Secretary in connection with Hatfield's 

initial discrimination complaint toMSHA. 

L. Clair Nelson, Commissioner 

546 
;>:EDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

JAMES ROGER BELL 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROBERT V. SWINDALL 

SECRETARY OF LABOR, 

MINE SAFETY A.ND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MARION EUGENE ROWLAND 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 22, 1991 

Docket No. VA 90-53 

Docket No. VA 90-54 

Docket No. VA 90 55 

DIRECTION FOR REVIEW 

On March 8, 1991, Commission Administrative Law Judge James A. 

Broderick issued an order granting respondents' motions for certification 

for interlocutory review of the j 1 s orders issued February 7, 1991 

(Robert V. Swindall, Docket No. VA 90-54) and February 8, 1991 (James Roger 

Bell and Marion Eugene Rowland, Docket Nos. VA 90-53, VA 90-55), denying 

respondents' motions for swnmary decision. Thereafter, respondents filed a 

petition for interlocutory review of the judge 1 s order of February 7, 1991 

pursuant to 29 C.F.R. § 2700.74. 1 

The orders issued on February 8, 1991, expressly reference and 

incorporate the reasons set forth in the February 7, 1991, order issued in 

Docket No. VA 90-54 (Swindall). 

547 
For the reasons stated below we grant the petitioR for interlocutory 

review and stay br 

These civil penalty proceedings were filed pursuant: to the Federal 

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

order of February 7, 1991, the judge accurately set forth the factual and 

procedural history of the pending cases and correctly applied the Commission 

precedent construing the subject Procedural Rule 29 C.F.R. § 2700.27(a)(time 

period for filing penalty proposal). Salt Lake County Road Department, 

3 FMSHRC 1714 (1981). 

Accordingly, we affirm the judge's order and remand for further 

proceedings. 

Distribution 

\{. Challen , Esq. 

:ionroe Jamison, 

Penn, Stuart, Eskr & Jones 

P.O. Box 2009 

Bristol, VA 24203 

Lisa A. Gray, 

United States Department of Labor 

Off ice of the Solicitor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

) 

/ 

, .""~~- I 

Joyce A. Doyle, Commissioner 1

/ 

() . 

/IJ;.0z~b ~ 

L. Clair Nelson, Commissioner 

Administrative Law Judge James A. Broderick 

Federal Mine Safety and Health Review Commission 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

548 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDER.AL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 11991 

STENSON BEGAY, DISCRIMINATION PROCEEDING 

Complainant 

v. 

LIGGETT INDUSTRIES, INC., 

Respondent 

Docket No. CENT 88-126-D 

DENV CD 88-09 

McKinley Mine 

DECISION UPON REMAND 

ORDER GRANTING A~TORNEY FEES ON APPEAL 

Before: Judge Maurer 

On March 12, 1991, the Commission remanded this case to me, 

passing down the instructions from the United States Court of 

Appeals for the Tenth Circuit contained in Liggett Indus .. Inc. 

v. FMSHRC,~~ F.2d ~~'No. 89-9546 (January 9, 1991), aff'g, 

11 FMSHRC 887 (May 1989) (AL.J). In its decision, the Court 

directed that I consider the issue of attorney fees due 

complainant's counsel for services rendered on the appeal of this 

case. 

Complainant has filed an application for attorney fees and 

:::osts on appeal which has been objected to generally and two 

more specifically, respondent. 

To begin with, section 105(c) (3) of the Mine Act provides in 

part that~ 

When an order is issued sustaining the complainant's 

charges under this subsection; a sum equal to the 

aggregate amount of all costs and expenses (including 

attorney's fees) as determined by the Commission to 

have been reasonably incurred by the miner 7 for, or in 

connection with, the institution and prosecution of 

such proceedings shall be assessed against the person 

committing such violation. 

The legislative history of this provision makes it clear 

that it was intended to make the complainant whole, or in other 

words, to put him in the position as nearly as possible which he 

would have been in had the discriminatory activity not taken 

place. See S. Rep. No. 95-181 at 37 (1977), reprinted in 

Legislative History of the .Federal Mine Safety and_ Health Act of 

1977, at 625 (1978). 

549 
The language of the Act, supported by the legislative 

history plainly requires the reimbursement of attorney fees 

reasonably incurred in appellate proceedings where such 

proceedings are necessary to "sustain complainant's charges." 

Furthermore, "appellate proceedings" consist of those proceedings 

subsequent to the AlJ Decision, both before the Commission and 

the U.S. Court of Appeals. See, e.g., Munsey v. FMSHRC, 701 F.2d 

976 (D.C. Cir. 1983). 

Complainant seeks an award of attorney fees for 78.1 hours 

of services performed during the period from June 2, 1989, 

through November 5, 1990, at an hourly rate of $125. He also 

seeks $897.84 for costs and expenses. Without further ado, I 

find the itemized expenses of $897.84 to be reasonable and 

reimbursement will be ordered herein. 

Turning now to the respondent's objections to the fee 

petition generally, I find them to be without merit, if not 

outright mistaken. For example, respondent makes much of a 

notion that the complainant's application date entries appear out 

of chronological sequence. But in reality they do, in fact, 

appear in chronological order beginning June 2, 1989, and ending 

November 5, 1990. 

Respondent also specifically objects to the three entries 

for work done before the Commission on June 2, 1989, and June 20 

and 21, 1989. Respondent mistakenly believes this work was done 

at or for trial and should have been included in complainant's 

request before the AlJ Decision and Order was issued. However, 

this argument overlooks the fact that my decision in this case, 

including the award of attorney fees for the trial work was 

issued on May 17, 1989. The legal work objected to was of course 

performed subsequent to that and had to do with opposing 

respondentus petition for discretionary review before the 

Commissiono This is considered appellate work and is first 

claimed hereino See 7 Munsey 7 suprao 

Respondent also objects to the 5.5 hours of legal services 

performed by complainant's counsel on August 1 and 2, 1990, 

drafting a document entitled "Cross-application for Enforcement 

of Administrative Order 18 which was subsequently filed pursuant to 

Rule 15(b) of the F.R.A.P. on August 3, 1990. Respondent states 

that it was untimely filed. I note that it is complainant 1 s 

right to do so under the rules, but I question the reasonableness 

of filing this document at that point in time with the appeal 

pending in the Court of Appeals for a year already, briefing 

completed and the oral argument just three months away. The 

Court of Appeals apparently ignored it as I can find no mention 

of it in the record other then noting that it was filed. 

Moreover, it is in large part duplicative of the complainant's 

earlier briefing. I will therefore sustain respondent's 

objection to the 5.5 hours of attorney time so expended. 

550 
Otherwise, having carefully reviewed the entire record 

including both the complainant's request for attorney fees and 

costs and the respondent's objections thereto and having found no 

cause to doubt the validity of the number of hours expended or 

with the exception noted above, the necessity or propriety of the 

work described, I will approve 72.6 hours of attorney time for 

reimbursement. Moreover, as I previously determined for the 

trial work in this case, I find the requested $125 per hour to be 

an appropriate rate of compensation. 

ORDER 

Based on my consideration of the nature of the issues 

involved, the high degree of skill with which the complainant was 

represented, the amount of time and work involved, and other 

relevant factors, it is considered that the amount of $9075 

constitutes a reasonable attorney fee on appeal and is approved. 

Furthermore, $897.84 hereby found to be a reasonable amount of 

litigation costs and expense and is likewise approved. Both are 

assessed against the respondent who is ordered to pay the same to 

complainant within 3 o_ days of this order. 

R 

f'M~ aurer 

A i iative Law Judge 

Distribution: 

Earl Mettler, ., Mettler & Lecuyer, P.c., 1st Floor, Copper 

Square, 500 Copper, NWv Albuquerque? NM 87102-3151 (Certified 

IViail 

Charles L. Fine, Esq., 0 1 CONNOR, CAVANAGH, ANDERSON, WESTOVER, 

KILLINGSWORTH & BESHEARS, 1 East Camelback Road, Suite 1100, 

Phoenix, AZ 85012-1656 (Certified Mail) 

rnl 

551 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DENVER, CO 80204 

. 

. 

DEClSION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-104 

A.C. No. 29-00096-03536 

McKinley Mine 

Appearances: Mary Witherow, Esq., Margaret Terry, Esq., Office 

of the Solicitor, U.S. Department of Labor, Dallas, 

Texas, 

Beforeg 

for Petitioner; 

Ray D. Gardnerr Esq., John Paul, Esq.F The Pittsburg & Midway Coal Mining Co., Englewood, Cplorado, 

for Respondent. 

Judge Lasher 

This is one of nine dockets which were consolidated for 

hearingp eight of which were ther fully or partially settled 

after commencement of the hearing. The settlements were approved 

from the bench on the record. 

This docket involves 10 Citations. Petitioner agrees that 

one Citation should be vacated and Respondent agrees to pay in 

Petitioner's administrative level penalty assessment for 

eight of the Citationso The settlement as to these nine Citaons--involving either payment in full of the proposed penalty 

or vacation of the citation--is reflected in the Order, infra. 

The remaining Citation, Noo 3413368 8 was fully litigated at the 

hearing in Albuquerque? New Mexico, on February 12, 1991, and my 

decision with regard thereto follows~ 

Preliminary Matters 

Based on stipu~ations CTr. 29-30, 35), there is no issue as 

to the Commission's jurisdiction to adjudicate this matter and I 

also find that Respondent at material times conducted a large 

coal mining operation (surface) at its McKinley Mine (Tr. 108), 

that it had approximately 90 mine safety violations during the 

552 
two-year period preceding the occurrence of the instant violation 

in January 1990, that its ability to continue in business will 

not be jeopardized by payment of a penalty for this violation, 

and that it proceeded in good faith after notification by MSHA of 

the subject violation to promptly abate the same. Thus, the 

remaining mandatory penalty considerations are "negligence" and 

"gravity." Further, if the "Significant and Substantial" designation is not sustained by evidence, such will also be considered 

in the factual mosaic underpinning an appropriate penalty 

determination. 

Citation No. 3413368 

The condition cited as a violation of 30 C.F.R. § 77.502 by 

MSHA electrical inspector David L. Head on January 11, 1990, is 

as follows: 

The 16/3 type s.o. Power feeder to the lights on 

top in the. back of dragline #2 was located in the 

walkway. The A.C. voltage is 300 volts to each 

light. The SeO. cable was not protected from 

mechanical damage. Dragline #1 in #2 pit. 

30 C.F .. R. § 77.,502, entitled "Electric equipment; examination, testing, and maintenance," provides: 

Electric equipment shall be frequently examined, 

tested, and properly maintained by a qualified 

person to assure safe operating conditions. 

When a potentially dangerous condition is found 

on electric equipmentu such equipment shall be 

removed from service until such condition is corrected. A record of such examination shall be 

kepL 

The issues litigated relate primarily to whether the alleged violation occurredu and if so, whether it was significant 

and substanti The testimony relating to this Citation appears 

in the transcript at pages 100 48. 

Based on the reliable and substantial evidence in the 

recordu the following findings are made~ 

lo The conditions existing on January 11, 1990, were those 

described in the Citation. Inspector Head, in his testimonyv 

described the conditions he observed as follows: 

553 
Upon going to the top of the dragline 1 and 

traveling to the back of the dragline, 2 I observed an SO-type cable laying in the walkway 

in service to a 300-watt lumination system. 

The cable on the bushing that entered into the 

lighting system had been pulled out to where 

there was no strain relief. The cable laying 

in the walkway had been damaged somewhat by 

sunlight or breakdown of the outer rubber jacket to the SO cable. <Tr. 109). 

2. Although the Inspector's testimony mentioned cable damage, the Citation itself did not specifically allege damage to 

the cable. (Tr. 117). The Inspector explained the discrepancy 

saying, "That's probably in my notes." <Tr. 117). His notes 

were not produced or introduced in corroboration, however. Respondent's electrical supervisor, Floyd Bowman, who examined the 

cable shortly after the Citation was issued (Tr. 128), denied 

that the cable was damaged. -(Tr.129). This is borne out to 

some degree by the photos which Mr. Bowman indicated showed the 

same "wires" as were there when the Citation was issued. (Tr. 

130). In all the circumstances, I am unable to conclude that 

the cable was in damaged condition on the date the citation was 

issued, particularly since such was not specifically alleged in 

the Citation. With this exception, however, the violation is. 

found to have occurred. (Tr. 109-112, 114). Since cable damage 

was a factor the inspector considered in determining gravity--and 

presumably whether the violation was significant and substantial 

--such will be taken into consideration in penalty detemination. 

3" Various employees had but occasional duties in the area 

where the violative conditions existed and they would have been 

exposed to hazard only infrequentlyc (Tro 114u 119 1 124p 131~ 

138-139)0 

l 

2 

A dragline is a piece of equipment approximately 80-100 feet 

high by 80-100 feet long by 80-100 feet wide. (Tr. 110). 

Pertinent areas of the dragline involved in this matter are 

depicted in three photos taken by Respondent's witness, Supervisory electrical engineer Floyd Bowman, one week before 

the hearing and over one year after the Citation was issued. 

(Tr. 129). See Exhibits R-6, 7, and 8. (Tr. 120-122). 

554 
4. The hazards created by the violation as above delineated 

would be electrocution, electrical shock or burn, tripping and 

falling over the side and off the top of the dragline and tripping and pulling the cable out of the enclosure where it terminated in the light fixture. {Tr. 110-111, 114). 3 

5. The hazards created by the violation contributed "a 

measure of danger to safety" as that term is employed in Secretary v. Mathies Coal Company, 6 FMSHRC 1 (January 1984). 

6. An injury from occurrence of an accident resulting from 

the hazard would be of a reasonably serious nature. 

7. It was not reasonably likely, however, that the hazard 

contributed to by the violation would result in any injury. 

a. There was no evidence that any prior incidents, accidents, or injuries had occurred as a result of the 

violative conditions. 

b. With respect to the hazard of an employee's tripping 

and falling over the side of the 80-foot high dragline, there was a waist-high railing installed in 

the subject area. (Tr. 119, 121-122). 

c. Employees did not commonly or regularly travel or 

perform work in the area. Rather, they did so infrequently. (Tr. 119, 131, 132, 138). 

d. The evidence overall establishes no more than a remote possibility that an injury might have occurred. 

8" Bas on the above findingsr it is concluded that this 

olation was not significant and substantial. 

9. The violative conditions were visible and obvious and 

the violation is found to have resulted from a moderate degree of 

negligenceo 

The "tripping over the cable~ hazard is determined to exist 

whether or not the area traveled by employees performing 

duties on the top of the dragline is designated as a 11 travelway" as contended by Petitioner or an "access" (Tr. 131) 

as described by Respondent. 

555 
10. Although not a significant and substantial violation, 

the violation is nevertheless found to be serious in view of the 

potential, however remote, for fatal or serious injuries to the 

various employees who were occasionally exposed. 

In view of the elimination of the significant and substantial classification of the violation, a penalty of $150 is found 

appropriate and is here assessed. 

ORDER 

1. Citation No. 3413368 is MODIFIED to delete the "Significant and Substantial" designation thereon and to change the 

"Gravity" designation in paragraph 10 A thereof from "Reasonably 

likely" to "Unlikely," and is otherwise AFFIRMED. 

2. Citation No. 3413370 dated January 24, 1990 is 

VACATED. 

3. Respondent {pursuant to the settlement agreement at 

hearing or as otherwise asessed hereinabove) SHALL PAY to the 

Secretary of Labor within 30 days from the issuance date of this 

decision the following penalties totaling $1,012. 

Citation No. 

3413452 

3413453 

3413455 

3413456 

341345 7 

3413458 

3413459 

3413460 

3413368 

TOTAL 

556 

AMOUNT 

$ 20 

20 

20 

371 

20 

20 

371 

20 

150 

ffi;<.:t£.d'.d'~kt ~ ( 

Michael A. Lasher, Jr. 

Administrative Law Judge 
Distribution: 

Mary Witherow, Esq., Margaret Terry, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, 

Dallas, TX 75202 (Certified Mail) 

Ray D. Gardner, Esq., John Paul, Esq., THE PITTSBURG & MIDWAY 

COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewood, CO 80111-4991 CCertif ied Mail) 

Mr. Robert Butero, International Health and Safety Representative 

for UMWA District 13, 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

ek 

557 
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. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DENVER, CO 80204 

APR 

DECISION 

1 1991 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-105 

A.C. No, 29-00096-03537 

McKinley Mine 

Appearances: Mary Witherow, Esq., Margaret Terry, Esq., Office 

of the S9licitor'; u.s.· Department of Labor, Dallas, 

Texas, for Petitioner; 

Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado, 

for Respondent. 

Before: Judge Lasher 

This is one of nine docket cases which were consolidated for 

hearing, eight of which were either fully or partially settled 

after commencement of the hearing. The settlements were approved 

from the bench on the record. 

The subject docket contains three citations. As part of the 

,:;verall settlementy Respondent agrees to pay ti oner MSHA' s 

proposed penalty ($371) in full for each of the citationsp as 

more specifically reflected in the Order belowo 

ORDER 

Respondent shall pay to the Secretary of Labor thin 30 

days from the issuance date of s decision the following 

penaltieso 

Citation Noo 

3414747 

3414748 

3414749 

TOTAL 

558 

Amount 

$ 371 

371 

371 

$1,113 

~.kq" ~ ~C:(; ,,_ _ 

Michael A. Lasher, Jr. 

Administrative Law Judge 
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. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DENVER, CO 80204 

l~ n ~P"i,· ~ "n" 1 J ... :j;} t 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-114 

A.C. No. 29-00096-03540 

McKinley Mine 

Appearances: Mary Witherow, Esq., Margaret Terry, Esq., Office 

of the Solicito,r, U.S. Department of Labor, Dallas, 

Texas, for Petitioner; 

Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado, 

for Respondent. 

Before: Judge Lasher 

This is one of nine dockets which were consolidated for 

hearing, eight of which were either fully or partially settled 

after commencement of the hearing. The settlements were approved 

from the bench on the record. 

The subject docket contains three citations. As part of the 

overall settlement~ Respondent agrees to pay Petitioner MSHA 1 s 

proposed penalty in full for each of the citationsv as more specifically ted in the Order below. 

ORDER 

Respondent shall pay to the Secretary of Labor within 30 

days from the issuance date of this decision the following 

penalties a 

Citation Noa 

3414826 

3414829 

3414832 

TOTAL 

559 

Amount 

$371 

20 

371 

$762 

;M~~~~fp 

Michael A. Lasher, Jr. 

Administrative Law Judge 
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 CMSHA), 

Petitioner 

Vo 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DENVER, CO 80204 

1. 1991 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-116 

A.C. No. 29-00096-03538 

McKinley Mine 

Appearances: Mary Witnerow, Esq., Margaret Terry, Esq., Office 

of the Solicitor, U.S. Department of Labor, Dallas, 

Texas, 

Before: 

for Petitioner; 

Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado, 

for Respondent. 

Judge Lasher 

This is one of nine dockets which were consolidated for 

hearing eight of which were either fully or partially settled 

a.fter commencement of the hearing" The settlements were approved 

rom the bench on the record" 

This docket involves eight Citations. Petitioner agrees 

that one Citation should be vacated and Respondent agrees to pay 

in full Petitionerus administrative level penalty assessment for 

seven of the Citationso 1/ The settlement as to these eight 

tations--involving either payment in full of the proposed 

penalty or vacation of the Ci tation--is refl1ected in the Order, 

infrao 

!/ As to one of these Citations, No. 3413139, the parties concur that the "Significant and Substantial" designation 

thereon should be abandoned and my Order subsequently herein 

accomplishes the vacation of this designation. 

560 
ORDER 

1. Citation No. 3413139 is MODIFIED to delete the n'Significant and Substantial" designation thereon and is otherwise 

AFFIRMED. 

2. Citation No. 3413083 is VACATED. 

3. Respondent pursuant to the settlement agreement at hearing shall pay to the Secretary of Labor within 30 days from the 

issuance date of this decision the following penalties totaling 

$1,895. 

Distribution~ 

Citation No. 

3413135 

3413140 

3413085 

3413088 

3413094 

3413137 

3413139 

TOTAL 

AMOUNT 

$ 20 

371 

371 

371 

20 

371 

371 

$1,.895 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Mary Witherow, Esq., Margaret Terry, Esq.u Office of the Solie 

tor 0 U.S. Department of Laboru 525 Griffin Street, Suite 501 0 

Dallasu TX 75202 (Certified Mail) 

Ray D. Gardner 6 Esq.v John Paul, Esq., THE PITTSBURG & MIDWAY 

COAL MINING COMPANY, 6400 South Fiddler~s Green Circle, 

woodu CO 80111-4991 (Certified Mail) 

Mr. Robert Butero, International Health and Safety Representative 

for UMWA District 13, 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

ek 

561 
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. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DENVER, CO 80204 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-117 

A.C. No. 29-00096-03539 

McKinley Mine 

Appearances: Mary Witherow, Esq., Margaret Terry, Esq., Office 

of the Solicitor, U.S. Department of Labor, Dallas, 

Texas, 

Before: 

for Petitioner; 

Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado, 

for Respondent. 

Judge Lasher 

This is one of nine dockets which were consolidated for 

hearingv eight of which were either fully or partially settled 

after commencement of the hearingo The settlements were approved 

from the bench on the record. 

This docket involves 10 Citations. Petitioner agrees that 

two Citations should be vacated and Respondent agrees to pay in 

full Petitioner 1 s administrative level penalty assessment for 

eight of the Citationso The settlement as to these 10 Citations 

--involving either payment in full of the proposed penalty or 

vacation of the Citation--is reflected in the Order, infra. 

ORDER 

lo Citations numbered 3413501 and 3413520 are VACATED. 

2. Respondent pursuant to the settlement agreement at hearing SHALL PAY to the Secretary of Labor within 30 days from 

the issuance date of this decision the following penalties totaling $2,917. 

562 
Distribution: 

Citation No. 

3413099 

3413100 

3413502 

3413504 

3413519 

3413821 

3413825 

3413503 

TOTAL 

AMOUNT 

$ 588 

371 

588 

371 

20 

20 

371 

588 

$2,917 

~ . _,. "/ 4, ~f' -"' /J/f ' 0· / ,, J '//-:r,.;6..?£ · 'W a<,,% , Michael A. Lasher, Jr. 

Administrative Law Judge 

Mary Witherowu Esqov i.\'.largaret Terryv Esq.u Office the Solicitor UoS. Department of Labore 525 Griffin Street, Suite 50lu 

Dallasu TX 75202 (Certified Mail) 

Ray D. Gardner, Esq., John Paul, Esq., THE PITTSBURG & MIDWAY 

COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewoodu CO 80111-4991 (Certified Mail) 

Mr. Robert Butera, International Health and Safety Representative 

for UMWA District 13u 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

ek 

563 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

~PR 11991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PITTSBURG AND MIDWAY COAL 

MINING COMPANY, 

Respondent 

DECISION 

Docket No. CENT 90-120 · 

A.C. No. 29-00096-03541 

McKinley Mine 

Appearances: Mary Witherow, Esq., Margaret Terry, Esq., Office 

of the Solicitor, U.S. Department of Labor, Dallas, 

Texas, 

Before: 

for Petitioner; 

Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado, 

for Respondent. 

Judge Lasher 

This is one of nine dockets which were consolidated for 

hearingv eight of which were either fully or partially settled 

after commencement of the hearingo The settlements were approved 

from the bench on the record" 

This docket involves two Section 104(d)Cl) ("Unwarrantable 

Failure") Withdrawal Orders" The parties, as to Order No. 

3414833, agree that the "Unwarrantable Failure" classification 

should be deleted and the nature and issuance authority of this 

enforcement document changed from a Section 104(d)(l) order to a 

Section 104(a) Citation with the "Significant and Substantial" 

designation to remain. In view of such modif icationf the penalty 

is to be reduced from $1,100 to $371. 

As to Order No. 3414834f such is to be affirmed and Respondent agrees to pay in full MSHA's administrative level assessment 

of $1,100. 

The two penalties agreed to and above indicated are here 

assessed. 

564 
ORDER 

1. Withdrawal Order No. 3414833 is MODIFIED to change 

its nature and issuance authority from a Section 104(d)(l) "Unwarrantable Failure" Order to a Section 104(a) Citation with the 

"Significant and Substantial" designation to remain. 

2. Withdrawal Order No. 3414834 is AFFIRMED. 

3. Respondent SHALL PAY to the Secretary of Labor within 30 days from the issuance date of this decision the penalties 

hereinabove assessed in the total sum of $1,471.00 

~~;.&/£ 4 ~/k-<:, I!·-· 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Mary Witherowu Esq"u Margaret Terry, Esq., Office of the Solicitoru U.S. Department of Laboru 525 Griffin Streetv Suite 50lv 

Dallasu TX 75202 (Certifi Mail) 

Ray D. Gardner, Esq., John Paul, Esq., THE PITTSBURG & MIDWAY 

COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewood, CO 80111-4991 (Certified Mail) 

Mr" Robert Butero, International Health and Safety Representative 

for UMWA District 13u 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

ek 

565 
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. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DENVER, CO 80204 

~PR 11991 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-128 

A.C. No. 29-00096-03543 

McKinley Mine 

Appearances: Mary Witherow, Esq., Margaret Terry, Esq., Office 

of the Solicitor, U.S. Department of Labor, Dallas, 

Texas, 

Before: 

for Petitioner; 

Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado, 

for Respondent. 

Judge Lasher 

This is one of nine dockets which were consolidated for 

ingv eight of which were either fully or partially settled 

ter commencement of the hearingo The settlements were approved 

from the bench on the recordo 

This docket involves three Section 104(d)(l) Withdrawal 

Orders. As to Order No. 3413365, the parties agree that the 

"Unwarrantable Failure 11 character of the Order should be deleted 

and the nature and issuance authority of this document changed 

from a Section 104(d)(l) order to a Section 104(a) Citation with 

the 11 Signif icant and Substantial 11 designation to remain. In view 

of such modification, the penalty is to be reduced to $371. 

As to Order No. 3413371, such is to be modified from a Section 104(d)(l) Order to a Section 104(d){l) Citation and Respondent agrees to pay MSHA's administrative level of $1350 in full. 

As to Order No. 3414745, there are no modifications and 

Respondent agrees to pay Petitioner MSHA's administrative level 

penalty of $1600 in full. 

The three penalties agreed to and above indicated are here 

assessed. 

566 
ORDER 

1. Withdrawal Order No. 3413365 is MODIFIED to change 

its nature and issuance authority from a Section 104(d)(l) "Unwarrantable Failure" Order to a Section 104(a) Citation with the 

"Significant and Substantial" designation to remain. 

2. Withdrawal Order No. 3413371 is MODIFIED to change 

its nature from a Section 104(d)(l) Order to a Section 104Cd}(l) 

Citation. 

3. Respondent SHALL PAY to the Secretary of Labor within 30 days from the issuance date of this decision the penalties 

hereinabove assessed in the total sum of $3321. 

Distribution: 

'l~~ea ,~&£/~~- Michael A. Lasher, Jr. 

Administrative Law Judge 

Mary Witherow, Esq., Margaret Terry, Esq., Office of the Solicitorv UoSo Department of Laboru 525 Griffin Street, Suite 501, 

lasg TX 75202 {Certified Mail) 

Ray Do Gardner, Esqov John Paul, Esq., THE PITTSBURG & MIDWAY 

COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewood, CO 80111-4991 (Certified Mail) 

Mro Robert Buterou International Health and Safety Representative 

for UMWA District 13u 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

ek 

567 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

APR 1 i991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

Docket No. CENT 90-131 

A.C. No. 29-00095-03557 

v. York Canyon Mine 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DECISION 

Appearances: Mary Witherow, Esq., Margaret Terry, Esq., Office 

of the Solicitor, U.S. Department of Labor, Dallas, 

Texas, 

for Petitioner; 

Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Colorado, 

for Respondent. 

Before: Judge Lasher 

This is one of nine dockets which were consolidated for 

hearingu eight of which were either fully or partially settled 

after commencement of the hearingo The settlements were approved 

from the bench on the recordo 

The only Citation involved in this 

not settled, but was fully litigated at 

queu New Mexico 8 on February 12, 1990. 

represented by counsel at this hearingo 

docket, No. 3077050, was 

a hearing 1 in AlbuquerBoth parties were well 

Midway of hearing Respondent conceded the occurrence of the 

violation chargedu narrowing the issues to whether the violation 

was u•signif icant and Substantial" as charged by the Inspector u 

and the appropriate amount of penaltyo 

Based on stipulations {Tr. 29-30, 35), there is no issue as 

to the Commission's jurisdiction to adjudicate this matter. 

Based thereon, I also find that Respondent at material times conducted a large coal mining operation {both surface and underground) at its York Canyon Mine, that it had approximately 90 

1 Tr. 44 

568 
mine safety violations during the two-year period preceding the 

occurrence of the instant violation in January 1990, that its 

ability to continue will not be jeopardized by payment of a 

penalty for this violation, and that it proceeded in good faith 

after notification by MSHA of the subject violation to promptly 

abate the same. Thus, the remaining mandatory penalty considerations are "negligence" and "gravity." Further, if the "Significant and Substantial" designation is not sustained by the evidence, such will also be considered in the factual mosaic underpinning an appropriate penalty determination. 

Based on the preponderant reliable and substantial evidence 

of record, I make the following findings: 

1. Citation No. 3077050 was issued on February 8, 1990, 

by MSHA Inspector Melvin H. Shively CTr. 42-45) charging a violation of 30 C.F.R. § 77.400Cc) 2 as follows: 

The guard at the tail.roller for the coal collecting belt main floor coal preparation plant was not 

extended a distance sufficient to prevent a person 

from coming in contact, in that the guard provided 

was extended only 20 inch(es) and would allow a 

person room to reach behind the guard. 

2. The violation cited, such having been conceded by 

Respondent (Tr. 82-83), is found to have occurred. 

3. The violation was not "Significant and Substantial." 

DISCUSSION 

A violation is properly designated as being of a significant 

and substantial nature if 0 based on the particular facts surrounding the violation, there exists a reasonable likelihood that 

the hazard contributed to will result in an injury or illness of 

2 30 C.F.Ro § 77o400(c) provides: 

Guards at conveyor-drive, conveyor-head, and 

conveyor-tail pulleys shall extend a distance 

sufficient to prevent a person from reaching behind the guard and becoming caught between the 

belt and the pulley. 

569 
a reasonably serious nature. Cement Division, National Gypsum, 

3 FMSHRC 822, 825 (April 1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984). The four essential elements necessary to sustain 

a significant finding as stated in Mathies are: (1) the underlying violation of a mandatory standard; (2) a discrete safety hazard, i.e., a measure of danger to safety contributed to by the 

violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a' reasonable likelihood 

that the injury in question will be of a reasonably serious 

nature. 

Here, the first requirements has been conceded. The record 

is also quite clear that, because of the inadequacy of the guard, 

a hazard existed, in that a person could become "caught" in a 

pinchpoint (Tr. 45-48, 52, 60-61, 64, 77) because of the "exposure" (Tr. 46, 51, 91) to the moving machine part, the tailroller 

(Tr. 45, 46, 47, 55, 60). This, as the record establishes, constitutes a safety hazard. CT~. 48, 49, 60-61). 

The injury, should a person have come into contact with the 

pinchpoint, would have been of "a reasonably serious nature," 

i.e., loss of a hand or arm. (Tr. 48, 49, 50, 51). 3 

The question remains, however, whether there was "a reasonable likelihood" that the hazard contributed to by the violation 

would result in an injury. I find that there was not and thus 

that MSHA did not sustain its burden of meeting the four-prong 

Mathies "significant and substantial" test. 

The Petitioner's witness at first indicated that the guard's 

insufficient extension was such that a person "could" become 

caught (Tr. 45) and that it did riot prevent a person "from reaching behind the guard and becoming caught, for whatever reason.~ 

(Tr. 46). And again, he viewed the condition as such that it allowed a person "the opportunity to reach in there, for whatever 

reason." (Tr. 47, 48). The Inspector's opinions as to likelihood were not convincing. The following colloquy is 

illustrativeg 

Q. Do you have an opinion ••• as to the possibility that an employee 000 could be injured if the condition you described 

is not corrected? 

3 It is concluded at this juncture that elements "l," "2," and 

"4" of Mathies, supra, have been met by MSHA. 

570 
A. I don't have an opinion, but if it's not corrected, the hazard is there, and for whatever reason, that person could get 

into it. (Tr. 49). 

The Inspector was next asked to "rate" the likelihood of injury occurring. His response again does not fulfill MSHA's burden on the issue: "It is real likely that if it is not corrected, the potential is there." (Emphasis added). While the Inspector did here express a specific opinion on the issue using 

the words 11 reasonably likely," the mere use of this statutory 

phrase is not an open sesame for unlocking the door to a significant and substantial finding. When so used without supporting 

rationale, or as here with a simultaneous invocation of remoteness, it constitutes at best no more than the articulation of the 

ultimate legal conclusion urged to be drawn. 

It appears that a person would actually have to reach around 

the guard to become exposed to being caught in the pinchpoint. 

CTr. 46-48, 60, 61). The substantial evidence also supports the 

conclusion that it was not likely that employees would come into 

contact with the pinchpoint while the belt was running. (Tr. 58, 

62, 84-88, 91, 92, 97). The "Significant and Substantial" classification of the violation will be stricken. 

In view of the fact that a hazard did exist which, had it 

come to fruition, would have caused serious injuries, I find this 

to be a serious violation (Tr. 48, 49, 54-57, 60, 63} even though 

not a "significant and substantial" violation as that phrase is 

construed in mine safety precedent. 

The Inspector 0 s finding of a "moderate" degree of negligence 

on the part of Respondent was not challenged, and in view of the 

fact that this was a visible and obvious violative conditionv 

such finding is found warranted. 

A penalty of $40 is found appropriate and is here assessed. 

ORDER 

lo Citation Noc 3077050 is MODIFIED to delete the 

•significant and Substantial" designation thereon and to change 

paragraph 10 A thereof pertaining to "Gravity11 from 11Reasonably 

Likely" to "Unlikely." 
2. Respondent SHALL PAY to the Secretary of Labor, 

within 30 days from the issuance date of this decision, the sum 

of $40 as and for the civil penalty above assessed. 

"i~ .. .t! ~ ~~/ fi . 'Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Mary Witherow, Esq., Margaret,Terry, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, 

Dallas, TX 75202 (Certified Mail) 

Ray D. Gardner, Esq., John Paul, Esq., THE PITTSBURG & MIDWAY 

COAL MINING COMPANY, 6400 South Fiddler's Green Circle, Englewood, co 80111-4991 (Certified Mail) 

Mr. Robert Butero, International Health and Safety Representative 

for UMWA District 13, 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

ek 

572 
FEDERAL MINE SAFETY AND HEALTH 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. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DENVER, CO 80204 

APR t 1991 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-53 

A.C. No. 29-00224-03556 

Cimarron Mine 

Appearances: Mary Witherow, Esq., Margaret Terry, Esq., Office 

of the Solicitor, U.S. Department of Labor, Dallas, 

Texas, 

Before: 

for Petitioner; 

Ray D. Gardner, Esq., John Paul, Esq., The Pittsburg & Midway Coal Mining Co., Englewood, Coiorado, 

for Respondent. 

Judge Lasher 

This is one of nine cases which were consolidated for hearing, eight of which were either fully or partially settled after 

commencement of the hearingo The settlements were approved from 

the bench on the recordo 

The subject docket involves one Section 104(a) Citation, No. 

29307770 On the basis of evidentiary considerationsv the Petit.ioner's motion t.o withdraw its prosecution was granted on the 

record with the understanding that this Citation would be ordered 

vacated. Such determination is here confirmed. 

ORDER 

Citation No. 2930777 is VACATED. 

~~pt;~~t)t Michael A. Lasher, Jr. 

Administrative Law Judge 

573 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF. ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 11991 

ROCHESTER & PITTSBURGH COAL CONTEST PROCEEDINGS 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respongent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

Respondent 

Docket No. PENN 88-284-R 

Order No. 2888902; 7/14/88 

Docket No. PENN 88-285-R 

Order No. 2888903; 7/14/88 

Greenwich Collieries 

No. 2 Mine 

Mine ID 36-02404 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-72 

A.C. No. 36-02404-03740 

Greenwich Collieries 

No. 2 Mine 

DECISION UPON REMAND 

Before~ Judge Maurer 

These cases are before me upon remand by the Commission to 

reinstate the two originally issued section 104(d) (2) withdrawal 

orders that I previously modified to section l04(a) citations and 

to reconsider an appropriate civil penalty in light of that fact. 

In my original decision, reported at 11 FMSHRC 1978 (October 

1989) (ALJ) r I found as a fact that the required examinations 

were not made and affirmed ·the two cited S&S violations of 30 

C.F.R. § 75.305, but deleted the unwarrantable failure findings 

based on my holding that the intentional misconduct of the 

responsible employee, a rank-and-file miner, was not imputable to 

the mine operator. The Commission has reversed me on that point 

of law, holding that although he was a rank-and-file miner, he 

was the agent of the operator for the purpose of conducting the 

statutorily required examinations. And his failure to accomplish 

them, even though this was intentional wrongdoing on his part, is 

imputable to the operator for unwarrantable failure purposes, as 

well as for negligence findings pertinent to the assessment of 

civil penalties in these cases. 

574 
Accordingly, considering the entire record made in these 

cases, including the Commission's Decision of February 5, 1991, 

and taking into account the requirements of section llO(i) of the 

Act, I conclude and find that a civil penalty assessment of $1100 

for each of the two violations found herein is appropriate. 

ORDER 

It is ORDERED that Order Nos. 2888902 and 2888903 

(previously modified to § 104(a) citations in error) ARE 

AFFIRMED. 

It is further ORDERED that the operator pay $2200 within 30 

days from the date of this decision. 

Distribution: 

Joseph A. Yuhas, Esq., Greenwich Collieries, P.O. Box 367, 

Ebensburg, PA 15931 (Cer~ified Mail) 

Paul D. Inglesby, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market St., Room 14480, Philadelphia, PA 19104 

(Certified Mail) 

ml 

575 
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. 

BEECH FORK PROCESSING, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-398 

A.C. No. 15-16162-03531 

Mine No. 1 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor for the Secretary of Labor 

(Secretary); Ted McGinnis, Vice President, Beech 

Fork Processing, Inc., for Respondent (Beech Fork). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for thirteen alleged 

violations of mandatory health and safety standards at the 

subject mine. Pursuant to notice the case was called for hearing 

in Prestonsburg, Kentucky, on February 12, 1991. Kellis Fields 

and Thomas Goodman, both Federal coal mine inspectors, testified 

on behalf of the Secretary. Ted McGinnis testified on behalf of 

Beech Fork. The parties waived their right to file post-hearing 

briefs, Based on the entire record and the contentions of the 

parties, I make the following decision. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

I 

PRELIMINARY FINDINGS 

Beech Fork produces approximately 2,000,000 tons of coal 

annually, approximately 1,000,000 of which is produced at the 

subject mine. It employs approximately 100 persons. The subject 

mine had a history of 188 paid violations during the 24 month 

period prior to the violations involved in this proceeding. Five 

were violations of 30 C.F.R. § 75.400; seven are violations of 

§ 75.llOOi fourteen are violations of § 77.400. Beech Fork is a 

medium sized operator. Its history of prior violations is not 

such that penalties otherwise appropriate should be increased 

576 
because of it. Ted McGinnis testified that Beech Fork which 

began operation in 1985 has lost money each year. He testified 

that it suffered a financial loss during 1990, but no 

documentation was offered to show Beech Fork's financial 

situation. The evidence does not establish that penalties which 

may be assessed in this proceeding will have any effect on its 

ability to continue in business. The Secretary has stipulated 

that in the case of each violation involved herein, Beech Fork 

demonstrated good faith in attempting to achieve rapid compliance 

after notification of the violations. 

The subject mine was from 9 feet to 11 feet high. It is 

generally dry from October to January or February and generally 

wet or moist in the spring. Inspector Fields testified that the 

No. 1 mine was a ''good looking operation." He stated that he 

always received good cooperation from mine management. The mine 

has a large rock content; from 50 percent to 60 percent of its 

mined product is rejected as rock. 

II 

ACCUMULATIONS 

CITATION 3364810 

On April 12, 1990, Federal Coal Mine Inspector Kellis Fields 

issued a section 104(a) citation alleging a violation of 30 

C.F.R. § 75.400 because of an accumulation of float coal dust 

inside a belt control box. 30 C.F.R. § 75.400 provides that coal 

dust including float coal dust deposited on rock dusted surfaces 

and loose coal shall not be permitted to accumulate in active 

workings or on electric equipment therein. The control box 

received 440 volt ac powerr There were electrical connections 

inside the box including contactors and breakers. The evidence 

of the accumulations is uncontradicted. It posed a hazard of 

ignition or explosion, which could result in fire and smoke in 

the entry. Miners travel in the entry and it was adjacent to a 

secondary escapeway. I conclude that the violation charged is 

established. The dampness of the area reduces the hazard 

somewhatv but float coal dust can burn on water. The hazard is 

also reduced because of the large rock component in the mined 

product, thus reducing the combustibility of the dust. 

Nevertheless, I conclude that the violation was serious. 

A violation is properly designated as significant and 

substantial if it is established that the hazard contributed to 

will be reasonably likely to result in injury to a miner. United 

States Steel Mining Company, 7 FMSHRC 1125 (1985). The hazard 

here is an ignition or explosion. Float coal dust is highly 

combustible and, in the presence of an ignition source, an 

ignition or explosion is reasonably likely to occur and to cause 

577 
serious injuries. Therefore, I conclude that the violation was 

properly designated as significant and substantial. 

Based on the criteria in section llO(i) of the Act, I 

conclude the $250 is an appropriate penalty. 

CITATION 3365506 

on May 8, 1990, Inspector Fields issued a section 104(a} 

citation alleging a violation of 30 C.F.R. § 77.202 because of an 

accumulation of loose fine coal and coal dust, including float 

dust on the first floor of 'the preparation plant. The 

accumulation ranged from 1 inch to 4 inches deep. Sources of 

ignition present included belt rollers and conveyors which could 

become stuck or frozen and result in friction, and other belt 

drives and motors in the prep plant which could overheat or "go 

to ground. 11 The violation is established by the evidence. As 

was the case with respect to citation 3364810, supra, I conclude 

that an accumulation of float coal dust in the presence of 

ignition sources is very hazardous and reasonably likely to 

result in injury. I conclude_that the violation was properly 

designated as significant and substantial, and that an 

appropriate penalty for the violation is $225. 

III 

FIRE SUPPRESSION SYSTEMS 

CITATION 3364811 

On April 12, 1990, Inspector Fields issued a section 104(a) 

citation alleging a violation of 30 C.F.R. § 75.1100-3 because 

the deluge fire suppression system on the belt line was 

inoperative. The light and alarm were working, but water did not 

ow through the system. The standard requires that all 

firefighting equipment shall be maintained in a usable and 

operative condition. That the fire suppression system cited here 

was not maintained in an operative and usable condition was not 

contradicted. A violation was established. The hazard to which 

this violation contributes is fire and smoke which could travel 

inby from the belt conveyor to the section. A fire could result 

from stuck rollers, friction, or coal spillage including float 

coal dust. The inspector testified that these are common 

occurrences in coal mines. However 1 there is no evidence of any 

such conditions in the area of the cited violation. The evidence 

does not establish that the hazard contributed to is reasonably 

likely to result in serious injury. The citation was not 

properly designated as significant and substantial. See 

States Steel Mining Company, supra. However, the violation was 

serious and resulted from Beech Fork's negligence. I conclude 

that an appropriate penalty for the violation is $150. 

578 
CITATION 3364813 

On April 12, 1990, Inspector Fields issued a section 104(a) 

citation alleging a violation of 30 C.F.R. § 75.1101-2 because 

the deluge type fire suppression system for the 3A belt conveyor 

drive was inadequate in that it had only 24 feet of branch lines, 

whereas 50 feet is required. The evidence establishes the 

violation. It was not serious, and unlikely to result in injury. 

Twenty dollars ($20) is an appropriate penalty for the violation. 

CITATION 3364621 

On April 16, 1990, Inspector Fields issued a section 104(a) 

citation charging a violation of 30 C.F.R~ § 75.1100-3 because 

the dry chemical type fire suppression system on a shuttle car 

was inoperative. The hoses going to the tank were broken off. 

The condition would be obvious to anyone checking the equipment. 

The traction motor on the shuttle car has electrical components 

and the cable going back to the power center carries 440 volt ac 

power. If the traction motor shorted out and ignited 

accumulations of oil; grease or coal dust, or a cut in cable 

caused a spark, a fire could result, which could cause smoke 

inhalation injuries to miners on the section. However, there is 

no evidence of any oil, grease or coal dust, and no evidence of 

any electrical problems or defects in the motor or cable. 

Therefore, the evidence fails to show that the hazard contributed 

to was reasonably likely to result in injuries to miners. The 

citation was not properly designated as significant and 

substantial. The violation was serious, however, and resulted 

from Beech Fork's negligence. I conclude that an appropriate 

penalty is $150. 

IV 

GUARDING VIOLATIONS 

CITATION 3364812 

On April 12, 1990, Inspector Fields issued a section 104(a) 

citation alleging a violation of 30 C.F.R. § 75.1722 because a 

belt conveyor drive was not adequately guarded. The guard did 

not extend to the discharge roller. The roller, 1-1/2 inches to 

2 inches in diameter, was located in a position where a miner 

could reach in and be caught between the belt and the roller. 

Respondent does not deny that the conveyor drive was inadequately 

guarded. It asserts that many of the conditions cited as 

guarding violations were accepted by prior inspectors. This is 

not a defense. The United States Court of Appeals stated in 

Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 

(10th Cir. 1984): 

579 
o • • as a general rule those who deal with the 

Government are expected to know the law and may not 

rely on the conduct of government agents contrary to 

law . • . 

* * * 

Particularly where mandatory safety standards are 

concerned, a mine operator must be charged with 

knowledge of the Act's provisions and has a duty to 

comply with those provisions. 

Injuries commonly result from miners getting hand, arm or 

clothing caught in unguarded rollers. The guarding violation 

cited here was reasonably likely to result in a serious injury. 

It was properly designated .significant and substantial. It was 

serious and resulted from Beech Fork's negligence. I conclude 

that an appropriate penalty based on the criteria in section 

llO(i) of the Act is $300. 

CITATION 3364814 

On April 12, 1990, Inspector Fields issued a section 104(a) 

citation alleging a violation of 30 C.F.R. § 75.1722 because a 

guard at the No. 3A belt conveyor drive was not adequate in that 

it did not extend out far enough to prevent a miner from reaching 

in and becoming caught between the belt and the discharge roll~r. 

The evidence establishes that the cited violation existed. The 

violation is similar to that charged in Citation 3364812. It was 

properly designated as significant and substantial in that the 

hazard contributed to was likely to result in serious injury. 

Based on the criteria in section llO(i) of the Act, I conclude 

that $300 is an appropriate penalty for the violation. 

CITATION 3365508 

On May 8, 1990, Inspector Fields issued a section 104(a) 

citation charging a violation of 30 C.F.R. § 77.400 because a 

guard was not provided for 'the discharge roller on the recovery 

belt. No guard had ever been provided at this point. The roller 

was next to a confined walkway and is required to be examined 

every day. A guarding violation is likely to result in a miner 

getting his/her hand, arm or clothing caught on moving machinery 

and suffering serious injury. The violation was established, and 

was properly designated as significant and substantial. The 

violation was obvious, and Beech Fork's n~gligence is high. An 

appropriate penalty for the violation under the criteria in 

section llO(i) is $325. 

580 
CITATION 3365509 

On May 8, 1990, Inspector Fields issued a section 104(a) 

citation alleging a violation of 30 C.F.R. § 77.400 because of an 

inadequate guard at the tail roller for the stacker belt. The 

guard did not extend out far enough to prevent a miner from 

reaching in to a pinch point. The pinch point opening was from 

12 inches to 14 inches. A serious violation was established. It 

was significant and substantial. A penalty of $300 is 

appropriate. 

CITATION 3365511 

On May 8, 1990, Inspector Fields issued a section 104(a) 

citation alleging a violation of 30 C.F.R. § 77.400 because a 

hole had been cut in the center of a guard on an air compressor 

pulley exposing the pulley to a miner's hand. The hole had 

apparently been cut in the guard to enable a miner to grease the 

pulley. Respondent should h~ve been aware of it. The violation 

is established; it was significant and substantial since an 

injury was likely to result. A penalty of $250 is appropriate. 

v 

OTHER VIOLATIONS 

CITATION 3365510 

On Mays, 1990, Inspector Fields issued a section 104(a) 

citation charging a violation of 30 C.F.R. § 77.205 because of 

stumbling hazards on the concrete floors and walkways throughout 

the shop area of the preparation plant. The hazards included 

engine partsg motor blocks 1 electrical cords, and oil and grease 

covered sweeping compound. Maintenance workers and foremen 

travel regularly in the area. The same violation had previously 

been cited in the same area. The violation is established by the 

preponderance of the evidence. It was reasonably likely to 

result injuryo Therefore it was properly designated as 

significant and substantial. Two hundred dollars ($200) is an 

appropriate penalty. 

CITATION 3365512 

On May 8 1 1990 1 Inspector Fields issued a section 104(a) 

citation alleging a violation of 30 C.F.R. § 77.410 because of an 

inoperative back up alarm on a water truck which operated on 

haulage roadways to keep down the dust. The truck was a Mack 

coal truck on which a water tank had been installed. It had 10 

wheels, was 7 to 8 feet wide and the driver had blind spots to 

his rear. There were other trucks in the area, and miners 

frequently worked or walked on and near the roadway. The water 

truck was operated 3 or 4 times per day. It had an alarm but it 

581 
was inoperative when the inspector tested it. A violation was 

established. Because many people were in the area, the violation 

was reasonably likely to result in injury and therefore was 

properly designated significant and substantial. I conclude that 

$200 is an appropriate penqlty. 

CITATION 3365407 

On June 6, 1990, Federal Coal Mine Inspector Thomas E. 

Goodman issued a section 104(a) citation for a violation of 30 

C.F.R. § 77.1710(d) because two employees working under a 

highwall installing a canopy were not wearing hard hats. The 

standard requires that hard hats be worn where falling objects 

may create a hazard. Cracks and loose rock were present in the 

highwall and presented a hazard of falling objects. The 

violation was established. A roof fall from the same highwall 

had occurred on May 18, 1990, entrapping and injuring 2 miners 

who were working in a portal under a canopy. The violation cited 

here was likely to result in serious injuries to the two miners. 

It was properly designated aa~ignificant and substantial. Two 

hundred dollars ($200} is an appropriate penalty for the 

violation. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citations 3364810, 3365506, 3364812, 3364814, 3365508, 

3365509, 3365511, 3365510, 3365512 and 3365407 are AFFIRMED as 

issued included the designation in each citation of a significant 

and substantial violation. 

2o Citation 3364813 is AFFIRMED. 

3o Citations 3364811 and 3364621 are MODIFIED to remove the 

designation of a significant and substantial violation and, as 

modified, are AFFIRMED. 

4o Respondent shall, within 30 days of the date of this 

dee ion pay the following civil penalties for the violations 

found herein~ 

CITATION 30 CFR STANDARD AMOUNT 

3364810 75.400 $ 250 

3365506 77.202 225 

3364811 75.1100-3 150 

3364813 75.1100-2 20 

3364621 75.1100-3 150 

3364812 75.1722 300 

3364814 75.1722 300 

582 
3365508 

3365509 

3365511 

3365510 

3365512 

3365407 

Distribution: 

77.400 

77.400 

77.400 

77.202 

77.410 

77.1710(d) 

325 

300 

250 

200 

200 

200 

$2870 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Ted McGinnis, Vice President, Beech Fork Processing, Inc., P.O. 

Box 190, Lovely, KY 41231 (Certified Mail) 

slk 

58 3 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF· ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 3 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 90-403 

Petitioner A.C. No. 15-14492-03570 

v. 

PYRO MINING COMPANY, 

Respondent 

Docket No. KENT 90-426 

A.C. No. 15-14492-03571 

Baker Mine 

Docket No. KENT 90-404 

A.C. No. 15-13920-03675 

Docket No. KENT 90-424 

A. C. No. 15-13920-03677 

Docket No. KENT 90-425 

A. C. No. 15-13920-03678 

No. 9 Wheatcroft Mine 

DECISION 

Appearances~ w. F. Taylor, Esq., U.S. Department of Laborv 

Office of the Solicitor, Nashville 1 Tennessee, 

for Petitioner~ 

William Craft, Safety Consultant, Madisonville, 

Kentucky, for Respondent. 

Before~ Judge Melick 

These cases are before me upon petitions for civil penalties 

filed by the Secretary of Labor pursuant to Section 105(d) of the 

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

§ 801 seq. / the "Act, iu in which the Secretary has proposed 

civil penalties for alleged violations by Pyro Mining Company 

(Pyre) of regulatory standards. The general issue before me is 

whether Pyro committed the violations as alleged and, if so, the 

amount of civil penalty to be assessed. 

Docket No. KENT 90-403 

At hearings the parties submitted a proposal for settlement 

of the two citations at issue in this case in the amount of 

$156 -- a reduction in penalty of $78. The motion was granted at 

584 
hearing on the basis of the Secretary's representations 

supplementing the pleadings in the case. Under the circumstances 

the proposal for settlement is approved and the corresponding 

penalty will be incorporated in the order following this 

decision. 

Docket No. KENT 90-404 

Citation No. 3420686 was also the subject of a motion for 

settlement at hearing in which the operator agreed to pay the 

proposed penalty of $241 in full. This motion was also granted 

at hearing based on the representation submitted. Accordingly 

this motion for settlement is also approved and the corresponding 

penalty will be incorported in the order following this decision. 

Citation No. 3420699 alleges a "significant and substantial" 

violation of Pyro's roof control plan under the standard at 30 

C.F.R. § 75.220 and charges as follows: 

Brows of a roof fall on No. 2 unit had only 3 

metal straps installed. Roof control plan dated 

December 7, 1989, shows a minimum of 4 straps when 

these are used. Shown in sketch on p.8. Two brows 

were like this. 

It is not disputed that the relevant roof control plan 

required at least four straps for roof support in the cited areas 

(See Government Exhibit No. 9). 

In its post hearing brief Pyro does not dispute the 

violation as charged but maintains that it was not a "significant 

and substantial" or serious violation. In its brief it states as 

follows: 

Government Exhibit No. 8 shows the cavity 

encompassing six (6) brows. Four (4) straps on each 

would total twenty-four (24) straps. Twenty-two (22) 

had been installed, or 91+ percent in addition to Mr. 

Pyles testimony that additional timbers had been 

installed in the crosscuts. The faces of the entries 

were inactive. Rooms were being worked as shown on the 

east side of the sketch, Government Exhibit No. 8. 

Some of the rooms being worked were outby the fall 

area. Two (2) intake entries were behind the permanent 

line of stoppings. One (No. 2) was completely open, 

and if necessary, could be traveled in lieu of No. 1. 

The law requires at least one intake escapeway (Sec. 

75.1704 30 CFR). Pyro provided two (2) in this case. 

It is very unlikely that twelve (12) people would 

travel No. 1 entry; beneath the cavity at one time. 

According to the Commission Ruling in the Mathies 

decision, we respecfully question the S&S designation. 

585 
Inspector Jerrold Pyles of the Federal Mine Safety and 

Health Administration (MSHA) who issued the citation, testified 

that he found the violation to be "significant and substantial" 

based in part on the history of roof falls in the cited area and 

the concurrent existence of another serious roof control 

violation i.e. excessively wide areas in an area of proven 

unstable roof (See Citation No. 3420700 discussed infra.). These 

considerations in an area designated as the primary escapeway 

exposed not only the twelve miners who would 'likely use this 

designated and marked escapeway but also the weekly examiner to 

roof fall hazards. Under the circumstances the violation clearly 

meets the criteria for a "significant and substantial" and 

serious violation. See Mathies Coal Co. 6 FMSHRC 1 (1984). The 

inspector's designation of this violation as resulting from 

moderate negligence is not challenged. Under the circumstances 

and considering the criteria under section llO(i) of the Act I 

find the proposed penalty of $400 to be appropriate. 

Citation No. 342Q700 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.203 and charges as 

follows: 

Additional roof support was not installed where 

widths exceeded what is specified in roof control 

plans. The widths stated is [sic] 20 feet; the entry 

measured was found to be 24 feet over a 30 foot 

distance. This was in No. 2 Unit ID 002, plan in 

effect dated 12/7/79. 

The cited standard, 30 C.F.R. § 75.203, provides in 

subsection (e) as follows: 

Additional roof support shall be installed where-

( l) the width of the opening specified in the roof 

control plan is exceeded by more than 12 inches; and 

(2) the distance over which the excessive width exists 

is more than five feet" 

It is undisputed that the relevant roof control plan 

provides that the entries shall be no more than 20 feet wide 

(Exhibit G-9r p.6). It is also undisputed that the cited 24 foot 

widths herein existed over 30 feet linear distance. This 

admitted violation was found in the area also cited for 

inadeqaute strapping and with a history of roof falls. As 

Inspector Pyles observed, the combination of roof control 

violations in this area with a history of roof falls and unstable 

roof in the designated escapeway with 12 miners working on the 

unit, warrants a finding that this violation is also "significant 

and substantial" and serious. 

In its post hearing brief Pyre again admits the violation 

but maintains that the violation was neither "significant and 

586 
substantial" nor serious. It argues as follows: 

Government Exhibit No. 8 shows that the faces of 

the entries were inactive, and rooms on the east side 

of the sketch, some outby the wide places, were being 

worked. Also, two (2) entries in intake air were 

present behind the line of permanent stoppings, making 

it unnecessary to travel the No. 1 entry at anytime. 

It would be highly unlikely that twelve (12) people 

would be in an area, thirty (30 1 ) feet in length at the 

same time. We do not consider this as an S&S citation 

according to the Commission ruling in the Mathies 

Decision. 

Pyro's argument does not however take into consideration the 

evidence that the entries could be reworked at any time and that 

the subject area was the designated primary escapeway and subject 

to weekly examinations. Since the area was marked by reflectors 

as the designated escapeway it is likely therefore that miners 

would use that route in the event of an emergency. Under the 

circumstances I find that the violation indeed is "significant 

and substantial" and quite serious. Mathies Coal Co., supra. 

The inspector's findings of moderate negligence are not 

disputed and they are supported by the record. Inspector Pyles 

noted that timbers had previously been set in the excessively 

wide areas to bring the widths within the required dimensions 

however those timbers had become dislodged for unknown reasons 

and were lying on the mine floor. Considering all the criteria 

under section llO(i) of the Act I find a penalty of $400 to be 

appropriate. 

Docket No. KENT 90-424 

The one citation at issue in this case, Citation No. 

3545766, alleges a "significant and substantial" violation of the 

standard at 30 C.F.R. § 75.503 and charges that: "the foot 

control switch cover (step flange) had an opening in excess of 

.006 of an inch measured with .007 gauge on the S-39 shuttle car 

located on No. 3 Unit. 11 

The cited standard, 30 C.F.R. § 75.503, provides that: 11 [t]he operator of each coal mine shall maintain in permissible 

condition all electric face equipment required by Section 75.500, 

75.501, 75.504 to be permissible which is taken into or used inby 

the last open cross cut of any such mine:." It is not disputed in 

this case that the cited shuttle car was the type of equipment 

required to be maintained in a permissible condition so long as 

it is equipment which is "taken into or used inby the last open 

cross cut". 

In its post hearing brief Pyro argues that the cited shuttle 

587 
car "was not in or inby the last open crosscut" and presumably 

therefore there was no violation of the cited standard. In its 

Answer filed in these proceedings however the operator made the 

following admissions: 

This is a valid citation, however, it should be 

non S&S. In order for there to be a likelihood of an 

explosion, the car would have to operate in an 

explosive environment. The haul roads were wet down 

and the only time the car was inby the last open 

crosscut, it was behind a loader with an operating 

methane detector. 

The mine operator is bound by such admissions. The cited 

shuttle car was also energized when discovered by Inspector Pyles 

and there was sufficient evidence from which he could, in any 

event, have inferred that it was intended for use inby. See 

Secretary v. Solar Fuel Company, 3 FMSHRC 1384 (1981). The 

citation is accordingly affirr(led. 

I have evaluated the mitigating arguments in Pyre's post 

hearing brief, however I find the testimony of Inspector Pyles to 

be more persuasive. According to Pyles an opening in the switch 

cover of .007 inch would allow sparks or an arc to enter the mine 

atmosphere and thereby cause an explosion in the presence of 

certain levels of methane or coal dust. Bottle samples also 

demonstrated that methane is indeed liberated at this mine. The 

record also shows that a few months preceding the citation at bar 

there had been a coal dust or methane explosion at this mine. 

Inspector Pyles also observed that the cited shuttle car was 

energized 9 that methane· can suddenly inundate an area without 

warning and that even though there may have been a 11methane 

detectorH on the loading machine (which is ordinarily operated in 

conjunction with the shuttle car) it would not automatically deenergize the shuttle car. Considering the credible evidence I 

find that indeed the violation was "significant and substantial" 

and serious. 

The inspector 1 s findings of moderate negligence are not 

disputed. Considering the criteria under section llO(i) I find 

that the proposed penalty of $275 is indeed appropriate. 

Docket No. KENT 90-425 

The one citation at issue in this case, Citation No. 

3420625, alleges a "significant and substantial" violation of the 

standard at 30 C.F.R. § 75.1316(b) and charges as follows: 

Boreholes were apparently not cleared and their 

depth and direction determined due to two (2) bore 

holes in adjacent faces had apparently drilled through 

588 
into each other due to when blasting the left x-cut the 

blast came through the opposite side bore hole, 

injuring John Parker, section foreman in the adjacent 

entry. No. 2 unit, ID 002. Event took place on 3-12-

90. Cutting machine operator was also in same entry as 

Parker but not injured. 

The cited standard, 30 C.F.R. § 75.1316(b), provides that 

"[b]efore loading bore holes with explosives, each bore hole 

shall be cleared and its depth and direction determined." 

Company representative David Sutton reported the blasting 

accident to Inspector Pyles on March 12, 1990, and Pyles made his 

inspection on the following day. According to Pyles the citation 

was issued on April 5, 1990, on orders from the MSHA Assistant 

District Manager and from his supervisor and was based upon the 

accident report filed by Pyro safety manager Sutton 

(Exhibit G-17). That report states in part that: "adjacent 

entry drill holes met -- employee failed to come out of place 

when being flagged." 

Inspector Pyles acknowledged at hearing that Sutton also 

told him that the shot firer reported that he had indeed checked 

the direction and depth of the drill holes before loading the 

holes with explosives. Pyles also acknowledged that everything 

could have been done in accordance with the cited regulation and 

that the blow-through might nevertheless have occurred. Indeed 

Exhibit R-6, a diagram, shows how boreholes could have been 

drilled at an angle and have intersected but upon testing would 

not have revealed whether they were clear through. Under the 

circumstances I do not find that the Secretary has met her burden 

of proving a violation of the cited standard. Citation No. 

3420625 must be accordingly vacated" 

Docket Nao KENT 90-426 

Citation No. 3420045 alleges a 11 significant and substantial" 

violation of the standard at 30 C.F.R. § 75.400 and charges that 11 [c]ombustible materials such as oil cans and trash were 

permitted to accumulate on the No. 9 track across from the No. 2 

Unit supply road. 11 

The cited standard, 30 C.F.R. § 75.400, provides that 

H(c]oal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible material, shall be 

cleaned up and not be permitted to accumulate in active workings, 

or on electric equipment." 

According to MSHA Inspector Cheryl McMackin, during the 

course of her inspection of the Baker Mine July 10, 1990, she 

observed, for the second day in a row, a large accumulation of 

paper, cardboard, wood, oil cans and other combustibles in the 

cited crosscut. The accumulation had increased from the day 

589 
before. When asked about the trash, foreman Qualls indicated 

that it had not been cleaned up because they had been busy on a 

construction project and were starting a new unit. Qualls also 

told McMackin that the trash was located at a "collection point" 

and that they intended to remove it. Under the circumstances I 

find that the credible and essentially undisputed testimony of 

Inspector McMackin is sufficient to prove the violation as 

charged. 

In reaching her conclusions that the violation was also 

"significant and substantial", McMackin observed that there were 

ignition sources near the accumulations i.e. several electrical 

cables, an electrical junction box and rollers on the conveyor, 

and noted that this was near the secondary escapeway. She noted 

that smoke from a fire in this area would precede toward the 

working areas and that two miners were working in the immediate 

vicinity of the accumulation. Under the circumstances I find 

that the violation was indeed "significant and substantial" and 

serious. Mathies, supra. 

I concur in the findings of moderate negligence. It is not 

disputed that the cited area was a "trash pick-up area", that the 

size of accumulations actually increased over the two day period 

observed and that it was readily visible from the adjacent track 

entry which virtually everyone must use passing into and out of 

the mine. 

In' reaching the conclusions herein I have not disregarded 

Pyre's post hearing brief. Much of the argument therein is based 

however upon speculation not supported by the record. In any 

event I find the expert testimony of Inspector McMackin, 

uncontradicted by other expert testimony, to be credible and 

fully supportive of her findingso Considering the criteria under 

section llO(i) of the Act I find a penalty of $150 to be 

appropriateo 

Citation No. 3420047 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.503 and charges that 

''[t]he EIMCO scoop Company No. R-121, operating on the No. 1 unit 

ID 001-0) was not maintained in a permissible condition and the 

head light assembly was missing." The cited standard provides 

that ''[t]he operator of each coal mine shall maintain in 

permissible condition all electric face equipment required by 

Section 750500, 750501, 75.504 to be permissible which is taken 

into or used inby the last open crosscut of any such mine". In 

its post hearing brief Pyro does not dispute the testimony of 

Inspector McMackin but argues that because the scoop was not 

actually found in or inby the last open crosscut there was no 

violation. This argument is without merit. The undisputed 

testimony of Inspector McMackin is that during the course of her 

inspection she heard the scoop operating inby the last open 

crosscut. This evidence is sufficient from which it may 

590 
reasonably be inferred that the scoop was indeed operating inby 

the last open crosscut. Her testimony that the scoop was used 

regularly in the face area to clean up gob and rock is also not 

disputed. Finally, Inspector McMackin actually observed the 

scoop pulling through the curtain with the bucket in the 

direction of entering the last open crosscut. This evidence 

clearly supports the inference that the cited equipment was 

equipment which is taken or used inby. See Secretary v. Solar 

Fuel Co. supra. 

The violation was clearly "significant and substantial" on 

the basis of the undisputed testimony of McMackin. According to 

McMackin the cover was missing from the headlight assembly and 

you could clearly see inside of the assembly. She noted that the 

electric light would be subject to arcing and sparking and in the 

atmosphere of the Baker Mine which routinely liberates methane, 

the violation was particularly egregious. She also noted that 

the scoop was energized and in operation and that the section was 

then producing coal. McMackin had taken methane readings and 

found .2 percent methane at the return. She noted that 12 men 

were working on the section at the time and that the missing head 

light cover was "obvious". Within this framework it is clear 

that not only was the violation quite serious and "significant 

and substantial" but that it also involved significant 

negligence. Under the circumstances I find that the Secretary's 

proposed penalty of $98 is clearly inadequate. Considering the 

criteria under section llO(i) and such a serious violation 

involving significant negligence, a penalty of $400 is warranted. 

ORDER 

Citation Noo 3420625 is VACATEDo The remaining citations 

are irmed and Pyro Mining Company is dir cted to lpay civil 

penalties of $2,022 within 30 days([f the d te of t ~s decision. 

Distribution~ 

AdmrJtrati ~ Law Judge 

W. Fo Taylor, Esq., U.S. Department 

Solicitor, 2002 Richard Jones Road, 

37215 (Certified Mail) 

,/ 

of Labor, Office of the 

Suite B-201, Nashville, TN 

Mr. William Craft, Safety Consultant, 685 Cherokee, Madisonville, 

KY 42431 (Certified Mail) 

nb 

591 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 3 1991 

ISLAND CREEK COAL COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

v. Docket No. VA 91-47-R 

Order No. 3354742; 12/05/90 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

Docket No. VA 91-48-R 

Citation No. 3354743; 12/05/90 

and Docket No. VA 91-49-R 

Order No. 3508496; 12/13/90 

UNITED MINE WORKERS OF-AMERICA 

(UMWA), DISTRICT 28, VP-3 Mine 

Local 1640, 

Appearances: 

Before: 

Mine ID 44-01520 

Intervenor 

DECISIONS 

Timothy c. Biddle, Robert Davis, Esqs., Crowell & 

Moring, Washington, D.C., for the Contestant; 

Charles Jackson, Esq., Office of the Solicitor, 

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

the Respondent; 

Scott Mullins, Esq., Coeburn, Virginia, for the 

Intervenor. 

Mary Lu Jordan, Esq., United Mine Workers of 

America, (UMWA); Washington, D.C., for the 

Intervenor. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern Notice of Contests 

filed by the contestant (Island Creek) pursuant to section 105(d) 

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

§ 815(d), challenging the legality of two section 107(a) imminent 

danger orders, and one section 104(a) significant and substantial 

(S&S) citation issued by MSHA mine inspectors. Pursuant to the 

contestant's request, an expedited hearing was held in Abingdon, 

Virginia, on December 19 and 20, 1990, and the UMWA's request to 

intervene, made on the record at the hearing, was granted without 

592 
objection. The parties filed posthearing briefs, and I have 

considered the arguments made therein in the course of my adjudication of these matters. 

Issues 

The issues presented in these proceedings include the 

following: (1) whether the conditions cited in the contested 

imminent danger orders were in fact imminent dangers warranting 

the mine closure and withdrawal of miners; and (2) whether Island 

Creek violated the cited mandatory safety standard in issue in 

Docket No. VA 91-48-R, and if so, whether the violation was 

significant and substantial. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301 et seq. 

- 2. Sections 104(a), 105(d), 107(a) of the Act. 

3. Mandatory safety standard 30 C.F.R. § 75.316. 

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

Stipulations 

The parties stipulated to the following: 

1. The subject Virginia-Pocahontas No. 3 Mine is 

subject to the 1977 Mine Safety and Health Act. 

2. The subject proceedings are subject to the 

jurisdiction of the Commission and the presiding judge. 

3. MSHA Inspector Arnold D. Carico was acting in 

his capacity as a designated representative of the 

Secretary of Labor when he issued the contested section 

107(a) Order No. 3354742, and contested section 104(a) 

Citation No. 3354743. 

4. MSHA Inspector Claudy J. Scammell was acting 

in his capac as a designated representative of the 

Secretary of Labor when he issued contested section 

107(a) Order No. 3508496. 

5. True copies of the subject orders and citation 

were served on the contestant or its agent as required 

by the Act. 

593 
6. On December 5, 1990, Mr. c. w. Settle, Island 

Creek's de-gas foreman, was with MSHA Inspector 

Arnold D. Carico at the No. 4 entry of the No. 9 devel~ 

opment and took a methane reading at a location 1-foot 

outby the stopping and 1-foot down from the top of the 

roof, and he recorded 3.5 percent methane at that 

location (Tr. 188). 

Discussion 

The orders and citation issued in these proceedings are as 

follows: 

Docket No. VA 91-47-R 

Section 107(a) Imminent Danger Order No. 3354742, issued at 

11:25 a.m., on December 5, 1990, by MSHA Inspector Arnold D. 

Carico, states as follows: 

Methane conQentrations were detected coming 

through permanent stoppings erected across the bleeder 

entry connectors between the gob and the South Main 

bleeders at the following locations and in the following concentrations (as indicted by a Riken methane 

indicator): No. 2 entry of No. 10 development South 

(sic); No. 4 entry of No. 9 development South - 8.3%; 

No. 4 entry of No. 8 development south - 7.6%; Citation 

No. 3354743 is being issued with and as contributing to 

this order. 

The inspector ordered the withdrawal of all underground 

areas of the mine. The order was terminated on December 6, 1990, 

by MSHA Inspector Claudy Scammell, and the termination notice 

states as follows~ 

The methane concentrations coming through the 

permanent stoppings erected across the bleeder entry 

connectors between the gob and the south main bleeders 

have been reduced to 3.6% of methane or less in all 

entries from 11 development south to 8 development 

south. 

Docket No. VA 91-48-R 

Section 104(a) 11 S&S" citation No. 3354743, issued at 

11:25 a.m., on December 5, 1990, by MSHA Inspector Arnold D. 

Carico, cites an alleged violation of mandatory safety standard 

30 C.F.R. § 75.316, and the cited condition or practice is 

described as follows: 

The ventilation, methane, and dust-control plan 

approved for this mine was not being complied with. 

594 
Item 10 of the plan requires that "Bleeder entries 

shall be connected to those areas from which pillars 

have been wholly or partially extracted at strategic 

locations in such a way as to control air flow through 

such gob areas, " Permanent stoppings were 

erected across all connectors between the gob and the 

south main bleeders at Nos. 8, 9, and 10 development, 

and had been plastered to minimize leakage from the gob 

to the bleeders. Methane was detected at the following 

locations and concentrations leaking through these 

stoppings: No. 2 entry of 10 development - 6/2%; No. 4 

entry of 9 development - 8/3%; No. 4 entry of No. 8 

Dev. - 7.6%. 

According to mine management, the only locations 

where air is being intentionally regulated from the gob 

area are at No. 11 development (tailgate) connectors 

and No. 1 development connectors to the main bleeders 

and main returns. 

The inspector did not include an abatement time as part of 

the citation. However, Inspector Scammell modified the citation 

on December 6, 1990, and fixed the abatement time as 9:00 a.m., 

December 20, 1990. 

Docket No. VA 91-49-R 

Section 107(a) Imminent Danger Order No. 3508496, issued at 

11:45 a.m., on December 13, 1990, by MSHA Inspector Claudy J. 

Scammell, states as follows: 

Methane concentrations were detected coming 

through permanent stoppings erected across the bleeder 

entry connectors between the gob and the south mains 

bleeders at the following locations and in the following concentrations (as indicated by a Riken methane 

indicator)~ No. 2 entry of No. 10 development south, 

6.2%; No. 4 entry of 9 development south, 6.3%; No. 3 

entry of 9 development south, 6.2%; No. 2 entry of 9 

development south, 6.0%; No. 1 entry of 9 development 

south - 5.5%; No. 4 entry of 9 development south, 6.7%; 

No. 3 entry of 8 development south, 5.4%; No. 2 entry 

of 8 development south, 6.2%; No. 1 entry of 8 development south, 7.6%; Bottle samples were collected to 

substantiate this order. 

The inspector order the withdrawal of all underground areas 

of the mine. 

595 
MSHA's Testimony and Evidence 

MSHA Inspector Arnold D. Carico, testified that he is a 

mining engineer and is familiar with the subject mine and has 

visited it approximately 15 times since 1978. He confirmed that 

he visited the mine on December 5, 1990, with three other inspectors, after his supervisor James Bowman instructed him to conduct 

"a quantity/quality survey" of the active south gob area. He 

identified exhibit G-1 as a mine map containing the partial 

findings made by the inspectors on December 5. He confirmed that 

his duties include the review of mine and ventilation maps, 

participating in underground inspections relating to ventilation~ 

and reviewing and recommending approval or disapproval of ventilation plans (Tr. 13-16). 

Mr. Carico stated that he used an anemometer, a Riken 

methane detector, and measuring tapes during his inspection, that 

the equipment was properly calibrated, and that the Riken detector is generally accepted as an accurate tool for testing methane 

(Tr. 17) • , 

Mr. Carico stated that he began his inspection along the 

No. 12 development and proceeded inby the longwall face along the 

development entries. He found no ventilation problems or any 

significant degree of methane anywhere in the mine up to that 

point. His initial examination took place at the longwall setup 

entries where he determined that the air was flowing from the 

No. 12 development toward the No. 11 development, and that this 

air flow was normal and expected. He found .2 to .3% methane, 

which he characterized as "very small amounts of methane." He 

then proceeded to the No. 3 and 4 entries, where he took air 

measurements which he found were acceptable. He then examined 

the 11 butt-offs, 11 or "dead-end" entries which will eventually be 

connected in future development, and found that they were properly ventilated. He then proceeded to the No. 11 development 

bleeder connectors and found no ventilation problems (Tr. 17-19). 

Mr. Carico stated that he next proceeded to the No. 10 

development connectors where he found four permanent brattices 

installed across each of the four entries. He found that air was 

leaking through one of the brattices, and he tested the air to 

determine 11what was located behind that stopping or brattice." 

He tested the air with a Riken methane indicator, and the test 

reflected 6.2% methane coming through the brattice in the No. 2 

heading. Based on this test, he assumed that there was ''a body 

of methane 11 behind that stopping. He confirmed that methane 

ranging from 5 to 15% is explosive, and that 11with an ignition 

source and a sufficient amount of methane you could have a mine 

explosion11 (Tr. 21). 

Mr. Carico stated that when he initially found the 

6.2 percent methane, he was concerned, but made no firm hazard 

596 
conclusions because of the possibility that it was "a localized 

problem and not an indicator of a larger problem and not an 

indicator of a problem or even a large body of methane." He 

believed that the methane may have been "a small body of methane 

trapped behind a single brattice" {Tr. 21). 

Mr. Carico confirmed that when he found the methane in 

question he was aware of four prior mine fires, and at least one 

prior methane eruption from the mine floor at the longwall face. 

He believed that two of the fires had possibly occurred in 1973, 

prior to his MSHA employment, and he learned about them from 

discussions with his co-workers. A third fire occurred in 1976 

or 1977, and others occurred in 1983, and they could have been 

the same fire which was never extinguished. He confirmed that 

MSHA's investigations of the prior fires did not determine the 

source of the ignitions for these fires. He believed that two of 

the fires occurred in the north gob area, and two occurred in the 

south gob area (Tr. 23). 

Mr. Carico confirmed that he had previously issued an 

imminent danger order in April, 1990, for explosive mixtures of 

methane emanating through the brattices along the south bleeders 

adjacent to the No. 2 and No. 3 developments. These brattices 

were installed because roof falls which have occurred in the 

connectors made it impossible to regulate overflow from the gob 

to the bleeders at that location (Tr. 24). Mr. Carico was also 

aware of two prior imminent danger orders issued by Inspector 

Kenneth Owens in 1987 for explosive mixtures of methane through 

the brattices separating the gob from the bleeder entries at the 

top end of the south bleeders in the No. 4 development. He 

believed that these conditions were identical to the conditions 

which prompted him to issue his order (Tr. 26). He confirmed 

that the south gob area is approximately 8,000 feet by 5,000 or 

6p000 feet. 

Mr. Carico stated that the No. 10 development brattices were 

plastered "to almost an air tight condition" and that a minute 

amount if air was passing through the brattice hole where he 

found 6.2 percent methane. He confirmed that larger quantities 

of air was escaping around the brattice perimeter, but since he 

is not permitted to examine an area within 1 foot of the rib, 

roof, or face, he did not bother to make those examinations 

because he realized they would be invalid. He explained that 

tests near the roof and rib may result in erroneously high 

methane readings due to liberation from the surrounding coal 

strata and they would not be indicative of the air stream or the 

body of methane (Tr. 28). 

Mr. Carico stated that he attempted to take methane readings 

at the other three brattice locations at the No. 10 development, 

but he could not do so because he could find no air leaking 

597 
through the brattices. He then proceeded to the No. 9 development where he began making similar examinations, and at the No. 4 

heading, which he examined first, he found 8.3 percent methane 

coming through the brattice. At this point in time, he was 

becoming more concerned because it appeared that a fairly substantial body of methane was lying against the brattices in the 

bleeder connectors, and although he believed that a imminent 

danger was "probable," he reached no conclusion at that time, and 

believed that he needed to go further (Tr. 29). 

Mr. Carico stated that he then proceeded to the No. 8 

development where he examined the air coming through the brattice 

in the No. 4 entry, and he found 7.5 percent methane coming 

through the brattice. He then concluded that there was a substantial body of methane lying up against the brattices and that 

there was an "associated problem" with the ventilation system 

because the methane was not being diluted. He then decided to 

issue an imminent danger order, and verbally informed foreman 

Settle, who was accompanying hj.,m, of his decision to issue an 

order, and also informed him that he was issuing a section 104(a) 

citation for a violation of the approved ventilation plan (Tr. 

3 0) • 

Mr. Carico stated that when he issued the order and citation, he believed that a methane hazard existed, and that "when 

you have an explosive mixture of methane the only thing lacking 

for an explosion is the ignition source" (Tr. 30). He furtner 

stated that "understanding the history of this mine--knowing the 

history of this mine I knew that there were possibly ignition 

sources associated with the gob" (Tr. 31). In the event of an 

ignition, an explosion would result. He concluded that there was 

a substantial body of methane in the gob area encompassing 

Hprobably twelve entries in the form of the bleeder connectors 

back to the gob and most probably be associated to set-up 

entriesH (Tr. 31). 

Mr. Carico stated that one of the possible ignition sources 

for the prior mine fires were roof falls in the caving areas of 

the longwall units. He indicated that the roof contains massive 

sand stone with layers of quartzite, and that quartzite is 

"highly sparked and has been known to ignite bodies of methane" 

(Tr. 32). He also believed that a face ignition could possibly 

propagate into the gob area and ignite the methane in the gob 

adjacent to the longwall face. 

Mr. Carico identified other possible sources of ignition as 

welding or cutting along the face, open flames, bolting metals 

which could ignite methane emanating from the mine floor, and 

possibly spreading to the gob. He also believed that any work 

connected with ventilation repairs and adjustments in the bleeder 

entries, and sparks created by the use of hammers on the metal 

brattices, would be potential sources of ignition. A mine 

598 
explosion of any proportion would involve fatalities, and he 

believed that the entire mine and the 85 employees who were 

underground would be exposed to this hazard {Tr. 34). In view of 

the history of unexplained mine fires, and the possible ignition 

sources, he concluded that it was ''fairly likely" that death or 

serious injury would have resulted if mine operations were to 

continue (Tr. 35). 

Mr. Carico stated that he issued the citation because he 

believed that the ventilation system was inapequate because of 

insufficient air regulation between the bleeder entries and the 

gob to maintain methane levels at or below the explosive limit at 

safely accessible areas used for examinations (Tr. 40). 

Mr. Carico identified exhibit G-4, as the approved ventilation plan, and he believed that the respondent violated section 

lO(a) which appears on page 4 of the plan, because the brattices 

erected across the entries were air tight and did not induce the 

drainage of gob gas from all portions of the gob (Tr. 42-43). 

Mr. Carico stated that longwall coordinator and acting mine 

superintendent Bill Meade confirmed that the only other place 

where air was being regulated was at the No. 1 development, and 

he (Carico) concluded that brattices were also constructed at the 

remaining No. 1 through No. 7 developments. Mr. Carico confirmed 

that the air intake for the gob area was in the No. 12 development, and he explained how the air was coursed through the area. 

He confirmed that he did not measure the airflow entering the gob 

(Tr. 43-44). 

Mr. Carico stated that the citation "helped to define the 

cause of the imminent danger," which in this case was a body of 

explosive methane lying against the cited brattices, and that the 

suance of the citation would provide a means for abating the 

violation (Tr" 46). He confirmed that the citation has not been 

abated, and that a termination date of December 20, 1990, was 

subsequently established. He confirmed that when he visited the 

mine the evening before the hearing, he found no significant 

changes which would cause him to terminate the citation. He 

further confirmed that he found that additional metal brattices 

had been installed between the cited brattices and the bleeder 

entrances at all locations from the No. 10 development to the 

No. 6 development, but he did not believe that these additional 

brattices would induce the drainage of gob gas from all of the 

gob areas, and would only result in less leakage or less exchange 

from the gob to the bleeder entrance (Tr. 48). 

Mr. Carico confirmed that he took methane readings at the 

newly constructed stoppings, and although the results were 

significantly less, he was unable to physically examine the 

original brattices behind these newly erected stoppings to 

determine whether the previously found explosive mixtures of 

methane were still present (Tr. 48-50). He did not believe that 

599 
the new stoppings reduced the danger of the methane accumulations 

which prompted him to issue the order, but that they may have 

precluded an ignition source from the bleeder side of the stopping. He also believed that the work performed to construct the 

new metal stoppings introduced another potential ignition source 

(Tr. 51). 

Mr. Carico stated that the stoppings and regulators were 

used to ventilate the gob area and to regulate the airflow 

through that area. Although the stoppings are part of the 

approved ventilation plan, a lack of sufficient regulators 

causing accumulations of methane would be a violation of the plan 

(Tr. 54). He confirmed that the ventilation schematic which 

appears on page 16 of the plan reflects two stoppings and two 

regulators in each set of entries, and that these are typical 

examples of the stoppings and regulators which he found in the 

No. 3 and No. 4 headings (Tr. 56}. 

Mr. Carico confirmed that he took some air bottle samples on 

December 5, 1990, but that they' were lost in the mail. He stated 

that this did not affect the issuance of his citation, and he 

confirmed that bottle samples taken by Inspector Scammell a week 

later were received and analyzed (Tr. 65). 

On cross-examination, Mr. Carico stated that he reviewed the 

ventilation plan in August, 1987, and that subsequent reviews are 

required every 6 months. He confirmed that as of December 5, 

1990, the mine was in compliance with the plan requirements for 

the bleeders and the gob. He stated that since mining is 

dynamic, changed conditions might require re-regulation of the 

air, and if this is not done, a plan violation may occur. He 

confirmed that the inspections conducted by the other inspectors 

in the south gob return and other mine areas on December 5r 1990, 

did not result in any violations in those areas. He also confirmed that the area between the No. 10 development and the back 

of the active longwall reflected no problems with the ventilation 

in that area (Tr. 65-69). 

Mr. Carico stated that the brattice which he initially 

tested was constructed of concrete block and a plastered over 

surface. He was not surprised to find the brattice and confirmed 

that it was used to control the airflow in the bleeder system to 

the bleeder entries. He was standing in the bleeder entry, and 

the gob was on the other side of the stopping. He explained that 

he tested the stopping by running his hand across the stopping 

face in order to feel any escaping air. After finding areas 

where air was corning through small "pinhole-type areas," he 

placed the small tube attached to the inlet end of the Riken 

methane detector in the crack and took a methane reading. He 

agreed that this test would not indicate what was going on in the 

bleeder. He confirmed that if he wanted to take a methane 

reading in accordance with the regulations he would have tested 

600 
12 inches from the roof, face, and ribs. However, since the 

brattice is only a ventilation appliance, and not a roof, face, 

or rib, there was no restriction as to where he could take his 

sample (Tr. 71-72). 

Mr. Carico confirmed that he did not determine the quantity 

of air in the bleeder at the stopping area where he found 

6.2 percent methane, and that he would expect the methane bleeding through the stopping to mix with the air in the bleeder and 

be carried through the bleeder entries and eyentually out through 

the exhausting fan shafts. He stated that he was measuring gob 

gas at the brattices, and was not concerned about the gob gas at 

that particular location. His concern was that his test indicated the possibility of a larger body of methane than what was 

indicated by his test (Tr. 74). 

Mr. Carico stated that methane gas coming out of a borehole 

can be measured, but that he took no such measurements. He 

agreed that boreholes which bleed off methane out of the mine 

enhance the available underground ventilation. He also agreed 

that the gob area of the mine in question is expected to have 

explosive concentrations of methane in some locations, and that 

it is impossible to get it all out of the mine (Tr. 75-76). He 

explained that the methane is in an area which liberates large 

quantities of methane and that vertical boreholes are drilled 

from the surface to intercept the gob fall areas where coal has 

been extracted to draw out the methane with vacuum pumps or fans 

(Tr.77). 

Mr. Carico believed that one would not expect to find gas 

behind the stopping if the bleeder system is functioning properly. He confirmed that he was familiar with the functioning of 

the mine bleeder system, and using the mine map as a reference, 

he explained how and where the air is coursed through the gob. 

He confirmed that one cannot safely walk through the gob area 

because of the hazardous roof conditions. He also confirmed that 

while some of the air may find its way into the actual gob area, 

it essentially ventilates the periphery of the gob, and the 

methane is supposed to come out of the gob area through the edges 

into the bleeder system and out of the mine (Tr. 79-83). He 

assumed that the stoppings were constructed to regulate the gob 

so that it would function in a manner that would keep explosive 

methane levels from exiting the gob at the bleeder connectors 

(Tr. 83-84). 

Mr. Carico confirmed that his 6.2 percent reading was made 

at the stopping in the No. 2 entry of the No. 10 development, but 

that he could not take readings at the other stoppings in that 

development location because the leakage around the stopping 

perimeter was within a foot of the mine roof or rib and no 

readings could be taken there because they may be artificially 

high and not representative (Tr. 84-86). 

601 
Mr. Carico stated that he did not test the amount of oxygen 

going through the pinholes in the stoppings which he tested and 

that he does not usually make such oxygen tests unless he has 

reason to believe that there might be a problem with the flow of 

oxygen. He agreed that oxygen is definitely a factor in determining whether there is an explosive concentration of methane, 

and in the absence of any measurements of the oxygen coming 

through a pinhole, one cannot tell if there is an explosive 

mixture of methane behind the stopping "with a sole finding of my 

methane level" (Tr. 87). 

Mr. Carico confirmed that unless certain precautions are 

taken, welding and cutting is not permitted in the bleeders which 

are return air courses. He agreed that welding is not a normal 

daily operation which is done in a return air course, and that it 

is even less likely that such work would be done in a bleeder 

(Tr. 89). 

Mr. Carico confirmed that although he believed that the 

stoppings prevented the drainage of gob gas, the ventilation plan 

does not state where such drainage has to occur. However, he 

indicated that the plan states that drainage has to occur at 

"strategic locations," but that these words are not further 

defined in the plan. He confirmed that Island Creek may determine the strategic locations as long as it meets the requirement 

for controlling the airflow through the gob. However, the 

ventilation has to insure that explosive gas mixtures do not 

reach safely accessible areas where people are normally required 

to work or travel (Tr. 91). 

Mr. Carico conceded that although he only referred to the 

second sentence of the applicable ventilation plan provision in 

his citation, he believed that all of the language was applicable. He agreed that the first part of the second sentence was 

complied with and that "the bleeder entries were connected to 

those areas in which pillars have been wholly or partially 

extracted" and that the bleeders are connected at sufficient 

intervals to control the gob gas as it comes out. He stated the 

basis for his citation as follows at (Tr. 94): 

Q. And so your basis for the citation was that you 

found some methane in explosive concentrations coming 

through a pinhole, you drew the conclusion that there 

was some amount of methane on the other side, is that 

correct, of the stopping on the gob side? 

A. That 1 s correct. 

Q. And from that you concluded that the company's 

bleeder system was not working properly? 

A. Yes. 

602 
Q. Or was not constructed properly? 

A. Yes, sir. 

Mr. Carico agreed that except for the gob dome and fall 

area, the high place in the gob area, according to the map 

contour lines, is in the area where he took his measurements and 

issued the citation and order. He also agreed that methane is 

lighter than air and will leak out at the highest place it can 

even though it is enroute out of the mine (Tr. 97} . 

In response to further questions, Mr. Carico confirmed that 

in testing the face of the brattices, he placed his Riken methane 

monitor in the cracks because any sampling outby the face of the 

brattice would not have given him "a true representation of what 

was actually behind the brattice" and any methane would have been 

diluted outby the brattice {Tr. 98). He believed any explosive 

methane leakage from a roof or face where coal is being cut would 

constitute a controlled, small, body of methane, or "face ignitions or pops," as distinguished from a "substantial body of 

methane and apparently not controlled" behind the brattices in 

question (Tr. 99). He confirmed that face ignitions have 

occurred at the mine, but he could not state how many may have 

occurred or when they occurred (Tr. 99). 

Although Mr. Carico stated that there was a potential for a 

face ignition at the longwall face, he stated that "I'm not 

prepared to, you know, evaluate as to what the potential is" (Tr. 

100). He confirmed that the longwall working faces were "several 

thousand feet" from the stoppings where he found leakage, and 

while there are some established bleeder points for the abandoned 

north gob area, there are none for the cited south gob area. He 

further confirmed that the mine operator is required to examine 

the gob area and stoppings weekly by traveling the bleeder 

entries and examining the brattices "to see that they 1 re still 

serving the purpose for which they were erected" (Tr. 103). 

Mr. Carico stated that methane "face inundations" have 

occurred at the mine in 1985, and he explained that this occurs 

Hwhere a quantity of methane is released at a rate which the 

ava able ventilation is not able to dilute it" (Tr. 104). He 

stated that this occurred in a new longwall panel where coal was 

being extracted, and the floor cracked and released several 

hundred thousand cubic feet of methane in a matter of minutes and 

"over-rode 11 the intake air being delivered on the longwall face 

and "backed the ventilation up for at least a hundred feet outby 

the longwall face" (Tr. 104). If there had been an ignition, he 

"supposed" that it could have traveled 2,000 feet (Tr. 105). He 

confirmed that this incident, as well as the prior mine fires, 

were within his "collective knowledge" when he issued the imminent danger order on December 5, 1990, and that those factors 

"definitely contributed to me having more concern possibly for 

603 
this mine or, in fact, for this mine that I might have for some 

of the other mines, you know, where no findings like that had 

been made, where those occurrences hadn't taken place" (Tr. 106). 

Mr. Carico stated that if methane exploded next to a stopping, it would blow out the stopping and leave an open area for 

methane to flow out of the gob. Any resulting negative ventilation pressure would then draw uncontrolled bodies of methane out 

through the open bleeder entries and "involve the entire mine" 

(Tr. 114). Mr. Carico believed that the method he used for 

testing for methane in the gob on December 5, was sufficiently 

accurate to indicate that the condition existed. He further 

stated that he would have liked to have had better access to the 

gob area to make a better determination as to how the gob was 

being ventilated, and would have liked to have been able to 

determine exactly how large the body of methane was in order to 

know "the entire facts concerning it." However, he could not do 

this in this case because the gob area was physically blocked by 

cribs which were installed from rib to rib, and he would only be 

able to go inby for 10-or 15 feet. If he were able to travel 

behind the gob area, and assuming it were safe to travel there, 

he may have been able to determine the airflow along the set-up 

entries, or whether it was completely stagnant (Tr. 115). He 

confirmed that in all of the places where he tested the stoppings, they were all physically obstructed and he could not enter 

the gob areas (Tr. 116). He was aware of no other method in the 

ventilation plan for checking in behind the stoppings, and he did 

not know how Island Creek checked these areas (Tr. 117). 

Mr. Carico confirmed that he did not review the preshift 

reports for the periods prior to December 5, to determine whether 

the areas had been inspected and whether any methane readings 

were previously taken, and he stated that this "was an omission 

on my part 11 (Tr. 117). In response to further questions, 

Mr. Carico explained how long it took him to perform his tests 

with the Riken methane detector, and he confirmed that it was his 

judgment that there was an approximate volume of "tens of thousands of cubic feet of methane behind the stoppings," and that 

his conclusion in this regard was "based on my findings of what 

was passing through that stopping and knowing that these areas 

were interconnected inby those stoppings" (Tr. 122). 

MSHA Inspector Claudy J. Scammell, stated that he was 

familiar with the subject mine and that he conducted regular 

inspections there for approximately 6 months in 1987 and for 

approximately 9 months in 1990. He confirmed that he was with 

Inspector Carico on December 5, 1990, but that he went to the 

intake side of the longwall tail at the No. 12 development to 

conduct his inspection, and upon inspecting that area he found 

nothing out of the ordinary. He confirmed that he learned that 

Mr. Carico had issued h1s order and citation for methane accumulations at the bleeders on his way out of the mine and that he 

fi 0 4 
discussed them with Mr. Carico after he had ordered the withdrawal of miners. 

Mr. Scammell stated that he returned to the mine the next 

day on December 6, with his supervisor and went to the area where 

Mr. Carico had issued his December 5, order. He started his 

inspection at the No. 11 development, and proceeded to the No. 8 

development. He detected no changes in the stoppings or the 

conditions previously cited by Mr. Carico, and he took methane 

readings with a Riken and a CD210 methane 9etector. The Riken 

detector had been calibrated that same morning, and the readings 

which he took included the "highest" reading of 7.6 percent 

methane. He did not know what the lowest reading was, but stated 

that "there were some below 5%." The only changes which he 

observed with respect to the stoppings cited by Mr. Carico "was 

that the stoppings had some plaster added to them, trying to seal 

the cracks, I presume. 11 He confirmed that he took his methane 

measurements approximately an inch to a half-inch "right near the 

cracks where air was coming through," and that he measured the 

methane at each of the entries in the east development, and the 

highest reading he measured was 3.6 percent methane. Under the 

circumstances, he terminated the order previously issued by 

Mr. Carico on December 5 (exhibit G-2, Tr. 126-132). 

Mr. Scammell stated that he next visited the mine on 

December 13, 1990, with his supervisor to determine whether any 

stopping changes had been made and to follow up on the December 

5, citation issued by Mr. Carico. He confirmed that he checked 

the bleeder entries at the No. 11 development, and found "nothing 

out of the ordinary," and found no excessive or explosive levels 

of methane (Tr. 133). He then proceeded to the No. 10 development, where he tested the No. 4 and No. 3 entries and found 

methane below 5 percent" He could not recall the exact readings, 

but confirmed that they were below 5 percent. He then tested the 

No" 2 entry and found 6.2 percent methane. Although he believed 

that this reading warranted an imminent danger order, he decided 

not to issue it at that time because he wanted to make sure that 

this was not a pocket of methane in an isolated area, and wanted 

to check further. 

Mr. Scammell confirmed that he was aware of the prior mine 

fires of unknown origin. Two of the fires occurred prior to the 

time he became an inspector, and at least three of them were gob 

fires. However, he had no idea on which development or which end 

of the gob the fires occurred. He believed that roof falls had 

occurred in the gob area, and stated that "the gob wall always 

has falls on it. That's the purpose of it" (Tr. 135). 

Mr. Scammell stated that he then proceeded to the No. 9 

development and found methane in excess of 5 percent at all four 

of the bleeder entries where he took methane readings at the 

stoppings where he detected air coming through the cracks. He 

605 
confirmed that he took his readings a half inch or an inch close 

to the cracks, and found 6.3 percent methane at the No. 4 entry. 

Although he believed at that time "that there was a methane 

problem again," he wanted to check across to at least the No. 8 

development before making any final imminent danger decision. He 

then proceeded to take additional readings, and the last reading 

he took was in the No. 1 entry of the No. 8 development where he 

measured 7.6 percent methane. He confirmed that all of his 

readings for a row of eight entries were above 5 percent methane, 

and he then advised company representative Workey that there was 

an imminent danger and that he was to withdraw all miners 

(exhibit G-5, Tr. 135-138). 

Mr. Scammell stated that at the time he issued the order he 

believed that the methane concentrations in excess of 5.0 percent 

leaking through the stoppings in question presented a hazard, and 

that the presence of an ignition source "would be all that it 

would take to blow up the entire mine" (Tr. 139). He believed 

that any sparks from a roof fall, which was possible in the gob 

area, would constitute-an ignition source. He confirmed that one 

cannot really determine the kinds of falls in the gob area, but 

that "constant" falls are occurring where the coal is being 

mined. When asked about the frequency of any falls, he stated 11 it 1 s quite often. I ready don't know" (Tr. 140). 

Mr. Scammell stated that any methane ignition occurring at 

the longwall face could possibly propagate from the face line of 

the longwall, but that his "major concern" was a gob roof fall. 

He confirmed that there were no other ignition sources that posed 

a risk of igniting the methane which he found. He believed that 

any methane explosion resulting from a gob roof fall would result 

in fatal injuries to the 85 miners on the day shift, and that 

such an event was highly likely if normal mining operations were 

continued (Tr. 141). 

On cross-examination, Mr. Scammell stated that he was 

concerned about "a combination" of roof falls in the bleeder and 

the gob on either side of the stopping, "just in that general 

area'' (Tr. 143). He confirmed that he did not know what was 

behind the stoppings when he made his methane readings, and that 

it was poss that the roof on the gob side of the stoppings 

was "cave tight." He then conceded that he was not concerned 

about any roof falls other than behind the stoppings, and that a 

roof fall 100 feet away from any methane would not make any 

difference (Tr. 142-145). Mr. Scammell confirmed that he made no 

methane readings out in the bleeder entries and that any methane 

bleeding through the stoppings into the bleeders would be diluted 

(Tr. 146). also confirmed that he took no air measurements to 

determine how much air was going into the gob area from the 

No. 12 development area, and he had no knowledge as to how much 

air was coming "out the other end" (Tr. 148). He conceded that 

he did not know what was going on in terms of ventilation in the 

606 
gob, and that he was just concerned about what he thought was on 

the other side of the stoppings (Tr. 148). 

Mr. Scammell confirmed that he took three bottle samples "as 

close to where I got the original methane readings" to substantiate his order, and he identified exhibit C-1 as a phone message 

received from Inspector Carico communicating the result of the 

bottle samples (Tr. 158). Mr. Scammell confirmed that he made 

nine Riken methane readings to support his order, but only took 

three bottle samples. He confirmed that he took no bottle sample 

at the stopping where he found 7.6 percent methane because he had 

no more bottles. He confirmed that the bottle samples showed 

5.4 percent, 5.09 percent, and 5.75 percent methane, but he was 

not sure of the locations where these samples were taken (Tr. 

160-163). 

Roy D. Farmer, testified that he has worked at the mine 

since October 1975, and that he serves as chairman of the safety 

committee and president of the UMWA Local 1640, which represents 

the miners. He stated that in his capacity as the miner's safety 

representative he began inspecting the bleeders in 1976, and has 

continued to do so to the present. He has made various methane 

tests in the areas in question with a Riken gas detector and 

confirmed that this instrument is generally accepted by the 

mining industry for testing methane and that the detectors are 

calibrated by the company's safety department. He stated that he 

has in the past found methane in excess of 5 percent, and if 

methane at that level is found at the stopping line all miners 

are immediately withdrawn from the mine (Tr. 166-169). 

Mr. Farmer stated that beginning in 1976, each of the 

developments had a regulator in the No. 1 and No. 4 entry of each 

development. One could travel through the regulators into the 

set-up entries to check for methane and withdraw miners if the 

methane exceeded 5 percent. As the mine developed and the gob 

area increased there were problems with controlling the methane 

and the company erected permanent stoppings where the regulators 

used to be. Since this was done, the only method for checking 

the methane is to feel along the stoppings for any leakage and 

insert the Riken detector into the crack to check for methane. 

If one finds a reading above 5 percent, it was his opinion that 

it would be indicative of a buildup of methane behind the stopping in the set-up entry (Tr. 170). 

Mr. Farmer stated that prior to the sealing of the regulators, any increased levels of methane could be dealt with by 

opening or closing the appropriate regulator to allow air to flow 

to the set-up entries to sweep out the gas. In his opinion, the 

sealing of the regulators has resulted in the "bottle necking'' of 

the methane and "there's no where for it to go." Any detection 

of methane coming through the stopping would, in his opinion, 

indicate that the air is not sweeping through and is not being 

607 
properly regulated to move out the methane. Mr. Farmer did not 

know why the stoppings have been erected, and in his opinion, a 

door could be installed in a stopping to allow one to go through 

and check the other side with a Riken detector rather than 

putting it against any "pinhole" crack in the stopping itself. 

He believed that such a door in the stopping would solve the 

problem, and that the problems which have been created have 

resulted from the removal of the regulators and the erection of 

solid stopping lines over all four connecting entries in each of 

the developments. This prevents anyone from physically going 

into those areas to check them and prevents any adjustments to 

the air sweeping those areas (Tr. 171). 

On cross-examination by Mr. Biddle, Mr. Farmer confirmed 

that he knew of no reason why the company would want to keep 

methane in the gob area behind the stoppings. He stated that the 

decision by mine management to eliminate the regulators began "in 

the eighties" when a "new management team came on board" and 

someone made the decision to erect the stoppings. He agreed that 

the decision was made for some reason, but he did not know the 

reason. He confirmed that prior to the erection of the stoppings, if 5 percent methane was found anywhere in the mine, 

including the stopping line, the set-up entries, and the bleeder 

connectors, the men were withdrawn from the mine. He confirmed 

that no one was withdrawn if 2 percent methane were found in the 

bleeders (Tr. 173). Mr. Farmer agreed that the purpose of 

bleeders is to take the methane out of the mine, and he agreed 

that in a "windy bleeder" with a "lot of volume of air going · 

through," any methane which may be 80 percent will decrease in 

volume as it courses through the bleeder (Tr. 174). 

In response to questions by Mr. Jacksonr Mr. Farmer stated 

that the bleeder system is designed to sweep the periphery of the 

set-up entries. The gob 11 dome area, vv or "big fall area" however, 

is sealed off and supported by barrier block so that air can 

sweep through that area. He confirmed that high levels of 

methane may go through a bleeder at times due to the release of 

pockets of methane, and if they are in the explosive range, it 

would not be safe for anyone to be in the bleeder (Tr. 175-176). 

Mr. Farmer stated that he is familiar with the mine ventilation plan, and that he or a member of the safety committee has 

reviewed the plan and expressed the union's concerns about the 

stoppings, but have received no response. He distinguished the 

gob area from the set-up entries which he believed was the 

periphery area where the sweeping of methane was needed. He 

believed that regulators at different locations in the set-up 

entries could be opened and closed as needed to redistribute and 

redirect the air, and without these devices, there is essentially 

no control of the air. He further believed that more regulators 

are required in the south bleeders to keep the methane below 

5 percent (Tr. 183). 

608 
Mr. Farmer confirmed that during his inspections, both he 

and the company have found methane in excess of 5 percent "numerous times" in the same manner found by the inspectors, and men 

were withdrawn by management. Corrective action was taken by 

removing a stopping "sometimes," opening or closing a regulator 

when it was there, plastering the stopping to seal it tighter, or 

erecting another stopping to prevent anyone from going where the 

methane is. It was his understanding that the company in this 

case erected metal stoppings in the No. 6 t,hrough No. 10 developments and left a panel out of each side of the stopping so that 

air from the bleeders could course around the stopping (Tr. 185). 

However, the inspector cannot travel to the original stopping 

areas to determine whether any methane is still there because of 

the new metal stoppings which are barriers. 

Contestant's Testimony and Evidence 

Eddie G. Ball, mine manager, testified as to his duties and 

responsibilities and hi.s mining experience. He stated that the 

mine is located in Vansant, Virginia, and that it is a shaft mine 

approximately 1,400 feet underground. The annual coal production 

for 1990 is 1.7 million tons, continuous miners are used for mine 

development, and the primary source of mining is the longwall 

system. The mine employs approximately 330 miners, including 276 

hourly miners, working three shifts a day (Tr. 189-192). 

Mr. Ball identified exhibit C-2 as a mine map, and he 

confirmed that the green markings show the intakes, and that the 

returns are marked in red. The red arrows at the areas across 

the map show the gob areas which are previously developed and 

mined-out longwall panels where the roof has caved in after the 

coal was extracted. The gob areas are ventilated by intake air 

which coursed through the gob from the head and tail of the 

longwall and splits off the longwall, and he explained how the 

air travels into the bleeder system to ventilate those areas. 

Mr. Ball confirmed that the longwall panels from the No. 1 

through No. 10 developments were 5,620 feet long, and that the 

last two panels have been shortened (Tr. 192-199). 

Mr. Ball stated that a sealant material is used to seal the 

stoppings, and he confirmed that the stoppings were originally 

installed as the developments progressed in order to control the 

air. The regulators are still in place, but they are closed and 

sealed so that the pressure can be controlled "to make the gas 

flow in the way we want it to and get it to mix to come out in an 

acceptable manner." If the stoppings were removed, he would lose 

control of the air and there would be no way to direct it. This 

will result in a high concentration of methane coming out early 

into the bleeder system and he would be unable to control and 

push the air across the old set-up entries. The loss of pressure 

would result in a concentration of methane into the bleeder 

system and "the rest of the gob area will go dead" with no air 

609 
going through. The stagnate air will result in high concentrations of standing methane in each bleeder connector (Tr. 201). 

Mr. Ball confirmed that he was famil with the mine 

ventilation plan and bleeder system provisions, and he 

believed that he was in compliance with the plan. He stated that 

the bleeder system has been previously inspected by MSHA, that 

three ventilation surveys were conducted by MSHA prior to Inspector Carico•s inspection, and that he was informed that the 

ventilation system was in excellent condition. He confirmed that 

Mr. Carico first informed him in April, 1990, that the ventilation system was out of compliance (Tr. 202). 

Referring to the applicable ventilation plan provision, 

Mr. Ball stated that each of the numbered developments shown on 

the mine map are connectors to the bleeders and that they are 

mined into the bleeder from each development as it is driven, and 

that each of the four entries in the developments are connected 

at strategic location_?. Although stopping have been erected 

across the entries, he st 1 believed that there is a connection 

between the gob and the bleeder even though the stoppings are 

there. He is satisfied that these connections are at strategic 

locations and that the stoppings control the air flow through the 

gob area in such a way as to minimize the hazard from expansion 

of gob gases due to atmospheric change. If the stoppings were 

removed, he would be out of compliance with the ventilation plan 

provision in question because he would be unable to control or 

direct the air or methane to any given location (Tr. 204-205). 

Mr. Ball stated that he was familiar with the December 5, 

order issued by Mr. Carico, but was on vacation when it was 

issued. However, he returned to the mine to investigate the 

matter, and learned that the methane readings taken to support 

the order were being made the stopping pinhole cracks and not 

from a distance of 1-foot where mine management makes its readings. Mr. Ball disagreed with the inspector's belief that 

methane readings 1-foot outby any area being tested are limited 

to face areas and he bel that the 1-foot distance for 

taking such readings apply to all mine areas that may be tested, 

including stoppings (Tr. 206). 

Mr. Ball disagreed with Inspector carico's December 5, 

imminent danger finding because he believed that any explosive 

mixtures of methane are migrating out of the gob area and are 

mixed and diluted with the a to bring them to an acceptable 

level people are expected to travel. He confirmed the 

exi of. bore holes which are drilled into the gob to liberate the methane from the top of the gob area to the surface so 

that it does not get into the mine ventilation system. He was 

not concerned about any explosive concentrations of methane on 

the gob side migrating to the stoppings because he believed that 

the stoppings and bleeder system were intended to allow the 

610 
methane to migrate into the bleeder system at the stopping 

locations (Tr. 209). 

Mr. Ball confirmed that he also investigated the 

December 13, order issued by Inspector Scammell and discussed it 

with the inspectors. He learned that the inspectors were "getting the methane through the cracks, the same as on December 5th. 

They really didn't know what to do about it." He confirmed that 

the inspectors had some recommendations, which he followed, but 

this did not cure the problem because the removal of the stoppings would have resulted in the loss of control of the air (Tr. 

210). Mr. Ball confirmed that the mine liberates approximately 

20 million cubic feet of methane a day from all sources, and that 

it released from the mine strata as it falls behind the 

advancing longwall. In addition to the boreholes, the mine has 

an underground degasif ication program for removing methane before 

coal is mined by means of a pipeline which removes methane 

through negative pressure and pipes it to the surface {Tr. 

211-212). 

On cross-examination by Mr. Jackson, Mr. Ball stated that 

notwithstanding the erection of the stoppings, the bleeder 

entries are nonetheless still connected to the gob. He explained 

the air flow through the developments and gob, and confirmed that 

Island Creek's ventilation department has advised him of the 

direction and amount of air flow through the gob areas, and that 

he has made these determinations by observing the direction of 

air by throwing a hand full of rock dust in the air. He also 

confirmed that he can measure the air, and has done so, but that 

he did not know the percentage of air splitting at the face on 

December 5 or 13 (Tr. 213-218). 

Mr. Ball did not believe that the methane tests by the 

inspectors in the stopping cracks were representative of the air 

behind the stopping or what was the bleeder system. He did 

not believe that there were big pockets of methane behind the 

stoppings, and he suggested that methane rises to the top of the 

stopping because it is lighter and this would explain why some of 

the methane readings at the top of the stopping were higher than 

those made down against the floor. He believed that the air in 

the stopping cracks was mixing with the methane, and he pointed 

out that if the air were not mixing with the methane, there would 

be 100 percent methane behind the stoppings and not the smaller 

amounts found by the inspectors. He believed that the air coming 

through the stopping cracks where the inspectors made their tests 

was air coming off the longwall through the gob and bleeder 

system and mixing with methane behind the stoppings trying to 

course it into the bleeder system as it is supposed to (Tr. 226). 

Mr. Ball confirmed that the regulators which have been 

sealed were adjustable, and that attempts were made in the past 

to remove some stoppings and open up some regulators to deal with 

611 
the methane problem, but that the stoppings were replaced because 

pressure was being lost and the air could not be controlled. 

This was also done in April, 1990, when the mine was down for 

5 days while certain stoppings were opened up and others erected 

in an attempt to address the problem. He confirmed that the 

April order was issued "in a complete different area from where 

we are now," and that stoppings were erected in the area where 

the present orders were issued (Tr. 227-231). 

On cross-examination by Mr. Mullins, Mr. Ball confirmed that 

some of the locations along the longwall gob areas in question 

have been partially blocked by the erection of stoppings, and 

some have not, and that the purpose of partially blocking some of 

the areas is to restrict airflow. He reiterated his view that 

opening too many entries will result in a loss of pressure and 

control of the air flow. He further believed that the ventilation plan "works fine for me, 11 and that the use of the bleeder 

entries comply with the plan (Tr. 232-237). 

Mr. Ball confirmed that metal "Kennedy" MSHA approved 

stoppings were recently installed in front of the cited stoppings 

in an attempt to address the order of December 13, and he was 

informed that MSHA was concerned about the migration of methane 

from the gob into the bleeder system and that by checking the 

pinholes in the stoppings they could tell there was a buildup 

behind the stoppings. The Kennedy stoppings were installed to 

prevent any buildup behind them and he was not prohibited frqm 

doing this. However, MSHA would not abate the order and took the 

position that the inspectors had to return to the original areas 

where they tested but they could not do so because of the erection of the new stoppings. He confirmed that no methane levels 

or any imminent dangers were found at these new areas, and 

Mr" Ball suggested that if he had installed the Kennedy stoppings 

earlier, there would have been no orders because there is no 

methane at those locations at the present time (Tr. 247). 

In response to further questions, Mr. Ball confirmed that 

strategic locations of the bleeder connectors are determined by 

management with the assistance of professional ventilation staff 

people who analyze the air flow needs for the mine. He stated 

that he was initially informed that the inspectors were concerned 

about methane leaking into the bleeder entries, but that their 

position has changed into a concern for methane build-ups behind 

the stoppings (Tr. 251-252). Mr. Ball stated that while he did 

not doubt the methane readings taken by the inspectors, he 

questioned the consistency of the readings taken at the higher 

and lower pin hole locations where air is leaking through a 

stopping, and pointed out that since methane is lighter than air 

it will rise to the top of the stopping. He also pointed out 

that company mine examiners have regularly tested for methane 

1-foot outby the stopping and have always used this as a reference point, and they have never been told to use the methodology. 

612 
used by the inspectors in these cases. He saw no distinctions 

between a stopping surface and the face, rib, roof, and floor of 

a mine where MSHA requires methane tests 1-foot from those 

locations. 

Mr. Ball believed that any methane tested against the 

stopping must have a chance to dilute, and that it was incorrect 

to place the methane detector tube in the pinhole itself because 

it does not result in a true reference of what is behind the 

stopping. Since gas is lighter than air, by checking higher up 

on the stopping there could be a small pocket of methane in one 

corner of the stopping which is still trying to come through the 

stopping by pressure which is taking it out (Tr. 254-255). 

Mr" Ball stated that the consistent high methane test results by 

the inspectors is based on the highest readings at the different 

developments which they tested, and that they made five tests 

and received five different readings, they will record and use 

only the highest reading (Tr._.255). 

Inspector Scammell was recalled by the court, and he confirmed that when he conducted his methane tests at the face of 

the stoppings and found high readings, he made several checks to 

make sure that they were "constant and holding. 11 He further 

confirmed that he would have made three or four readings at each 

of the stopping pinhole locations where he could feel the air, at 

the top, bottom, or middle of the stopping, but would only record 

his highest reading as the basis for the order. He followed this 

same procedure at each of the bleeder entries where he tested. 

When asked to account for the lower readings, he responded "that 

could vary on the half where the crack is. I don't really know. 

It may be the size of the crack. I have no idea 11 (Tr. 258). 

l"Ir. Scammell stated that if three or four methane readings 

showed less than an explosive mixture of methane behind the 

stopping, and one measurement indicates an explosive mixture, he 

would conclude that "it is all bad, 11 and he would also conclude 

that the methane was being diluted at the locations where the 

f three samples showed less than an explosive mixture (Tr. 

259). Mr. Scammell had no knowledge of the range of all of the 

readings which he took, but stated that 11 it wasnijt one or six 

percent. It was more 1 maybe four to six percent" (Tr. 259). 

Mr. Scammell confirmed that when he returned to the mine on 

December 6, to check on the December 5, order issued by Inspector 

Carico, he terminated the order after taking additional methane 

readings. When asked why he did not also terminate the 

December 5, citation issued by Mr. Carico, which was based on the 

same methane readings which served as the basis for the order, 

Mr. Scammell explained that while the methane readings were down 

and would support the termination of the order, he could not 

terminate the citation because he could find no changes which 

were made in the ventilation system, other than the replastering 

613 
of the stoppings, and he felt that Island Creek was still out of 

compliance with the ventilation plan because no ventilation 

system changes were made (Tr. 3). He believed that the reduced 

methane readings were the result of the mine being idled by the 

order and not in production, and while the imminent danger no 

longer existed, "the citation wasn't cleared up as far as making 

changes in their bleeder system for this to happen again" (Tr. 

4). The miners went back to work after the order of December 5, 

was terminated, and he extended the abatement time for the 

citation to December 20, and he would normally follow up on the 

citation to determine whether any ventilation changes or adjustments have been made (Tr. 5). Mr. Scammell confirmed that the 

methane readings which he took on December 6, confirmed that the 

methane through the pin holes was reduced, and that the ventilation moved the methane away (Tr. 6). 

Richard E. Ray, Ventilation Manager, testified that he holds 

a B.S. degree in mining engineering, has 11 years of experience 

in mine ventilation, including 7 years as a ventilation engineer 

with Jim Walter Resources. He explained his duties and confirmed 

that they include the design of ventilation systems for Island 

Creek's Virginia Mine Division, and directly working with the 

operational people at the mine in question. He confirmed that he 

is familiar with the mine ventilation system, the gob area, and 

the No. 1 through No. 12 development areas. He identified 

exhibit C-2, as a reproduction of a mine map which he recently 

prepared, and he explained the ventilation in the south gob (Tr. 

7-12). He confirmed that he and a team of engineers conducted a 

survey of the ventilation system on December 12, 1990, and that 

they measured 225,962 CFM of air being directed toward the 

longwall face in the No. 12 development intake, 54,960 CFM of air 

across the longwall face, and the 170,000 CFM balance was 

directed toward the top end of the bleeders. He described the 

a (CFM) coursing through the other relevant development 

locations (Tr. 13-18). 

Mr. Ray stated that the stoppings are installed to ensure 

proper airflow through the entire gob and to insure that the 

north end of the gob 11 does not go dead." He stated that positive 

ventilation pressure must be maintained to insure that the air is 

ventilating the gob, and he explained the airflows and direction 

of air flow at the headgate of the longwall at the No. 12 development face to the top of the No. 1 development and through the 

gob and set-up entries. He confirmed that the amount of air 

going into the bleeder system is for the purpose of diluting the 

methane which is being drained from the gob area. In his professional opinion, and based on his air measurements and knowledge 

of the system, he is satisfied that the gob is being ventilated 

(Tr. 18-24) . 

Mr. Ray believed that the stoppings in question were 

installed before he was employed by Island Creek in 1986. He 

614 
confirmed that several efforts were made to remove some of the 

stoppings when the orders of December 5 and 13, were issued and 

he explained what was done. He confirmed that the removal of the 

stoppings resulted in worse problems from the No. 9 development 

to the No. 1 development in terms of gas coming through the 

cracks in the stoppings and out of the top of the No. 1 development regulator. He also explained that holes or "windows" were 

knocked out in a number of stoppings to allow air flow to travel 

from the gob into the bleeder system, and that this resulted in 

higher concentrations of methane at those locations and at the 

outby locations at the top of the No. 1 development. After a day 

or so, the stoppings were resealed. Additional efforts were made 

to redirect the air to the south bleeders, and Kennedy stoppings 

were also recently installed and the methane through the stoppings has been reduced, but as of the hearing date, the 

December 13, order had not been terminated by MSHA (Tr. 25-36). 

Mr. Ray confirmed that bore holes and vacuum pumps are used 

to draw methane from the min~J and he explained where the holes 

are located and the measured methane flows from the holes (Tr. 

36-41) . He did not believe that the methane readings taken by 

the inspectors would be an accurate indication of what was behind 

the stoppings at the locations where the readings were taken. As 

an example; he cited one bore hole location within a couple of 

hundred feet of where 11 those tens of thousands of hypothetical 

cubic feet of methane" were located and he confirmed that only 

167 CFM of 30 percent methane was being exhausted from that hole. 

This reading was taken during the ventilation survey on 

December 12, the day before Mr. Scammell's order was issued. 

Readings taken on December 5, were very similar to the one taken 

on December 12 nwithin a few CFM's and within a percentage point 

or two of the thirty percent" methane (Tro 42). Since methane is 

than air and seeks the higher spots, he would expect the 

gob elevation areas to have higher concentrations of 

methane (Tr. 43). 

Mr. Ray confirmed that he was familiar with the ventilation 

an provision cited by Mr. Carico, and he was of the opinion 

that i\: was not violated because his survey pressure differentials reflect the noted airflow volumes coming out of the top and 

bottom of the No. 1 development, and one can deduce from these 

air flows that they are going through the active gob current. He 

further confirmed that Mr. Carico did not discuss the citation 

him, and although the survey was done after the violation 

was issued, prior data was ava able, but Mr. Carico did not 

consult it and did not speak to anyone in the engineering or 

ventilation department (Tr. 46). Mr. Ray did not believe that 

one can tell whether a gob is being ventilated adequately by 

taking measurements with a Riken detector at a pinhole at a 

stopping or several stoppings at the top end of the gob, and that 

a survey similar to the one made on December 12, would be necessary to make such a determination (Tr. 50). 

615 
On cross-examination by Mr. Jackson, Mr. Ray confirmed that 

he did not know the methane concentrations in the set-up entries 

of the No. 8 development because that area is inaccessible. · He 

did know the methane concentrations of the bore hole a few 

hundred feet from that location, and it was below 40 percent. 

Since gas flows from high pressure to low pressure, he also knew 

that the bore hole gas was being pulled from the south, but he 

could not prove the range of influence of that bore hole (Tr. 

50-52) • 

Mr. Ray stated that it was his understanding through conversations with mine management that the inspectors wanted to open 

up all of the connectors, and that Mr. Carico indicated that air 

should be brought out of some of the connectors to the regulators 

rather than stopping them off (Tr. 53). Mr. Ray confirmed that 

work on the No. 12 development panel began in July, 1990, and 

that additional bore holes were established in that panel and the 

No. 11 panel to deal with increased methane liberation resulting 

from higher coal produ_ction in those areas (Tr. 54-55). 

On cross-examination by Mr. Mullins, Mr. Ray stated that 

equal emphasis is being placed on ventilating the entire gob 

area, as well as the periphery of the gob. Referring to the mine 

map, he described the flow of air through the development panels, 

and he indicated that somewhere near the top of the No. 1 development panel, air comes out at a volume of 22,351 CFM. He 

pointed out that the first bore hole ever drilled in the gob was 

No. 42, and that it has "been making methane since the April 

ventilation change," and since it was not "making methane 11 for 

5-prior years, he believed that this was evidence of the fact 

·z:hat methane is be moved across the gob r and that air is 

coursing down the bleeder entries (Tr. 58). Mr. Ray further 

::::·eiterated that the use of regulators has not proven successful 

a~ removing methane out of the stopping pinholes, and he 

explained his reasons for this conclusion. He believed that 

there is enough air to push all the methane through the gob with 

the current ventilation system, and if the stoppings were opened 

ilD the back end of the gob at the No. 1 development would be 

unventilated due to high resistance (Tr. 61) . 

Mr. Ray explained the reasons for the recent installation of 

~he second Kennedy stoppings, and he stated that MSHA's 

Arlington, Virginia office was concerned that the problems with 

the pinholes would lead to excess concentrations and volumes of 

methane leaking into the bleeders. Mr. Ray stated that he wanted 

to insure that if there was a possibility of this happening, that 

the methane was being diluted before it got into the bleeder 

system. The second stopping will encourage the mixing of air and 

any methane coming out of the cracks through the connector 

crosscut into the bleeders (Tr. 61-62). 

616 
Donald W. Mitchell, self employed mining engineer, was 

accepted as an expert in mine ventilation and mine fires and 

explosions, and his resume reflecting his educational background, 

experience, and published works in those fields were made a part 

of the record (exhibit C-5, Tr. 71-72). Mr. Mitchell stated that 

he has been familiar with the subject mine "since the early 

'70's," has been involved in a number of ventilation studies in 

the mine, and was actively involved in 1984 and 1985 when he made 

a study of the mine gobs, including the squth gob, following a 

mine fire. He confirmed that the study was made in his capacity 

as a consultant for Island Creek. He further confirmed that he 

has within the past week, studied the ventilation of the south 

gob, including an analysis of the pressure differentials and the 

air flows, and comparing them with the "early 1 80's and '?O's," 

using a map similar to exhibit C-2, which was given to him by 

Mr. Ray (Tr. 73). Based on this information, and map exhibits 

C-2 and C-3, and since air always flows from high to low pressure, he has concluded that any air movement within the gob will 

be away from the face and towards the south bleeder and towards 

the bleeders to the far left of the areas marked on map exhibit 

C-3 (Tr. 76). 

Mr. Mitchell stated that one would expect to find methane in 

the south gob, and since methane is lighter than air, it will 

rise towards the highest point in the gob. Depending on the air 

quantity and velocity, the airflow will pick up from a little to 

a lot of methane and dilute it and move it away to someplace 

where it can escape from the gob. He confirmed that methane 

concentrations between 5 percent and 15 percent can be expected 

in the gob because at the point where the methane is being 

liberated it close to 100 percent, and if it is zero at the 

pinhole locations in the stoppings then "by definition somewhere 

between zero and close to a hundred it is going to be 5 to 

1~ percent. Thatis just basic logic 11 (Tr. 78). 

Mr. Mitchell stated that the purpose of a bleeder system is 

to dilute and sweep away, and thus render harmless, methane that 

put into the bleeder system or escapes into the bleeder 

system. He explained that when there is a drop in the barometric 

pressure there is an increase in the volume of methane, and by 

having a bleeder and a pressure differential the increased volume 

of methane will, instead of flowing into the working face in the 

active workings, be forced away into an area in which there are 

no igniting sources. Mr. Mitchell was aware of no MSHA standards 

that require gobs to be examined for methane. However, bleeders 

must be traveled at least once a week where they are safe to 

travel, and they are examined for methane concentrations, roof 

and water conditions, and to insure a flow of air through the 

bleeder. Methane examination in a bleeder are made where the 

split of air from the gob enters the bleeder, and where these two 

splits join, methane must not be in excess of 2 percent. Various 

methane detectors or bottle samples are used to test the methane 

617 
in the bleeder split, and a detector is "typically used" (Tr. 

81) . 

Mr. Mitchell stated that if the methane readings taken by 

the inspectors at the stoppings in the No. 8, 9, and 10 developments were taken at the higher elevation of the stopping, where 

leakage through the stopping is typically greatest along the roof 

line, one would expect to find higher concentrations of methane 

than any place else. This would be true in the No. 8, 9, and 10 

developments because they are at the highest elevations in the 

gob, which is obvious from the contour lines shown on map exhibit 

C-3, and there is an abnormal release of methane in the gob due 

to severe barometric low pressures exhibited during the month of 

December. Under these circumstances, abnormal releases of 

methane would not be unusual or uncommon, and along the roof line 

behind the stopping there is probably a higher layer of methane 

that has not been diluted and swept away. This is to be expected 

because it is almost impossible to dilute and remove these layers 

of methane (Tr. 83-84). 

Mr. Mitchell stated that if the methane readings were made 

at mid-height in the stopping, he would be concerned that there 

might be more methane behind the stopping than would be normal 

with a thin layer. If methane was found at the bottom of the 

stopping "this would tell us that indeed there's a potential for 

a larger volume of methane. * * * as you go from top to bottom 

the quantity of methane likely to be found behind the stopping 

increases." If eight sample readings are below the explosive 

range, and one was above, "that would tell us that there is a 

potential that we might have a layer of methane, and typically 

these layers are relatively thin. * * * in this specific area 

they might be thicker than one or two inches but such layers are 

not uncommon in the Pocahontas seam" (Tr. 84). 

Mr. Mitchell was of the opinion that the use of the Riken 

detector to measure the methane at the stoppings by sticking the 

tube in the pinhole cracks would not result in an accurate 

reading because the Riken is a form of methanometer which he 

described as an ''interferometer type" which is sensitive and 

calibrated for specific gases. Assuming the inspectors calibrated the detector for methane, it would be influenced by other 

gases which are normal to gobs, and particular the south gob. If 

there were an oxygen deficiency, the detector would read higher 

than true methane, and for each percent of oxygen deficiency one 

can anticipate at least .2 percent methane, and if there was 

4 percent methane and a 1 percent oxygen deficiency, the Riken 

detector would read 4.2 to 4.3 percent methane. There would also 

be a .2 percent difference for each excess of 1 percent nitrogen, 

and with the presence of ethane, which is always present with 

methane in the Pocahontas coal seam, there would be a difference. 

As an example, he stated that 1 percent ethane is equivalent to a 

3 percent reading of methane, and a one-tenth percent ethane 

618 
reading would be equivalent of another .3 percent methane (Tr. 

85-86}. 

Mr. Mitchell stated that the Bureau of Mines published a 

paper in 1960, advising that the Riken detector not be used where 

the atmosphere being tested is not a normal air with methane 

mixture, and that "if you don't know the atmosphere then there's 

no way that you can understand what the reading is." He believed 

that the only way to make a proper determination is with a bottle 

sample, and he stated that if there is a major deficiency of 

oxygen, which is not uncommon in gobs, a 10 percent deficiency 

would be the equivalent of 2 percent methane (Tr. 86). 

After reviewing a copy of the December 13, order, and the 

Riken methane detector test results recorded by Inspector 

Scammell (exhibit G-5), Mr. Mitchell compared those results with 

the three bottle sample results taken at the No. 8, 9 and 10 

developments and analyzed by MSHA's laboratory (exhibit C-1). He 

confirmed that the Riken read:ing recorded on the order for the 

No. 2 entry in the No. 10 development shows 6.2 percent methane, 

and that the bottle sample taken at that same location shows 

approximately 5.5 percent (5.47) methane, or a difference of 

.7 percent. He explained that the difference was in the oxygen 

deficiency and methane concentrations, and that the Riken reading 

would be representative if one considered the oxygen and methane 

concentrations. He arrived at similar conclusions with respect 

to the Riken reading of 6.3 percent methane for the No. 4 entry 

in the No. 9 development, and a bottle sample result of 

5.09 percent methane at that location, and the Riken reading of 

6.7 percent methane for the No. 4 entry in the No. 8 development, 

and a bottle sample result of 5.8 percent (5.75) methane at that 

location (Tr. 87-89). 

Mr. Mitchell was of the opinion that methane detected coming 

through a pinhole in a stopping is not a reasonably accurate 

indication of what is on the other side of the stopping and it 

would not be an indication that the gob was not being ventilated. 

He believed that the gob is being ventilated in accordance with 

established ventilation guidel , and that with the numerous 

bore holes in the south gob, i

1 the evidence leaves no question 

that there a flow of air from the headgate entry of Number 12 

development through and across the to the far reaches of the 

gob which is the intent of proper bleeder ventilation -- of gob 

ventilation" (Tr, 91-92). 

In response to a hypothetical question based on the testing 

procedures followed by the inspectors with the use of the Riken 

detector, intermittent detections of explosive and non-explosive 

mixtures of methane, and knowledge of prior mine fires, 

Mr. Mitchell was of the opinion that it would not be reasonable 

to conclude that an imminent danger existed because "for an 

imminent danger to exist one must put it in context -- one must 

619 
put in an igniting source in conjunction with the methane" (Tr. 

94). Mr. Mitchell stated that the sole source of any ignition in 

the area would be at the face area and that the face area has 

historically been associated with the past mine fires. He would 

also be mainly concerned about the pressure differential between 

the face and the stopping points because in prior years there was 

a problem with methane backing out on the face because the 

pressure differentials were half of what they are today (Tr. 95). 

Mr. Mitchell believed that it was essential that the gob 

stoppings in the development areas in question remain intact and 

that to remove them "would be terrible" because it would result 

in 11 dead space" due to lower resistance. As an example, if this 

were to occur at the No. 9 development, the great majority of the 

air now flowing through and across the gob would go out the 

entry, leaving the gob to the left relatively unventilated. A 

barometric pressure drop could result in a flow of methane into 

the No. 12 development panel which is an active working area and 

where there are sources of ig~t.tion (Tr. 97). Mr. Mitchell did 

not believe that it was a bad practice to install regulators, 

provided they do not prohibit air flow through and across the 

entire gob, and he explained the various regulator problems which 

he believed were the reasons for sealing them. Mr. Mitchell 

agreed that "any time you have an uncontrolled gob you've lost 

your control over it and you have created an unacceptable hazard" 

('I'r. 9 7 -9 9 ) • 

On cross-examination by Mr. Jackson, Mr. Mitchell was of the 

opinion that since a stopping concrete block is permeable, it 

could, over time, accumulate methane within the block, and if a 

pressure differential were introduced in the atmosphere, the 

block would liberate methane (Tr. 100). He stated that methane 

~ould gravitate to the No. 8, 9, and 10 developments because 

::.hose areas are at the highest elevation. The elevation has 

~othing to do with the ignition characteristics of methane which 

do !1ot change because of any higher elevation, and that "methane 

ignition characteristics are specific characteristics no matter 

where it be" (Tr. 104). He confirmed that methane layers are not 

~ncommon in the mine coal seam, and that the critical factor in 

disbursing or mixing any layers of methane would be the velocity 

of the air flow (Tr. 105). He explained that the method for 

istermining the amount of a flow velocity necessary to disburse 

l of methane involves ,; 2 rather complex formula 11 which he 

worked out in 1983. Based on the air flowing through the area in 

question he believed that "in the south bleeder there a low 

probability for a layer to form. I would say that the south 

bleeders are well ventilated within the state of the art 11 (Tr. 

106) • 

Mr. Mitchell stated' that assuming the inspectors had "soda 

lime and dry-right" in their Riken detector scrubbers, the 

difference in their Riken methane readings and the laboratory 

620 
bottle sample results would be the presence of methane and 

oxygen, and excess nitrogen in the three samples. He confirmed 

that ethane gas is flammable, and while the presence of ethane 

does not make the gas any safer 11 it does raise questions as to 

the proper use of a Riken for circumstances that would lead to a 

closure of the mine" (Tr. 107). He conceded that although these 

differences do not detract from the fact that the methane mixtures were explosive, and makes no difference in this case, he 

nonetheless believed that it is improper to base an imminent 

danger determination solely on the use of a, Riken detector unless 

you know what the atmosphere is where you are testing. He stated 

that "had these samples come back, and they could have, with much 

lower percent oxygen then you might have had a closure order 

issued without any reasonable basis" (Tr. 109). 

Mr. Mitchell believed that any indication of explosive 

levels of methane found by an inspector with a Riken detector 

should trigger further inquiries on his part to determine whether 

or not ignition sources are readily available, and that any 

determination in this regard'Would require him to go to the 

working face to determine whether there are any ignition sources 

which would create an imminent danger. Mr. Mitchell stated that 

"we could fill this room with methane and there is no hazard as 

long as we don't flip a switch" (Tr. 110). 

Mr. Mitchell confirmed that major roof falls have occurred 

in the south gob area from the stoppings in the set-up entries 

into the gob (Tr. 111-112). He also agreed that there could be 

falls within the gob, but he did not believe that it was reasonable to believe that such falls could by themselves be an ignition source for methane in the gob. He confirmed that the bas 

for this conclusion is his extensive study and expertise in 

frictional ignitions. He pointed out that the only experience 

relied on by the inspectors for any potential frictional ign 

tions limited to the mine question. Since he (Mitchell) 

was aware of the conditions leading to the mine ignitions in the 

past, he assumed that the inspectors had that same knowledge (Tr. 

114) • 

Mr. Mitchell confirmed that he was famil with the MSHA 

reports concerning the four prior mine fires, and he pointed out 

that with respect to two of those fires, MSHA did not Hconclude 1i 

that they were caused by roof falls, and only found that roof 

falls were among the potent 1 sources. He further stated that 

although 91 at one time I did not argue against that," detailed 

studies of the mine which he and MSHA have conducted show that 

the probability of a roof fall being an ignition source so 

small and of relative insignificance, and that "it's not something an engineer would consider reasonable and proper today11 

(Tr. 115-116). 

621 
Mr. Mitchell did not believe that an inspector can make any 

judgment about the ventilation or methane behind the stopping 

based solely on methane readings, and that "a combustible atmosphere at a stopping by itself needs (sic) nothing" and indicates 

nothing relative to a hazard. He pointed out that there are no 

laws precluding concentrations of methane in a gob, and if there 

were, "you would shut down almost every mine in these United 

States." He further pointed out that the laws are specific as to 

the amount of methane permitted in active workings where men are 

working, and that in this case, there are no required methane 

percentages for the areas which were tested because "it is 

unreasonable to set a percentage there because that percentage 

could be anything you want it to be depending on where you are 

when you take the reading" (Tr. 129). 

On cross-examination by Mr. Mullins, Mr. Mitchell stated 

that the conditions which were present on December 5 and 13, when 

the orders were issued complied with the ventilation plan as he 

interprets it, and he explained the effect of the stoppings which 

are in place as follows at (Tr. 142): 

What we have done is prevented the air from escaping 

into the south bleeder. Much of it. We have some 

leakage into the south bleeder and the purpose of those 

stoppings is to make sure that the air to control 

airflow through such gob area and through such gob area 

means (sic) from number 12 Development panel to the 

bleeder to the far left. That is what this says and 

that is what is being done. That is what I testified 

to. I hope. 

E. Tisdale, Senior Mining Engineerr MSHA D sion of 

2,a , Arlington 1 Virg was called in rebuttal by JViSHA and 

was accepted as an expert mine ventilation and safety. He 

~onfirmed that he has been present during the course of the 

hearing, viewed the witnesses, and has reviewed the exhibits" It 

was his opinion that the adequacy of the ventilation of the mine 

gob area is 11 borderline to inadequate 11 (Tr. 152). Using the 

map of the area on, exhibit C-2, with the ventilation 

readings taken by Island Creek as noted on the map during a 

ventilation survey made on December 12, 1990, he explained his 

ana is of the ventilation and methane, including the quantity 

and velocity of the a flow the gob: longwall, and bleeder 

of the developments in question. He confirmed that the 

gob area was approximately 6,000 feet long, and that 226,000 

cubic feet of air per minute was entering the longwall and gob 

area at the intake of the No. 12 development (Tr. 153). 

Mr. Tisdale calculated that 80 percent of the air at the 

No. 12 intake is coursed to the bleeder entries and is separated 

from the gob 11 and does no work there," and that an additional 

622 
22,000 cubic feet a minute is isolated from the gob. He calculated that 27,000 cubic feet a minute is left to ventilate the 

gob area, that the air velocity would be 4-1/12 feet a minute, 

and that it would take 20 hours for the air to travel a mile at 

that velocity. He concluded that 27,000 cubic feet a minute of 

air for 6,000 feet of gob "is stretching it" (Tr. 154). 

Mr. Tisdale pointed out that the map shows 22,351 cubic feet of 

air per minute and 3.78 percent methane coming out at the top of 

the No. l development, and after making further calculations, he 

concluded that 8.9 percent methane is being delivered to the 

bleeder entries "which supports the inspectors efforts to probe 

in there through the cracks behind the samples (sic)" (Tr. 157). 

Mr. Tisdale stated that the stoppings "are extremely well 

constructed," even though they have "hairline cracks," and he 

calculated that the average quantity of air pushed through the 

plastered stoppings by the ventilation pressure would result in 

an air velocity of 30 cubic feet a minute for stoppings. He 

would expect to find such more than 30 cubic feet a minute, and 

that a "rule of thumb_ would be one inch of pressure in a stopping 

would give you 100 cubic feet a minute" (Tr. 155). He believed 

that the system can function properly as long as the seventh 

entry accepts air flow. However, as the set-up entries deteriorate to the point where they become resistant, they will not 

accept more air flow with the available pressures, and the system 

becomes ineffective. He had no idea when this may have occurred, 

and stated that "at one time this could have been a satisfactory 

system" (Tr. 159). 

Mr. Tisdale made further calculations with respect to the 

airflow through the south bleeders, and confirmed that the 

2 percent methane level requirement found in the ventilation plan 

would apply at the junction of the south and east bleeders. He 

calculated that there would be 1.9 percent and 2.2 percent 

methane at two locations, and concluded that "this ventilation is 

extremely borderline with respect to meeting the 2 percent limit 

at this junction." He agreed that any "tinkering" which flushes 

out more methane, or any air regulation that reduces the quantity 

of air available for the total split "will take them above the 

2 percent limit at this point and make the whole system no go.H 

He believed that this was the crux of the problem, and that due 

to the extensive gob, the solution will be difficult (Tr. 159). 

Mr. Tisdale confirmed that he was not aware of anything in 

these proceedings that would indicate that the mine ventilation 

was significantly different on December 5, and 13, 1990. Based 

on his analysis, and the testimony he has heard in these proceedings, it was his opinion that the longwall set-up entries contain 

an excessive 9 percent methane "in the major part of their 

length," and an accumulation of explosive methane behind the 

setup entries in the south gob (Tr. 162). 

623 
In response to questions concerning the adequacy of the 

testing procedures used by Inspectors Carico and Scammell to 

determine whether methane had accumulated in the gob, Mr. Tisdale 

stated as follows at (Tr. 163): 

A. Well, their methods I consider a bit crude, but it 

was the tool that they had to use to try to deduce what 

was behind the stoppings in the set-up entries and, if 

anything, their samples would have shown less methane 

than was on the other side of the stopping because of 

the difficulty to keep the sample from being contaminated by air on the bleeder side of the stopping. 

Q. All right. Now, you've heard that they took more 

than one reading at many of the locations in the 

entries to the south bleeders, but that they only used 

the higher measurement. Which measurement, of that 

number they took in one area -- which measurement would 

most accurately reflect or accurately measure the 

methane levels in the air behind the stopping? The 

highest reading or the lowest reading? 

A. Well, because of the potential for contamination, I 

would say the highest reading. 

Mr. Tisdale stated that a concrete block, as manufactured, 

does not contain or generate any methane. He was of the opinion 

that methane would flow through the block, which is only a 

conduit, and that any methane in the block would have no effect 

whatsoever on the accuracy of the readings taken with a Riken 

detector (Tr. 164). He confirmed that since methane is lighter 

than air it will lay against the roof in an atmosphere of low 

vel ty. There is broken roof where caving has taken place in 

inity of the set-up entries, and if the methane laying 

inst the roof is not pushed down by other methane or mixed 

the air, it will seek its highest level and there could be a 

layer of methane, If the ventilation velocity in the set-up 

entries is sufficient to cause mixing of the air and methane, no 

further layering will take place because once mixed, methane is 

always mixed and will not separate. He believed as a g

1 rule of 

thumbu 100 feet of air per minute was sufficient for mixing and 

preventing any layering of methane, and that based on his calculations, he did not believe that such velocity was present in the 

set-up entries (Tr. 165). 

Mr. Tisdale was of the opinion that there is an ignition 

risk in the south gob through a roof fall that can create enough 

arcs and sparks to ignite any flammable mixture of methane in the 

a He stated that roof falls have caused methane ignitions in 

the mine gob and that there have been two mine fires in the south 

gob. He identified copies of MSHA's reports regarding these 

624 
fires, and also identified a copy of an MSHA memorandum concerning an examination of rock specimens from the mine (exhibit G-10, 

Tr. 166-167). Mr. Tisdale believed that the inspectors "were 

justified in their actions," and based on the evidence and 

testimony in these proceedings, he was of the opinion that there 

was a reasonable likelihood of an ignition of the explosive 

accumulations of methane in the south gob on December 5, and 13, 

1990, if mining operations were to continue with no changes in 

the conditions which were present (Tr. 170)., 

On cross-examination by Mr. Biddle, Mr. Tisdale confirmed 

that the stoppings between the No. 7 and No. 11 developments have 

effectively closed off the bleeders from the gob. In his opinion, considering the fact that not much air flow can go through 

the set-up entries, the ventilation plan was not being followed 

in ventilating the gob. He agreed that the "active words" of the 

ventilation plan are "connected at strategic locations," and he 

confirmed that there were connections between the bleeders and 

the gob (Tr. 171-172) .. He cqpfirmed that there is a difference 

of opinion as to whether the connections are at "strategic 

locations," that the ventilation plan does not define what this 

means, and that neither MSHA or the company have told each other 

what they consider to be "strategic locations'' (Tr. 172). 

Mr. Tisdale confirmed his belief that the longwall set-up 

entries in the No. 8, 9, and 10 development area behind the 

stoppings probably had 9 percent or more methane from "somewhere 

around 8 or 9 Development, I think that's a good assumption" (Tr. 

173). He agreed that there was a pressure differential between 

the gob side and bleeder side and that the air coming out "had to 

have some push. 11 In response to a question whether one can 

assume that since Inspector Carico found methane coming through 

one stopp at the No. 8 development, but found no methane 

coming through the other three stoppings in that development, 

that 9 percent methane in the set-up rooms would only come 

through sometimes but not all of the time, Mr. Tisdale responded 

"I assume there were no cracks in the other stoppings" (Tr. 174) 

He denied that he ever heard the inspector testify that he took 

several methane readings at any given stopping hole and found 

only one reading over 5 percent (Tr. 174). He also confirmed 

that there is no standard prohibiting 9 percent methane in a gob 

(Tr. 175) . 

On cross-examination by Mr. Mullins, Mr. Tisdale stated that 

his estimate of 9 percent methane concentrations pertains to 

methane in the set-up entries adjacent to the gob and adjacent to 

the bleeder entries, and not in the "gob" (Tr. 176). He confirmed that the concept of "strategic locations 11 for stoppings 

will change depending on the need to induce airflow in the set-up 

entries. The determination of whether any stopping is at a 

strategic location under the ventilation plan would depend on 

"whether it would work or not, 11 and one has to plan the number 

625 
and locations of openings and the amount of air regulation on 

those openings so that the whole system is effective (Tr. 177). 

In response to further questions, Mr. Tisdale confirmed that 

he was not aware of any mine citations for exceeding the 2 percent methane requirements for certain mine locations. He agreed 

that any 11 tinkering11 with the ventilation system may solve one 

problem but will create another one. He explained that reducing 

the amount of air by increasing the regulation to try and stimulate more air flow to the set-up entries, will jeopardize the 

2 percent maximum allowable methane at other places (Tr. 

179-181). 

Mr. Tisdale stated that the inspectors were trying to 

determine what was behind the stopping by using the test procedures with the Riken detector, and he stated that 11 I think I've 

shown them, through this analysis, that there are other ways to 

determine what's behind." He believed that the inspectors 

conclusions as to what was behind the stoppings was at least what 

they measured on the 0,utby side. He also believed that a bottle 

sample is more difficult to take properly than a Riken reading 

because of the increased chance of contamination. He would 

expect a bottle sample to show a lesser percentage of methane, 

but that both methods are subject to marginal errors due to 

certain factors. Mr. Tisdale was of the view that the ultimate 

solution for determining what is in the gob is to incorporate a 

method for evaluating the gob as part of the ventilation plan. 

He confirmed that this is not in the present plan (Tr. 187). He 

also confirmed that none of the prior mine fires involved any 

injuries or fatalities, and he believed that one of them occurred 

in the set-up entry, and that they all occurred behind an active 

longwall (Tro 188). 

Findings and Conclusions 

Imminent Danger 

Section 107(a) of the Mine Act, 30 UoS.C. § 817, provides as follows~ 

If, upon any inspection or investigation of a coal 

or other mine which is subject to this Act, an authorized representative of the Secretary finds that an 

imminent danger exists, such representative shall 

determine the extent of the area of such mine throughout which the danger exists, and issue an order requiring the operator of such mine to cause all persons, 

except those referred to in section 104(c), to be 

withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the 

Secretary determines that such imminent danger and the 

conditions or practices which caused such imminent 

626 
danger no longer exists. The issuance of an order 

under this subsection shall not preclude the issuance 

of a citation under section 104 or the proposing of a 

penalty under section 110. 

Section 3(j) of the Mine Act, 30 u.s.c. § 802(j), defines an 

"imminent danger" as "the existence of any condition or practice 

in a coal or other mine which could reasonable be expected to 

cause death or serious physical harm before such condition or 

practice can be abated." 

In Old Ben Coal Corp. v. Interior Board of Mine Operations 

Appeals, 523 F.2d 25, 32 (7th Cir. 1975) ·(quoting Freeman Coal 

Mining corp., 2 IBMA 197, 212 (1973), aff'd nom. Freeman coal 

Mining Co. v. Interior Board of Mine Operations Appeals, 504 

F.2d, 741, 743 (7th Cir. 1974), the determining test of whether 

an imminent danger exists was stated as follows: 

[E]ach case must be decided on its own peculiar facts. 

The question in _every d:fse is essentially the proximity 

of the peril to life and limb. Put another way: Would 

a reasonable man, given a qualified inspector's education and experience, conclude that the facts indicate 

an impending accident or disaster, threatening to kill 

or to cause serious physical harm, likely to occur at 

any moment, but not necessarily immediately? The 

uncertainty must be of a nature that would induce a 

reasonable man to estimate that, if normal operations 

designed to extract coal in the disputed area proceeded, it is at least just as probable as not that the 

feared accident or disaster would occur before elimination of the danger. 

In Rochester & Pittsburgh Coal Company v. Secretary of 

===-==' 11 FMSHRC 2159, 2163 (November 1989), the Commission 

adopted the position of the Fourth and Seventh Circuits in 

Eastern Associated Coal Corporation v. Interior Board of Mine 

Operations Appeals, 491 F.2d 277, 278 (4th Cir. 1974), and 

~~-=~-=-_::::_:~~· v. Interior Board of Mine Operations Appeals, 

523 F.2d 25, 33 (7th Cir. 1975), holding that "an imminent danger 

exists when the condition or practice observed could reasonably 

be expected to cause death or serious physical harm if normal 

mining operations were permitted to proceed in the area before 

the dangerous condition is eliminated.'' Canterbury Coal Co., 

6 IBMA 175, 178 (1976) (quoting Rochester & Pittsburgh Coal Co., 

5 IBMA 51 (1975), held that "speculative potential for a remote 

possibility does not warrant the issuance of an imminent danger 

withdrawal order." 

In affirming the imminent danger order issued in the 1989 

Rochester & Pittsburgh Company case, supra, at 11 FMSHRC 2164, 

the Commission rejected an argument based on the "relative 

627 
likelihood" of injury resulting from the cited conditions, and 

stated as follows at 11 FMSHRC 2164: 

R&P's argument also fails to recognize the role 

played by MSHA inspectors in eliminating dangerous 

conditions. Since he must act immediately, an inspector must have considerable discretion in determining 

whether an imminent danger exists. The Seventh Circuit 

recognized the importance of the inspector's judgment: 

Clearly, the inspector is in a precarious 

position. He is entrusted with the safety of 

miners' lives, and he must ensure that the 

statute is enforced for the protection of 

these lives. His total concern is the safety 

of life and limb. . . . We must support the 

findings and the decisions of the inspector 

unless there is evidence that he has abused 

his discretion or authority. (Emphasis 

added) . 

Old Ben, supra, 523 F.2d at 31. 

Docket No. VA 91-47-R. Section 107(a) Imminent Danger Order 

No. 3354742, December 5, 1990. 

The evidence establishes that Inspector Carico began his 

inspection on December 5, 1990, at the No. 12 Development and· 

proceeded inby the longwall face along the development entries 

where he found no ventilation problems and no significant methane. He determined that the air ventilation was flowing normally 

and as expected from the No. 12 Development toward the No. il 

Development where he checked two entries and took air readings. 

He found that the vent ation was acceptable, and he continued to 

examine the 11 dead-end entries 11 and bleeder connectors in the 

No. 11 Development and found that these areas were being properly 

ventilated. He confirmed that two other MSHA inspectors checked 

the ventilation in the headgate entries adjacent to the No. 12 

development panel gob and the tailgate entries from the face to 

the mouth of the panel where it intersected the main returns, and 

that no violations were found by these inspectors. 

Mr. Carico confirmed that after leaving the No. 11 Development he proceeded to the No. 10 Development where he found four 

stoppings across the four entries. Three of the stoppings were 

0 air tight" and he found no leakage. However, he found air 

leaking through pinhole cracks at the stoppings in the No. 2 

entry, and when he placed the tube of his methane detector in the 

crack where a 11minute amount of air was leaking," the instrument 

read 6.2 percent methane. The inspector believed that the 

methane behind the stopping may have possibly been a "localized" 

problem, or "a small body of methane trapped behind a single 

628 
brattice, 11 and he made no imminent danger decision at that point 

in time. He did not test the stoppings in the other three 

entries because the air leakage around the stopping perimeters 

was within a foot of the roof and ribs and any methane readings 

would have been "artificially high and not representative" (Tr. 

86) • 

Mr. Carico next proceeded to the No. 9 Development where he 

took a methane reading at one of the stoppings in the No. 4 entry 

and found 8.3 percent methane when he took a reading against that 

stopping. He confirmed that he "did not bother" to test the 

other three stoppings in the other three entries in this development (Tr. 29). Although he believed that an "imminent danger was 

probable" at that point in time, he reached no firm conclusion, 

and proceeded to the No. 8 Development where he tested the 

stopping in the No. 4 entry and found 7.5 percent methane when he 

took a reading against the stopping. He did not test the other 

three stoppings in the other three development entries. Upon 

completion of the methane reading at the No. 4 entry, Mr. Carico 

concluded that an imminent danger existed and his conclusion in 

this regard was basea on his belief that "there was a substantial 

body of methane in the gob area encompassing probably 12 entries 

in the form of the bleeder connectors back to the gob and most 

probably be associated to set-up entries" (Tr. 31). 

Mr. Carico's conclusion that "there was a substantial body 

of explosive methane" behind all of the stoppings in the three 

developments in question was based on the methane readings taken 

with a Riken methane detector at three of the 12 stoppings 

located in the 12 entries, an area covering approximately 

1,000 feet. The readings he obtained prompted the issuance of 

the order. Mr. Carico concluded that the high methane readings 

resulted from an inadequate bleeder ventilation system and 

insufficient air flow which failed to dilute the methane which he 

measured at the three stoppings, and this prompted him to also 

issue a citation at the same time. He characterized the inadequate ventilation as an "associated problem" because it was not 

diluting the methane, and he stated that the citation "helped to 

define the cause of the imminent danger. 11 

Mr. Carico confirmed that he took some bottle samples in 

support of his order and citation, but that they were lost in the 

mail and were never received by MSHA's testing facirity. He 

further confirmed that he made no tests to determine the oxygen 

content of the air leaking through the three stopping cracks 

where he made his methane readings. He conceded that the air 

oxygen content is "definitely a factor" in determining whether 

there is an explosive mixture of methane present, and that one 

cannot determine whether there is an explosive mixture of methane 

behind a stopping "with a sole finding of my methane level" (Tr. 

87) • 

629 
There is no evidence that any explosive methane was leaking 

through the stoppings into the bleeder entries. Mr. Carico 

confirmed that he made no readings outby the stoppings in the 

bleeder entries, and he conceded that his methane readings 

against the stoppings "would not indicate what was going on in 

the bleeder." He further confirmed that he would expect that any 

methane bleeding through the stoppings would mix and dilute with 

the ventilation air in the bleeders and be carried through the 

bleeder entries out of the mine through the exhausting fan 

shafts. 

Mr. Carico confirmed that at the time he made his decision 

to issue the imminent danger order, he considered the explosive 

mixture of methane which he believed was behind the stoppings to 

be a hazard and that "the only thing lacking for an explosion is 

the ignition source" (Tr. 30). He further confirmed that based 

on his collective knowledge and understanding of the "history of 

the mine," he knew that there were possible ignition sources 

associated with the gob (Tr. ~~). The record reflects that the 

"mine history" relied .on by Mr. Carico includes (1) four MSHA 

reports covering mine fires which occurred in 1972, 1975, 1983, 

and 1984 (exhibits G-6 through G-9), two of which he believed 

were located in the south gob area (Tr. 23); (2) an MSHA memorandum report dated June 25, 1973, concerning an examination of rock 

specimens from the mine; and (3) a prior face "methane inundation" which Mr. Carico believed occurred sometime in 1985 (Tr. 

104-106). None of these prior incidents resulted in the issuance 

of any violations. 

Notwithstanding his testimony that the prior mine fires were 

of unexplained origin, and that there was no conclusive proof to 

establish what may have caused them (Tr. 35), Mr. Carico believed 

that one of the recognized possible ignition sources for the 

fires nwas roof falls in the caving areas of the longwall units" 

(TL 32)" He explained that the "roof contains massive sandstone 

with layers of quartzite contained in that sandstone. Quartzite 

is highly sparked and has been known to ignite bodies of methane" 

(Tr. 3 2) . 

In addition to the prior mine fires, Mr. Carico identified 

the following possible ignition sources which he believed could 

affected the south gob area: (1) an ignition along the face 

area propagating into the gob and igniting methane in the gob 

adjacent to the longwall face, and which could have involved the 

body of methane behind the cited stoppings; (2) welding or 

cutting along the longwall face, (3) open flames and the bolting 

of metals which could ignite methane leaking from the mine floor, 

and (4) work connected with ventilation adjustments and repairs 

in the bleeder entries, and sparks created by the use of hammers 

on the metal ventilation brattices (Tr. 34). Mr. Carico confirmed that his knowledge of the prior mine fires, coupled with 

the possible ignition sources which he identified, led him to 

630 
conclude that "it was fairly likely" that death or serious injury 

would have resulted if normal mining operations were to continue 

on December 5, 1990 (Tr. 35). 

The record reflects that the south.gob area is a large 

inaccessible area left by 10 mined out longwall panels encompassing an area of approximately 5,600 to 6,000 feet. The gob 

contains roof materials and other debris left when the roof caved 

in after coal was extracted from the longwall panels. The caved 

areas may or may not be "caved tight" throughout the entire gob, 

and since the gob is inaccessible, the actual conditions of any 

remaining top area in the gob are not known. 

The parties presented no evidence or testimony with respect 

to the actual prevailing roof conditions at the time Mr. Carico 

issued his order. However, the information contained in the MSHA 

fire reports, which appears to be consistent in each report, 

reflects that the immediate mine roof varies from fragile shale, 

interspersed with coal stringer, to sandstone, and that the main 

roof is sandstone and the max1mum cover is 2,500 feet. The 

reports also indicate that the Pocahontas No. 3 coalbed is known 

to liberate methane freely, and that large quantities of methane 

is liberated when the roof caves in the mined out areas behind 

the longwalls. 

The 1983 and 1984 MSHA reports reflect that the Pocahontas 

No. 3 coal is not highly susceptible to spontaneous combustion, 

and that the emulsion used in the hydraulic longwall roof supports is nearly 97 percent water and that its susceptibility to 

spontaneous combustion is low (exhibits G-9 and G-10, pgs. 9, 

12). The 1984 report notes that additional analyses indicated 

similar results with respect to any coal spontaneous combustion. 

The MSHA 1972 and 1975 reports reflect that the factors 

which probably confined the spread of the ignition and fire which 

were the subjects of those reports were (1) the mine surfaces in 

the face and mined out areas were wet to damp because of the 

large quantity of water used by the longwall spray system; 

(2) the bleeder entries were rock-dusted~ and (3) the relatively 

low volatile ratio of the Pocahontas No. 3 coal (exhibits G-6 and 

G-7, pgs, 14, 14). 

The June 25, 1973, MSHA memorandum reflecting the results of 

an examination of rock specimens found in the mine (exhibit 

G-10), which I assume was prepared in connection with the 

December 5, 1972, fire, indicates that the rock which fell behind 

the longwall face was medium grained sandstone containing quartz 

crystals. The concluding paragraph of the report states as 

follows: 

A methane ignition would be possible with this 

type of material. Friction occurring due to rocks 

631 
rubbing together during a massive roof fall would 

create sparks and/or pressure and frictional heat 

capable of igniting an explosive mixture of methane and 

air. 

The Dictionary of Mining, Minerals, and Related Terms, U.S. 

Department of the Interior, 1986, defines sandstone as "a 

cemented or otherwise compacted detrital sediment composed 

predominately of quartz grains" (pg. 961). nQuartzite" is 

defined as "a quartz rock derived from sandstone, composed 

dominantly of quartz, .•• a very hard, dense sandstone" 

(pg. 885). I take note of the fact that the 1983 report, at 

pg. 12, reflects that the 1972 and 1975 fires were attributable 

to sparks created by "falls of quartzite roof." However, the 

1972 and 1975 reports reflect that based on "information" and a 11 consensus" during the investigations of those incidents, ignition occurred as the result of "falls of sandstone roofs." Under 

the circumstances, it would appear that the terms "sandstone" and 11 quartzite 11 are used synonymously in these reports. 

There is no evidence that Mr. Carico examined the roof 

conditions in the three development areas where he conducted his 

inspection, nor is thee any evidence that he had any knowledge of 

any prevailing or recent roof conditions which may have posed a 

potential for creating a spark or providing an ignition source. 

There is also no evidence of the existence of any recent roof 

falls in the bleeder entries which he examined, or whether Island 

Creek had ever been cited for roof violations in those areas~ 

The only basis for Mr. Carico's conclusion that a roof fall in 

the gob area could possibly ignite the explosive mixtures of 

methane, which he speculated were behind the stoppings, was his 

knowledge and belief, gained from the MSHA reports in question, 

that a sandstone mine roof containing layers of quartzite was a 

potential ignition source because quartzite is a highly 0isparking11 material which has been known to ignite methane. 

A close review of the 1983 and 1984 reports relied on by 

Mr. Carico, reflects that following the 1975 fire, Island Creek 

instituted a drilling program to locate any quartzite roof 

formations, and that it was of the opinion that in any roof areas 

where any quartzite was present 25 feet or more above the immediate roof, there would be less likelihood of an ignition occurring 

and that any longwall mining could be safely done. I assume that 

MSHA concurred with Island Creek's position since both reports 

state that 11 these guidelines have been followed and no further 

ignitions have been attributed to this source" (exhibit G-6, 

pg. 12, paragraph 7; G-9, pg. 9, paragraph 7). 

MSHA's reports of the 1983 and 1984 fires concluded that the 

location of the fires could not be determined, and that there was 

insufficient evidence to conclusively identify the ignition 

632 
sources (exhibit G-8, pg. 14; G-9, pg. 10). Some of the "possible" ignition sources for the 1984 fire were identified as 

(1) spontaneous combustion, (2) cutting and/or welding, and 

(3) rekindling and sparks from falling roof that contained 

quartzite. The report, however, further concluded that the only 

ignition sources peculiar to the mine were the possibility of 

rekindling and the quartzite conglomerate found in the main roof 

(pg. 14). However, rekindling was discounted as "unlikely," and 

no conclusions were made with respect to any cutting and/or 

welding or spontaneous combustion, other th~n to discount these 

possibilities as not being peculiar to the mine. 

With regard to the possibility of quartzite as an ignition 

source for the 1984 fire, MSHA's report makes reference to Island 

Creek's drill records which established that the roof containing 

quartzite was no closer than 50 feet of the coal seam in the 

vicinity of the No. 4 longwall panel where the fire was discovered. The report also indicates that following the 1983 fire, an 

MSHA geologist examined the mine roof and found no evidence of 

any quartzite in the gol::> area:"inby the No. 4 longwall (pg. 12). 

Under the circumstances, I can only conclude that MSHA discounted 

a roof fall containing quartzite as the source of the ignition. 

Coupled with MSHA's conclusions that no further ignitions have 

been attributable to sparks from a fall of quartzite roof since 

the 1975 fire, which occurred some 15-years prior to the issuance 

of the order by Mr. Carico in 1990, I cannot conclude that there 

is any credible evidentiary support for any conclusion that such 

occurrences are "peculiar" to the mine, or that the mine has a 

"history" of such incidents. Any such incidents which may have 

occurred prior to 1975, are in my view, too remote in time to 

support any reasonable conclusion that they pose a present 

ignition hazard or 11 an impending accident or disaster, threatening to kill or to cause serious physical harm, likely to occur at 

any moment but not necessarily immediately, 11 

With regard to Mr. Caricous belief that a face ignition at 

the longwall constituted another possible source of ignition 

affecting the gob behind the stoppings which he cited, he conceded that the longwall working faces on December 5, were several 

thousand feet from the stoppings where he made his methane 

readingsF and he candidly admitted that he was not prepared to 

evaluate the potential for an ignition at the longwall face (Tr. 

99-100). With regard to the prior face ignitions which he 

alluded to, he had no knowledge as to how many may have occurred, 

or when they occurred, and he agreed that any explosive mixture 

of methane leaking from the roof or face where coal is being cut 

would constitute a "controlled, small body of methane" which he 

characterized as a "face ignition or pop." I take note of MSHA's 

1972 report which reflects that there were three reported frictional ignitions in 1972 caused by a methane-air mixture being 

ignited from sparks from the bite of continuous miners striking a 

band of shale and bone coal near the mine floor. These incidents 

633 
reportedly occurred 18 years ago, and Mr. Carico either did not 

remember them, or did not read the reports carefully. 

The MSHA reports relied on by Mr. Carico clearly reflect 

that following the 1975 fire, no further ignitions have been 

attributable to roof falls containing quartzite, and the 1983 and 

1984 reports confirm that examinations of the roof area by MSHA's 

geologist found no evidence of any quartzite in the gob area 

where those fire were located. It would appear to me from these 

reports that the presence of quartzite in the mine roof may be a 

localized condition, particularly in light of the fact that no 

quartzite was found in the gob area where the most recent fire of 

1984, was discovered, and Island Creek's unrebutted drill studies 

which indicated that the quartzite formation was no closer than 

50 feet of the immediate roof. Although MSHA's 1984 report 

concluded that the quartzite conglomerate found in the main roof 

is a possible ignition source peculiar to the mine, it was 

apparently discounted as a potential ignition source on the basis 

of the finding that any quartzite present was no closer than 

50 feet of the immedia.te roof.'· 

Island Creek's expert witness Mitchell, a recognized expert 

in mine fires and frictional ignitions, and who has periodically 

made studies of the mine since the early 1970's, including 

studies of the gob area following the two most recent reported 

fires, was of the opinion that it is not now reasonable to 

believe that gob falls, in and of themselves, can be a source of 

ignition for methane in the gob. Mr. Mitchell based his opinion 

on his extensive studies and expertise in frictional ignitions, 

including the information in MSHA's reports of the prior fires, 

and he concluded that the probability of a roof fall being a 

source of ignition "is so small and of relative insignificance" 

that ''its not something that an engineer would consider reasonable and proper today. 11 

MSHA 1 s expert witness Tisdale, whose expertise lies in mine 

ventilation, testified that potential roof falls in a gob area, 

with resulting ignitions, are "localized" conditions which vary 

from mine-to-mine depending on the rock strata, and he believed 

that such conditions nseems to be peculiar to this mine" (Tr. 

182-183). Mr. Tisdale was of the opinion that a roof fall which 

can create enough sparks and arcs to ignite a flammable mixture 

of methane in the air in the south gob posed an ignition risk in 

that area. He based this opinion on the four MSHA fire reports, 

and also relied on those reports for his opinion that there was a 

reasonable likelihood of an ignition of explosive mixtures of 

methane in the south gob area on Decem~er 5 and 13, 1990, if 

normal mining operations were to continue with no changes in the 

conditions which were present on those days. 

As noted by MSHA in its posthearing brief, the south gob 

area is a rather extensive area covering over a mile square by 

634 
December 1990. However, in the absence of any evidence with 

respect to the existing, or more recent roof conditions in the 

south gob area, an area which has been mined out and where the 

immediate roof has already fallen, or the roof conditions in the 

set-up entries or other mine areas, I have difficulty understanding how one may reasonably conclude that there was a reasonable 

likelihood of a roof fall in the gob area which would have 

sparked an ignition. As noted earlier, the MSHA reports relied 

on by Inspector Carico and Mr. Tisdale in support of their 

imminent danger opinions do not, in my view, support any reasonable conclusion that the mine has a "peculiar history 11 of gob 

ignitions sparked by roof falls. 

MSHA's prior reports all reflect that during the time frames 

when those incidents occurred, Island Creek's certified mine 

examiners were making the required preshift, onshift, and weekly 

examinations for methane and other hazardous conditions and that 

the results of these examinations were recorded in the required 

mine books. Two of the repo~ts reflect that tests for methane 

were being made along the longwall faces by section foremen 

before the longwall was energized, and that frequent tests were 

made by competent employees, with approved methane detectors, 

during the time such equipment was operated. One of the reports 

reflects that methane tests were made by qualified persons before 

electrical equipment was taken into any working place, and that 

such tests were made while the equipment was being operated in 

the working place. The reports also reflect that methane monitors were provided on the electrical equipment as required by 

MSHA's regulations, and that the longwall plow was equipped with 

a methane monitor which was set to give a visual warning at 

1 percent methane and deenergize the power at 2 percent methane. 

In the absence of any evidence to the contrary, I have no basis 

for concluding that in the normal course of continued mining 

operations, Island Creek's competent and certified mine examiners 

would not have continued to make the kinds of tests ref erred to 

in the reports. 

Inspector Carico confirmed that he did not check any mine 

records for the working shifts immediately prior to December 5, 

when he issued the order, to determine whether the bleeder 

entries in question had been inspected or whether any methane was 

detected and recorded, and he candidly admitted that this was an 

omission on his part (Tr. 117). There is no evidence that any 

explosive levels of methane were present in the bleeder entries 

outby the stoppings tested by Mr. Carico, nor is there any 

evidence of any explosive levels of methane in any other working 

places in the mine. Mr. Carico agreed that any explosive methane 

leaking through the stoppings would have been diluted by the 

ventilation which he did not find inadequate for this purpose. 

More importantly, although Mr. Carico believed that there were 

explosive mixtures of methane behind the stoppings, he conceded 

that he did not test the oxygen content of the air leaking 

635 
through the stopping cracks, that such a test is critical to any 

determination as to the presence of an explosive mixture of 

methane, and that he could not make such a determination based 

solely on his methane readings. 

Although Inspector Carico identified several other possible 

ignition sources which he believed could have propagated an 

ignition in the gob area, 1.§., welding or cutting along the 

longwall face, open flames and bolting of materials which could 

ignite methane leaking from the floor, and sparks and other 

repair work connected with the use of hammers on the metal 

ventilation brattices, there is absolutely no evidence that any 

of these conditions were present when the order was issued, nor 

is there any evidence or testimony that any such work would have 

occurred in the normal course of mining operations. Further, 

Mr. Carico conceded that the stoppings where he made his methane 

tests were some 2,000 feet from the working faces, and he 

admitted that he was not prepared to evaluate the pot8ntial for 

an ignition at the longwall face. Under the circumstances, I 

find Mr. Carico's belief that these speculative ignition sources 

could somehow propagate a spark or ignition which would somehow 

find its way to the methane in the gob areas behind the stoppings 

to be less than credible and unsupported by any reasonably 

credible or probative evidence. 

Based on all of the testimony and evidence adduced in this 

case, I believe that one may reasonably conclude that the potential for a methane explosion is dependent on several essential 

ingredients; namely, fuel, oxygen, and a ready ignition source. 

Although Inspector Carico concluded that his methane readings 

reflected an explosive mixture of methane behind the stoppings 

which were tested, he did not determine the oxygen and carbon 

dioxide content of the atmosphere he tested. Mr. Mitchell 1 s 

unrebutted testimony reflects that any oxygen deficiency would 

affect the accuracy of the methane detector readings, and 

Mr. Tisdale considered the testing procedures followed by the 

inspectors to be "a bit crude," but the only then available means 

for deducing what was behind the stoppings, other than the 

analysis which he conducted. 

In its posthearing brief, MSHA concedes that Mr. Carico was 

aware of the fact that the existence of explosive methane in the 

gob area, standing alone, might not be sufficient to constitute 

an imminent danger, and that an ignition source was necessary to 

establish the potential for an explosion and the existence of an 

imminently dangerous condition or hazard. Thus, I conclude and 

find that the presence of any explosive methane levels in the gob 

areas behind the stoppings tested by Mr. Carico, standing alone, 

did not present an imminently dangerous condition. However, in 

combination with other conditions or practices, from which one 

may reasonably conclude or expect an ignition to occur in the 

636 
normal course of mining operations, the presence of such explosive levels of methane may present an imminently dangerous 

situation. 

The parties do not dispute the fact that the mine in question is an extremely gassy mine which freely liberates methane. 

Nor is there any serious dispute that the presence of explosive 

gas levels in a mine, under certain conditions, is dangerous. 

However, any determination as to whether an imminent danger 

existed must be made on the basis of the ~ircumstances as they 

existed at the time the order is issued, or as they might have 

existed had normal mining operations continued. 

On the facts of this case, and after careful review of 

Mr. carico's testimony, I am convinced that after examining the 

stoppings for methane and finding what he believed to be explosive levels of methane in the gob areas behind the stoppings, 

Mr. Carico, without any furt}1E:ff efforts to ascertain the actual 

prevailing mining conditions, or the conditions which might have 

prevailed had normal mining operations continued, simply relied 

on the four previous MSHA reports to support his "knowledge and 

understanding" of the "mine history" in support of his belief 

that there "were possible ignition sources associated with the 

goboc; 

In view of my previous findings and conclusions concerning 

the information found in these reports, I cannot conclude that 

Mr. ,Carico's reliance on the MSHA reports in question provides 

any credible or probative evidentiary support for any conclusion 

that ready ignition sources capable of propagating an explosion 

of the methane in the gob area in question were present when he 

sued the order or were likely to be present if normal mining 

operations were to continue. I have no reason to believe that 

!_vlr, Carico was less than well intentioned when he issued the 

orderr and I recognize the fact that any judgment call by an 

inspector with respect to the existence of an imminent danger 

situation, when balanced against the safety of the miners, must 

necessarily be made quickly and without delay. However, in any 

subsequent proceeding challenging the order, any imminently 

dangerous situation, which the inspector may have believed 

existed at the time he issued the order 1 must be proven. On the 

facts and evidence adduced in this case, I cannot conclude that 

MSHA has proven or established the existence of any ignition 

sources to support the inspector's imminent danger finding. I 

conclude and find that the inspector's speculative anticipation 

of a possible mine explosion, in the circumstances presented, 

falls short of the statutory requirement of reasonable expectation. Accordingly, the imminent danger order issued by the 

inspector IS VACATED. 

637 
Docket No. VA 91-49-R. Section 107(a) Imminent Danger Order 

No. 3508496, December 13, 1990 

Inspector Scammell, like Inspector Carico, believed that all 

that was necessary for an explosion was the presence of an 

ignition source. Mr. Scammell believed that roof falls and a 

methane ignition at the face, which could possibly propagate from 

the longwall face, were the only possible sources of ignition 

present on December 13, 1990, when he issued his order. However, 

he conceded that his principal concern was the possibility of a 

roof fall in the gob area. I find no credible evidence of any 

face ignition sources which may have been present at the time 

Mr. Scammell issued his order, nor do I find any evidence that 

any such ignition sources would have been present if normal 

mining operations were to continue. Although one may conclude 

that a face ignition could propagate from the face, the inspector 

presented no facts or evidence identifying or establishing these 

sources of ignition. 

With regard to any roof falls as a possible source of 

ignition, Mr. Scammell, like Inspector Carico, relied on the same 

MSHA reports concerning the prior mine fires to support his 

conclusion that a roof fall in the gob area would result in 

sparks and be a source of ignition. Mr. Scammell testified that 

constant roof falls are occurring where the coal is being mined 

at the longwall, but he could not determine the kinds of falls in 

the gob area. Although he indicated that "frequent" roof falls 

had occurred in the past, aside from his references to the MSHA's 

reports, no further testimony or evidence was forthcoming from 

Mr. Scammell with respect to any such roof falls, and although he 

suggested that they occurred "quite often," he conceded that "I 

really don 1 t known (Tro 140). 

Mr. Scammell initially testified that he was concerned about 

roof falls in the bleeder entries and gob, or a "combination of 

falls" on either side of a stopping, "just in that general area" 

(Tr. 143). However, he later conceded that he had no knowledge 

of what was behind the stoppings, or the roof conditions on the 

gob side of the stoppings, and that the roof could have been 

caved tight. He agreed that a caved roof has already fallen, and 

that he did not know if it could fall any further. There is no 

evidence of any explosive mixtures of methane in the bleeder 

entries, nor is there any evidence of any adverse roof conditions 

in the bleeder entries, or anywhere else. Further, Mr. Scammell 

conceded that his concern for roof falls was limited to the areas 

behind the stoppings, and not with other roof falls in outby 

areas where there was no methane. He confirmed that he took no 

methane or ventilation readings in the bleeders, made no measurements of the air ventilating the gob area, and did not know what 

was going on in terms of ventilation of the gob (Tr. 148). 

638 
After careful review of Mr. Scammell's testimony, it seems 

obvious to me that instead of making any real determination as to 

the existence of any potential ignition sources, he relied on the 

previous MSHA reports concerning the prior fires which had 

occurred in the mine. Mr. Carico and Mr. Tisdale also relied on 

these same reports to support their opinions and conclusions with 

respect to the existence of ready sources of ignition and an 

imminent danger. My previous findings and conclusions with 

respect to these reports are herein incorporated and adopted by 

reference. In my view, cursory reliance on these reports provides no credible evidentiary support for any conclusion that 

potential roof falls in the gob area presented a ready source of 

ignition at the time Mr. Scammell issued his order, or that they 

presented a ready source of ignition if normal mining operations 

were to continue. In short, in the absence of any reliable and 

probative evidence, independent of the MSHA reports in question, 

I cannot conclude that MSHA has established the existence of any 

ignition sources to support Mr. Scammell's imminent danger order. 

Under the circumstances, his 'imminent danger finding is rejected, 

and the order IS VACATED. 

Docket No. VA 91-48-R. Section 104(a) "S&S" Citation 

No. 3354743, December 5, 1990, 30 C.F.R. § 75.316. 

In this case, Island Creek is charged with a failure to 

follow one of the provisions of its approved ventilation plan. 

Any violation of an approved plan provision would constitute a 

violation of mandatory safety standard 30 C.F.R. § 75.316, which 

provides as follows: 

A ventilation system and methane and dust control 

plan and revisions thereof suitable to the conditions 

and the mining system of the coal mine and approved by 

the Secretary shall be adopted by the operator and set 

out in printed form on or before June 28, 1970. The 

plan shall show the type and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

Secretary may require, the quantity and velocity of air 

reaching each working face, and such other information 

as the Secretary may require. Such plan shall be 

reviewed by the operator and the Secretary at least 

every 6 months, 

The applicable ventilation plan provision in question is 

found in paragraph 10 of Island Creek's August 20, 1987, approved 

plan, and it states as follows: 

Bleeder entries, bleeder systems, or equivalent means 

shall be used in all active pillaring areas to ventilate the mined areas from which the pillars have been 

wholly or partially extracted so as to control the 

639 
methane content in such areas. Bleeder entries or 

bleeder systems established after June 28, 1970, shall 

conform with the requirements cf Section 75.316-2, 

30 CFR 75. 

(a) Bleeder entries shall be defined as special air 

courses developed and maintained as part of the 

mine ventilation system and designed to continuously move air-methane mixtures from the gob, away 

from active workings, and deliver such mixtures to 

the mine return air courses. Bleeder entries 

shall be connected to those areas from which 

pillars have been wholly or partially extracted at 

strategic locations in such a way to control air 

flow through such gob area, to induce drainage of 

gob gas from all portions of such gob areas, and 

to minimize the hazard from expansion of gob gases 

due to atmospheric change. (Exhibit G-4, pgs, 

3-4). ' . 

Inspector Carico issued the citation in conjunction with his 

imminent danger order. In light of his methane readings at the 

stoppings in Developments No. 8 through No. 10, and his belief 

that there was a great body of methane trapped behind all of the 

stoppings in these areas, Mr. Carico concluded that the ventilation was inadequate in that there was an insufficient means of 

regulating the air flow between the bleeder entries and the ~ob 

areas to induce the drainage of methane from the gob area or to 

maintain the methane levels at or below its explosive limits. He 

explained that the airtight stoppings or brattices constructed 

across all of the connecting entries to the gob between the 

bleeders and the gob prevented the adequate drainage of methane 

from those areas as evidenced by the lack of dilution of the 

accumulated methane (Tr. 41-45). Under all of these circumstances, Mr. Carico concluded that there was a violation of plan 

provision lO(a), which required regulated and controlled air 

flows adequate to induce drainage and removal of gob gas from all 

portions of the gob areas. 

Arguments Presented by the Parties 

In its posthearing brief in support of the citation, MSHA 

asserts that Inspector Carico issued the citation because the 

ventilation system on December 5, 1990, did not satisfy the 

vent ation plan provision requiring that "bleeders entries • . 

be connected to those areas from which pillars have been wholly 

or partially extracted at strategic locations in such a way as 

. . . to induce drainage of gob gas from all portions of such gob 

areas ..•. " Recognizing the fact that there was conflicting 

testimony as to whether· or not the removal of the stoppings would 

have induced drainage of gob gas from all portions of the south 

gob, MSHA nonetheless points out that the citation was issued 

640 
because of Island Creek's failure to induce drainage from the 

set-up entries and adjacent gob in the Nos. 8 through 10 developments. MSHA takes the position that the existence of a substantial body of explosive concentrations of methane behind the cited 

stoppings in question is sufficient to establish that Island 

Creek was not complying with the ventilation plan provision in 

question because such a finding demonstrates that drainage of the 

gob had not been induced from that area. 

MSHA argues that because the ventilation plan permits the 

bleeder entries to be placed at ''strategic locations" to induce 

the drainage of gob gas, flexibility was provided to Island Creek 

to determine the placement of the bleeder entries. However, 

since the placement of the bleeder entries failed to provide an 

adequate means of inducing the drainage of gob gas from all 

portions of the south gob, MSHA concludes that Island Creek was 

in violation of its ventilation plan because it was no longer 

being met. 

MSHA further argues that the violation was significant and 

substantial (S&S) , because an explosion of the body of methane 

behind the stoppings was reasonably likely to occur and result in 

an injury. MSHA relies on Mr. Carico's testimony that injuries 

from the explosion of the accumulation of explosive methane would 

result in a serious injury or health hazard. 

In its posthearing brief, the UMWA asserts that Island 

Creek's failure to properly place the connections required by the 

ventilation plan provision in question led to the accumulation of 

a large body of methane behind the stoppings in the development 

areas cited by the inspector. In support of this conclusion, the 

UMWA states that Inspector Carico did not believe that enough 

connections were located between the bleeders entries and the gob 

to insure adequate drainage of all gob areas, and that the 

tightly sealed stoppings across the entries inhibited or almost 

completely stopped the air flow at those locations. The UMWA 

concludes that these tightly sealed stoppings were inconsistent 

with the ventilation plan which indicated the presence of regulators and not merely stoppings at these locations. 

The UMWA further argues that in view of the dynamic nature 

of mining, it would be impractical for a ventilation plan to 

spell out where the connectors between the bleeders and gob 

should be placed, and as explained by Mr. Tisdale, the requirement that connections be placed at strategic locations means that 

they are to be located where they are needed in order to make the 

whole bleeder ventilation system effective. The UMWA concludes 

that Island Creek is responsible for placing the connectors at 

locations that will insure methane drainage from all areas of the 

gob, and that these locations may have to vary as ~ining 

progresses. 

641 
The UMWA asserts that by turning its regulators into stoppings, Island creek limited its ability to make adjustments in 

the air flow over the set-up entries in the cited development 

areas. In response to Island Creek's position that the removal 

the stoppings would result in the short circuiting of the 

ventilation in the south gob, the UMWA points out that no one has 

suggested that all of the stoppings must be completely removed, 

but that a proper balance, through the use of regulators, would 

have to be found. The UMWA relies on Mr. Tisdale's opinion that 

the manner in which the gob was being ventilated did not allow 

much air flow to go through the set-up entries, and that this was 

a violation of the ventilation plan. The UMWA concludes that 

based on the massive accumulations of explosive levels of methane 

found by Mr. Carico on December 5, a significant portion of the 

gob was not receiving adequate air as required under the ventilation plan, and that Island Creek's contention that removal of the 

stoppings will create a serous ventilation problem elsewhere is 

not an adequate defense. 

In its posthearing arguments, Island Creek points out that 

there is nb federal standard prohibiting the existence of explosive concentrations of methane except in active working areas and 

in return air courses, and that there is no standard prohibiting 

gob gas. Island Creek asserts that methane is to be expected in 

gob areas, and it concedes that it was likely present in some 

quantity behind the stoppings where Inspector Carico took his 

readings, but it denies the existence of any unusual quantities 

of methane behind the stoppings. 

Island Creek maintains that a gob area always contains 

quantities of methane pushed there by air from the face area 

for that purpose and generated from the coal and strata 

the gob itself, and that the methane in the south gob was 

pushed through the gob area and into the bl . Island Creek 

believes that it is not surprising that a test taken in the gob 

at a location where methane was moving toward its exhaust-point 

destination would reveal methane in some concentrations, and that 

given Inspector Carico's experience, he surely knew that methane 

would be present behind the stoppings on its way out of the gob. 

Island Creek does not contend that methane not dangerous. 

However, it points out that as a natural by-product of the mining 

, methane cannot be avoided, but it can be controlled by 

ion and movement, and it concludes that the evidence estabthat this was happening in the south gob area on the day 

the citation was issued. Island Creek asserts that for the 

methane to be moved, it must pass the Nos. 8 through 10 connector 

entry stoppihgs, and probably did pass those stoppings on the gob 

side in a variety of concentrations. Since the percentages 

measured were under 100 percent, Island Creek concludes that air 

had been mixed with the transient methane, and that the gob was 

being ventilated. 

642 
Island Creek argues that the basis for Inspector Carico's 

belief that it was not complying with its ventilation plan was 

that because concentrations of methane were measured at certain 

pinholes (but not all of the pinholes) at some (but not all) of 

the stoppings in the bleeder connector entries in the Nos. 8 

through 10 development areas, the south gob was not being ventilated. Island Creek asserts that it is unrebutted that there was 

a strong pressure drop between the gob and the bleeder entries 

because gob air pressure was pushing air through the stoppings 

into the bleeders, and that the gas coming up through the several 

boreholes in the south gob. could only be made to move to the 

bottom of the boreholes because of ventilation. Island Creek 

also points out that there was no evidenGe that any gas was 

backing up into the face areas in the No. 12 and 13 development 

panels, and that MSHA's inspectors found the ventilation in those 

face areas to be in compliance. It also points out that although 

a ventilation survey is necessary to determine gob ventilation, 

Inspector Carico made no survey, but that a survey by Island 

Creek established that a satisfactory quantity of air was moving 

through the south gob and its adjacent bleeder entries, and that 

the gob atmosphere, including methane, was leaving the south gob 

where intended. 

Island Creek recognizes the fact that its ventilation plan 

requires that the bleeders be connected to the gob at "strategic 

locations," but it points out that while this term is undefined 

in the ventilation plan, its ventilation engineers explained that 

the bleeders were in fact connected to the gob at three locations, each of which is considered "strategic." Island Creek 

concludes that until Inspector Carico decided otherwise on 

December 5, it could be inferred that MSHA agreed that its 

connections were proper since the ventilation plan had been 

reviewed every 6 months since it was originally approved by MSHA 

in August, 1987; and no one from MSHA made an issue about the 

plan language, or alleged that the mine was not complying with it 

in its south gob and bleeder configuration. 

Island Creek argues that MSHA's witnesses presented no 

evidence that it was not controlling the air flow through the 

south gob, but that Island Creek 1 s evidence establishes that the 

south bleeders were bleeder entries which were connected to the 

gob at strategic locations in such a way to control air flow 

through the gob area, and that its witnesses confirmed that this 

was the case. Island creek argues further that MSHA presented no 

evidence to indicate that gas was not being drained from the 

south gob on December 5, but that Island Creek's ventilation 

survey showed that air was moving in the proper direction through 

the gob on that day. Island Creek also argues that MSHA presented no evidence that the mine was not minimizing the hazard 

from expansion of gob gasses due to atmospheric change. 

643 
Island Creek concludes that the citation should be vacated 

because there was no evidence that the cited provision of the 

ventilation plan was not being complied with, and it suggests 

that MSHA's only evidence in this case, testing to determine a 

methane concentration at a location where methane is in the 

process of being pushed out of the gob, is good evidence that gob 

gas was moving as intended toward the "strategic location" where 

the gob was connected to the bleeders for purposes of exhausting 

methane. 

Fact of Violation 

The first sentence of the applicable ventilation plan 

provision lO(a) defines bleeder entries as "special air courses 

developed and maintained as part of the mine ventilation system 

and designed to continuously move air-methane mixtures from the 

gob, away from active workings, and deliver such mixtures to the 

mine return air courses." After careful review of all of the 

evidence and testimony adduced in this case, I find no credible 

or probative evidence-to establish any violation of this first 

sentence of the plan by Island Creek. 

Inspector Carico conceded that he only cited the second 

sentence of plan provision lO(a), and that the second sentence 

nwas the most applicable part of that section" (Tr. 93). He 

agreed that the first part of the second sentence which required 

"the bleeder entries shall be connected to those areas from which 

pillars have been wholly or partially extracted" was complied · 

with by Island Creek and that he was satisfied with this compliance (Tr. 93). With respect to that part of the second sentence 

requiring the bleeder connections to be made at "strategic 

locations, ii Mr o Carico confirmed that the bleeders were connected 

at sufficient intervals to control the gob gas as it comes out 

(Tro 94)" Mro Tisdale confirmed that the question of whether or 

not connectors are located at "strategic locations'' is basically 

a matter of opinion and that the MSHA approved ventilation plan 

does not further define the term "strategic locations." 

Inspector Carico conceded that as of the evening of 

December 5, 1990, when he visited the mine, the mine was in 

compliance with the ventilation plan requirements for ventilating 

the gob and bleeder areas. However, he indicated that since 

mining is dynamic, changes are taking place all of the time which 

may require re-regulation of the air, and if this is not done, 

the failure to re-regulate the air at any given point in time may 

result in a violation of the plan. He confirmed that the changes 

which occurred, and which resulted in a violation of the plan, 

were those specified in the citation (Tr. 67). He explained that 

the basis for the citation rested on his conclusion that the mine 

bleeder system was not working properly, or was not properly 

constructed, and that this conclusion was based on the methane 

644 
which he detected coming through the cracks or pinholes in the 

stoppings (Tr. 94). 

Mr. Mitchell testified that methane detected coming through 

a pinhole in a stopping is not a reasonably accurate indication 

of what is on the other side of the stopping and that it would 

not be any indication that the gob was not being ventilated. 

Inspector Carico, who conceded that he did not measure the oxygen 

level coming through the pinholes where he made his tests, also 

conceded that without such measurements, one cannot determine if 

there is an explosive mixture of methane behind the stopping 

based solely on his methane readings. Both Mr. Mitchell and 

Mr, Tisdale agreed that there are other appropriate methods for 

making such determinations, namely a ventilation pressure survey 

and analysis. 

Island Creek 1 s ventilation manager Ray and MSHA's witness 

Tisdale both relied on a December 12, 1990, ventilation survey 

conducted by Mro Ray .9.nd a team of engineers to support their 

respective opinions as to the adequacy of the gob ventilation and 

whether or not it was in compliance with the ventilation plan. 

Mr. Ray believed that the gob area was being adequately ventilated, and in view of the pressure differentials with respect to 

the air flow coming out of the bottom of the No. 1 development, 

he concluded that adequate air was flowing through the gob and 

that there is enough air to push all of the methane through the 

gob with the current ventilation system. Mr. Tisdale believed 

that the ventilation of the gob area ranged from "borderline to 

inadequate. 11 and that the amount of air available for ventilating 

the gob area 11 is stretching it. 11 

Island Creekus expert Mitchell, who conducted studies of the 

ventilation the south gob, including an analysis of pressure 

differentials and air flows, concluded that the ventilation of 

the gob was in compliance with the ventilation plan provision in 

question. Mr. Mitchell testified credibly that it is not unusual 

to find methane in the gob area and that it will gravitate to the 

highest elevation in the mine, such as the No. 8 through 9 

developments. Inspector Carico conceded that explosive concentrations of methane in the gob area in some locations is to be 

expected and that it impossible to remove it all from the 

He confirmed that other than the dome and fall area of the 

gob, the No. 8 through 9 developments where he tested the stoppings and issued his citation, were the highest elevations in the 

mine and that the methane will go to that area even though it is 

enroute out of the mine (Tr. 97). 

Mr. Mitchell and Mr. Ray both confirmed that since air flows 

from a high pressure area to a low pressure area, any air movement within the gob area will be away from the face areas and 

towards the south bleeders and No. 1 development area. 

Mr. Tisdale agreed that there was a pressure differential between 

645 
the gob and the bleeders and that the air flowing through and 

coming out of these areas "had to have some push" (Tr. 173-174). 

Inspector Carico confirmed that when he tested the stoppings 

there was in fact a pressure differential between the back side 

of the stoppings and the gob side and that this would indicate 

that the pressure on the bleeder side of the stopping was less 

than the pressure on the gob side, and that air would flow from 

an area of high pressure to one of lower pressure. In describing 

the method used by Island Creek to ventilate the gob, Mr. Carico 

confirmed that the stoppings were installed in order to force the 

air to flow to another location where it would leave the gob, and 

he agreed that as the air is flowing away from the stopping it 

would be picking up methane (Tr. 82-83). He also agreed that if 

the mine fan were working, and there is no evidence that it was 

not, the ventilation system would also be working (Tr. 123-125). 

There is no evidence in this case that any explosive concentrations of methane were coursing into the bleeder entries or 

into any working area5- of the'·mine where miners were expected to 

work or travel. The methane which concerned the inspector was 

behind the stoppings, and he was concerned that it was not being 

moved out of the gob area by the available ventilation. I take 

note of the fact that the ventilation plan does not prohibit the 

existence of methane gas in the gob areas, and the parties agree 

that there are no standards prohibiting methane in gob areas. 

Insofar as the alleged violation is concerned, the issue presented is whether or not MSHA has established by a preponderance 

of the credible evidence that the ventilation provided for the 

gob area was inadequate to induce the drainage of methane from 

the gob area. 

After careful review of all of the evidence and testimony 

adduced in this case, including the posthearing arguments presented by the parties, I believe that Island Creek has the better 

part of the argument, and that its evidence, which I find credible, and supported in part by Inspector Carico, establishes that 

the gob area in question was being ventilated on December 5, 

1990, I further conclude and find that the gob ventilation and 

air flow through the cited development areas allowed for the 

mixing of the methane with the air coursing through those areas 

and that the methane which was mixing, or being diluted by the 

a , was coursing through the gob areas behind the stoppings in 

question trying to find its way into the mine bleeder system and 

out of the mine. Under the circumstances, I find that MSHA has 

failed to establish a violation of the cited ventilation plan 

provision, and the citation issued by Inspector Carico is 

VACATED. 

ORDER 

On the basis of the foregoing findings and conclusions, IT 

IS ORDERED AS FOLLOWS: 

646 
1. Docket No. VA 91-47-R. Section 107(a) Imminent Danger Order No. 3354742, December 5, 1990, IS 

VACATED, and Island Creek's contest IS GRANTED. 

2. Docket No. VA 91-48-R. Section 104(a) "S&S" 

Citation No. 3354743, December 5, 1990, citing an 

alleged violation of 30 C.F.R. § 75.316, IS VACATED, 

and Island Creek's contest IS GRANTED. 

3. Docket No. VA 91-49-R. Section 107(a) Imminent Danger Order No. 3509496, December 13, 1990, IS 

VACATED, and Island Creek's contest IS GRANTED. 

&A4~ Administrative Law Judge 

Distribution: 

Timothy C. Biddle, Robert Davis, Esqs., Crowell & Moring, 

1001 Pennsylvania Avenue, N.W., Washington, DC 20004-2505 

(Certi Mail) 

Charles Jackson, Esq., Office of the Solicitor, U.S. Department 

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

(Certified Mail) 

Scott Mullins, Esq., P.O. Box 2138, Coeburn, VA 24230 

(Certified Mail) 

1'-lary Lu Jordan Esq. ? United Mine Workers of America, (UMWA) , 

900 15th Street, N.W., Washington, DC 20005 (Certified Mail) 

/fb 

647 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 4 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 90-363 

Petitioner A.C. No. 15-16646-03504 

v. 

J & R COAL COMPANY, INC., 

Respondent 

Docket No. KENT 91-31 

A.C. No. 15-16646-03506 

Appearances: 

Before: 

Mine No. 2 

DECISION APPROVING SETTLEMENT 

Joseph B. Luckett, Esq., U.S. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, for 

the Petitioner; 

Mr. Roger Bentley, President, J & R Coal Company, 

Inc., Kite, Kentucky, for the Respondent. 

Judge Maurer 

These cases are before me upon a petition for assessment of 

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

Health Act of 1977 (the Act) o At the hearing, after all the 

testimony was in the record, the parties jointly moved to settle 

these caseso A reduction in penalty from $2558 to $2265 was 

proposed. I have considered the representations and 

documentation submitted in these cases, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section llO(i) of the Act. · 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty of $2265 within 

30 days of this order. Upon payment in full, these cases are 

dismissed, 

Law Judge 

648 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

APR 9 \991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

RICHARD G. ROETHLE, 

. . 

. 

. 

Complainant 

v. 

PHELPS DODGE CORPORATION, 

Respondent 

. . 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. CENT 90-124-DM 

SC-MD 90-04 

Tyrone Mine & Mill 

Appearances: Michael H. Olvera, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Complainant; 

Charles L. Chester, Esq.If RYLEY, CARLOCK & APPLEWHITE, Phoenix, Arizona, 

for Respondent. 

Before: Judge Cetti 

STATEMENT OF THE CASE 

The Secretary of Laborv Mine Safety and Health Administration CMSHA) ( ncomplainant 11 ) commenced this proceeding on behalf 

Richard Go Roethle and against Phelps Dodge Corporation ( 11Respondent11) on June 2lv 1990, by filing a complaint alleging that 

Respondent discriminated against Mr. Roethle in violation of 

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

30 u.s.c. § 801 (the Act) by unjustly suspending him on November 

24u 1989u for refusing to work in unsafe conditions on the "B" 

shift at Respondentus Tyrone, New Mexico, open pit copper mine on 

November 19u 1989. Respondent denied the allegations. 

Complainant issued no citations or orders with respect to 

this case alleging Respondent violated any provision of the Mine 

Saftey and Health Act or any mandatory health or safety standard, 

rule, order, or regulation promulgated pursuant to MSHA. This 

proceeding was commenced on the investigation of the February 6, 

1990, complaint of Mr. Roethle, which stated: 

I was operating Haul Truck No. 204 on November 19, 

1989. The steering tires were out of round, causing the vehicle to bounce heavily. This caused the 

steering wheel to jam, affecting the safe steering. 

I narrowly missed another truck, and I parked No. 204. 

649 
My foreman told me I had no right to stop the truck. 

He and another foreman stood on the ground, looked 

at the truck, and said it was okay. They refused to 

ride with me or check the truck, and sent me home. 

I believe that I was discriminated against and ask 

to be paid for time lost and to have my record cleared. 

Respondent contends Cl) that Truck No. 204 (the 204 truck) 

was safe to operate, at least at slower speeds, (2) that 

Mr. Roethle knew this, (3) that Mr. Roethle was required to 

operate the 204 truck at slower speeds if he was concerned 

about his or others' safety, (4) that he refused to operate 

the 204 truck though it was his duty to do so, and (5) he was 

therefore suspended for 10 days. 

Complainant seeks back wages for Richard Roethle in the 

amount of $1,056.20 plus interest, contending that his 10-day 

suspension was due to_activi~y which was protected under the Act. 

In addition, the Secretary seeks an order directing the respondent to expunge the employment records of Mr. Roethle of all reference to the circumstances involved in this action. The Secretary also seeks a civil money penalty for the alleged violation 

of Section 105Cc) of the Act. 

Finally, Complainant seeks an additional but unspecified 

remedy as the Commission sees appropriate for Respondent's alleged ongoing violation of Section 105(c). 

ISSUES 

Complainant states the issues as followsg 

lo Whether Respondent unlawfully discriminated against 

Richard Roethle by suspending him for ten days. 

26 What relief u if anyu the Commission should rendero 

3o Whether Richard Roethle failed to file a timely 

complain to 

FINDINGS OF FACT AND CONCLUSIONS 

1. Respondent, Phelps Dodge, at all relevant times, operates a large open pit copper mine in Tyrone, New Mexico, and its 

operations substantially affect interstate commerce. 

650 
2. Richard G. Roethle, at all relevant times, was and is 

employed as a haul truck driver by Respondent at its Tyrone Mine. 

At all relevant times, Mr. Roethle was an experienced truck 

driver. 

3. On November 19, 1989, on the "B" shift at the Tyrone 

Mine, Mr. Roethle's usual truck was not operating and the dispatcher, Johnny Poe, assigned Mr. Roethle to'the 204 muck truck. 

The 204 truck is an older, large 170-ton unit rig haul truck used 

to carry mine ore. It has large tires that are 10.5 feet in diameter. The driver of the 204 truck must sit in the driver seat 

in the cab approximately 14 feet above the ground. 

4. At the beginning of this shift, Mr. Roethle, on being 

assigned the 204 truck, inspected it and found a high front suspension, a 2"-3" gap in the square roller housing, oil all over 

the left side of the motor, a leak in the left steering ram cylinder, and "raggedy" back tires. 

5. Mr. Roethle'-s job on the November 19, 1989, "B" shift 

required him to load the 204 haul truck at the No. 12 Shovel near 

the bottom of the mine, drive from the No. 12 Shovel up a "ramp" 

to the Crusher slot, through the slot, and across a flat to the 

Crusher, then return to the No. 12 Shovel for another load. When 

Mr. Roethle reached a speed of approximately 16 to 18 miles per 

hour, the truck became so unbearably "bouncy," that he believed 

he couldn't completely control the truck. The bouncing of the 

truck made it difficult to hold himself in his seat and resulted 

in trouble controlling the steering wheel and pedals. 

6. Mro Roethle stopped the truck and dumped the load he was 

hauling at the crushero He then notified the dispatcher in the 

tower that something was wrong with the 204 trucko He asked the 

dispatcher to send a mechanic to determine what was wrong with 

t.he truck. 

7. The dispatcher instructed Mr. Roethle to "make another 

load uu while waiting for a mechanic to check on the truck. 

!vir. Roethle complied with the dispatcher's reguesto As 

Mr. Roethle was making a turn going down hill to a lower level, 

the steering wheel of the truck "jerked" in his hands. When he 

got to the shovel, Mro Roethle radioed the dispatch tower and 

asked that his foreman, Victor Giacolettip also meet him near 

the crusher to check out the truck. It felt to Mr. Roethle like 

the front tires were coming off the ground. He had never felt 

anything like this bouncing before. 

8. Near the crusher slot, Mr4 Roethle's foreman Victor 

Giacoletti, Tom Wilson, the acting mechanic foreman, and two tire 

651 
shop employees met .Mr. Roethle and visually observed the truck. 

Mr. Roethle informed Mr. Giacoletti of his safety concerns, including the bouncing of the truck. All four observed the truck 

bouncing. Mr. Giacoletti said it had been bouncing for a couple 

of months. 

9. At Mr. Giacoletti's request, Mr. Wilson visually checked 

the truck's suspension and stated he found nothing wrong except 

the "suspensions could possibly be a little high. One of the 

front suspensions was "slightly higher than the other one." 

10. At Mr. Giacoletti's request, Mr. Roethle drove the 204 

truck across the flat back toward the Crusher slot, so that the 

four could again observe the bouncing. The four followed, 

Mr. Roethle in another vehicle. At about 16 mph, the empty 204 

truck began bouncing again, but not as bad when it was loaded. 

At the end of the crusher slot, Mr. Roethle got off the truck and 

requested that one of the four observers get in the truck and 

ride with him, but no one did. Mr. Giacoletti stated that the 

problem. did not look bad, and,.that the truck should be ,run until 

Tom Wilson could "free someone up." 

11. As Mr. Roethle continued driving the truck, it started 

bouncing again. The shocks were "bottoming out, 11 banging in a 

manner· he had never heard ·before. At one point, the steering 

wheel seemed to jump, jerk and momentarily lock out. .The truck 

was hard to control. He just missed hitting another truck. 

12. Mr. Roethle called the dispatch tower and told the dispatcher he was parking the 204 truck because it was unsafe. He 

asked for a "ready line assignment." The dispatcher complied 

th the request and Mr. Roethle parked the truck. 

130 When Mr. Roethle parked the truck at the ready line, 

Mro Giacoletti asked Mr. Roethle if he was refusing to drive the 

204 truck. Mr & Roethle responded in the affirmative. Mr •. Giacoletti then told Mr. Roethle he did not have the right to refuse 

to drive the 204 truck. At the time Mr. Giacoletti appeared to 

Mr" Roethle to be agitated. Mr. Roethle told Mr. Giacoletti 

that he felt the truck was unsafe. As Mr. Giacoletti escorted 

lVir o Roethle to the off ice, Mr. Roethle asked Mr. Giacoletti to 

note his statement that the 204 truck was unsafe. Mr. Roethle ;,~·as sent homeu pending an investigation. 

14. The foreman, Mr. Giacoletti, assigned the 204 truck to· 

Mr. Ray Tafoya. He told Mr. Tafoya that the 204 truck "bounced a 

little, but it was drivable." Mr. Ray Tafoya drove the 204 truck 

and experienced the bouncing. He drove slowly "due to the 

bouncing" for the balance of the "B" shift on November 19,· 1989. 

652 
15. Ray Tafoya drove the truck loaded from the ninth shovel 

to the 409 dump, going about four to six miles per hour. The 

ride was "real rough, the steering wheel had lot of play to it." 

He dumped his load and started back. When he got up to 16 miles 

per hour, the truck "started shaking and bouncing real bad all 

over the road. 11 He had never experienced any bouncing like his 

before. He felt it was unsafe, dangerous, and testified "if I 

lose contol of it, I'm gone." When he slowed down to between 12 

and 14 miles per hour, the bounce was not as bad and he could 

control the truck "a little bit." 

16. Mr. Tafoya did not "park" the 204 truck because there 

was no available truck at the ready line and because he was new 

on the job, a "greenhorn." 

17. Before the November 19, 1989, incident, mechanics and 

truck drivers, including the Complainant, had on occasion B.O.'d 

trucks and had never been disciplined for doing so. 

18. The front su-spension of the 204 truck was overcharged at 

the time it was driven by Mr. Roethle on November 19, 1989. The 

10.5 foot diameter steering (front) tires were out of round, 1/2" 

and 3/8", respectively. This "out of round" condition of the 

front tires caused the truck to lope and bounce. Prior to 

Mr. Roethle's suspension on November 19, 1989, no one was aware 

the front tires were out of round. 

19. The out of round front tires on the 204 truck were discovered sometime after the incident of November 19, 1989 which 

resulted in Mr. Roethle's suspension. The out of round steering 

tires were then taken off the truck and replaced with new tires 

that were not out of round. Thereafter the 204 truck did not 

bounceo 

20. If on November 19th when at Mr. Roethle 0 s request the 

truck was checked (visually) by his foreman, the acting mechanic 

foreman and the two tire men, it would have been found that the 

bouncing of the truck was caused by out of round front tires, the 

truck would have been BOed by management and the truck would have 

been sent immediately to the tire shop where the out of round 

tires would have been replaced. (Tr. Vol II p. 228). 

21. On November 19, 1989v Richard G. Roethle refused to 

drive the 204 muck truck because he held a reasonable good faith 

belief that further driving of the truck was hazardous and 

unsafe. 

22. On November 19, 1989, Richard G. Roethle was suspended, 

pending investigation for refusing to drive the 204 muck truck. 

653 
23. Mr. Roethle was suspended for a total of 10 days, beginning November 19, 1989. 

24. The amount of back wages which accrued during the 10-day 

suspension is $1,056.20 (not including interest). 

25. Richard G. Roethle filed a complaint with the Mine 

Safety and Health Administration in February of 1990. 

26. Richard G. Roethle first became aware of his discrimination rights under MSHA in February of 1990. 

27. Respondent was not prejudiced by Mr. Roethle's filing of 

the discrimination complaint more than 60 days after the 

incident, which resulted in his suspension. 

DISCUSSION WITH FURTHER FINDINGS 

I 

Section 105Cc) of the Act was enacted to ensure that miners 

will play an active role in the enforcement of the Act by protecting them against discrimination for exercising any of their 

rights under the Act. A key protection for this purpose is the 

prevention of retaliation against a miner who brings to an op~rator 1 s attention hazardous conditions in the workplace or who refuses to perform work under unsafe conditions. It is well-settled that generally, in order to establish a prima facie case of 

discrimination under § 105(c) of the Mine Act, a miner must prove 

that (1) he or she engaged in protected activity and (2) the adverse action complained of was motivated in any part by that 

activityo Secretary on behalf of Pasula Vo Consolidation Coal 

Companyu 2 FMSHRC 2768 (1980) rev 1 d on other grounds sub nom. 

Consolidation Coal Company Vo Marshall, 663 F.2d 1211 {3d Cir" 

1981) Secretary on behalf of Robinette v. United castle Coal 

Companyv 3 FMSHRC 803 {198l>e Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon Vo Phelps Dodge Corp.~ 3 FMSHRC 2508, 2510-2511 

{November 198l)Q rev'd on other grounds sub nom. Donovan Vo 

?helps Dodge Corp.u 709 F.2d 86 (D.Co Ciro 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 

prima facie case in this manner it may nevertheless affirmatively 

defend by proving that 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. 

654 
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 Pasaula-Robinette test). See also NLRB v. Transportation Management 

Corporation, 462 U.S. 393, (1983), where the Supreme Court approved the NLRB's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. l; 

Applying these principles to this case, I find that Respondent violated § 105Cc) of the Act by discriminatory adverse action, i.e., suspending Mr. Roethle without pay for 10 days, commencing November 19, 1989 for refusing to drive the 204 truck for 

the balance of the shift. 

It is undisputed that Mr. Roethle was suspended for 10 days 

for his refusal to continue driving the 204 muck truck on the "B" 

shift on November 19, 1989. He communicated his safety concerns 

regarding the 204 truck to management. If Mr. Roethle's refusal 

to drive the 204 truck at th<?:.t time was protected activity his 

!/ , Section 105{c)(l) provides: 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment in 

any coal or other mine subject to this Act because 

such minerv representative of miners or applicant for 

employment has filed or made a complaint under or related to this Act, including a complaint notifying 

the operator or the operator's agent, or the representative of the miners at the coal or other mine of 

an alleged danger or safety or health violation in a 

coal or other mine, or because such mineru representative of miners or applicant for employment is the 

subject of medical evaluations and potential transfer 

under a standard published pursuant to section 101 or 

because such miner, representative or miners or applicant proceeding under or related to this Act or 

has testified or is about to testify in any such proceeding, or because of the exercise by such miner, 

representative of miners or applicant for employment 

on behalf of himself or others of any statutory right 

afforded by this Act. 

655 
suspension for this refusal was in violation of Section 105(c)Cl) 

of the Act. In this case, the question of whether Mr. Roethle's 

refusal was protected activity turns on whether he had a reasonable good faith belief that the continued driving of the 204 

truck was hazardous. In determining whether a miner's belief is 

reasonable, the courts and the Commission consistently has held 

that the perception of a hazard must be reviewed from the miner's 

perspective at the time of the work refusal. The miner need not 

objectively prove that an actual hazard existed. Gilbert v. Federal Mine Safety and Health Review Commission, 866 F.2d 1433, 

1439 (D.C. Cir. 1989). 

In Robinette, 3 FMSHRC at 810, the Commission explained that 11 [g]ood faith belief simply means honest belief that a hazard 

exists." The burden of proving good faith rests with the complaining miner but he need not demonstrate an absence of bad 

faith. Bush v. Union Carbide Corporation, 5 FMSHRC 993 at 997. 

In evaluating the eviden<;:.e in this case I credited the testimony of Mr. Roethler even though there are some inconsistencies 

in his testimony and the testimony of some of the other drivers 

and mechanics who corroborated his testimony. These inconsistenc s were not of such a nature or magnitude as to defeat his 

claim. As stated by Tenth circuit officials, the Court in Ligget 

Industries, Inc. v. Stenson Begag filed January 9, 1991, "The totality of the evidence is what counts." 

In this case Mr. Roethle was concerned with what he perceived to be his inability to safely control the truck. He demonstrated good faith by requesting not only a mechanic but also 

his foreman to meet him at the job site and check out the truck. 

After management made only a visual check of the truck, and could 

not or at least did not find out what was causing the problemv 

Mr. Roethle asked that one of them ride with him in the 204 truck 

so they could see first hand the problems he was experiencing in 

controlling the truck. No one complied with that request. No 

one even suggested that it would be alright for Mr. Roethle to 

drive the truck at a speed lower than that normally expected or 

required for this type of trucko Management did not address his 

safety concerns in a manner sufficient or adequate to reasonably 

quell his fears. 

Two of Respondent 1 s truck drivers Mr. Gomez and Mr. Tafoya 

and two of Respondent's mechanics including Mr. Dennis Stailey 1 

testified on Mr. Roethle's behalfo This testimony corroborates 

at least in some degree Mr. Roethle's testimonyo 

656 
Respondent would have the Court disbelieve Mr. Roethle and 

the truck drivers, and mechanics who testified in his behalf 

with one exception, Mr. Dennis Stailey, the truck shop mechanic 

who worked on and drove the 204 truck on the November 20th "C" 

shift. Respondent in his post hearing brief states that 

Mr. Stailey's candor and testimonial clarity was refreshing. In 

pertinent part, Mr. Stailey testified as follows. (Tr. starting 

at page 71 of Vol I). 

Q. When did you work on that truck after Mr. Roethle had been 

sent home? 

A. As far as I can remember, it would have been the 11C11 shift 

on the 20th. 

Q. Okay. And tell me how you came about to work on this truck. 

A. My foreman lined me up on that truck that night at the 

beginning of the shift a.nd said we needed to go by the book 

on charging the-front suspension because we had a problem 

with it. 

Q. Okay. And what did you do? 

A. The right suspension had already had the nitrogen charge let 

off; it was completely collapsed. And we bled the nitrogen 

off of the left cylinder, drained all the oil out, replaced 

the oil to the specified inches in height, and then recharged the nitrogen. 

Okay. 

L 

You mentioned that the right suspension had been bled 

I meanu who had bled the right suspension off? 

Ao - don: t k.now. It was on °'B 01 shift before I came on" 

Q. Okay. So, they were already working on it on "B 11 shift by 

the time you got there? 

.Ao They had started working on it and they put it back out on 

B.O. line. And we had to bring it back in and start on it. 

* * * * * 

Qo Okay" Okay. After you got the suspension filled, what did 

you do at that point? 

A. Then Mel took the truck and got a load and drove it. And he 

brought it back and said it still wasn't right1 there was 

still something wrong. 

657 
Q. Mel Marcus told you that? 

A. Mel Marcus. 

Q. Okay. 

A. And so we checked everything, physically, and couldn't find 

anything wrong. And I took it up on the four leach dump and 

it seemed to work pretty good going up. But coming back 

down, when I hit the dynamics, it started really bouncing 

bad. 

* * * * * 

Q. And on the way back about how fast were you going? 

A. I took it up to 18 miles an hour, which is the required 

speed going downhill is 18. And as soon as I hit the 

dynamics then that when-7_ 

Q. What is hitting the dynamics? What does that mean? 

A. You have electrical braking, dynamic braking, which 

reverses the field in pull motors. 

Q. Okay. What started happening? 

A. It was like being on a roller coaster. I could feel it in 

my stomach, it was bouncing so bad. 

Q. The whole cab was bouncing? 

A. The whole truck was bouncingo 

Qo Was it similar to any other kind of ride you had been on in 

terms of driving these trucks around? 

Ao About the only time that I have felt one bounce like this is 

when I ran over a rocko But it would just one bounce1 it 

wouldnit be continuous up and downo 

Qo How were you able to control the vehicle through the bounce. 

Ao I was controlling it, yes, but it--I was a little worried 

about what was going to happen because I had never felt that 

before. 

Q. All right. When it started bouncing what did you do in 

terms of the dynamics and the speed of the truck? 

658 
A. I backed off a little bit and it eased up a little bit until 

I could get it slowed down to about 12 miles an hour. 

That's when it stopped. 

Q. Okay. You say that you were able to control the vehicle. 

Was it any harder to control through the bounce than just 

normal driving? 

A. Well, yes, because you are going up and down and your foot 

is moving. And, yes, it was harder to control. Yes. 

Q. Okay. And when Mel Marcus came back and told you that the 

truck was--still wasn't right, did he say anything else or 

did he say something is still wrong with the suspension? 

A. As far as I can remember, he just said, we haven't fixed the 

problem yet. 

Q. Did he tell you what th~ problem was, I mean? 

A. The bounce. 

Q. Okay. When you were assigned the truck he told you 

something about a bounce? 

A. No. When he assigned me--no, he just told me we need to go 

through the suspensions, there is something wrong. 

Q. Okay. When you said "the bounce" that's sort of in hindsight that you realized what the problem was? 

Ao Yeso I didn 1 t know what the problem was to begin witho 

Qo Okayo Nowv what was the suspension--when you were bouncing, did you notice anything in particular about the 

suspension? 

Noa I was too worried 

going to go to really" 

on the suspension so I 

might be causing it. 

about what it was doing, where it was 

I knew the--everything was inspected 

was trying to figure out what else 

And it was the end of shift by then; I had worked on it 

eight hours. I still hadn 1 t found what the problem waso 

* * * * * 

Q. Now, would you consider this bouncing motion that you encountered, would that, in your opinion, be an unsafe 

situation? 

659 
A. It was, as far •s I was concerned. I wouldn't release the 

truck, and I didn't release the truck. 

Q. Okay. So, at the end of your shift what did you do? 

A. I told the foreman it is still B.O.; you are going to have 

to do some more trouble shooting to find out what the problem is. 

* * * * * 

Q. Okay. Do you remember anything unusual about this truck 

other than the fact that that night it was bouncing? 

A. I can remember that it was one of the trucks that I think 

backed over a berm and rolled. That's about the only thing 

I really remember. 

Q. Backed over a berm and rqJled? 

A. Yes. 

Q. About how long ago was that? 

A. It seems like it was about three years ago. I'm not sure. 

Q. About three years ago. Do you recall what happened? 

A. The truck went through the berm. 

Q. Driver error or mechanical failure or what? 

Ao I don°t knowo 

Mr. Stailey's credible testimony (correctly described 

by Respondent as candid and having a refreshing clarity) clearly 

shows that Mr. Stailey considered the 204 truck to be in an unsafe driving condition. Mr. Stailey's testimony in this respect 

corroborates the testimony of the complainant and that of every 

other driver who drove the truck at or near the time of the 

November 19 incident. 

Respondentvs argument that the truck would have been safe to 

operate at a slow speed and that therefore, complainant should 

have continued driving the 204 truck at a slow speed is not persuasive since neither his foreman or anyone else suggested to 

complainant prior to the hearing that he could or should drive 

slower than the normal expected production speed. In the absence 

660 
of evidence to the contrary, and particularly in view of the testimony of the drivers that they had been verbally reprimanded for 

slow driving, it appears that Mr. Roethle was subjected to the 

normal production pressures under which the mine operated. The 

slowing down of one large truck on a .mine road often frustrates 

and slows down production traffic behind it. It is also noted 

that Mr. Stailey testified that the "required speed going downhill" is 18 miles an hour. (Emphasis added). It does not appear 

from the record that driving slowly was a viable option to 

Mr. Roethle. If management believed it was a viable option, 

Mr. Roethle's foreman should have been mentioned this option to 

Mr. Roethle on November 19th in conjunction with management's 

obligation to address the complaining miner's safety fears. 

It may be that with hindsight that Mr. Roethle now feels 

that he might have been able to control the truck now that he 

knows the bouncing behavior of the truck was caused by out of 

round tires and that management now assures him that it would 

have excused driving at a sp~ed slower than normally expected 

production speed. I~ must be kept in mind, however, that the 

reasonableness and honesty of his belief must be based on his 

perception of the unsafe driving condition of the truck at the 

time he refused to drive the truck and not as of the time of the 

hearing. 

II 

Section 105(c}(2) of the Act provides that a miner who 

believes that he has been discriminated against· may, within 60 

days after such violation occurs, file a complaint with the 

Secretary. 

Mr. Roethle es written complaint was not received within 60 

days after the suspension occurred and thus was not within the 

time limits Section 105(c). The purpose of this time limit is 

to avoid stale claims, but a late filing may be excused. The 

time limits in Section 105(c) are not jurisdictional in nature. 

Christian Vo South Hopkins Coal Company, 1 FMSHRC 126, 134-136 

(April 1979>v Bennett v. Kaiser Aluminum & Chemical Corporation 1 

3 FMSHRC 1539 (June 1981)1 Secretary v. 4-A Coal Company, Inc., 

8 FMSHRC 240 (February 1989). 

The Commission has indicated that dismissal of a complaint 

for late filing is justified only if the respondent shows material, legal prejudice attributable to the delay. Cf. Secretary/ 

Hale Vo 4-A Coal Company, Inc., supra. No such showing has been 

made here. 

661 
III 

The parties stipulated that Mr. Roethle's damages for the 

10-day suspension consist of lost wages in the sum of $1,056.20 

plus interest to be calculated in accordance with United Mine 

Workers of America v. Clinchfield Coal Company, 10 FMSHRC 1943, 

aff 'd, 895 F.2d 773 (10th Cir. 1989) (short-term federal rate 

applicable to underpayment of taxes). 

Mr. Roethle's personnel record should be expunged of all 

matters relating to the incident of November 19, 1989 as requested in the discrimination complaint filed by the Secretary. 

PENALTY ASSESSMENT 

Section 110 (a) of the Act provides as follows: 

The operator of a coal or other mine in which a 

violation occurs of a ... mandatory health or safety 

standard or who violates any other provision of 

this Act, shall be assessed a civil penalty by 

the Secretary which penalty shall not be more 

than $10,000 for each such violation. Each occurrence of a violation of a mandatory health or safety standard may constitute a separate offense. 

(Emphasis added). 

It is also noted that the last sentence of section 105(c)(3) 

of the Act states, "Violations by any person of paragraph (1) 

shall be subject to the provisions of sections 108 and section 

llO(a)." Thus it is clear that a penalty is to be assessed for 

discrimination in violation of section 105(c)(l) of the Act. 

In a discrimination case the Secretary is required to propose a specific dollar amount supported by relevant information 

for assessing the appropriate penalty for the alleged violation 

of section 105(c} of the Act. In the case at bar the Secretary 

in the discrimination complaint only requested that an appropriate civil money penalty be issued. At the hearingu however, the 

Secretary on the record proposed that the penalty assessed be 

between $2u000 and $2,SOOu based upon MSHA's review and analysis 

of the case. 

In additionr the Secretary in her post-hearing brief seeks 

to impose a monthly civil monetary penalty upon Respondent on the 

theory that Respondent has a policy with respect to its truck 

drivers that constitutes an ongoing violation of section 105(c) 

of the Act. In essence, complaint seems to contend that Respondent has an ongoing policy of requiring its truck drivers to continue driving a truck which Management asserts to be safe even 

662 
though the driver has a reasonable good faith belief that the 

condition of the truck is such that it would be hazardous to 

continue to drive the truck. I find no persuasive evidence that 

Respondent has such a policy. On the contrary, the preponderance 

of the evidence presented establishes that the Respondent except 

for its failure in this case has a policy of addressing the safety concerns of its truck drivers. There i~ no persuasive evidence that it has an ongoing policy of taking adverse action 

against a driver for work refusal based on the driver's safety 

concerns if it appears to Management that the driver has a reasonable good faith belief that the condition of the truck is such 

that it would be hazardous to continue driving it. 

In this case, however, Mr. Roethle was subjected to disparate treatment for his work refusal. The foreman negligently misjudged the situation and thus management did not adequately address Mr. Roethle's safety concerns. Management may have had a 

sincere but nevertheless mistaken belief that Mr. Roethle did not 

have a reasonable good faith, .. belief in the safety hazard involved 

in continuing to drive the truck. Such a sincere but mistaken 

belief by management is no defense to a violation of Section 

105(c) of the Act. In my opinion, the sincerity and reasonableness of such a belief on the part of management is one factor 

that can be considered in determining the appropriate penalty, 

along, with the statutory criteria in Section llO(c} of the Act. 

I do find, however, that management was negligent in sending 

Mr. Roethle home on November 19th before having a mechanic or 

supervisor drive the 204 truck or ride in the cab of the 204 

truck with Mr. Roethle, as Mr. Roethle requested before taking 

adverse action against him. Management was negligent in failing 

to adequately address Mr. Roethle's safety concerns. Mere visual 

inspection of the 204 truck under the circumstances of this case 

did not adequately address Mr. Roethle 0 s safety concerns. 

With respect to historyv Complainant 0 s Exhibit C-1 is a 

printout of Respondent's violations from November 19, 1987, 

through November 18, 1989, at the Tyrone Mine and Mill. It 

shows a total of 88 paid violations of which 66 were of the 

single penalty type" 

Respondent is a large operator. The Tyrone Mine includes a 

number of divisions" It has a concentrator, an XSEW Plant (which 

is another means of processing copper ore>v a mechanical and 

electrical division, and various miscellaneous divisions such as 

leaching and securityo 

Respondent objected to the violations printout (Ex. c-1) on 

the basis that the exhibit does not purport to focus on the fines 

663 
or assessments relate to the mining operation which is the division in which Mr. Roethle is and was employed, nor to citations 

that might relate to the operation of alleged defective equipment. 

These objections were noted and correctly overruled. 

On balance, everything considered, I concluded that a civil 

penalty of $500 is the appropriate civil penalty for Respondent's 

violation of 105(c) of the Act. 

CONCLUSIONS OF LAW 

1. Jurisdiction over this action is conferred upon the 

Federal Mine Safety and Health Review Commission under Section 

105(c)(2) and Section 113 of the Act. 

2. Respondent's Tyrone Mine and Mill is a mine, as defined 

in Section 3(b) of the Act, and the products of which affect commerce under Section 4 of the Act. 

3. Respondent was an operator at all relevant times within 

the meaning of Section 3(d) of the Act. 

4. Richard G. Roethle was a miner at all relevant times 

within the meaning of Section 3(g) of the Act. 

5. Mr. Roethle engaged in protected activity when on November 19, 1989, he refused to drive the 204 muck truck which he believed to be unsafe. His belief was a good faith, reasonable 

beli 

60 Mr. Roethle's suspension was directly motivated at least 

to a extent by his refusal to operate the 204 truck on 

November 19v 1989. 

7c Mr. Roethleus claim is not barred by his failure to file 

a written complaint within 60 days of the November 19, 1989, 

incidento 

ORDER 

Based on the above findings of fact and conclusions of law, 

it is ORDEREDi 

lo Respondent shall pay to Complainant Richard G. Roethle 

within 30 days of the date of this decision the sum of $1,056.20 

representing lost wages during the 10-day suspension beginning 

November 19, 1989, with interest thereon in accordance with the 

664 
commission decision in Local Union 2274, UMWA v. Clinchfield Coal 

co., 10 FMSHRC 1493 (1988) calculate proximate to the time payment is actually made. 

2. Respondent shall expunge from its personnel records all 

references to the suspension of Richard G. Roethle that commenced 

on November 19, 1989. 

3. Respondent shall pay a civil penalty of $500 to the 

Secretary of Labor for its violation of 105(c) of the Act. 

{2.L?J.~ Augu'5f F· Cett1 ~ ~-~ J '~ Administrative Law Judge v 

Distribution: 

Michael H. Olvera, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Richard G. Roethle, P.O. Box 98, Tyrone, NM 88065 (Certified 

Mail) 

Charles L. Chesterv Esq., RYLEY, CARLOCK & APPLEWHITE, 101 North 

First Avenue, Suite 2600u Phoenixu AZ 85003 (Certified Mail) 

ek/sh 

665 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LARRY CODY, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 16 1991 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. CENT 90-167-DM 

MD 88-93 

TEXAS SAND AND GRAVEL COMPANY, 

INCORPORATED, 

Appearances: 

Respondent 

DECISION 

Larry Cody, Amarillo, Texas, Pro se; 

Tad Fowler, Esq., Miller & Herring-; Amarillo, 

Texas for the Respondent. 

Before: Judge Melick 

This case is before me upon the complaint by Larry Cody 

under section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seg., the "Act," alleging unlawful 

discharge on September 14, 1988, by Texas Sand and Gravel 

Company, Inc. (Texas Sand and Gravel) in violation of section 

105(c)(l) of the Act1 . 

1section 105(c)(l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in 

any coal or other mine subject to this Act because such 

miner, representative of miners or applicant for 

employment has filed or made a complaint under or related 

to this Act, including a complaint notifying the operator 

or the operator's agent, or the representative of the 

miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant 

for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of 

666 
More particularly Mr. Cody alleges in his complaint as 

follows: 

I must haul heavy equipment on a low-boy. I asked 

for help to load a crane. The crane had no brakes. 

While loading the crane, I could not see the back 

wheels on the right side. The wheels slipped off the 

low-boy and the crane turned over. 

I went to the doctor, and even before I was 

released from the doctor, Wayne Pulliam called me in 

and said "You're fired." 

About a month ago Wayne Pulliam told me to take 

the crane to Vega Texas for concrete plant use. I told 

Wayne the crane don't [sic] have brakes how do I get it 

off. So Wayne said he would go help me get it off all 

of this took place in the shop at Mansfield Plant. 

Their [sic] were witnesses. But when I had to go get 

it I asked Wayne how am,,.I going to get it back on he 

said I could handle it .. 

Subsequently in response to a Show Cause Order Mr. Cody 

supplemented his Complaint by noting that he believed that he was 

fired due to safety related discrimination because, inter alia: 

Before my accident I had asked Wayne Pulliam 

[mine superintendent] for some 2 x 12 foot boards for 

the sides of the low-boy, so I could safely haul the 

wider equipment. As it was the crane had no brakes, 

and less than half of the tires were on the low boy, 

the other part hung off the bed. All I got as a reply 

from Wayne Pulliam (who was the main boss at Mansfield 

Plant), was a laugho 

The above response is deemed to constitute an Amended 

Complaint. In order to establish a prima facie case of 

discrimination the Complainanat has the burden of proving that 

(1) he engaged in protected activity and (2) the adverse action 

complained of was motivated in any part by that protected 

cont'd fn.l 

miners or applicant for employment has instituted or 

caused to be instituted any proceeding under or related 

to this Act or has testified or is about to testify in 

any such proceeding, or because of the exercise by such 

miner, representatfve of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this Act. 

667 
activity. Consolidation Coal Co, 2 FMSHRC 2786, 2797-3800 

(1980), rev'd on other grounds, sub nom. Consolidation Coal Co. 

v. Marshall 663 F.2d, 1211 (3rd Cir.--r9'81); Secretary on behalf 

of Robinette v. United Castle Coal Company, 3 FMSHRC 803, 817-818 

(1981). 

The mine operator may rebut a prima f acie case by showing 

either that no protected activity occurred or that the adverse 

action was in no part motivated by protected activity. If the 

operator cannot rebut the prima facie case in this manner, 

nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

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

Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 6339, 642 

(4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 

954 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 

1983) (specifically approving the Commission's Pasula-Robinette 

test). See NLRB v. Transportation Management Corporation, 462 

U.S. 393 (1983), approving a nearly identical test under the 

National Labor Relations Act. 

At hearing Cody testified that he was discharged by Texas 

Sand and Gravel on September 14, 1988, the day after the crane he 

was loading onto a low-boy off and overturned. As a result 

of this accident Cody was taken by a co-worker to see a doctor. 

Cody testified that he "couldn'J;. walk very good--there was 

something wrong with something"""'. The next morning when Cody 

appeared for work he met with mine superintendent Wayne Pulliam. 

Pulliam told Cody he had orders to let him go and in fact Cody 

was then fired. Cody appears to be alleging that this discharge 

was the result of his having the accident the day before and that 

this accident was the result of not having 2 by 12 outrigger 

boards on the low-boy that would have provided support for the 

wheels of the crane that overturned. According to Cody without 

these boards the wheels of the crane were supported by only 3 or 

4 inches of the 24-inch- width tires. Cody maintains that he had 

complained 2 or 3 weeks before this accident to superintendent 

Pulliam that would be safer to have the 2 x 12 board 

outriggers to support the crane on the low-boy. Pulliam 

purportedly only laughed in response stating that "there wasn't 

no way they could afford to buy them boards" 

While I find therefore based upon the undisputed testimony 

of Cody, that he in fact did make a protected safety complaint to 

the Respondent I do not find that Cody has met his burden of 

proving that his discharge 2 or 3 weeks later was motivated in 

any part by that complaint. There no evidence of any ill-will 

2Mr. Cody subsequently received worker's compensation benefits 

for back injuries he sustained in this accident. 

668 
or retaliatory motive resulting from the complaint and Cody's 

discharge occurred ohly hours after he engaged in the unprotected 

activity of driving the crane off the low-boy causing it to 

overturn. Cody himself acknowledges that this accident was 

reason and the motivating factor for his discharge. 

Under the circumstances I 

established a prima f acie case 

violation of section 105(c)(l) 

proceeding must accordingly be 

Distribution: 

cannot find that Cody has 

that his discharge was in 

of the Act. This d(''s.crimination dlsm· ssed. 

i i \ "' L/ ~ ~ \) 'I 

ic.1.........--'-,, j\ ./~ _j j '-'", _ _,..~, __ _ 

·Garv! Me lick\\'· Adm~nistrat~ye Law Judge 

t ~ 

Mr. Larry Ccdy, Route 8, Box 72-9, Amarillo, Texas 79118 

(Certified Mail) 

Tad Fowler, Esq., Miller & Herring, 910 West Seventh, P.O. Box 

2330, Amarillo, TX 79105 (Certified Mail) 

nb 

669 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RICKY HAYS, 

v. 

LEECO I INC. I 

Appearances: 

Before: 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 19199\ 

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, ., 

Appalachian Research & Defense Fund of Kentucky, 

Inc., Lexington and Prestonsburg, Kentucky, for 

the Complainant; 

Timothy Joe Walker, Esq., Reece, Lang & Breeding, 

London, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the case 

This proceeding is before me to determine the rel due the 

complainant, including the payment of costs and attorney's fees, 

based upon my ion of September 28, 1990, finding that the 

respondent Leeco, Inc., discriminated against the complainant in 

violation of section 105(c) (1) of the Federal Safety and 

Health Act of 1977, 30 U.S.C. § 801 seg., the "Act." Ricky 

Hays v. ., 12 FMSHRC 1850 (September 1990). 

The parties are in agreement as to the amount of backpay 

owed the complainant for the period of September 8, 1989, through 

January 31, 1991, less any interim earnings, and amount 

$12,853.69, less interest. Backpay continues to accrue until 

this case becomes final and the money is paid. The parties have 

confirmed their preference for a backpay award with interest to 

be calculated later pursuant to the formula employed by the 

Commission. 

670 
Other Employment Benefits 

Retirement Plan 

The parties are in agreement that the respondent has a 

retirement plan which vests upon the completion of 5 years' 

employment, and that the respondent acknowledges its responsibility to make retirement payments into the complainant's account as 

if he had not been discharged. 

Medical Expenses 

The parties have agreed to a procedure for determining 

payments for any covered medical expenses incurred by the complainant during his employment with the respondent. In a letter 

dated January 13, 1991, complainant's counsel Oppegard summarized 

this procedure as follows: 

Because Mr. Hay:'?-' remedy is to file suit under Leeco's 

health plan if the company declines coverage of these 

medical expenses, and because the parties do not 

believe that the Court is in a position to rule on 

which medical bills Leeco has the responsibility to pay 

under its medical plan, Mr. Walker and I proposed the 

following: that the Court simply rule that Leeco is 

required to give the same consideration to Mr. Hays' 

submitted medical expenses as it would have done had he 

not been previously discharged. In other words, that 

Leeco review the Complainant's medical bills in a 

non-discriminatory manner, and grant or deny coverage 

accordingly. If the Complainant prevails on appeal in 

this matter, and Leeco then denies coverage of some of 

Mr. Hays• bills, the Complainant would be required to 

resort to the procedures provided by the Respondent's 

health plan in the event that insurance coverage is 

denied. 

Attorney Fees and Litigation Expenses 

Section 105(c) (3) of the Act provides in part as follows: 

Whenever an order is issued sustaining the complainant 1 s charges under this subsection, a sum equal to the 

aggregate amount of all costs and expenses (including 

attorney 1 s fees) as determined by the Commission to 

have been reasonably incurred by the miner, applicant 

for employment or representative of miners for, or in 

connection with, the institution and prosecution of 

such proceedings shall be assessed against the person 

committing such violation. 

671 
The complainant's initial submission of his statement of 

attorney fees and expenses is for $55,213.52, representing the 

following claimed expenses for the period September 15, 1989 

through November 16, 1990: 

1. Principal Attorney Tony Oppegard. 300.4 hours 

billed at $150 per hour, for a total of $45,060. 

2. Co-counsel Stephen A. Sanders. 26.5 hours 

billed at $150 per hour ($3,975), and 34 hours billed 

at $75 per hour ($2,550), for a total of $6,525. 

3. Other litigation expenses (itemized as mileage 

and lodging expenses, witness fees & mileage, telephone, expert witness fees and expenses, photocopying 

and photographic expenses), for a total of $3,628.52. 

The complainant's supplemental statement of additional 

attorney fees for the-period November 17, 1990, through March 15, 

1991, is for $8,325, representing the following claimed expenses: 

1. Attorney Tony Oppegard. 53.8 hours billed at 

$150 per hour, for a total of $8,070. 

2. Attorney Stephen A. Sanders. 1.7 hours billed 

at $150 per hour, for a total of $255. 

The total amount of claimed attorney fees and expenses 

submitted by the complainant is $63,538.52. 

The respondent has filed objections to any award of attorney 

fees 1 and the objections and issues ra are as follows: 

1. The respondent denies liab for any attorney's fees or costs because the complainant's counsel 

are employed by a Federally funded, non-profit legal 

services corporation, and the complainant is not an 9

'eligible client 11 as defined by the Federal Legal 

Services Corporation regulations. 

2. The amount of attorney fees 

complainant is clearly unreasonable 

monetary value of the other remed 

obtained by the complainant. 

sought by the 

light of the 

sought and 

3. The hourly billing rate claimed by the complainant's counsel is excessive. 

4. The complainant's requested attorney fees are 

clearly excessive and/or redundant and reflect a dupl 

cation of attorney effort. 

672 
5. The complainant is not entitled to attorney 

fees and costs incurred for the period from 

September 15, 1989, through November 1, 1989, during 

which period he had proceeded under section 105(c) (2) 

of the Act and was awaiting MSHA's determination as to 

whether or not the alleged violation had in fact 

occurred. 

The respondent has also filed an objection and opposition to 

the complainant's motion for post-judgment 'interest on any 

attorney fees award, and it has also filed a motion to hold in 

abeyance any award with respect to attorney fees pending the 

final disposition of a complaint which the respondent has filed 

with the Legal Services Corporation challenging the propriety of 

the Appalachian Research and Defense Fund's representation of the 

complainant in this case. 

The Status of the Appalachian Research and Defense Fund of 

Kentucky, Inc. (ARDF) 

The respondent denies any liability for the payment of 

attorney fees and maintains that the complainant has incurred no 

costs for attorney fees because his counsel are employees of a 

federally-funded, non-profit corporation. The respondent states 

that it has filed a complaint with the Legal Services Corporation 

regarding the Appalachian Research and Defense Fund of Kentucky, 

Inc., (ARDF), and the propriety of its representation of the 

complainant and seeking attorney fees for its services. The 

respondent maintains that the regulations of the Legal Services 

Corporation provide that the "recipient" of funding by that 

agency may accept a court-awarded fee only under certain circumstances, and that a prerequisite to ARDF's acceptance of a fee in 

a fee-generating case is that a client be an "eligible client." 

The respondent takes the position that the complainant was not an 

"eligible client" when his representation was undertaken by ARDF, 

because his income exceeded the allowable maximum income level 

for "eligible clients," and that ARDF therefore should not be 

permitted to accept any fees which may be awarded in this case. 

The complainant takes the position that there is nothing 

improper in ARDF's representation of the complainant, and that 

pursuant to the regulations of the Legal Services Corporation, 

any complaint in this regard, including any resulting sanctions, 

is for that agency to consider. Citing 42 u.s.c. 

§ 2996e(b) (1) (b), the complainant maintains that a trial court is 

prohibited from affecting the final disposition of a legal 

proceeding because of an alleged impropriety by a Legal Services 

Corporation recipient program, and it cites the following cases 

in support of its argument: Martens v. Hall, 444 F. Supp. 34 

(S.D. Fla. 1977); Anderson v. Redman, 474 F. Supp. 511 (D. Del. 

1979); Holland v. Steele, 92 F.R.D. 58 (N.D. Ga. 1981); Harris v. 

Tower Loan of Mississippi, Inc., 609 F.2d 120 (5th Cir. 1980). 

673 
Findings and Conclusions 

Costs and attorney fees have consistently been awarded to 

counsel who were employed by a union or a private legal services 

organization such as ARDF. Eldridge v. Sunfire Coal 

Company, 5 FMSHRC 1245 (July 1983); Munsey v. FMSHRC, 701 F.2d 

976 (D.C. Cir. 1983); Chaney Creek Coal corporation v. FMSHRC, 

866 F.2d 1424 (D.C. 1989); Robert Simpson v. Kenta Energy, Inc. 

and Roy Dan Jackson, 11 FMSHRC 2543 (December 1989); Ronald 

Tolbert v. Chaney Creek Coal Corp., 9 FMSHRC 929 (May 1987). See 

Council of the Southern Mountains, Inc. v. Martin County 

Coal Corporation, 3 FMSHRC 526 (February 1981), and in particular 

the cases cited at 3 FMSHRC 549-552, concerning costs and attorneys fees awardable to legal services non-profit corporations. 

Prior challenges to the propriety of ARDF's legal representation of miners in discrimination proceedings before the 

Commission have been rejected. See: Bradley v. Belva Coal, 

3 FMSHRC 921, 924 (1981); Eld'ridge v. sunfire Coal Company, 

supra. In addition, eight U.S. Circuit Courts of Appeals have 

considered and rejected similar challenges concerning the propriety of legal representation provided by such legal services 

organizations. See: Bonnes v. Long, 599 F.2d 1316 (4th Cir. 

1979); Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979); 

Mid-Hudson Legal Services v. G & U, Inc., 578 F.2d 34 (2nd Cir. 

1978); Perez v. Rodriguez Bou, 575 F.2d 21 (1st Cir. 1978); 

Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977); Bond v. 

Stanton, 555 F.2d 172 (7th Cir. 1977), cert. denied, 438 U.S. 916 

(1978); Sellers v. Wallman, 510 F.2d 119 (5th Cir. 1975); 

Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974). 

After further consideration of the arguments presented by 

the parties I conclude and find that the complainant's position 

correct, and the position taken by the respondent is rejected. 

Unreasonableness of Attorney Fees in Light of Other Remedies 

The respondent asserts that the amount of attorney fees 

sought by the complainant clearly unreasonable in light of the 

monetary value of the other remedies sought and obtained by the 

complainant in this case. Citing Hensley v. Eckerhart, 

103 S. ct. 1933 (1983), the respondent points out that the amount 

of money involved in a dispute is a relevant factor in determining the reasonableness of attorney fees to be awarded. Respondent concludes that while the complainant has been awarded 

reinstatement in addition to back pay, he had already obtained 

other employment when this litigation was begun and the difference in his wages was not so great as to justify the huge fee 

sought by his counsel. 

Conceding the fact that the monetary amount of a plaintiff's 

recovery is a relevant factor in determining the reasonableness 

674 
of attorney fees to be awarded, the complainant asserts that this 

is but one factor to be considered, and that the Supreme Court 

has expressly rejected the proposition that attorney fee awards 

under civil rights statutes should necessarily be proportionate 

to the amount of damages a plaintiff actually recovers. Johnson 

v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); 

city of Riverside v. Rivera, 106 s. ct. 2686, 2691, 2694 (1986). 

The complainant has cited a number of Federal court cases in 

which attorney fees awarded greatly exceeded the amount of 

damages recovered by a plaintiff. 

Recognizing the fact that the requested attorney fees are 

almost five times greater than his backpay award, the complainant 

nonetheless points out that the respondent has been ordered to 

reinstate him to his former position, and that although he is 

currently employed by another company, he intends to return to 

work with the respondent if he prevails on any appeal of this 

case. Under the circumstances, the complainant asserts that his 

backpay continues to accrue,.~ill continue to grow pending any 

appeal, and could in~rease greatly if he were to lose his present 

job. 

Complainant further argues that the Mine Act is remedial 

legislation which affects the public interest as well as the 

interest of the individual miner, and that by prevailing in this 

case, he has served the public interest by vindicating important 

federal safety rights. Further, by establishing that the respondent has violated the Act, complainant concludes that his case 

may also deter the respondent from continuing its unlawful 

conduct, and thus assure that other miners are not subjected to 

similar unsafe working conditions. 

Citing the Supreme Court's decision in Hensley v. Eckerhart, 

supra, the complainant believes that since his attorney obtained 

excellent results in his case, he should recover a fully compensatory fee which normally encompasses all hours reasonably 

expended on the litigation. Relying on the Commission's consistent holdings in discrimination cases that miners who have 

suffered discrimination should be made whole, the complainant 

concludes that he would not be made whole, and the effects of the 

respondent 1 s unlawful discrimination would not be eliminated, if 

his counsel are not fully awarded the reasonable fees sought in 

th matter. 

Findings and Conclusions 

It seems clear to me that the amount recovered as back pay 

does not determine the reasonableness of the attorney fee 

request, Copeland v. Marshall, 641 F.2d 880, 906-908, (D.C. Cir. 

1980). See also: Munsey v. Smitty Baker Coal Company, Inc., 

3 FMSHRC 2056 (1981); Simpson v. Kenta Energy, Inc., 7 FMSHRC 272 

(1985); and Munsey v. Smitty Baker Coal Co., Inc., et al., 

675 
5 FMSHRC 2085 (December 1983), where Judge Melick stated as 

follows at 5 FMSHRC 2091: 

While the overall attorney fee award in this case 

is more than seventeen times the damages awarded the 

actual victim of discrimination, it is well recognized 

that market value fee awards in cases such as this take 

into account the need to assure that miners with bona 

fide claims of discrimination are able to find capable 

lawyers to represent them. In addition, the success in 

this case represents a vindication. of societal interests incorporated in the mine safety legislation above 

and beyond the particular individual rights vindicated 

in the case. Accordingly, I do not find the substantial fee award in this case to be excessive or in the 

nature of a "windfall." 

After careful consideration of the arguments presented by 

the parties, I agree with the·position taken by the complainant, 

and I conclude and find that any attorney fee award to the 

complainant in this case should not be reduced simply because his 

back pay award is relatively small and he had already obtained 

other employment when this litigation was begun. 

The appropriate Hourly Rate 

Arguments Presented by the Parties 

The complainant's counsel Oppegard has billed at an hourly 

rate of $150. Co-counsel Sanders has billed at an hourly rate of 

$75 for claimed work with Mr. Oppegard, and at an hourly rate of 

$150 for his remaining claimed legal work. In support of the 

$150 hourly rate, the complainant states that the rate represents 

the current market rate for legal work performed in order to 

compensate for delay in payment and in lieu of requesting an 

enhancement of the "lodestar." The complainant believes that 

enhancement of the lodestar is fully warranted in this case, and 

in his interrogatory response to a discovery request by the 

respondent, complainant asserted that such enhancement was 

warranted because of the contingent nature of the case, particularly the high risk factor in light of the fact that the case was 

rejected for prosecution by MSHA, the excellent representation 

provided and the results achieved, and the certain delay in 

payment that will occur in view of the respondent's assertion 

that it intends to appeal the decision in his case. 

Complainant asserts that his attorneys have exercised 

billing judgment with respect to the hours worked in litigating 

his claim, and that when counsel felt that certain legal work 

could have been performed in less than the actual hours expended, 

they did not bill for those additional hours. In addition, 

complainant asserts that while travel time is compensable, 

676 
counsel has not billed for several hours of travel time spent on 

his case. 

In his responses to certain discovery requests by the 

respondent, and in support of the $150 hourly rate, the complainant cites the Supreme Court's holding in Blum v. Stenson, 

104 s. ct. 1541 (1984), that the "prevailing market rate'' is the 

rate "prevailing in the community for similar services by lawyers 

of reasonably comparable skill, experience and reputation," 

104 s. Ct. at 1547, n. 11. The complainant asserts that counsel 

Oppegard and Sanders are the most experienced attorneys in 

eastern Kentucky in handling safety discrimination litigation 

under section 105(c) of the Act. Complainant points out that 

there are few plaintiffs' attorneys in eastern Kentucky who have 

litigated even one such case, whereas counsel Oppegard has 

litigated approximately 42 such cases, and sanders about 9. 

The complainant has submitted affidavits from counsel 

Oppegard and Sanders, and af~~davits from seven (7) local plaintiffs' attorneys in support of the reasonableness of the claimed 

hourly rate of $150. The complainant has also submitted an 

affidavit from a local attorney who successfully represented a 

complaining miner in a recent proceeding before Judge Fauver, 

Charles T. Smith v. Kem Coal Company, 12 FMSHRC 2130 (October 

1990). The complainant states that this was the only case ever 

litigated by the attorney pursuant to section 105(c) of the Act, 

and that on January 31, 1991, Judge Fauver awarded the attorney 

$150 per hour for his services after finding that the fee rate 

was reasonable for comparable cases in the eastern Kentucky area. 

In further support of his argument, the complainant, in his 

discovery responses, states that on December 18, 1989, Judge 

Broderick approved an hourly rate of $125 for legal work performed by counsel Oppegard and Sanders during the period of 

December, 1984, through November, 1989, in the cases of Robert 

Simpson v. Kenta Energy, Inc. and Roy Dan Jackson, 11 FMSHRC 2543 

(1989), and that more recently in the case of Odell Maggard v. 

Chaney Creek Coal Corporation, 12 FMSHRC 1749 (August 1990), 

Judge Melick awarded counsel Oppegard an hourly fee of $150 for 

legal work performed during the period June, 1986, through April, 

1990. The complainant also cites a case 10 years ago, where 

former Commission Judge Steffey awarded an attorney an hourly 

rate of $100, for representing a miner in the only discrimination 

case ever litigated by the attorney, Elias Mosley v. Whitley 

Development corporation, 3 FMSHRC 746, 762 (1981). 

In its initial statement objecting to the payment of any 

attorney fees, the respondent asserted that the complainant bears 

the burden of establishing the "current market rate," citing 

Hensley v. Eckerhart, 103 S. Ct. 1933 (1983). 

677 
In its subsequently filed objections, the respondent maintains that the claimed hourly billing rate for the ~omplainant's 

attorneys is excessive. In support of its argument, the respondent asserts that five of the supporting attorney affidavits 

submitted in support of the requested hourly rate are based, in 

part, on the supposed "contingent" nature of this case. Under 

the circumstances, the respondent concludes that it would appear 

that instead of requesting enhancement of the lodestar, complainant's counsel have incorporated the enhancement into the lodestar 

by adjusting their hourly rate to account for supposed "delay in 

payment" and "contingency," and have also subsequently moved for 

an award of post-judgment interest to be added to their fee. 

The respondent argues that contingency should not be a 

factor which leads to an award of a high hourly attorney fee in 

this case. The respondent points out that the complainant has 

been fully employed throughout this litigation and has earned 

$48,560.90, in substitute employment as of January 31, 1991. The 

respondent believes that had c.omplainant' s counsel been in 

private practice, they could have entered into an agreement with 

the complainant providing for payment of their fees, at a lower 

hourly rate (.i_.g., one reflecting "delay in payment" or "risk 

of non-payment"), and could reasonably have expected to be paid, 

win or lose. In view of the complainant's arguments that his 

attorneys are entitled to the same fees as that of counsel in 

private practice, notwithstanding the fact that they are employed 

by a non-profit corporation, the respondent concludes that 

complainant's attorneys clearly should not be awarded additional 

compensation for delays or risks incurred because their employing 

organization cannot bill its client directly. 

The respondent further believes that the complainant's 

request for post-judgment interest on its attorney's fees stands 

on the same footing as the request for an hourly rate based on 

contingency or delay, and that it seems obvious that counsel 

cannot be compensated twice, in different ways, for the same 

thing. The respondent concludes that in the event the complainant's counsel are awarded an hourly billing rate which reflects 

anticipated delay in payment or risk of non-payment, then an 

award of interest addition thereto would be an impermissible 

redundancy, citing Library of Congress v. Shaw, 106 s. ct. 2957 

(1986) ("delay adjustment" equated with award of interest and 

therefore not awardable against Federal government) . 

In further response to the respondent's argument's concerning the "contingent" nature of his case, the complainant asserts 

that the respondent's argument that he could have entered into a 

standard attorney fee arrangement with his attorneys if they were 

in private practice, while at the same time arguing that his 

attorneys should be treated differently than attorneys in private 

pract because they are employed by a non-profit organization 

that does not bill its clients directly, is contradictory, 

678 
irrelevant and without merit. The complainant points out that 

his attorneys are not private, for-profit practitioners, and that 

the respondent has produced no evidence that miners who retain 

private, for-profit counsel in section 105(c) discrimination 

cases in eastern Kentucky have entered into anything other than 

contingency agreements, and that the affidavits submitted by the 

complainant indicates that private attorneys in the area uniformly view such cases as contingent in nature. 

The complainant further asserts that the respondent's 

argument that the contingent nature of his case should be overlooked because the ARDF is a non-profit law office ignores the 

explicit holding of the Supreme Court in 'Blum v. Stenson, 

104 s. ct. 1541 (1984), where the court stated as follows at 

104 S. Ct. 1564: 

Petitioner's argument that the use of market rates 

violates congressional intent • • . is flatly contradicted by the legislatiye history of [the statute]. 

It also clear from the legislative history that 

Congress did not intend the calculation of fee awards 

to vary depending on whether plaintiff was represented 

by private counsel or by a nonprofit legal services 

organization ..•• The statute and legislative history establish that "reasonable fees" under § 1988 are 

to be calculated according to the prevailing market 

rates in the relevant community, regardless of whether 

plaintiff is represented by private or nonprofit counsel. 104 s. Ct. at 1546-1547 (emphasis added). 

Citing a Supreme Court and several lower federal court 

decisions, the complainant further argues that a contingent fee 

contract does not impose an automatic ceiling on an award of 

attorney fees, and that even if private, for-profit attorneys 

bi their poorer clients at lower than normal (reduced) b ing 

rates because of the financial inability of the client to pay 

regular rates, the prevailing market rate method should be used 

to compute the proper attorney fee award. 

The complainant points out that in the few instances where 

the respondent has actually challenged the reasonableness of 

specific work performed by his attorneys, its objections are 

nothing more than speculating that, in retrospect, perhaps the 

work could have been performed by a single attorney. However, 

the complainant believes that he should be granted some latitude 

with respect to the legal strategy and techniques employed by his 

counsel, particularly since he prevailed, and in spite of the 

difficulty encountered by his attorneys in securing testimony 

from frightened witnesses. The complainant concludes that the 

respondent has not rebutted his convincing evidence that $150 per 

hour is a reasonable fee for both attorneys Oppegard and Sanders, 

679 
particularly in light of Judge Fauver's recent award of $150 per 

hour to an inexperienced attorney practicing his f i~st discrimination case. 

Finally, the complainant suggests that the substantial 

amount of work performed by his attorneys could have been avoided 

had the respondent engaged in good faith settlement negotiations 

with him. The complainant asserts that on May 3, 1990, prior to 

the trial of this case, he offered to wave reinstatement and 

attorneys fees, and to dismiss his case for the payment of 

$20,400 by the respondent. However, the respondent rejected his 

offer, and made a counteroffer of only $3,000. The complainant 

views this rejection as an extension of the respondent's belief 

that his case is frivolous, and he believes that the respondent 

is simply a litigant who does not want to pay the reasonable fees 

for the work required of his counsel to prove its inlawful 

conduct. 

Findings and Conclusions 

The recognized method of computing the amount of attorney's 

fees begins by multiplying a reasonable hourly rate by the number 

of hours reasonably expended. Hensley v. Eckerhart, 103 s. ct. 

1933 (1983); Blum v. Stenson, 104 s. Ct. 1541 (1984); Copeland v. 

Marshall, 641 F.2d 880 (D.C. Cir. 1980). The resulting figure is 

called the lodestar. The lodestar fee may then be adjusted to 

reflect a variety of other factors, including the complexity of 

the case, the experience level of the attorney, the contingen~ 

nature of the case, and any anticipated delay in payment of the 

fee award. See: Johnson v. Georgia Highway Express, Inc., 488 

F.2d 714, 717-719 (5th Cir. 1974), where the court established 12 

guidelines for establishing attorney fee awards. These guidelines have been followed in the D.C. Circuit. See~ Evans v. 

Sheraton Park Hotel, 503 F.2d 177, 188 (D.C. Cir. 1974); Copeland 

v. Marshall, supra. The appropriate hourly rate is the rate 

prevailing for similar work in the community where the attorneys 

practice law. Johnson v. Georgia Highway Express, Inc., supra; 

Copeland v. Marshall, supra. 

Section 105(c) (3) of the Act provides for an award of 

attorney's fees which have been reasonably incurred by the 

prevailing miner in a discrimination case. Thus, the appropriate 

measure of an attorney's time for establishing his fees is not 

the actual time spent but the time that should reasonably have 

been spent. Spray-Rite Service Corporation v. Monsanto Co., 

684 F.2d 1226 (7th Cir. 1982): Copeland v. Marshall, supra. In 

Johnson v. Georgia Highway Express, Inc., supra, the court made 

the following observation at 488 F.2d 720: 

The trial judge is-necessarily called upon to question 

the time, expertise, and professional work of a lawyer 

which is always difficult and sometimes distasteful. 

680 
But that is the task, and it must be kept in mind that 

the plaintiff has the burden of proving his entitlement 

to an award for attorneys' fees just as he would bear 

the burden of proving a claim for any other money 

judgment. 

After careful review and consideration of the arguments 

presented by the parties, and taking into account the applicable 

case law, I conclude and find that the complainant has met its 

burden of establishing both the appropriateness and reasonableness of the claimed hourly rate of $150. I am persuaded that the 

affidavits submitted by the complainant, the experience and 

competence level of his attorneys, and the recent hourly fee 

awards made to his counsel in other comparable discrimination 

cases, which took into account the prevailing local community 

rate, supports an hourly fee award of $150 per hour in this case. 

While it is true that complainant's counsel have been awarded 

lesser hourly rates in the past, taking into account the 

increased cost of living, inflation, and the added experience 

level of counsel, I cannot conclude that $150 per hour is unreasonable or unjustified. The respondent's arguments to the 

contrary are rejected, and I find nothing improper or unreasonable in including contingency and delay in payment of a fee as 

part 0£ the lodestar rate of $150 per hour in this case. 

Attorney Fees for Work Performed Prior to Accrual of Cause of 

Action before the Commission 

The respondent points out that any attorney fees for complaining miners who prevail pursuant to the Act are provided for 

by section 105(c) (3), which generally creates a private cause of 

action for any complaints the Secretary has declined to pursue 

after investigation. The respondent further points out that 

attorney fees are not provided for by section 105(c) (2) of the 

Act 1 and it objects to the payment of any fees incurred for the 

period from September 15, 1989, through November 1, 1989, when 

the complainant had proceeded under section 105(c) (2) and was 

awaiting MSHA's determination as to whether or not an alleged 

violation had in fact occurred. The fees claimed by attorney 

Oppegard for the period from September 15, through November 1, 

1989, are for 23.3 hours at $150 per hour, for a total of $3,495. 

The respondent requests that these fees be disallowed. 

The respondent takes the position that the time frame for 

any attorney fees payable in this matter initially began on 

November 14, 1989, when the complainant's cause of action before 

the Commission accrued with the receipt of MSHA's adverse determination on November 14, 1989, as alleged in his complaint. In 

support of its position, the respondent argues that the complainant had a right to pursue a complaint on his own behalf pursuant 

to section 105(c) (3) only after MSHA declined to prosecute his 

claim, and it concludes that the Act provides no basis for an 

681 
award of attorney fees for time spent by the attorney assisting 

the complainant in an effort to persuade MSHA to go~forward with 

his claim. At that stage, the respondent believes that the 

complainant was an intervenor under section 105(c) (2) of the Act, 

and as such was not entitled to attorney fees. The respondent 

cites Chaney Creek Coal Company v. FMSHRC, 866 F.2d 1424 (D.C. 

Cir. 1989}; and Eastern Associated Coal Corporation v. FMSHRC, 

813 F.2d 639 (4th Cir. 1987}, in support of its argument. 

The respondent further argues that if MSHA had elected to 

prosecute the complaint in the complainant's behalf, then the 

complainant would not have been entitled to any award of attorney's fees. Under the circumstances, the respondent concludes 

that it would be both ironic and improper to allow the fees in 

question, for the time spent by the attorney during MSHA's 

investigation, because the complainant failed to convince MSHA 

that his claim had merit. 

The complainant takes the position that the respondent's 

objections to the awa~d of attorney fees for work performed prior 

to MSHA's determination in his case are wholly without merit. In 

support of his argument that fees are awardable, the complainant 

cites the language of section 105(c} (3), which authorizes an 

award to a miner whose complaint is sustained for expenses and 

fees reasonably incurred for, or in connection with the institution and prosecution of such proceedings. 

The complainant maintains that because it is necessary for a 

miner to first file a discrimination complaint with MSHA prior to 

the filing of his complaint with the Commission, work performed 

by the complainant's attorney during this initial, critical phase 

clearly is "in connection with the institution" of the miner's 

complaint" Complainant asserts that his attorney performed 

important work during this stage of the proceeding, including an 

initial interview with the complainant, other witness interviews, 

and submissions to MSHA's special investigator. Complainant 

further asserts that the attorney-client relationship with ARDF 

had already begun during the relevant period, and all of the work 

claimed by his attorney was iUin connection with" his proceeding 

against the respondent. 

With regard to the respondent 1 s "intervenor" argument, the 

complainant asserts that the respondent's reliance on Eastern 

Associated Coal Corporation is misplaced, and that at no time was 

the complainant an intervenor. The complainant asserts that only 

5.7 of the 23.3 hours spent during the period in question was 

related to MSHA's investigation, and that the remainder of the 

time was not connected to the investigation, but rather was spent 

interviewing the complainant and various witnesses. The complainant concludes that in light of the fact that he was required 

to file a complaint with MSHA to initiate his action, and that 

MSHA then expects him to cooperate during its investigation of 

682 
his complaint, it is clear that the time spent by his attorney 

was reasonable. 

Findings and Conclusions 

In my view, if a private attorney agrees to perform work for 

a complaining miner while the matter is pending an MSHA investigation and determination as to whether a violation of section 

105(c) (1) has occurred, the attorney does so at his own risk of 

not being compensated for his work should MSHA decide to pursue 

the claim before the Commission. In such a situation, the 

attorney would not be entitled to an award of attorney's fees. 

See: Eastern Associated Coal Corporation v. FMSHRC, 813 F.2d 639 

(4th Cir. 1987). However, should MSHA decline to file a complaint on the miner's behalf, and the miner does so pursuant to 

section 105(c) (3), and prevails, his attorney would be entitled 

to an award of reasonable attorney fees because his work was for 

or in connection with the institution and prosecution of such 

proceedings which resulted in an order sustaining the complainant's charges under this subsection. 

After careful consideration of the arguments presented by 

the parties, I conclude and find that the complainant has the 

better part of the argument. The respondent's contention that 

the complainant should be treated as an intervenor is rejected, 

and I agree with the complainant's position that any work performed by counsel during the pendency of his complaint with MSHA 

was work connected with his discrimination complaint against the 

respondent. on the facts of this case, I conclude and find that 

the work performed by complainant's attorney at the time the 

complainant filed his complaint with MSHA, and while his complaint was being investigated by MSHA, was work connected with 

the institution and prosecution of a discrimination proceeding 

which ultimately ripened into a section 105(c) (3) proceeding 

before the Commission. 

In Johnson v. Georgia Highway Express, supra, at 488 F.2d 

717, the Court of Appeals stated that "It is appropriate to 

distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics, and 

other work which can often be accomplished by non-lawyers but 

which a lawyer may do because he has no other help available. 

Such non-legal work may command a lesser rate. Its dollar value 

is not enhanced just because a lawyer does it." 

I conclude and find that the time spent by Attorney Oppegard 

during the period that the complaint was being pursued and 

investigated by MSHA, including interviews, meetings, and phone 

calls with the complainant and MSHA's special investigator, was 

"non-legal work" unconnected with the trial of the case, or 

preparation for the trial of the case. The complainant's assertion that only 5.7 of the 23.3 hours spent during the time in 

683 
question was related to MSHA's investigation is rejected. I 

conclude and find that all of the time spent was in~connection 

with the investigation, including the 10.5 hours charged to 

"interviewing witnesses." I further conclude and find that $50 

per hour is a reasonable billing rate for this work. Accordingly, I will allow $1,165, for this work (23.3 hours x $50)# and 

the requested fees are reduced by $2,330. 

Complainant has claimed an additional 6.0 of work for the 

period November 17, 1989, through December 15, 1989, prior to the 

receipt of the complaint by the Commission on December 18, 1989. 

With the exception of one day (December 15 1 1989) for .4 hours 

spent in a letter to the complainant, the work claimed for the 

remaining 6 days includes telephone calls and conversations, 

either listed separately, or included as part of several activities. Except for the time spent on December 13, 1989, drafting 

and dictating the complaint of discrimination, I conclude and 

find that all of the remaining work was "non-legal" work conducted during the investigatiq11 stage of the complaint. I will 

allow 1.0 hour for the-drafting of the complaint, which is not 

complex, at an hourly rate of $150, and 5.0 hours at $50 an hour 

for the remaining work claimed, for a total of $400. The 

requested fees ($900), for all of this work, is reduced by $500. 

Fee Billing for Work Performed from December 18. 1989, through 

November 16, 1990 

The complainant has billed for 271.1 hours for claimedwork 

performed by attorney Oppegard from December 18, 1989 (the date 

the complaint was received by the Commission) through 

November 16, 1990, for a total of $40,665 (271.1 hours x $150). 

The complainant has billed 8.3 hours for Mr. Oppegard's 

claimed work on April 25 1 1990, in meeting with the complainant 

and in the i

1preparation11 and taking of the depositions of respondent 1 s adverse witnesses Clayton Hacker and Clyde Collins during 

the discovery stage of this case. The amount claimed for this 

work is $1,245 (8.3 hrs, x $150). The record reflects that both 

depositions were taken at the ARDF 1 s law offices in Manchester, 

Kentucky. The deposition of Mr. Hacker began at 3:45 p.m., and 

except for 10 minutes of "off the record" time, it concluded at 

6:05 p.m. The deposition of Mr. Collins began at 6~10 p.m., and 

concluded at 6:57 p.m. Mr. Oppegard conducted the examination of 

the witnesses, and respondent's counsel asked no questions. 

Although Mr. Sanders was present, he asked no questions, and his 

participation was apparently limited to his appearance. 

It would appear from the foregoing that the actual time 

spent in the taking of the depositions amounted to three 

(3) hours at most, and tlie "preparation" required by Mr. Oppegard 

is not further explained or documented. I conclude and find that 

the claimed 8.3 hours for this work is excessive. I will allow 

684 
$645 for this work (4.3 hrs. x $150), and the requested fees are 

reduced by $600. 

The complainant has billed 5.7 hours for unexplained 

"research11 by Mr. Oppegard on June 23, August 23, and 

September 7, 1990, and the requested fee is $855 (5.7 hrs. x 

$150) . Additional time charges for unexplained "research" are 

included among other claimed work items for April 24, May 6, and 

May 11, 1990. The requested fees for the 5.7 hours are unsupported and they are disallowed. I will als9 deduct a total of 

3.0 hours for the unexplained "research" included with the other 

work items for April and May, 1990. The requested fees are 

reduced by $1,305 (8.7 hrs. x $150). 

The complainant has billed 10.3 hours for Mr. Oppegard's 

claimed work on September 14, 1990, in connection with the 

drafting, dictation, editing, and finalizing of a reply brief and 

a "letter to client. 11 The time devoted to the letter is included 

with the work on the brief. , The. amount claimed for all of this 

work is $1,545 (l0.3-hrs. x $150). 

At the conclusion of the trial in this matter, the parties 

were informed that they would have an opportunity to file simultaneous briefs (Tr. 246, Vol. II), and they did so in accordance 

with an order which I issued after receipt of the transcripts. 

Reply briefs were not requested or required by the trial judge, 

nor did the parties seek leave to file reply briefs. 

Mr. Oppegard filed the reply brief at his own initiative, and in 

his accompanying letter of September 14, 1990, he characterized 

it as "a short reply brief." Indeed, the brief consists of ten 

(10) double spaced "letter size" (8-1/2 x 10-1/2} pages. 

I conclude and find that the initial brief filed by 

Mro Oppegard adequately covered his position, and that the reply 

brief did not materially affect the trial judge's understanding 

of the factual and legal arguments presented by the parties. 

Under the circumstances, I conclude and find that the filing of 

the reply brief was not necessary or essential and that the time 

charged is excessive and unreasonable. However, since 

Mr. Oppegard did perform the work which he apparently believed 

was essential to his case, I will allow $300 for this work 

(2.0 hours x $150} and the client letter, and the requested fees 

are reduced by $1,245, 

The complainant has billed 14.0 hours for Mr. Oppegard's 

actual trial participation during the 2-day trial conducted on 

May 8 and 9, 1990. The record reflects that the trial began at 

9:30 a.m., on May 8, recessed an hour for lunch, and concluded at 

4:40 p.m. The second day's trial session on May 9, began at 

9:15 a.m., recessed an hour for lunch, and concluded at 3:20 p.m. 

Accordingly, the claimed trial time will be allowed. 

685 
The complainant has billed 4.0 hours for claimed work by 

Mr. Oppegard on May 1, 1990, in connection with his~interview of 

one witness, his dictation of notes, and a telephone conversation 

with the complainant. Additional phone conversations and interviews with witnesses from May 2, through May 4, 1990, are 

included among other work items on those days, for a total 

additional billing of 16.7 hours. The sum total of all of this 

claimed work a week before the trial is 20.7 hours, and the 

amount claimed is $3,105 (20.7 hrs. x $150). 

The complainant has billed 8.3 hours for May 5, 1990, for 

Mr. Oppegard's reading of the depositions of the complainant, the 

depositions of witnesses Clayton Hacker and Clyde Collins, and 

"other preparation for trial." An additional 13.5 hours is 

claimed for May 6, 1990, interviewing witnesses, dictating notes, 

and "preparation for trial," and 15.8 hours is claimed for May 7, 

1990, in "preparation of client and witness for trial," phone 

conversations with opposing counsel and witnesses, and "other 

trial preparation. 11 Further c.laims are made for 2. O hours to 

"prepare for trial" on-May 8, 1990, the first day of the trial, 

and an additional 5.5 hours is claimed that same day to "prepare 

for resumption of trial." An additional 1.5 hours to "prepare 

for resumption of trial" is also billed for May 9, 1990, the 

second day of the trial, and 1.5 hours is billed for 

Mr. Oppegard's return to Hazard from the Pikeville trial location. The sum total of all of this claimed work from May 5, 

1990, through May 9, 1990, is 48.l hours, and the amount claimed 

is $7,215 (48.1 hrs. x $150). 

Excluding the 14.0 hours actually spent in the 2-day trial, 

and the 1.4 hours travel time to Hazard, complainant has billed a 

total of 67.3 hoursf at a claimed cost of $10,095, for work by 

Mr, Oppegard in speaking with the complainant and witnesses, 

reading three depositions, and other 11 trial preparation11 (which 

is not further explained}. 

The complainant's deposition is not a part of the record, 

but based on a claimed cost of $25.60 for a copy of the transcript1 I assume that it not particularly lengthy. The Hacker 

and Collins depositions are a part of the record. I have read 

both depositions, and the time consumed in reading them at a 

moderate rate of speed was less than 1 hour. Under the circumstances, and in light of the unexplained "other preparation for 

trial 11 work, I find that the claimed 8.3 hours for May 5, 1990, 

is excessive. I will allow 2.0 hours for this work, and disallow 

5.3 hours. The requested fees are reduced by $945 (6.3 x $150}. 

In the course of certain pre-trial discovery rulings which I 

issued on January 25, 1990, I noted my belief that the issues in 

this case did not appear to be particularly complex. I am still 

of that opinion. Under the circumstances, I conclude and find 

that the 59.0 hours claimed for interviews with witnesses who are 

686 
not identified, and other unexplained "trial preparation'' is 

excessive and unreasonable. I take note of the fact that during 

the complainant's testimony on the first day of trial, six of the 

subpoenaed witnesses called by the complainant gave relatively 

short and rather repetitive testimony, and four of them were 

examined by Mr. Sanders. From the submissions by the complainant, it is not clear to me which witnesses may have been contacted and interviewed by phone, and which were personally 

interviewed in advance of trial, and the unspecified work characterized as "trial preparation" is not explained or further 

documented. Under all of .these circumstances, the claimed 

59.0 hours of work is reduced by one-third, and the requested 

fees are reduced by $2,940 (19.6 hrs. x $150). 

In view of the allowable mileage, lodging, and meal expenses 

while at the hearing, the requested fee payment of 1.5 hours for 

Mr. Oppegard's return to Hazard is disallowed, and the requested 

fees are reduced by $225 (1.5 hrs. x $150). 

The complainant has billed 27.6 hours for Mr. Oppegard's 

reading of the transcripts, notetaking, and indexing, ($4,140) 

and 48.5 hours for his work in preparing his brief ($7,275). The 

sum total claimed for this work is $11,415. I take note of the 

fact that the hearing transcript for the 2-day trial is in two 

volumes totalling 534 pages. Under the circumstances, I cannot 

conclude that the time charged for reading, notetaking, and 

indexing of the transcript is excessive or unreasonable. However, I find that the time spent in brief preparation is excessive. As noted earlier, the case was not particularly complex, 

nor were the issues that difficult so as to require an inordinate 

amount of time in trial preparation, "research," and brief 

writing. In this regard, I take note of Mr. Oppegard's affidavit 

support of the claimed fees in which he states that he has 

read virtually every safety discrimination decision issued by 

Commission Judges, the full Commission, and the U.S. Courts of 

Appeals since the passage of the 1977 Act, and that he has 

litigated far more discrimination cases than any other private 

attorney in the country. Under the circumstances, I have difficulty justifying the claimed 48.5 hours for working on the 

briefing. Accordingly, the time is reduced by one-third, and the 

requested fees are reduced by $2,415 (16.1 hrs. x $150). 

The complainant has billed for 7.1 hours ($1,065) for 

claimed time spent by Mr. Oppegard in telephone conversations 

with the complainant, co-counsel sanders, and opposing counsel 

Walker intermittently from January 5, 1990, to November 6, 1990. 

Additional time is claimed for numerous additional telephone 

conversations which are included among other claimed work items, 

and these conversations were with the complainant, Mr. Sanders, 

opposing counsel, unidentified witnesses, and other individuals 

687 
whose connection with this case is unexplained. Selected examples of such telephone conversations are as follows: 4/19/90 -

"phone conversations with Herschel Potter . . . John Rosenberg & 

Steve .• David Griffith •. 11 ; 4/26/90 - "phone conversation with 

Steve Hoyle (at MSHA Academy); 5/4/90- "phone conversations with 

Kentucky Department of Mines & Minerals." Since these additional 

daily telephone calls are not listed separately from the other 

claimed work, I have no way of knowing how much time Mr. Oppegard 

spent on the telephone or how much was devoted to the other 

listed work items. I take note of the fact that many of the 

calls to the complainant were apparently made to discuss the 

"status of case," and while some calls are unexplained, I assume 

that the posthearing calls were in connection with the relief 

aspects of this case. I take particular note of a claimed charge 

of .4 hours for Mr. Oppegard to "dictate posthearing thoughts." 

Upon review of the detailed itemized listing of the time 

claimed for telephone calls and conversations, I am not totally 

convinced that all of these calls and conversations were necessary in this case. However, in the absence of any specific 

challenge by the respondent, I will allow most of the charges. 

However, in view of the fact that some of the telephone time is 

unexplained, I will make a deduction of two (2) hours from the 

claimed fees and will disallow the .4 hours for Mr. Oppegard's 

dictation of his posthearing thoughts. The requested fees are 

reduced by $360 (2.4 hrs. x $150). 

Duplicative and Redundant Legal Work' 

The respondent argues that the complainant has requested 

attorney's fees for services which are "clearly excessive and/or 

redundant. 11 As an example, the respondent asserts that numerous 

entries in the claims for attorney's fees for Mr. Sanders are 

designated as 11work performed simultaneously with co-counsel." 

Recognizing that Complainant's counsel have billed such services 

at a lesser rate, the respondent believes that it still would be 

unfair to require it to pay any amount for duplication of effort 

by two attorneys. In support of this argument, the respondent 

maintains that neither the issues nor the proof in this case were 

so complex, nor was the amount in controversy so great, as to 

require or justify the presence of two attorneys for one party at 

depositions, meeting with the client, interviews with witnesses, 

and the formal hearing. 

The respondent argues that the evidence submitted by complainant's counsel in support of their billing rate tends to show 

that Mr. Oppegard possesses considerable skill and expertise in 

the area of mine safety law, so it is not consistent with 

Mr. Oppegard's position that he required assistance with the 

technical aspects of this· case. If, on the other hand, the case 

was so time consuming as to require a division of labor, respondent concludes that this would not justify the presence of two 

688 
attorneys simultaneously for steps taken in the investigation and 

discovery of the case, or at the hearing. 

The respondent asserts that the time spent by attorney 

Sanders on February 13, 1990, "to review case file," apparently 

"to bring himself up to speed in the case,n is not a service for 

which an assisting attorney should expect compensation from a 

client, or, in this case, from the opposing party. Respondent 

points out that while it appears that Mr. Sanders spent some time 

on May 7, 1990, reviewing "depositions of Backer and Collins," an 

activity which also had been performed by Mr. Oppegard, it is not 

clear how much time was spent since this item is part of an 

aggregate entry incorporating several activities. 

The respondent maintains that since Mr. Sanders' attendance 

at the hearing was duplicative, his preparation for the hearing 

and his travel to and from the hearing should be disallowed, as 

well. The respondent concludes that the elimination of these 

redundancies results in a deduction of Mr. Sanders' fees by at 

least 9.5 hours at $150 per hour arid by 34 hours at $75 per hour, 

for a total reduction of at least $3,975, not including time 

spent in review of depositions on 5/7/90, which cannot be determined on the bas of complainant's submissions. Charles v. 

National Tea Co., 488 F. Supp. 270 (W.D.LA. 1980). 

The complainant maintains that the participation by 

Mr. Sanders was vital to the success of his case, and he points 

out that he had the burden of proof, that his discrimination 

complaint was rejected by MSHA, and that virtually all of the 

witnesses were reluctant to talk to his counsel. Complainant 

concludes that a diligent effort was required in order to uncover 

the facts and thoroughly present his case at trial, that the 

successful prosecution of his case required the work of two 

attorneys, and that he should not be penalized for employing 

multiple counsel, The complainant cites several federal court 

decisions awarding attorney fees for more than one counsel in 

support of his argument. 

The complainant asserts that there are only six billing 

instances, totalling 34 hours, for services performed simultaneously by Mr. Sanders with Mr. Oppegard, and that in each 

instance Mr. Sanders has b led at only one-half the rate claimed 

by Mr. Oppegard. The complainant asserts that the trial responsibilities of Mr. Sanders and Mr. Oppegard "were roughly evenly 

divided. 11 and that Mr. Sanders spent 14 hours at the trial, 

during which both he and Mr. Oppegard conducted direct and crossexamination of the witnesses. Complainant points out that 

Mr. Sanders also spent 5.5 hours interviewing an expert witness 

and inspecting the mine with Mr. Oppegard, and that all of this 

time was essential for Mr. Sanders' understanding of the case, 

particularly since he was responsible for the direct examination 

of the expert witness. 

689 
The complainant asserts that Mr. Sanders also spent 

9.5 hours in preparing for and attending depositions of key 

witnesses in the case, including the deposition of one witness 

(Clayton Hacker), whom Mr. Sanders was responsible for crossexamining at trial, and that he also spent 5 hours interviewing 

several witnesses with Mr. Oppegard on May 3, 1990. Complainant 

maintains that Mr. Sanders' interviews was likewise necessary in 

that he was responsible for questioning some of the witnesses at 

trial. 

Findings and Conclusions 

In Johnson v. Georqia Highway Express, Inc., supra, at 488 

F.2d 714, the fifth Circuit Court of Appeals stated "If more than 

one attorney is involved, the possibility of duplication of 

effort along with the proper utilization of time should be 

scrutinized. The time of two or three lawyers in a courtroom or 

conference when one would do, may obviously be discounted." 

Likewise, in Copeland v. Marshall, supra, at 641 F.2d 891, the 

D.C. Circuit Court of -Appeals, stated "· .. where three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time." See also: Charles 

v. National Tea co., 488 F. Supp. 270 (D.C. W.D. La. 1980), where 

the court cited Johnson v. Georgia Highway Express, Inc., supra, 

and stated at 488 F. Supp. 276 that "The time of two (2) lawyers 

in a courtroom when one would do, may obviously be discounted." 

The complainant's argument that two attorneys were necessary 

because he had the burden of proof, that his discrimination 

complaint was rejected by MSHA, and that the witnesses were 

reluctant to speak with his counsel are rejected as a reasonable 

basis for justifying the need for two attorneys. The burden of 

proof, MSHA 1 s rejection of initial complaints, and the reluctance 

of witnesses to speak with counsel are not unique to the instant 

case, and these arguments can be made in any discrimination case. 

Indeed, counsel Oppegard has handled prior cases where these 

factors were present, but only he prepared and tried the case. 

Although the complainant has filed an affidavit by Mr. Oppegard 

stating that the respondent 1 s hourly employees were afraid to 

talk to his counsel and were intimidated prior to trial, there is 

no suggestion or assertion that Mr. Sanders played any unique or 

unusual role in eliciting the cooperation or testimony of these 

employees, all of whom were under subpoena to testify. 

The complainant's argument that the trial responsibilities 

of Mr. Sanders and Mr. Oppegard were roughly evenly divided and 

that both attorneys conducted direct and cross-examination of the 

witnesses is rejected as any justification for the need for two 

attorneys. The issue is not whether the work was done, but 

rather, whether the use of two attorneys was necessary or crucial 

to the successful prosecution of the complainant's case. I 

690 
conclude and find that it was not. See: Donnell v. United 

States, 682 F.2d 240, 250 fn. 27 (D.C. Cir. 1982). ~ 

The record reflects that Mr. Oppegard conducted the examination of the complainant and four of the witnesses who testified 

the first day of the trial. Mr. Sanders examined the expert 

witness (Craft) and four additional witnesses (Marty Lewis, 

Eldridge, Combs, and Caudill). The direct testimony of these 

witnesses is relatively brief and uncomplicated, with little 

cross-examination, and limited redirect of only one witness. The 

direct testimony of Mr. Lewis consumed six (6) transcript pages; 

Mr. Eldridge, three (3) pages; Mr. Caudill, four pages; and 

Mr. Combs, five pages, and seven additional questions on 

redirect. I find nothing unique or unusual about the testimony 

of these witnesses, nor do I find any particular unique "trial 

strategy" that necessitated or required the questioning of these 

witnesses by Mr. Sanders, rather than Mr. Oppegard. In short, I 

can find no valid reason why Mr. Oppegard could not have prepared 

and examined these witnesses. 

The record further reflects that Mr. Oppegard handled the 

cross-examination of two of the three witnesses presented by the 

respondent during the second day of trial (Garcia and Hacker) , 

and that Mr. Sanders cross-examined one of the witnesses 

(Collins). Although Mr. Sanders was present at the pre-trial 

depositions of Hacker and Collins on April 25, 1990, he asked no 

questions, and Mr. Oppegard conducted the entire questioning of 

both deponents. Again, I find no valid reason why Mr. Oppegard 

could not have conducted the cross-examination of Mr. Collins. 

I have reviewed the case decisions cited by the complainant 

at page 9 of his initial response to the respondent's objections 

to the payment of any attorney fees to Mro Sanders and I find 

that the factual basis on which the courts found that more than 

one attorney was reasonable are distinguishable from those 

presented in this case. The cases cited involved protracted 

civil rights class actions, difficult constitutional First 

Amendment rights issues, a lengthy and complex "abortion rights" 

case with constitutional issues, and a difficult school desegregation case. In my view, the difficulty and complexity level of 

the complainant's case does not rise to the level of the cited 

cases, and his arguments are rejected. 

In his fee supporting affidavit, Mr. Oppegard asserts that 

the presentation of the complainant's case was made more diff 

cult because it concerned a piece of mining equipment, i.g., the 

continuance haulage system, that is unusual for eastern Kentucky, 

and required the employment of an expert witness who travelled 

underground with counsel to inspect this system. In his fee 

supporting affidavit, Mr. Sanders confirms that the continuous 

haulage system in question is not in common use in eastern 

Kentucky and that an understanding of how that equipment operated 

691 
was necessary to fully appreciate the dangers which the complainant was subjected to. Mr. Sanders further asserts ~hat any 

understanding of these dangers required consultation with an 

expert and a visit to the mine to view the equipment. 

The complainant's suggestion that the continuous haulage 

system utilized by the respondent rendered the case more difficult and complex is rejected. Although I agree that an underground mine visit was necessary to view the system so that 

counsel and the witness could familiarize themselves with it in 

an actual working environment, I am not convinced that two 

attorneys were required to do this. Nor am I convinced that an 

examination of the continuous haulage system, which was used in 

conjunction with a conventional continuous-mining machine and 

roof bolters, required any particular engineering or technical 

expertise. Indeed, the complainant's "expert" witness William 

craft was offered as an expert with respect to the application 

and interpretation of MSHA's mandatory safety standards and 

general mine safety matters, r_~ther than any technical or engineering expert on a Long-Airdox continuous haulage system (Tr. 

185, Vol. I). 

The record reflects that Mr. Craft is the former MSHA 

District Manager at Madisonville, Kentucky, who retired on 

disability in 1981, and who has worked since that time as a 

self-employed consultant. Mr. Craft's testimony and opinion that 

it would be dangerous for a miner to service the continuous 

haulage system while it was in operation, did not, in my view, 

require any particular scientific or technical knowledge of the 

system, and his opinion testimony concerning the hazards associated with servicing the system while it was moving and in operation could just as well have applied to any piece of underground 

mining equipment. Indeed, the record reflects that Mr. Craft's 

knowledge of the continuous haulage system was limited to the 

mine visit when he viewed the system with counsel, and his review 

of a rather brief Long-Airdox sales brochure which explains the 

operation of the system. Aside from his opinion concerning the 

servicing of the system while it was moving, the critical thrust 

of Mr. Craft's testimony was that to do so violated at least two 

MSHA mandatory safety standards (Tr. 201-206, Vol. I). I see no 

reason why Mr. Oppegard could not have prepared and examined 

Mr. Craft at the hearing. 

As noted earlier, the complainant's justification for the 

hourly fee of $150 in this case is based on Mr. Oppegard's 

longstanding expertise in mine safety discrimination cases and 

his asserted role as a leading nationwide attorney in this area 

of the law. Under the circumstances, I find it rather contradictory that the complainant would require the additional services 

of Mr. Sanders to assist~Mr. Oppegard in the pursuit of his case, 

and expect the respondent to pay for this. 

692 
In view of the forgoing, and in the absence of any showing 

of any compelling need or justification for the use~of two 

attorneys in this case, I agree with the respondent's position 

that the services of Mr. sanders were not required or justified, 

and that the fees claimed by the complainant for these services 

should be denied. Accordingly, they are denied, and the complainant's requested fees are reduced by an additional $6,525. 

Other Litigation Expenses 

The respondent has filed no objections to the complainant's 

claims for the itemized other litigation expenses shown in 

Exhibit C to his initial statement of expenses. Under the 

circumstances, the claimed expenses are allowed. 

Supplemental Attorney Fee Claims for Work Performed from 

November 17, 1990, through March 15, 1991 

Complainant has billed ,.12. 3 J:iours for the time spent by 

Mr. Oppegard in telephone conversations with Mr. Sanders and 

other private attorneys in connection with the question of the 

reasonableness of the hourly rate charged by Mr. Oppegard. An 

additional 19.9 hours are charged for research and other work by 

Mr. Oppegard concerning the attorneys fee issue. Thus, the 

complainant has claimed $4,830 (32.2 hrs. x $150) for work by 

Mr. Oppegard justifying his fee rate and responding to the 

respondent's objections. This is over and above the $675 claimed 

by Mr. Oppegard for work on November 16, 1990, calculating 

litigation expenses and preparing the fee statement. An additional amount of $255 is claimed for work by Mr. Sanders in 

talking with private attorneys about the reasonableness of the 

attorney fees (1.7 hrs. x $150). The total amount of fees 

claimed for work connected with defending and justifying the 

reasonableness of the complainant 1 s attorneys fees is $5,760. 

I take note of several court decisions in the D.C. Circuit 

allowing and disallowing an attorney compensation for time spent 

on the question of his fees. In Kiser v. Miller, 364 F. Supp. 

1311, 1318 (D.D.C. 1973), the court discounted by 30 percent the 

amount of time spent by attorneys on the question of their fees. 

In National Ass'n of Regional Medical Programs v. Weinberger, 

396 F. Supp. 842, 850 (D.D.C. 1975), the court reduced the number 

of hours claimed for fee petition work from 475 hours to 

150 hours, after finding that the claimed hours were excessive 

considering the amount of effort and skill expended in seeking 

the fees. See also: National Council of Community Mental Health 

Centers, Inc., v. Weinberger, 387 F. Supp. 991 (D.D.C. 1974). In 

Parker v. Matthews, 411 F. Supp. 1059, 1066-1067 (D.D.C. 1976), 

the court allowed the full amount of time spent on attorneys 

fees. 

693 
Approximately seventy (70) percent of the 53.8 hours and 

$8,070, claimed by the complainant for the additional work of 

Mr. Oppegard, is for work in connection with the issue concerning 

the reasonableness of Mr. Oppegard's fees. After reviewing the 

submissions by the parties with respect to this issue, I cannot 

conclude that the fee issue was so complex as to require the 

amount of work expended by Mr. Oppegard. Under the circumstances, I conclude and find that the hours and amount claimed in 

the supplemental filing for fees is excessive, and I have reduced 

it by one-half and will allow 16.1 hours and $2,415. I will also 

allow the $675 for fee work claimed by Mr. Oppegard on 

November 16, 1990. The $255 claimed for fee work by Mr. Sanders 

on January 22, 24, and 28, 1991, is denied. The requested fees 

are reduced by $255, and by $2,415 (16.1 hrs. x $150). 

On the basis of the foregoing findings and conclusions, 

including the reductions made to the complainant's requests for 

attorneys fees, the total requested fees are reduced by $22,060, 

and I will allow payment of $3,7, 850, for attorney fees in this 

case, and $3,628.52, for other litigation costs and expenses, or 

a total of $41,478.52 for attorney fees and litigation costs and 

expenses ($63,538.52-$22,060). 

ORDER 

IT IS ORDERED that: 

1. My decision in this case, issued on 

September 28, 1990, is now final 

2. The respondent shall reinstate the complainant 

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. 

The backpay due the complainant for the period of 

September 8, 1989, through January 31, 1991, less any 

interim earnings and less interest is $12,853.69. 

Backpay and interest will continue to accrue until this 

matter becomes final and Mr. Hays is reinstated and 

paid. The interest accrued with respect to the backpay 

will be computed according to the Commission's decision 

in Local Union 2274, UMWA v. Clinchfield Coal Co., 

10 FMSHRC 1483 (1988), aff'd sub nom. Clinchfield Coal 

Co. v. FMSHRC 895 F.2d 773 (D.C. Cir., 1990), and 

calculated in accordance with the formula in 

Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 

(1984). 

694 
3. The respondent shall expunge from the complainant's personnel records and/or any other company 

records any reference to his discharge of September 7, 

1989. 

4. The respondent shall adhere to its agreement 

to make retirement payments into the complainant's 

account as if he had not been discharged. 

5. The respondent shall adhere to the agreed upon 

procedure for determining any payments due the complainant for covered medical expenses incurred during 

his employment, and it shall give the same consideration to the complainant's submitted medical expenses 

as it would have done had he not been discharged. 

6. The respondent shall pay the complainant's 

attorney fees and other litigation costs and expenses 

of $41,478.52. 

7. The respondent shall post a copy of my decision of September 28, 1990, and the instant decision, 

at its No. 62 Mine in a conspicuous, unobstructed place 

where notices to employees are customarily posted for a 

period of 60 consecutive days from the date of this 

decision and order. 

IT IS FURTHER ORDERED that: 

1. The respondent shall comply with the aforesaid 

enumerated Orders within thirty (30) days of the date 

of this decision, 

2o The complainant vs request for post-judgment 

interest on the attorney fee award IS DENIED. 

3. The respondent's motion to hold the attorney 

fee award in abeyance pending determination of its 

complaint filed with the Legal Services Corporation IS 

DENIED. 

\ dministrati ve Law Judge 

695 
Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508 

(Certified Mail) 

Stephen A. Sanders, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., 205 Front Street, Prestonsburg, KY 41653 

(Certified Mail) 

Timothy Joe Walker, Esq., Reece, Lang & Breeding, P.O. 

Drawer 5087, London, KY 40741 (Certified Mail) 

/fb 

696 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 191991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 90-107 

A.C. No. 15-16508-03516 

v. 

Harlan Mine No. 1 

J B D MINING COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

Mr. Jefferson B. Davis, President, J B F Mining 

Company, Inc., Pathfork, Kentucky, for the 

Respondent. 

Judge Fauver 

This case for civil penalties under § llO(i) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 seq., came 

on for hearing in Kingsport, Tennessee, on March 12, 1991. At 

the conclusion of the submission of evidence, the parties moved 

for approval of a settlement. For the reasons stated on the 

record, the motion was granted. This decision confirms the bench 

decision. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The § 104(a) citations and § 104(b) orders involved in 

this proceeding are each AFFIRMED. 

2. Respondent shall pay the approved civil penalties of 

$1,620.00 within 30 days of the date of this decision. 

tt.};tt. ~ :r-MA V eA.,.. 

William Fauver 

Administrative Law Judge 

697 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. CO 80204 

APR 2 6 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PITTSBURG & MIDWAY COAL 

Respondent 

. . 

DECISION 

Docket No. CENT 90-25 

A.C. No. 29-00096-03534 

McKinley Mine 

Appearances: Michael H. Olvera, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

Ray D. Gardner, Esq., Pittsburg & Midway Coal Mining Company, Englewood, Colorado, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor (Secretary) pursuant to Section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.SoCo § 801 et ~u the "Actv 0

' charging Pittsburg & Midway Coal 

Mining Company CP&M) with a 104Cd)(l) significant and substantial 

violation of 30 C.F.R. § 77.404(a). 

P&M filed a timely answer to the Secretary's proposal for 

penaltyu denying the alleged violation. After notice to the partiese an evidentiary hearing on the merits was held before me at 

Albuquerquev New Mexico. Both parties filed post-hearing briefsv 

which I consideredv along with the entire record in making this 

decision. 

Issues 

The issues presented in this proceeding include the 

following: 

1. Whether the 170-ton Unit Rig Haul truck powered by a 

Cummins diesel engine was being maintained in a safe operating 

condition as required by 30 C.F.R. § 717.404(a). 

698 
2. If a violation of the cited standard is found, whether 

it is of a "significant and substantial" nature. 

3. If a violation is found, whether the contested 104(d)(l) 

order resulted from an unwarrantable failure by P&M to comply 

with the cited standard. 1 

4. If a violation is found, the appropriate civil penalty 

that should be assessed, taking into consideration the statutory 

civil penalty criteria found in Section llO(i) of the Act. 

Statement of the Case 

The McKinley Mine operated by the Respondent P&M is a surf ace coal mine. The citation in question charges P&M with a violation of 30 C.F.R. § 77~404(a), which is a broadly worded safety 

standard requiring operators of surface coal mines to maintain 

mobile and stationary machinery and equipment in "safe operating 

condition". The cited safety standard in its entirety reads as 

follows: 

77.404 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 immediately. 

P&M is charged with failure to maintain its Unit Rig 170-ton 

haul truck in a safe operating conditionc 

The haul truck weighs 192 fully loaded and travels at an 

average speed of 22 miles per hour. The haul truck functions as 

follows: (a) a fuel pump located and fixed on the diesel engine 

draws fuel from a tank to run the diesel engine Cb) the diesel 

engine turns an alternator to generate electricity, and (c) the 

electricity generated runs two electric driven motors located 

near the rear wheels. Although the haul truck was supplied by 

Unit Rig Inc.u the diesel engine, including the electrical fuel 

shut-off system and the mechanical fuel shut-off system it replaced to successfully abate the alleged violation, were both 

manufactured by Cummins Engine Company. 

After careful review and evaluation of the evidence, the 

699 
arguments of the parties and the record as a whole, I find that 

the preponderance of the evidence presented fails to establish 

that P&M did not maintain the truck in a safe operating condition. I therefore find that there was no violation of 30 C.F.R. 

§ 77.404. 

Even though there was no violation of the cited standard, it 

is undisputed and clear from the record that Respondent made the 

modification required to successfully and timely abate the alleged violation. 

At the time the citation was issued, the haul truck had a 

properly designed and functional electric fuel shut-off system 

that was turned on and off by turning a key on the dashboarq in 

the cab of the truck. The modification made to abate the violation was to replace the electric fuel shut-off system with a mechanical fuel shut-off system. Both options are manufactured by 

the Cummins Engine Company. ,After abatement, the truck still had 

a single fuel shut-off system. There was no meaningful difference in the safe operating conditiion of the truck before and 

after abatement of the citation. 

II 

The finding and conclusion that there was no violation of 

the cited safety standard is based upon the fact that the preponderance of the evidence presented at the hearing established 

that none of the optional fuel shut-off systems for the Cummings 

diesel engine on the Unit Rig haul trucks are related to employee 

safety. The evidence established that the fuel shut-off systems 

on these trucks are designed solely to protect the diesel engine 

from damage and thus mitigate the potential economic loss that 

would result from destruction of the truckvs diesel engineo 

These findings and conclusions are based on the creditable 

testimony of Mr. William R. Baltus, regional service manager for 

the Cummins Engine Company, and Mr. Norvell Moore, mine manager 

at the McKinley Mine. The only witness called by Petitioner was 

the MSHA inspector who issued the citation. He testified he had 

no experience with haul trucks. (Tr. 34). Messrs. Baltus and 

Mooreu on the other hand, have had many years of relevent experience. Mr. Baltus has been the regional service manager for Cummins Engine Company for the past 13 years and has worked for the 

manufacture of the diesel engine in question for 35 years. This 

experience included working in the research and engineering labs 

with production-type and advanced research-type engines. Mr. 

Baltus was also employed as the supervisor of the company's test 

mechanics. 

700 
I credit the testimony of Messrs. Baltus and Moore. 

evidence presented at the hearing fails to establish that 

haul truck in question was not being maintained in a safe 

ing condition. The citation should therefore be vacated. 

III 

The 

the 

ope ratThe cited safety standard, 30 C.F.R. § 77.404 is a broadly 

worded standard. It requires all machinery and equipment to be 

maintained in safe operating condition. The Commission in Ideal 

Cement Company, 11 FMSHRC 2409 at 2416 (November 1990) stated 

that in interpreting and applying broadly worded standards, the 

appropriate test is whether a reasonably prudent person familiar 

with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard, citing Canon Coal Co., 9 FMSHRC 667, 668 

(April 1987), Quinland Coal, Inc., 9 FMSHRC 1614, 1617-1618 

(September 1987). 

Assuming arguendo that the fuel shut-off system on the truck 

in question affected safety, I find, on the basis of the evidence 

presented at the hearing, that a reasonably prudent person familiar with the mining industry and the protective purposes of the 

standard would not have recognized that the haul truck should 

have been equipped with a mechanical fuel shut-off system rather 

than the functional electric fuel shut-off system with which it 

was equipped at the time the citation was issued. 

Based on the creditable testimony of Mr. Baltus of the 

Cummins Engine Company and Mr. Moore, I conclude there were no 

violations of the cited standard. The citation is VACATED. 

ORDER 

Citation Noc 2840029 is VACATED and its related proposed 

penalty is set aside. 

Au st F. Cetti 

Administrative Law Judge 

701 
Distribution: 

Jack F. Ostrander, Esq., Michael H. Olvera, Esq., Office of the 

Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 

501, Dallas, TX 75202 (Certified Mail) 

Ray D. Gardner, Esq., The Pittsburg & Midway Coal Mining Co., 

6400 South Fiddler's Green Circle, Englewood, co 80111-4991 

(Certified Mail) 

Mr. Robert Butero, International Health and Safety Representative 

for UMWA District 13, 228 Lea Street, Trinidad, CO 81082 

(Certified Mail) 

sh 

702 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 9 \991 

CHARLES M. LAPOE, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

EASTERN ASSOCIATED COAL CORP., 

Respondent 

Docket No. WEVA 91-72-D 

MORG CD 90-13 

Federal No. 2 Mine 

DECISION 

Appearances: Charles M. LaPoe, pro se, Core, West Virginia; 

Thomas L. Clarke, Esq., Charleston, West 

Virginia for Respondent. 

Before: Judge Melick 

During hearings the Complainant acknowledged that he had · obtained the remedy he was seeking in these proceedings in that 

he has been reassigned to his job classification as a belt 

cleaner. Accordingly these proceedings have been rrndered moot 

and the Complaint is hereby dismiJsed.~ / j 

iv I ·1 

I 1t1-"~ \ ! ~ /~ ,, ,/:;aryMllck ' !\ \,A/\J 

Distribution~ 

ilA.dmini i~ tra ti ve Law1llrUd e vL \ 

1! \. 

Mr. Charles M. LaPoe, Route 1, Box 19E,, Core, WV . 6529 (Express Mail) v 

Thomas L. Clarke, Esq., 800 Laidley Tower, P.O. Box 1233, 

Charleston, WV 25324 (Express Mail) 

nb 

703 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

,~PR 3 0 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDINGS ! 

Docket No. KENT 91-12 

A.C. No. 15-13920-03680 

Docket No. KENT 91-13 

A.C. No. 15-14492-03572 

Appearances: W.F. Taylor,.Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, for the 

Secretary of Labor (Secretary); William M. Craft, 

Mine Safety and Health Consultant, Madisonville, 

Kentucky for Pyro Mining Company (Pyro). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks penalties for seven alleged violations 

of mandatory safety standards contained in the above dockets. 

Docket Noo KENT 92-12 involves the No. 9 Wheatcroft Mine; Docket 

Noo KENT 92-13 involves the Baker Mine. When the cases were 

called for hearing on March 19, 1991, the Secretary submitted an 

oral motion on the record for approval of a settlement between 

the parties with respect to all the alleged violations in Docket 

No. KENT 91-12. The first two citations in the docket charge 

violations of 30 C.F.R. § 75.313 because methane monitors were 

inoperativeo The violations were originally assessed at $192 

each. Both violations were judged significant and substantial. 

The motion proposes a reduction in the penalties to $96 each, and 

a modification of the citation to eliminate the significant and 

substantial finding. No methane was detected in the area and the 

motion stated there was no reasonable likelihood of injury. The 

third and fourth citations charging violations of 30 C.F.R. §§ 

75.1725 and 75.302 were assessed at $192 each and Pyro agrees to 

pay those amounts. The final citation charged a violation of 30 

C.F.R. § 75.400 because of coal dust and float coal dust along 

the belt. The motion proposes a reduction in the penalty from 

$335 to $165, and a deletion of the significant and substantial 

finding on the ground that the accumulation was not as extensive 

or dangerous as originally believed. 

704 
I stated on the record that I would approve the settlement 

agreement. 

Pursuant to notice, Docket No. KENT 91-13 was called for 

hearing in Nashville, Tennessee, on March 19, 1991. Inspector 

Cheryl Smith McMackin and Clifford D. Burden were called as 

witnesses by the Secretary. Charles Dame was called as a witness 

by Pyro. Both parties argued their positions on the record at 

the conclusion of the hearing and waived their rights to file 

post-hearing briefs with proposed findings of' fact and 

conclusions of law. I have considered the entire record and the 

contentions of the parties in making the following decision. 

FINDINGS OF FACT 

I 

PRELIMINARY FINDINGS 

At all times pertinent hereto, Pyre was the owner and 

operator of an underground coal mine in Webster County, Kentucky, 

known as the Baker Mine. Pyro is a large operator. The Baker 

mine liberates 500,000 cubic feet of methane in a 24 hour period. 

Because of this, it is subject to spot inspections every 15 days 

at irregular intervals under section 103(i) of the Mine Act. 

Between September 10, 1988 and September 9, 1990, Pyro had 1581 

paid violations of mandatory health and safety standards. 

Between'July 16, 1988 and July 16, 1990, the Baker Mine had 7 

cited violations of 30 C.F.R. § 75.305 and 13 cited violations of 

30 C.F.R. § 75.316. This history is not such that penalties 

otherwise appropriate should be increased because of it. 

II 

CITATION 3420048/0RDER 3420053 

In early July 1990, a roof fall occurred in the return air 

course in the Nao l Unit of the Baker Mine. The fall was about 

six feet high and extended 35 to 50 feet along the entry. 

This was the return air course of an active unit, but the 

faces were inactive when the citation involved in this proceeding 

was issued. On July 12, 1990, Federal Mine Inspector Cheryl 

McMackin was conducting a regular inspection of the Mine and was 

unable to travel the air course because of the roof fall. She 

tried to circumvent the area of the fall, but was prevented in 

part by other roof falls. It was therefore not possible to walk 

the entire return air course in the No. 1 unit. She discussed 

the matter with Pyre's Safety Manger, Charles Dame, and decided 

to further discuss the matter with her MSHA supervisors. 

705 
on July 16, 1990, Inspector McMackin returned to the mine 

and to the return a course of the No. 1 Unit. The condition 

had not changed from that which existed on July 12. She issued a 

section 104(a) citation charging a violation of 30 C.F.R. § 

75.305. At the time the citation was issued the air was 

following its proper course. Methane in the amounts of .2 to .3 

percent was found in the dead end faces beyond the roof fall. It 

was not possible to see or adequately communicate from one side 

of the roof fall to the other. On this issue, I accept the 

testimony of Inspector McMackin: 

Q. Could you communicate back and forth through the 

area? 

A. Not in a conversation. I could hear that he was 

over there. 

Q. Was he yelling? 

A. Yes. 

Q. Did you yell back at him? 

A. Yes, I did. (R. 46) 

And, discount that of Mr. Dame: 

The Witness: I couldn't see her physically. I could 

see her speak. 

Judge Broderick: Did you communicate with each other? 

The witness: Yes, siro (Ro 123) 

The inspector considered the violation to be significant and 

substantial, because in the area where travel was impossible, an 

examiner would be unable to evaluate the methane liberation, 

oxygen content in the atmosphere, and hazards in the roof. She 

fixed the date for termination of the violation as July 23, 1990. 

Inspector McMackin returned to the mine on July 24, 1990. 

She met Mr. Dame prior to going underground, and he told her the 

condition cited on July 16 had not been corrected. No request 

was made for an extension of time to correct the condition. 

McMackin and Dame went underground and found that the condition 

cited on July 16 was unchanged. She issued a section 104(b) 

order of withdrawal for failure to abate the cited violation. 

After she came out of the mine, Baker Mine Superintendent Potter 

told her that a petition for modification had been filed which 

would have permitted mining to continue with the cited condition. 

She ascertained by consulting MSHA offices that such a petition 

had not been filed. Later C.D. Burden, Safety Director, said 

706 
that the petition was prepared but not yet mailed. Still later 

on the same day, before the inspector left the mine, an addendum 

to the ventilation plan was approved by MSHA concerning rerouting the return air course so that it could be travelled. 

However, the addendum failed to show roof falls which had 

occurred in the middle entries, and thus the return still could 

not be entirely examined. Another addendum was submitted and 

approved by MSHA on July 25, changing the air course in a way 

that it could be travelled in its entirety. This abated the 

condition cited, and Inspector McMackin terminated the citation 

and order. 

III 

CITATION 3420049 

The MSHA approved ventilation plan for the Baker mine 

provides in part that airlock doors shall be so arranged that the 

passage of equipment along the entries will not cause 

interruption of the a~r current. Doors are required to be in 

pairs to form an airlock. On July 16, 1990, Inspector Cheryl 

McMackin issued a citation charging a violation of 30 C.F.R. § 

75.316 because the inby door of the pair of doors installed in 

the 2nd East submain track entry was chained open. The two doors 

were approximately 300 feet apart. The inspector took an air 

reading with the outby door closed and recorded approximately 

eleven hundred cubic feet of air per minute travelling down the 

entry. When the outby door was open there was an increase of 

approximately 30,000 feet per minute of air going down the entry. 

The ventilation system of the Baker Mine is tied in with the 

ventilation system of the Wheatcroft No. 9 mine. An increase in 

the amount and velocity of the resulting from the doors being 

open could change the direction of air in the belt entry, could 

circumvent the c.o.-monitoring system1 and make difficult to 

determine in the event of a fire, where the fire was. The area 

in question was travelled regularly in that it was the main 

access to the mineus two producing units. The violation was 

abated within the time prescribed in the citation by repairing 

the door controlso There had been an electrical or mechanical 

the controls. 

REGULATIONS 

30 C.F.R. § 75.305 provides in part as follows: 

In addition to the preshift and daily examinations 

required by this Subpart, examinations for hazardous 

conditions, including tests for methane, and for 

compliance with the mandatory standards, shall be made 

at least once each week by a certified person 

designated by the operator in the return of each split 

of air where it enters the main return, on pillar 

707 
falls, at seals, in the main return, at least one entry 

of each intake and return air course in its entirety, 

idle workings, and insofar as safety considerations 

permit, abandoned areas. 

* * * 

30. C.F.R. § 75.316 provides in part as follows: 

A ventilation system and methane and dust control plan 

and revisions thereto suitable to the conditions and 

the mining system of the coal mine and approved by the 

Secretary shall be adopted by the operator. 

* * * 

ISSUES 

1. Whether the evidence,_shows that as of July 16, 1990, it 

was not possible to make a weekly examination of at least one 

entry in the 4th East return air course in its entirety? 

2. If a violation of 30 C.F.R. § 75.305 was established, 

whether the time for abatement should have been extended prior to 

the issuance of a withdrawal order under section 104(b)? 

3. If a violation of § 75.305 was established, what is ~he 

appropriate penalty therefor? 

4. Whether the evidence shows a violation of the approved 

ventilation plan on July 16, 1990, because the inby door of a 

pair of airlock doors could not be closed? 

5o If a violation of § 75.316 was established, what is the 

appropriate penalty therefor? 

CONCLUSIONS OF LAW 

I 

At all times pertinent to this case, Pyro was subject to the 

provisions of the Mine Act in the operation of the Baker Mine, 

and I have jurisdiction over the parties and subject matter of 

this proceeding. 

II 

30 C.F.R. § 75.305 requires that a weekly examination be 

made of at least one entry of each return air course in its 

entirety. In the case of Rushton Mining Company v. Secretary, 11 

FMSHRC 1301 (1989}, I held that the standard does not mandate 

that the air course be travelled in its entirety, but that it be 

708 
adequately examined in its entirety. In the same decision I held 

that where an area in the air course is impassible, and it is not 

possible to adequately examine the area visually, a violation of 

the standard is established. In the present case an area in the 

return air course extending 35 to 50 feet along the entry was 

impassible. Further, it was not possible to sight across this 

area, or to easily communicate from one side to the other. The 

35 to 50 foot area of the air course could not be examined. 

Therefore, I conclude that it was not possible to adequately 

examine the entire air course. ' 

I accept the Secretary's argument that the return air course 

in the No. 1 Unit of the subject mine was a single entry. The 

fact that a portion of that entry, designated by Pyro as entry 

No. 6, was open and travelable does not meet the requirements of 

the standard. Therefore since the return air course entry could 

not be examined in its entirety, I conclude that a violation of 

30 C.F.R. § 75.305 has been established. 

The return air eourse was the return of an active unit, but 

the faces were inactive and coal was not being produced when the 

citation was issued. The air was travelling in its proper 

course, and there was minimal methane in the area of the roof 

fall. The Secretary has not established that there was a 

reasonable likelihood that the hazard contributed to by the 

violation will result in a serious injury. United States steel 

Mining Company, 7 FMSHRC 1125 (1985). Therefore, the violation 

was not properly designated as significant and substantial. 

Nevertheless, because a mine examiner was unable to evaluate 

the methane liberation, oxygen content, and roof hazards in the 

entire air course, the violation was seriouso The Secretary 

concedes that Pyro's negligence was lowo 

Pyro did not abate the violation within the time provided in 

the citation, so a section 104(b) order was issued. Although a 

Petition for Modification had been prepared, it had not yet been 

filed, and the inspector was not informed of it before issuing 

the ordero An addendum to the ventilation plan ultimately was 

approved changing the return air course and by-passing the areas 

of the roof falls. This did not occur however until after the 

order was issued. Pyro did not request an extension of time to 

abate the citation. The time fixed for abatement was not 

unreasonable. Therefore, the order was properly issued. See 

Rushton Mining Company, 9 FMSHRC 325, 329 (1987). A request for 

change in a ventilation requirement does not excuse a violation. 

I conclude, considering the criteria in section llO(i) of 

the Act, that an appropriate penalty for the violation is $500. 

III 

709 
The approved ventilation plan for the Baker Mine provides 

that: 11 overcasts, undercasts, and/or airlock doors shall be so 

arranged that the passage of equipment along the entries will not 

cause interruption of the air current. Doors, where doors are 

installed, shall be in pairs to form an airlock." (GX 9, 

page 3). An Addendum to the plan was approved June 26, 1990, and 

included a map showing the airlock doors (GX 10). The Mine 

Safety Manager testified that between the date of the addendum 

and the date of the citation, the airlock doors became 

unnecessary and were not used because a new air shaft was 

created. However, the inspector testified that when both doors 

were opened, the quantity and velocity of air substantially 

increased. In any case, there was a violation of the approved 

ventilation plan, and therefore a violation of 30 C.F.R. 

§ 75.316. 

The Secretary has not established that there is a reasonable 

likelihood that the hazard contributed to by the violation will 

result in serious injury. SeaUnited States Steel Mining 

Company, supra. Therefore, the violation was not properly 

designated as significant and substantial. I also conclude, on 

the basis of the testimony of Mr. Dame, that it was not serious. 

It was the result of Pyre's negligence. It was promptly abated. 

Considering the criteria in section llO(i) of the Act, I conclude 

that an appropriate penalty for the violation is $100. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

lo Citation 3420048 and 3420049 issued July 16, 1990, are 

MODIFIED to delete in each citation the finding that the 

ation was significant and substantial and, as modified, the 

citations are AFFIRMED. 

2. Order 340053 issued July 24, 1990, is AFFIRMED. 

3. Pyro shall within 30 days of the date of this order pay 

the following civil penalties to the Secretary: 

CITATION 

3420048/3420053 

3420049 

30 CFR 

75.305 

75.316 

TOTAL 

' . 

I / , ' , 1-"\ . • (..~ I, '" F" _, 't'I 1 ;. .,'-:,., 1-· I . , v L·'-·· L t-{; '-

James A. Broderick 

AMOUNT 

$500 

100 

$600 

) 

.,/:, '"' J , ; ,, • 

~- Administrative Law Judge 

710 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 4 l991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

HOBET MINING, INCORPORATED, 

Respondent 

Docket No. WEVA 91-65 

A.C. No. 46-02249-03546 

No. 7 Mine 

DECISION ON MOTION TO REMAND 

AND 

CERTIFICATION OF INTERLOCUTORY 

RULING TO THE COMMISSION 

Before~ Judge Fauver 

This action is a petition for assessment of civil penalties 

under §§ 105(a) and llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seg. 

The Secretary seeks civil penalties for 11 citations. The 

penalties proposed for four of them were determined under the 

ivregular assessment 11 method of 30 C.F,R. § 100.3; the penalties 

proposed for seven citations were determined under the "spec 

assessment" method of 30 C.F.R. § 100.5. 

Hobet Mining objects to the Secretary's application of the 

"special assessment" method to the seven citations on the ground 

that includes an increase for an "excessive historyn of 

violations based on a new policy, stated in Program Policy Letter 

P90-111-4. In its Motion to Remand, Hobet Mining contends the 

policy letter invalid and seeks to remand the seven proposals 

to the Secretary 11 for recalculation of the proposed assessment 

without reference to [the policy letter]. 11 

In summary, Hobet Mining contends the policy letter is 

invalid because: 

(1) The policy letter exceeds the scope of the 

Court's remand order in Cole Employment Project v. 

Dole, 889 F.2d 1127 (D.C. Cir. 1989). 

711 
(2) It was unlawfully implemented without public 

notice and comment as required by the Administrative 

Procedure Act. 

(3) The "excessive history" proposed penalties 

under the policy letter are unlawfully retroactive. 

The Secretary contends that the Commission lacks jurisdiction to review the manner in which the Secretary proposes a 

penalty and, in the alternative, if the policy letter is reviewable by the Commission, it should be held to be exempt from the 

rulemaking requirements of the APA, consistent with the Court's 

remand order, and otherwise lawful. 

The Penalty Assessment Scheme 

Under the Act, the Secretary proposes penalties for violations of the Act, but the Commission has exclusive jurisdiction 

to assesses penalties. When the Secretary proposes an assessment, it becomes finaT if it is not contested. If it is contested, the proposal goes before the Commission, which decides a 

penalty de nova based on an evidentiary hearing. Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 673, 678-79 (1987). In proposing and 

assessing penalties, the Secretary and the Commission, respectively, are guided by the six penalty criteria contained in 

§ llO(i) of the Mine Act. 1 In proposing civil penalties, the 

Secretary possesses "unchallenged broad discretion in devising an 

effective penalty scheme." Coal Employment Project v. Dole, 

889 F.2d 1127, 1133 (D.C. Cir. 1989). 

As noted, one of the statutory criteria is the operatorus 

"history of violations." The D.C. Circuitus decision in Coal 

Employment Project figures prominently in the way in which the 

Secretary may consider an operator's history of violations for 

penalty purposes. 

Prior to the Court's decision, the Secretary proposed a $20 

civil penalty (called a u

1 single penalty assessment") for all 

1 Section llO(i) identifies the six criteria as: "(1) the 

operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator 

charged, (3) 1 whether the operator was negligent, (4) the effect 

upon the operator's ability to continue in business, (5) the 

gravity of the violation, and (6) the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance 

after notification of a violation." (Emphasis added.) Section 

llO(i) also provides that "the Secretary may rely upon a summary 

review of the information available to him and shall not be 

required to make findings of fact concerning the [six] above 

factors." 

712 
violations considered to be timely abated and not "significant 

and substantial." 30 C.F.R. § 100.4. The Secretary's single 

penalty assessment system exempted from an operator's history of 

violations all $20 violations that were timely paid. 30 C.F.R. 

§ 100.3(c). See 47 Fed. Reg. 22,286. The Coal Employment 

Project and the United Mine Workers of America challenged the 

"single penalty assessment" system on the grounds (among others) 

that assessments under § 100.4 did not give proper weight to the 

history of violations criterion in the Act, and that, under the 

regular assessment formula, paid single penalty violations were 

improperly excluded from an operator's hist6ry. 

The Court recognized the Secretary's "broad discretion" to 

determine how she would propose penalties. However, it found it 

unreasonable for the Secretary to fail to weigh the history of 

violations in determining whether a violation qualifies for a 

"single penalty" (i_.g. $20, non-S&S) assessment. It also found 

it unreasonable for the Secretary to fail to consider paid single 

penalty violations as part of an operator's history in calculating regular proposed~assess:nients under 30 C.F.R. § 100.3(c). 

Accordingly, the court remanded the case to the Secretary to 

determine how "to ensure that MSHA does take account of past 

single penalty violations in deciding whether a special assessment is required in a case where the violation itself might 

qualify for another single penalty" and "to amend or establish 

regulations, as necessary, that clarify how administration of the 

single penalty standard will take account of the history of 

violations of mandatory health and safety standards that do and 

do not, pose significant and substantial threats to miners' 

safety." 889 F.2d at 1138. 

The Court's remand directed that, pending completion of 

formal compliance with the remand, the Secretary take immediate 

corrective measures to comply with its decision. The Court stated~ 

In the interim, until MSHA formally complies with our 

remand, we direct MSHA to instruct its field personnel 

in assessing single penalties to consider an operator's 

history of non-significant-and-substantial violations, 

and to consider an operator's history of past single 

penalty assessments when imposing regular assessments 

against operators who commit a significant-andsubstantial violation after having committed a series 

of non-significant-and-substantial violations. 

889 F.2d at 1138 (emphasis added). The Court retained jurisdiction to consider the issues further after the Secretary complied 

with its remand order. 2 Id. 

2 As of this date, jurisdiction still lies with the Court. 

713 
In response to the Court's remand, on December 29, 1989, the 

Secretary, through MSHA, published an interim final rule which 

temporarily suspended the sentence in 30 C.F.R. § l00.3(c) that 

excluded single penalty violations from an operator's history of 

violations for regular penalty assessment purposes. 

54 Fed. Reg. 53,609. In the interim final rule, MSHA also 

revised its enforcement policies by instructing its personnel to 

review non-S&S violations involving high negligence and an 

excessive history of the same type of violation for possible 

special assessment under § 100.5. 

MSHA's interim final rule was challenged by the Coal 

Employment Project and United Mine Workers of America on the 

ground that it was not responsive to the Court's remand order. 

In a per curiam opinion issued on April 12, 1990, the Court 

agreed, stating that it was "primarily concerned11 with MSHA's 

"high negligence" requirement, and ordered the agency to devise a 11 suitable interim replacement" within 45 days. 

on May 29, 1990, the Secretary responded to the Court's 

April 12 order by issuing Program Policy letter No. P90-111-4, 

which sets forth a new policy called 11 Increased Assessments for 

Mines with Excessive History of Violations. 11 Through this 

letter, the Secretary addressed the concern of the Court that the 

"history of violations 11 criterion of § llO(i) of the Mine Act be 

properly considered in determining whether a violation qualifies 

for single penalty (i.g. $20, non-S&S) assessment. P.P. Ltr. at 

2. 3 She did this by providing for increased penalties for 

non-S&S violations by operators found to have an "excessive 

history" of violations, defined as either 16 or more penalty 

points out of a possible 20 points in the preceding two-year 

period, or 11 or more repeat violations of the same health or 

safety standard in a preceding one-year period. P.P. Ltr. at 1. 10 Non-S&S violations with excessive history are no longer eligible 

for the single penalty assessment. MSHA has elected to waive the 

single penalty (as provided in 30 CFR 100.[4]) in such cases and 

assess penalties under the regular formula contained in 30 CFR 

100.3." P.P. Ltr. at 2 (emphasis added). The policy letter also 

states that 11 S&S violations with excessive history that previously would have received a regular formula assessment now 

receive a special-history assessment" for which "MSHA has elected 

to waive the regular formula assessment and assess them under the 

special assessment provisions of 30 CFR 100.5. 11 Id. (emphasis 

added) . The 11 special-history assessment 11 is based on the regular 

3 The Secretary also addressed the concern of the Office of 

Inspector General that "repeat violations" receive a higher 

penalty assessment. Id. 

714 
formula point system plus a percentage increase for excessive 

history. 4 

The Secretary served Program Policy Letter No. P90-lll-4 

upon all mine operators, including Hobet Mining. P.P. Ltr. at 3. 

Subsequently, on December 28, 1990, MSHA published a proposed 

rule, entitled "Criteria and Procedures for Proposed Assessment 

of Civil Penalties," setting forth essentially the same provisions contained in Program Policy Letter No. P90-lll-4. 

55 Fed. Reg. 53481 et seq. 

The Issue of the Commission's Jurisdiction to 

Order the Secretary to Re-propose Penalties 

The Mine Act does not grant authority to the Commission to 

determine the validity of the Secretary's rules or procedures for 

proposing civil penalties. Indeed, §§. 105(a) and (d), and llO(a) 

and (i) of the Act indicate that the penalty proposal function is 

within the exclusive domain of the Secretary, while the critical 

penalty assessment frtnction is within the exclusive domain of the 

Commission. 

This plain reading of the Act is consistent with the 

Commission's long-held view concerning the "separate roles of the 

Secretary and the Commission under the Mine Act's bifurcated 

penalty assessment scheme" by which, after a non-binding penalty 

is proposed by the Secretary, the Commission conducts a de novo 

evidentiary hearing in contested cases, and independently 

assesses a penalty on the basis of the hearing evidence and the 

statutory criteria, not on the penalty formulas in the 

Secretary's regulations. Youghiogheny & Ohio Coal Co., 9 FMSHRC 

673, 678-79 (1987). Cf. UMWA v. Secretary, 5 FMSHRC 807 (1983) 

(miners may not initiate Commission review of citations issued by 

MSHA as there is no authorization under the Mine Act to do so), 

=-==-v=, 725 F.2d 126 (D.C. Cir. 1983). 

In Y&O, supra, the operator contended that in proposing 

penalties the Secretary failed to comply with Part 100 of his 

regulations, and moved a Commission judge to remand the matter to 

the Secretary to re-propose a penalty in a manner consistent with 

the Secretary's regulations. 

4 MSHA has set forth a conversion table equating an operator's "Overall History Points" and "Number of Repeat [Violations]" to a percentage increase in the proposed penalty. P.P. 

Ltr. at 2. 

715 
The judge denied the motion, holding that: 

The operator's attack on the MSHA's special 

assessment procedures is without merit. The Commission 

has repeatedly held that the procedures by which penalty assessments are proposed by the Secretary of Labor 

are irrelevant and immaterial to a penalty assessment 

by the Commission or its trial judges. [8 FMSHRC at 

13 4.] 

The Commission affirmed the judge's denial of the motion to 

remand after discussing principles that will govern its review of 

objections to the Secretary's manner of proposing penalties. The 

Commission held that, in light of its exclusive authority to 

assess penalties de novo after an evidentiary hearing, "it 

generally is neither required nor desirable to require the 

Secretary to re-propose a penalty." 9 FMSHRC at 679. "[O]nce a 

hearing has been held, a determination by the Commission or one 

of its judges that the Secretary failed to comply with Part 100 

in proposing a penalty_ does not require affording the Secretary a 

further opportunity to propose a penalty. Rather, in such 

circumstances the appropriate course is for the Commission or its 

judges to assess an appropriate penalty based on the record." 

Id. 

However, before a hearing is held, the Commission stated, 

"in certain limited circumstances the Commission may require tbe 

Secretary to re-propose his penalties in a manner consistent with 

his regulations." Id. Rather than a statutory authorization, 

this limited review rests on the axiom that "an agency must 

adhere to its own regulations." The scope of review in such 

cases is narrowed by the Commission's holding that, when a 

prehearing objection is raised as to the Secretary's manner of 

proposing a penalty, uthe Secretary need only defend on the 

ground that he did not arbitrarily proceed under a particular 

provision of his penalty regulations" (9 FMSHRC 680). 

The Commission's discussion of its scope of review of 

objections to the Secretary 1 s manner of proposing penalties 

similar to the 11 clean hands" doctrine in equity cases. A party 

(the Secretary) seeking relief (a civil penalty) before the 

Commission may first be required to comply with its own obligations (Part 100 of the Secretary's regulations) toward the 

respondent. However, review by the Commission is limited to 

prehearing objections and to a test of arbitrariness concerning 

an alleged failure of the Secretary to comply with Part 100 of 

the regulations. 

In sum, the Commiss~on has not held that it has authority to 

determine the validity of the Secretary's regulations or rules 

716 
for proposing civil penalties, but it has held that it has a 

limited scope of review of objections that the Secretary has 

failed to comply with Part 100 of her regulations in proposing a 

penalty. 

The instant case is distinguished from the Y&O case because 

it does not involve a question of complying with Part 100 of the 

Secretary's regulations. Those regulations, in the part contended to be relevant here, are under remand by a Court of 

Appeals, which still has jurisdiction. The question which the 

operator seeks to raise in this forum is whether Program Policy 

Letter No. P90-111-4 is valid as being in compliance with the 

Court's remand order and with the rulemaking requirements of the 

APA. I hold that such issues are for the courts, and lie outside 

the jurisdiction of the Commission. The Commission's exclusive 

authority to assess penalties de nova based on an evidentiary 

hearing would render any defects in Program Policy Letter 

P90-111-4 irrelevant and harmless in a case before the 

Commission. Two other Commission judges have ruled on motions to 

remand based on Pro~ram Policy Letter P90-lll-4, and reached 

different results. My conclusions differ from the holdings in 

both those cases. The matter is plainly ripe for review by the 

Commission. 

ORDER 

WHEREFORE IT IS ORDERED that the Motion to Remand is DENIED. 

Under Rule 74(a) (1) of the Commission's Procedural Rules 

(29 C.F.'R. § 2700.74(a)(l)), this interlocutory ruling is 

CERTIFIED TO THE COMMISSION. 

tJ;lA_~ William Fauver ~"*~ Administrative Law Judge 

5 In one case, the judge held the policy letter to be 

reviewable and found it invalid, thus granting the motion to 

remand (Drummond Company, Inc., SE 90-126, FMSHRC 

(Judge Merlin, March 6, 1991). In the other, the judge held the 

policy letter to be subject only to limited review -- on a test 

of arbitrariness -- and found the operator did not meet this 

standard for remand, thus denying the motion to remand (Utah 

Power and Light Company, Mining Div., WEST 90-320, et al., 

FMSHRC (Judge Lasher, March 19, 1991)). 

717 
Distribution: 

Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

Laura E. Beverage, Esq., Jackson & Kelly, 1600 Laidley Tower, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

Mr. John B. Taylor, United Mine Workers of America,, Rt. 1, 

Box 41, Danville, WV 25053 (Certified Mail) 

/fb 

718 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY & HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CYPRUS-PLATEAU MINING 

CORPORATION, 

DENVER, CO 80204 

APR 1. 51991 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-44 

A.C. No. 42-00171-03602 

Docket No. WEST 91-45 

A.C. No. 42-00171-03604 

Respondent 

Docket' No. WEST 91-46 

A.C. No. 42-00171-03605 

Before: Judge Morris 

Docket No. WEST 91-91 

A.C. No. 42-00171-03601 

Docket No. WEST 91-118 

A.C. No. 42-00171-03606 

: Star Point No. 2 Mine 

ORDER OF REMAND 

Pending herein are the motions of Respondent Cyprus Plateau 

Mining Company (Cyprus) to strike or in the alternative to remand 

proposed penalties to the Secretary for recalculation. 

BACKGROUND 

lo On November 2lv 1989, the United States Court of Appeals, District of Columbia Circuit, issued its mandate in Coal 

Employment Project, et al. v. Elizabeth Harford Dole, in he-r~­

capacity as Secretary of Labor, United States Department of 

Laborv 889 Fo2d 1127c 

Petitioners therein asked the Court to rule on the validity 

of the single penalty assessment provision ("single penalty"> 

authorized by regulations issued pursuant to the Federal Mine 

Safety and Health Act of 1977 (the "Act">v 30 u.s.c. § 801 et 

~ (1982)0 

In its decision, the Court noted that a single penalty is a 

$20 civil fine imposed on mine operators for violations that are 

not serious and have been timely abated. If the single penalty 

is promptly paid, it is excluded from an operator's violation 

history for future penalty assessment purposes. The criteria and 

719 
procedures for proposed assessments of civil penalties were published and are now codified at 30 C.F.R. § 100, et ~ The single penalty assessment is contained in 3 C.F.R. § 100.4. 1 The 

preceding section, 30 C.F.R. § 100.3, laying out guidelines for 

taking into account the history of previous violations in regular 

assessments, states, in part: 

[V]iolations which receive a single penalty 

assessment, under § 100.4 and are paid in a 

timely manner will not be included in the computation [of history]. 

In its decision, the Court reviewed the statutory and regulatory background of the Act and observed that "the Secretary has 

very broad discretion to devise a scheme implementing the Act's 

civil penalty guidelines," 889 F.2d at 1129. The Court further 

concluded "that Congress was intent on assuring that civil penalties provide an effective deterrent against all offenders, and 

particularly against offenders,.with records of past violations. 

Thus, despite the Secretary's unchallenged broad discretion in 

devising an effective penalty scheme, the civil penalty regulations must not run contrary to that intent," 889 F.2d at 1127. 

In its opinion, the Court further considered all the statutory criteria contained in Section llOCi) of the Act. It further 

focused on two scenarios involving the impact of the single · penalty assessment, 889 F.2d at 1136, 1138. 

The cited section provides as followsg 

§ 100.4 Determination of penalty~ single penalty 

assessment. 

An assessment of $20 may be imposed as the 

civil penalty where the violation is not reasonably likely to result in a reasonably serious illness, and is abated within the time 

set by the inspector. If the violation is 

not abated within the time set by the inspector 0 the violation will not be eligible for 

the $20 single penalty and will be processed 

through either the regular assessment provision (§ 100.3) or special assessment provision (§ 100.5). 

720 
After reviewing the facts, the Court concluded it was not 

able to determine from the record whether the manner in which the 

single penalty is selected and administered is consistent with 

the Mine Act. Accordingly, the Court remanded the record. 

The Court, in fashioning a remedy, stated as follows: 

The penalty scheme in 30 C.F.R. §§ 100.3(c), 

100.4 does not appear to provide for consideration of the mine operator's violation record where that record consists of numerous 

single penalty violations. Without ruling 

on how MSHA should reconcile the language of 

§ llO(i) of the Mine Act, 30 u.s.c. § 820(i), 

with its proposed practices for taking account 

of an operator's history of previous violations, 

we remand the record in this case to MSHA Cl) 

to resolve the· inconsistency between the MSHA 

regulations as writ.ten and MSHA's written and 

oral representations to the court, so as to ensure that MSHA does take account of past single 

penalty violations in deciding whether a special 

assessment is required in a case where the violation itself might qualify for another single 

penalty; and (2) to amend or establish regulations as necessary, that clarify how administration of the single penalty standard will take 

account of the history of violations of mandatory 

health and safety standards that do and do not 

pose significant and substantial threats to miners' safety. In the interim, until MSHA formally 

complies with our remand, we direct MSHA to instruct its field personnel in assessing single 

penalties to consider an operator's history of 

non-significant-and-substantial violations, and 

to consider an operator's history of past single 

penalty assessments when imposing regular assessments against operators who commit a significant.-

and-substantial violation after having committed 

a series of non-signif icant-amd-substantial violations. We will retain jurisdiction in this 

case until the remand is complete. An order to 

this effect is attached. 

889 F.2d at 1138 

721 
The Court's order reads as follows: 

ORDER 

In accordance with the opinion issued this day 

lo ment Pro'ect et al. v. Dole et 

al., No. - 708, it is hereby 

ORDERED that the Mine Safety and Health Administration ("MSHA") resolve any inconsistency 

in its regulations and policy statements so as 

to ensure that the history of past single penalty assessments is considered in regular and 

single penalty assessments pursuant to 30 C.F.R. 

§§ 100-3, 100.4 and that MSHA amend or establish policies 8 as necessary, to ensure that 

all penalties take account of an operator's 

history of violations of mandatory standards 

that do and do not pose significant and substantial thr~ats to miners's safety. 

It is hereby 

FURTHER ORDERED that until MSHA complies 

formally with said remand, MSHA direct its 

field personnel in assessing single penalties 

for non-significant-and-substantial violations to take account of the past history on 

the part of the mine operators of non-significant-and-substantial violations, and to take 

into account past single penalty assessments 

in imposing regular assessments against opera tors who have previously committed a series 

of non-significant-and-substantial violations. 

Consistent with Local Rule 15(c)y this 

court retains jurisdiction over this case 

until said proceedings are completed. MSHA 

shall prompty transmit the record in this case 

to this courto 

2c On December 29Q 1989, the Secretary responded to the 

Coartvs decision by (1) temporarily revising its assessment policies to instruct its field personnel to review non-significantand-suostantial violations involving high negligence and an excessive history of the same type of violation for possible special assessment under 30 C.F.Ro § 100.51 and (2) temporarily suspending the sentence in 30 C~F.R. § 100.3(c) which excludes timely paid single penalty assessments from an operator's history of 

722 
violations for regular assessment purposes. Based on its publication in the Federal Register MSHA stated that 11 [t]herefore, 

during the interim period, MSHA enforcement personnel will review 

high negligence non-significant-and-substantial violations when 

there is an excessive history of the same type of violation at 

the mine for possible special assessment. Further, all violations that have been paid or finally adjudicated will be included 

in history under the regular formula assessment. 

MSHA further stated that in light of the specific instruction from the Court, MSHA must immediately comply with its orderv 

and the Agency was compelled to take immediate action. Under 

such circumstances, MSHA concluded it would, therefore, be impracticable to comply with the requirements of notice and comment 

rule-making under Section 553 of the Administrative procedure Act 

[A.P.A.Jr 5 u.s.c. § 553. Further, under 5 u.s.c. § 553(b)(B) 

MSHA was taking the action in the suspension notice. In addition, for good cause, based on these same reasons and pursuant to 

5 u.s.c. § 553(d)(3) MSHA's action was excepted from the 30-day 

delayed effective date requirement of the A.P.A. 

MSHA further revised Part 100 by suspending the third 

sentence in Part 100.3(c) effective December 29, 1989. Part 

100o3(c), emphasizing the portion to be deleted, reads as 

follows; 

Cc) History of previous violations. 

History is based on the number of assessed 

violations to a preceding 24-month period. 

Only violations that have been paid or finally 

judica will be included in determining 

history However, violations which receive 

a single penalty assessment under § 100.4 and 

are paid in a timely manner will not be included in the computation. The history of previous violations may account for a maximum of 

20 penal points. For mine operators, the 

penalty points will be calculated on the basis 

of the average number of assessed violations 

per inspection day (Table VI). For indepenent contractors, penalty points will be calculated on the basis of the average number of 

violations assessed per year at all mines 

(Table VII). (Emphasis added). 

MSHA 1 s publication amending Part 100 was entered in the 

Federal Register Vol. 54 No. 249, December 29, 19890 

723 
3. On April 17, 1990, the United States Court of Appeals 

filed a supplemental opinion in Coal Employment Project Dole. 

The Court criticized the Secretary's regulations and noted that 

MSHA's "high negligence" requirement in its interim regulation 

runs contrary to the spirit of the original order. 

The Court further observed that inasmuch as the issues have 

not been fully briefed, it declined to fully resolve such issues. 

4. On May 29, 1990, MSHA issued a Program Policy Letter 

("PPL"} No. P90-III-4. The program deals with the subject of 

increased assessments for mines with excessive history of violations. The PPL under its terms was effective on May 29, 

1990. 2 

5. In the period between April 23, 1990, and September 4, 

1990, MSHA issued 18 citations against Cyprus. The proposed 

penalties involve "significant and substantial" citations and 

"non-signif icant-and-substan~ial" citations. 

The penalties proposed against Cyprus for the "S&S" citations are as follows: 

DOCI<ET NO. CITATION NO. DATE ISSUED PROPOSED PENALTY 

91-44 3583453 5-29-90 $216 

91-45 3583497 5-15-90 $229 

3583500 5-21-90 $216 

91-46 3225820 4-23-90 $202 

3583465 4-25-90 $292 

3583467 4-26-90 $202 

3583487 5-10-90 $216 

Subseguentlyv on December 28, 1990, MSHA published a proposed rule, titled "Criteria and Procedures for Proposed 

Assessment of Civil Penalties", essentially setting forth 

the provisions contained in Program Policy Letter No. 

P90-III-4. 55 Fed. Reg. 53481 et ~ However, it is 

settled that comments after promulgation of penalty rules 

did not cure any noncompliance with Section 553. Air 

Transport Ass'n, ~00 F.2d at 379. 

724 
DOCKET NO. CITATION NO. DATE ISSUED PROPOSED PENALTY 

91-91 3583456 5-31-90 $333 

3 583458 6-05-90 $292 

3583460 6-05-90 $216 

3583635 8-02-90 $292 

3 583638 8-14-90 $292 

3583639 8-15-90 $292 

91-118 3583469 4-26-90 $202 

3583335 9-04-90 $189 

The penalties proposed for the non-S&S citations are as 

follows~ 

DOCKET NOo 

91-45 

91-91 

CITATION. NO. 

3583499 

3583632 

3 583633 

DATE ISSUED 

5-21-90 

4-26-90 

8-01-90 

DISCUSSION 

PROPOSED PENALTY 

$136 

$126 

$192 

The Court 9 s directions to the Secretary in Coal Employment 

Project have been previously set forth at length in this order. 

The Court directed the Secretary to consider the operator's history of past single penalty (non S&S) assessments in computing 

regular assessments; instead the Secretary has created an "excessive history 11 assessment which relies on both S&S and non S&S 

violationso The court further directed the Secretary to modify 

its standard for assessing single penalties to accommodate a history of olations~ instead the Secretary implemented an automatic blanket waiver of the single penalty whenever it finds an 

•excessive history" of violations. To the extent that the Secretary's actions purport to implement the Court's decision, the 

Secretary has 9 to a large degree, exceeded the Court's mandate. 

Accordinglyr it is inappropriate for the Secretary to rely on 

such mandateo 

The Secretary further contends the Commission lacks jurisdiction to order the Secretary to reassess a proposed civil penalty It is argued that Sections 105Ca) and (d) and llO(a) and 

(i) of the Act expressly establish that the penalty proposal 

function is within the exclusive domain of the Secretary while 

the critical penalty assessment function is within the exclusive 

domain of the Commission. 

725 
However, in Youghiogheny Ohio Coal Company 9 FMSHRC 673 

(April 1987) the argument was advanced that when the Secretary 

fails to conform to his own regulations in proposing penalties, 

the Commission must require him to re-propose a penalty in a 

manner consistent with his regulations. The Commission ruled 

"that the Commission's independent penalty assessment authority 

under the Mine Act's bifurcated penalty assessment scheme serves 

to provide the necessary and appropriate relief in the vast majority of instances where the Secretary fails to follow his penalty assessment regulations in proposing penalties. we further 

hold, however 1 that in certain limited circumstances the Commission may require the Secretary to re-propose his penalties in a 

manner consistent with his regulations. 11 9 FMSHRC at 679. 

These limited circumstances appear to be present here when 

the Secretary's proceedings under Part 100 is a legitimate concern to the mine operator and the Secretary 6 s departure from his 

regulations can be proven by the operator. In such circumstances, "intercession by the-Commission at an early stage of the 

litigation could seek-to secure Secretarial fidelity to his regulations and possible avoidance of full adversarial proceedings," 

9 FMSHRC at 680 .. 

The main thrust by Cyprus alleges a lack of Secretarial 

fidelity to his regulations. On the authority of Youghiogheny 

Ohio Coal Co., the Secretary 1 s motion to dismiss for lack of 

jurisdiction is denied. 

The penalties proposed here were not computed on the basis 

of the Secretaryus civil penalty regulations but on the basis of 

a rule that MSHA implemented without public notice and comment as 

:required by the Administrative Procedure Act ( "A.P.Ao ") ¢ 

The penalties proposed against Cyprus impose an 91 excessive 

history penaltyn based on an MSHA Policy Program Letter (PPL) 

issued May 29, 1990e Under the PPL, two changes are made in 

MSHA's civil penalty assessment scheme: (1) non-significant-andsubstantial ( 91 non-S&S") violations with excessive history are no 

longer eligible for single penalty assessment under 30 C.F.R. 

100.4ff and instead are computed using the regular formula in 30 

C.F.R. § 100.3; and (2) significant-and-substantial C"S&S") violations with excessive history that previously would have received a regular formula assessment now receive what MSHA calls n

1

special-history assessment. 11 The penalties are computed by 

determining the regular assessment formula of 30 C.F.R. § 100.3 

and then also adding on top of that a npercentage increase for 

excessive history" which is added to the penalty amount based on 

total points. MSHA promulgated this policy as an update to its 

policy manual and did not publish it in the Federal Register. 

726 
MSHA's PPL excessive history policy is fatally defective in 

that it violates the public rulemaking requirements of the 

A.P.A. I 5 u.s.c. § 553(b). 

Civil penalty rules fall within the requirements for notice 

and comment. Air Transport Ass'n of America v. Dep't of Transportation 900 F.2d 369 CD.C. Cir. 1990). Yet MSHA 1 s PPL nullifies the applicability of the single penalty assessment, 30 

C.F.R. § 100.4, to non-S&S violations with excessive history 

"which are no longer eligible for the single penalty assessment. 0 

Secondly, it creates a new type of asseasment called a "specialhistory assessment" consisting of a percentage increase of from 

20 percent to 40 percent of the regular formula assessment. However, the regular formula already takes into account an operator's history of previous violations. Advance notice and comment 

has been required in a similar situation. See Batterton v 

shall, 648 F.2d 694 (D.C. Cir. 1980). 

In addition to the foregoing defects, MSHA's policy of excessive history penalties is unlawfully retroactive. In the case 

at bar nine citations were issued before May 29; one was issued 

on May 29, and eight were issued after May 29. As previously 

noted, the PPL was effective on May 290 

The Supreme Court recently observed that the law does not 

favor retroactivity. Further, statutes and administrative rules 

will not be construed to have a retroactive effect unless their 

language requires this result, Bomen v. Georgetown Univ. Hosp., 

109 s. ct. 468, 471 Cl988>. 

Nothing in the Mine Act or in the Coal Employment Project 

decision dictates the retroactive imposition of such penalties" 

MSHA 0 s PPL adds considerably to the detriment an operator unknow~ 

ingly incurred when it chose not to contest earlier single penalty assessments and other violations. Thus, it cannot be applied retroactively. See New England Telephone and Telegraph Coo 

v u 826 Fo2d 1101, 1110 CD.C. Cir. 1987). 

Cyprus finally argues that penalties proposed by Secredo not comply with the regulations in 30 C.F.R. Part 100., 

pages 8-14}0 

Inasmuch as these proposed penalties are to be remanded to 

the Secretary for publication, comment and recalculation, where 

necessary, the Secretary will no doubt have an opportunity to 

consider these additional issues. 

727 
Cyprus has moved to strike or remand the proposed penalties 

in these cases. Under Rule 12(f), F.R.C.P., an order striking 

allegations may be proper. However, such a motion would not 

reach the crux of the issues presented here. Accordingly, the 

motion to strike is denied. 

The alternative motion to remand should be granted. 

Accordingly, for the foregoing reasons, I enter the 

following, 

ORDER 

1. Respondent's motion to strike is DENIED. 

2. Respondent's alternative MOTION TO REMAND is 

GRANTED. 

ris 

ative Law Judge 

Distributiong 

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

Denverv CO 80294 (Certified Mail) 

R. Henry Moore, Esq., BUCHANAN INGERSOLL, P.C., CYPRUS PLATEAU 

MINING CORPORATION, USX Tower, 57th Floor, 600 Grant Street, 

Pittsburgh, PA 15219 (Certified Mail) 

sh/ek 

728 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MICHAEL E. HOLLAND, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

APR Z 6 1391 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 90-315-D 

HOPE CD 90-17 

Amonate No. 31 Mine 

ORDER 

on September 26, -1990, Michael E. Holland (Complainant) 

filed a Complaint alleging Consolidation Coal Company 

(Respondent) discriminated against him in violation of 

Section llO(c} ~f the Federal Mine Safety and Health Act of 1977 

(The Mine Act). I 

On March 19, 1991, Respondent filed a Motion for Summary 

Decision alleging that the issues and claims raised by the 

complaint herein, have been previously adjudicated by The West 

Virginia Mine Board of Appeals (Board of Appeals) and resolved in 

favor of Respondent. Respondent alleges that Complainant is 

precluded from relitigating these issues on the grounds of 

collateral estoppel and res judicata. On March 27, 1991, 

Complainant led his Statement in Opposition to Respondent's 

Motion for Summary Judgment, and Respondent fled a Reply 

Memorandum on March 29r 1991. 

For reasons that follow, I conclude that it has not been 

established that either judicata or collateral estoppel 

applies to the decision the Board of Appeals, so as to 

preclude Complainant from proceeding with his claim under 

Section 105(c) of the Act. 

1 ; Pursuant to notice, the case was scheduled for hearing 

on February 5, 1991, in Charleston, West Virginia. In a 

telephone conference call on January 25, 1991, Counsel for 

Complainant requested an adjournment of the hearing to allow him 

adequate to respond to Respondent's Request for Discovery. 

Respondent did not object to this request, and the case was 

rescheduled March 19, 1991. Subsequently an Order was 

entered granting Complainant's request for a continuance, and the 

case was rescheduled for May 14-16, 1991. 

729 
I. Res Judicata 

In a statement filed with the Commission on September 26, 

1990, Complainant alleged that he has been discriminated against 

because Respondent forced him to wear metatarsal boots in spite 

of the fact that he had a "legitimate waiver" not to wear them. 

He indicated that Respondent "wouldn't let me work and not wear 

the boots" He also indicated that Bob Wyatt took him out of the 

mine because he is a Part 90 miner. 

Respondent in its Memorandum in Support fer its Motion for 

Summary Decision asserts that on June 7, 1990, Complainant filed 

a "Discrimination Complaint" with the Board of Appeals. The 

proceeding before the Board of Appeals was heard by three of its 

members on November 18, 1990, and December 14, 1990. At the 

hearing, the Complainant was represented by Counsel, and 

according to Respondent's assertions, in its Memorandum, had the 

opportunity to present witnesses, evidence, and to cross-examine 

witnesses. Respondent also asserts that all testimony was taken 

under oath and transcribed. 

On January 24, 1991, the Board of Appeals entered a Decision 

containing 24 enumerated findings of fact, as well as 

5 enumerated conclusions of law. The Board of Appeals set forth 

Complainant's allegations as follows: "Mr. Holland alleges that 

his status as a Part 90 miner is a protected activity under State 

law and motivated Consol to impose the requirement that he wear 

metatarsal protection, which he contends is discriminatory. 

Additionally, Mr. Holland alleges that the requirement that he 

wear metatarsal protection is an illegal act of discrimination 

under W. Va. Code §22A-A-20, because it creates an unsafe or 

hazardous condition to him.'' (Michael Holland v. Consolidation ~Qal Company, West Virginia Mine Safety Board of Appeals, Docket 

Ne DIS 90-3, January 24, 1991, page 7, set forth in Respondent's 

:tvJ.emorandumr Attachment D) o 

·rhe Board of Appeals set forth its Conclusions of Law as 

follows: 

25" The Board of Appeals unanimously concludes, based 

upon a review and consideration of the complete record 

before it, that Michael Holland failed to establish the 

existence of an unsafe or hazardous condition 

sufficient tc support a claim of protected activity 

under W. Va. Code §22A-1A-20. 

26. The Board of Appeals unanimously concludes, based 

upon a review and consideration of the complete record 

before it, that Consol has done all that it can 

reasonably be expected to do to assist Michael Holland 

under the circumstances, and therefore, Michael 

730 
Holland's continued refusal to wear metatarsal 

protection is unreasonable and lacks a good faith 

foundation. 

27. The Board of Appeals unanimously concludes, based 

upon a review and consideration of the complete record 

before it, that Mr. Holland's status as a Part 90 miner 

did not motivate Consol in whole or in part, to engage 

in discriminatory conduct. 

28. The Board of Appeals unanimously concludes, based 

upon a review and consideration of the complete record 

before it, that the requirement that Mr. Holland wear 

metatarsal protection is not an act of discrimination 

under the w. Va. Code §22A-1A-20, but rather is 

motivated solely by a legitimate business purpose to 

comply with State law and the Amonate Mine work rule 

requiring metatarsal protection, which have as their 

goal the protection of miners from crushing foot 

injuries. 

29. The Board of Appeals concludes that as a matter of 

law it is not an act of discrimination to require 

employee compliance with State safety laws requiring 

that metatarsal protection be worn by miners. (Holland 

v. Consolidation Coal company, Mine Safety Board of 

Appeals, supra, at 8-9). 

In analyzing whether the Decision of the Board of Appeals 

precludes Complainant from litigating a Section 105(c) complaint 

of discrimination before the Commission, the Commission in 

Bradley v. Belva Coal.Company, 4 FMSHRC 982, at 986 (1981), held 

that "Preclusion is an affirmative defense, and the Party 

asserting it must prove all the elements necessary to establish 

it"'~ In general 7 Respondent must thus establish r with regard to 

its claim of res judicatar an identity claims between the 

action before the Board and the instant proceeding. For the 

reasons set forth below, I conclude that Respondent has not met 

burden of establishing an iden of claims. 

In Bradley, suora, an ultimate issue before the Commission 

was whether a decision of the Board of Appeals denying a miner's 

claim of discrimination under West Virginia law, 

(W. Va. Code §22A-1A-20) precluded litiqation of a discrimination 

claim under the Mine Act.- In Bradlev, supra, at 988, the 

Commission indicated that in analyzing a discrimination action 

brought under the West Virginia law compared to one arising under 

the Mine Act., '' ... we will examine both the facts and the 

substantive legal protection afforded the miner under both 

statutes." 

731 
It appears, based upon the statements of Complainant filed 

with the Commission as his Complaint, that the gravamen of his 

complaint is that he was discriminated against, in that 

Respondent would not let him work without wearing boots for which 

he had a waiver. Also, that he was discriminated against because 

he was designated a Part 90 miner. Respondent, at page 12 of its 

Memorandum, quoted testimony of the Complainant before the Board 

of Appeals, in which he asserted somewhat the same claim. 

However, the record before me does not contain the entire 

transcript before the Board of Appeals, nor does it contain the 

Complaint filed before the Board of Appeals, nor the specific 

arguments made by Complainant or his counsel. I thus can not 

make a definite finding as to the exact claim or claims presented 

to the Board of Appeals. 

Further, it would appear that the legal basis for 

Complainant's claim before the Commission is that his 2apparent 

refusal to wear the boot constituted a "work refusal" I 

Although Section 105(c) of the Mine Act does not provide for the 

right to refuse work, the Commission, in Pasual v. Consolidated 

Coal company, 2 FMSHRC 2786 (i980), rev'd on evidentiary grounds, 

663 F.2d 1211 (3rd Cir. 1981), and in Robinette v. United Castle 

Coal Company, 3 FMSHRC 803 (1981), held that the legislative 

history evidences Congress's intent for Section 105 to embrace 

this right. (See, Bradley, supra, at 998-989). 

The Commission, in ~radley, supra, at 989 analyzed 

Section 22A to lA-20 3; of the West Virginia Code as follows: 

"In contrast, section 22-l-21(a) of the 

West Virginia Code (n. 2 above), under which Bradley 

brought his state action, provides in relevant part 

that "No person shall discharge . . . by reason of the 

fact that he believes or knows that such miner . o .!¥ 

It is not clear from the face of this provision whether 

the State law would treat Bradley 1 s refusal to obey an 

order as a protected "notification to an operator of a 

danger." Belva has not demonstrated in any event that 

West Virginia law confers a oeneral right to refuse 

2; See, Price v. Montery Coal Company, 12 FMSHRC, 1505 

(1990) wherein the Commission held that a miner's refusal/failure 

to comply with the Operator's metatarsal boots policy constituted 

Q refus to comply with a mandatory work rule, and hence was 

properly treated by the trial judge as a work-refusal case. 

3; It appears that the provisions at issue presently set 

forth in Section 22A-1A-20, were previously found at 

West Virginia Code section 22-1-2l(a). 

732 
work. (Belva has presented us with no other 

substantive provisions of the State law.) Other than 

the West Virginia Board decision in issue, Delva has 

presented no West Virginia Board decisions (which, from 

all that appears, are not officially published) nor any 

other court decision interpreting the West Virginia 

Act. Nor has Belva presented any legislative history 

to explain the meaning of section 22-l-2l(a). 

Similarly, Belva has not shown that West Virginia Law 

affords a miner in a discrimination case the burden of 

proof structure and analytical framework used to 

resolve a Mine Act discrimination case." 

4

This reasoning applies with equal force to the case at 

bar. I The Board of appeals found that the "cause of 

4; Decisions by the West Virginia Supreme Court cited by 

Respondent in its Memorandum, at page 5, do not support the 

proposition, as argued by Re~pondent, that under West Virginia 

Code §22A-1A-20," . -.. the appropriate analyses to be made are 

identical to those made under Section 105(c), 30 U.S.C. 

§ 815(c)." None of the cases cited dealt directly with the 

issue, as to whether the protected activities set forth in 

Section 22-l-2l(a), supra, encompass a refusal to work. 

Specifically, these cases do not discuss whether refusal to obey 

a work order constitutes a protected "notification to an operator 

of a danger under Section 22A-1A-20, supra. In Collins v. E1kay 

Mining Company, 371 S.E. 2d 46 (1988), and Wiggins v. Eastern 

Associated Coal Corporation, 357 S.E. 2d 745 (1987), the Supreme 

Court did not have to determine the scope of activities protected 

in Section 22A-1A-20, ~upra, as the issues presented was whether 

a miner may institute a discharge action in State Court without 

first resorting to pursuing administrative remedies afforded by 

Section 22A-1A-20, supra, and Section 105(c) of the Act, and 

whether the State Legislature intended to make the remedies 

provided for in Section 22A-1A-20, supra, exclusive. As such, 

the footnote in Wiggins, supra, at 747, n.2, that in all relevant 

aspects Section 22A-1A-20 (presently Section 22A-1A-20) and 

Section 105(c) of the Act are the same in that they protect the 

same activities, is clearly dictum, and not necessary to the 

disposition of the issues before the court. 

In Davis v. Kitt Energy, 365 F.2d 82 (1987) a safety 

committeeman made a demand of the operator to withdraw workers 

from the mine due to a safety hazard. The safety committeeman 

was subsequently removed from the safety committee by the 

operator on the ground that his withdrawal demand was arbitrary. 

The Supreme Court held that the safety committeeman who 

communicated a safety Violation, and thus enforced a right under 

the collective bargaining agreement to demand withdrawal, is 

entitled to the protection afforded by Section 22A-1A-20, supra, 

733 
Mr. Holland's complaint has not been documented as deriving from 

the use of metatarsal protection." (Holland v. Consolidation 

Coal company, supra, finding 18). It also found that the 

operator's refusal to permit Complainant to work without 

metatarsal protection was not motivated in whole or in part by an 

intent to discriminate against him because of his status as a 

Part 90 miner. In its Conclusions of Law, the Board of Appeals 

concluded that Complainant "failed to establish the existence of 

an unsafe or hazardous condition sufficient to support a claim of 

protected activity under W. Va. Code §22A-1A-20." (Holland, v. 

Consolidation coal Company, supra, paragraph 25). The Board of 

Appeals also concluded that Complainant's "continued refusal to 

wear metatarsal protection is unreasonable and lacks a good faith 

foundation." {Holland v. Consolidation Coal Company, supra, 

paragraph 26). Hence, it might be implied that the issue of 

Complainant's claim of a reasonable work refusal was litigated 

and considered by the Board of Appeals. However, the decision of 

the Board of Appeals is conclusionary and does not contain a 

discussion of the evidence in its records, nor does it make 

resolutions of credibility of .~itnesses, or explain the 

conclusions of law reached, or the findings of fact that it made. 

Further, the decision does not specifically indicate that the 

issue of the right to refuse work was litigated and that such a 

right specifically exist in State law. The decision also does 

not set forth the legal analysis and framework that it employed 

in analyzing the work refusal issue. Nor does it set forth the 

burden of proof it5utilized and the legal analysis on the issue 

of discrimination. I 

Also, although the Board apparently considered whether 

Complainant's status as a Part 90 miner motivated Respondent to 

\Footnote 4 continued) 

when he is thereafter subject to discrimination by his employer" 

In its Decision, the court indicated that the focal inquiry is 

the reasonableness in reporting a safety violation and that this 

standard is analogous to that fashioned by Courts' decisions 

under the Federal Mine Safety Act of 1977, which has been 

interpreted to permit a work refusal in an area believed to be 

hazardous. Hence, no issue was presented to the Court as to 

whether a work refusal is within the scope of activities 

protected under Section 22A-1A-20, supra. 

5 ; As noted by the Commission in Bradley, supra, at 986, 

quoting Montana v. United States, 440 U.S. 147, 164 n. 11 (1979), 

an example of an exception to the applicability of preclusion 

based on the decision of an administrative agency exists where 

"there is reason to doubt the quality, extensiveness, or fairness 

of procedures followed in prior litigation." 

734 
Mr. Holland's complaint has not been documented as deriving from 

the use of metatarsal protection." (Holland v. Consolidation 

Coal Company, supra, finding 18). It also found that the 

operator's refusal to permit Complainant to work without 

metatarsal protection was not motivated in whole or in part by an 

intent to discriminate against him because of his status as a 

Part 90 miner. In its Conclusions Law, the Board of Appeals 

concluded that complainant "failed to establish the existence of 

an unsafe or hazardous condition sufficient to support a claim of 

protected activity under W. Va. Code §22A-1A-20." (Holland, v. 

Consolidation Coal Company, supra, paragraph 25). The Board of 

Appeals also concluded that Complainant's "continued refusal to 

wear metatarsal protection is unreasonable and lacks a good faith 

foundation." (Holland v. Consolidation Coal Company, supra, 

paragraph 26). Hence, it might be implied that the issue of 

Complainant's claim of a reasonable work refusal was litigated 

and considered by the Board of Appeals. However, the decision of 

the Board of Appeals is conclusionary and does not contain a 

discussion of the evidence in its records, nor does it make 

resolutions of credibility of witnesses, or explain the 

conclusions of law reached, or the findings of fact that it made. 

Further, the decision does not specifically indicate that the 

issue of the right to refuse work was litigated and that such a 

right specifically in State law. The decision also does 

not set forth the legal analysis and framework that it employed 

in analyzing the work refusal issue. Nor does it set forth the 

burden of proof it

5

utilized and the legal analysis on the issue 

of discrimination. I 

Also, although the Board apparently considered whether 

Complainant's status as a Part 90 miner motivated Respondent to 

engage in discriminatory conduct, it would appear that this 

is thereafter subject to discrimination by his employer. 

Decision, Court indicated that the focal is 

reasonableness reporting a s violation and that this 

standard is analogous to that fashioned by courts' decisions 

under the Federal Mine Safety Act of 1977; which has been 

interpreted to permit a work refusal an area believed to be 

hazardouso Hence, no issue was presented to the Court as to 

work re al is within the scope of activi 

under Sec 22A-1A-20, 

5 ; As noted by the Commission Bradley, supra, at 986, 

quoting Montana v. United States, 440 U.S. 147, 164 n. 11 (1979), 

an example of an exception to the applicability of lusion 

on the decision of an administrative agency exists where 

is reason to doubt the qual , extensiveness, or fairness 

of procedures followed in prior 1 ion.Ii 

735 
analysis is ultra vires to the Board's authority. The plain 

language of Section 22A-1A-20, supra, appears to limit protected 

activities to notifying an operator of alleged violations or 

danger. Thus, on its face, status as a Part 90 miner is not 

within the scope of protected activities recognized by 

West Virginia Law. 

I conclude that, considering all the above, Respondent has 

failed to establish that the claim before the Board of Appeals is 

identical to the instant claim before the Commission. Hence, 

res judicata does not prevent Complainant from litigating his 

complaint before the Commission. 

II. Collateral Estoppel 

As set forth in Bradley, supra, at 990, ''The basic premise 

for applying collateral estoppel is a showing that the precise 

issues involved in the second action were actually and 

necessarily decided in the first." I conclude that Respondent 

has not made such a showing. 

As discussed above, I, infra, has not been established 

that the issues before the Commission were necessarily decided by 

the Board of Appeals. It has not been established that the issue 

of a work refusal was necessary and relevant to the disposition 

of the matter before the Board of Appeals. Also, as stated 

above, I, infra, the record does not establish the analysis and 

burden of proof utilized by the Board of Appeals, and the 

evidence it accepted and rejected. As such the doctrine of 

collateral estoppel is not available to preclude Complainant from 

litigating before the Commission facts that were allegedly 

litigated before the Board of Appeals. 

For 1 the above reasons, the Motion for Summary Decision 

made by Respondent is DENIED. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

(703) 756-6210 

FAX (703) 756-6201 

James W. McNeely, Esq., Michael F. Niggemyer, Esq., UMWA 

District 29, P. o. Box 511, Beckley, WV 26801 (Certified Mail) 

Laura E. Beverage, Esq., Jackson & Kelley, 1600 Laidley Tower, 

P. O. Box 553, Charleston, WV 25322 (Certified Mail) 

dcp 

736 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSIO'N 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~PR 26 '99\ 

MICHAEL E. HOLLAND, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

ORDER 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 90-315-D 

HOPE CD 90-17 

Amonate No. 31 Mine 

I. Motion to Compel 

On December 28, 1990, Respondent served Petitioner with a 

First Set of Interrogatories. On January 24, 1991, Respondent 

filed a Motion to Compel Discovery. on March 7, 1991, an Order 

was issued granting the Motion to Compel Discovery on the ground 

that Complainant had not filed any opposition to the Motion. On 

March 8, 1991, Complainant served Respondent with Answers to its 

First Set of Interrogatories. On March 14, 1991, Respondent. 

filed a Second Motion to Compel Answers to the First Set of 

Interrogatories, requesting an order compelling Complainant to 

an~wer completely and fully Interrogatories Nos. 3, 5 through 11, 

13 I and 14. on April 2, 1991, Complainant filed his response 

to the Motion. · 

Interrogatory No. 3 

Interrogatory No. 3 provides as follow: "Please provide the 

names, address, telephone number, and identity of the present 

employer of each and every person you expect may be called as an 

expert witness at any hearing held in this matter. 11 Complainant 

as a response stated as llows: "See response to Interrogatory 

No, 2 above." Interrogatory No. 2 had requested the name, 

address, employer, and current telephone number for each person 

1 ; In the first page of its Motion, Respondent indicated 

that it sought to compel a response to interrogatory No. 12. 

However, in setting forth those interrogatories for which there 

is a Motion to Compel, Respondent set forth Interrogatory No. 12,· 

but did not set forth any Motion to Compel a response to this 

interrogatory. In contrast, Respondent did set forth a Motion to 

Compel a response to Interrogatory No. 13. 

737 
" . . you intend to call as a witness at the hearing in this 

matter." Complainant, in response thereto, had furnished 

Respondent with a list of 22 persons. 

In its response to Respondent's Motion, Complainant, in 

essence, to the best of my understanding, argued that he made a 

general referral to Interrogatory No. 2, because of the 

uncertainty as to who might be called as an expert witness. The 

Interrogatory does not seek a listing of those experts whom 

Respondent, of certainty, intends to call as witnesses, but only 

those he expects "may be called." Fed. R.CIV.P 26(b)(4)(A), in 

essence, provides that a Party through interrogatories may 

require identification of persons whom the other Party " ... 

expects to call as an expert witness at trial." (Emphasis 

added). Hence, Complainant shall be required to provide 

Respondent, within 5 days of this Order, the id2ntity of each 

person it expects to call as an expert witness. I 

Interroaatory No. 5 

Interrogatory No.-5 provides as follows: "For those 

witnesses listed in response to Interrogatory No. 3, please 

provide a summary of the testimony each witness is expected to 

render and the facts and circumstances upon which such expert's 

testimony will be based, along with references to any 

publications, documents, treatises or other written works the 

expert is expected to rely upon in rendering any opinion." 

2 ; In a written statement dated March 28 1 1991, 

Complainant's Counsel notified me that he 11 • " " will withdraw 

from this case. 11 However, as of the date of this Order, counsel 

has not withdrawn. In this connection, included in Counsel's 

statement to me of March 28, 1991, is the following: "We do not, 

however, feel comfortable formally withdrawing until resolution 

of the pending Motion to Compel and the pending Motion for 

Sanctions"" Hence, since Counsel is still representing 

Complainant at this point, at least with regard to the instant 

Motion, it has an obligation to respond to Respondent's Discovery 

as ordered herein" Furthermore, should Counsel formally withdraw 

from representing Complainant in this case, Complainant, 

appearing pro se or substitute Counsel, will of necessity be 

involved in the preparation of his case scheduled for hearing on 

May 14-16, 1991. Further, the fact that Complainant's Counsel 

"will withdraw," should not operate to defeat Respondent's right 

to discovery by way of interrogatories upon a ?arty. 29 C.F.R. 

§ 2700.57. This rationale applies to all orders contained 

herein. 

738 
In essence, Complainant's Counsel in his response, alleges 

that he has not spoken to any physicians about the merits of 

Complainant's claims, and that, "at the time of the responses," 

he did not know who would be an expert witness. Petitioner has 

been ordered, infra, to identify those person that he "expect may 

be called" as in expert witness. As to these persons, 

Complainant shall, pursuant to Rule 2 6 ( b) ( 4 )(a) ( l) , supra, 

provide their names to Respondent. If Complainant has not 

decided which expert witnesses, if any, will testify at the 

hearing, then Complainant shall comply with·the request contained 

in Interrogatory No. 5, when he makes such a decision, but not 

later than 14 days prior to the date of the hearing. Failure by 

Complainant to comply with this Order subjects it to possible 

sanctions pursuant to Fed. Rul. Civ. P. 37(b)(2), upon a proper 

Motion to be made by Respondent. Further, Complainant shall 

fully comply with the request for divulgence of the circumstances 

upon which the expert's testimony will be based, along with 

references to written works the expert is expected to rely upon 

in rendering his opinion, as these matters are within the scope 

of Rule 26(4)(A)(i), supra, which·requires divulgence of a 

summary of the grounds for each opinion of an expert witness. 

Interrogatory No. 6 

Interrogatory No. 6 provides as follows: "Identify each and 

every person(s), by name and address, who has been retained or 

employed to participate in this litigation, or for hearing 

preparation purposes in this matter, who is not expected to be 

called to testify as an expert witness in any proceeding in this 

matter." Complainant argues that the information is privileged 

and protected under Fed. R. Civ.P. 26(b)(4)(B). 

I am constrained to follow Ager v. Jane c. Stormont Hosoital 

and Trainingr 622 F.2d 496, (10th Cir. 1980), wherein the Court 

of Appeals held that a Party may not require the other Party to 

compel discovery of the identity of a nonwitness expert retained 

and specially employed in an anticipation of litigation in the 

absence of 11 exceptional circumstances under which it 

unpractical for the Party seeking discovery to obtain facts or 

opinions on the same subject by other means." (Ager, supra, 

at 503). The Court further held, citing Hoover v. United States 

Department of Interior, 611 F.2d. 1132, 1142, n.13 (5th Cir. 

1980), that a Party seeking disclosure under Rule 26(b)(4)(b), 

supra, "carries a heavy burden." Respondent asserts in this 

connection that Complainant is solely and exclusively in control 

of information relevant to the sue of his medical condition and 

that his response is the only way to obtain this information. 

Hence, only Complainant and or his Counsel has knowledge of the 

739 
identity of an expert retained or specially employed. Hence, 

exceptional circumstances have been found to exist and discovery 

of the identity of these experts is required. Thus, Complainant 

shall comply with all terms of Interrogatory No. 5. 

Interrogatory No. 7 

Interrogatory No. 7 requires as follows: "Please identify 

all documents that you intend to introduce as exhibits at the 

hearing in this matter. For each such document, describe its 

present location and custodian, and identify the person(s) 

through whom you intend to introduce each document at any hearing 

or deposition in this matter." 

The request falls within Fed R. Civ. P. 26(b)(l) and hence, 

a clear identification of the documents intended to be introduced 

as exhibits is required, as well as the identity of the persons 

through whom the document is to be introduced. Accordingly, 

Complainant shall specifically comply with all the terms of this 

interrogatory. 

Interrogatory No. 8 

Interrogatory No. 8 requires as follows: "Describe with 

specificity and in detail the facts and circumstances upon which 

you rely in contending that Michael Holland engaged in protected 

activity as defined under § lOS(c) of the Mine Act. In 

responding, please identify: 

a. The names and addresses of each and every person 

who will be called upon to provide testimony in 

support of your position and summarize the 

anticipated testimony of each such person; and 

bo Identify each and every document and/or piece of 

evidence which is or will be relied upon to support 

your position." 

Complainant argues that Respondent did not seek discovery 

within 60 days after the Complaint was filed, as is required by 

29 C.F.R. § 277.SS(b). 

The Complaint herein was filed on September 26, 1990, and 

Respondent served a Request for Interrogatories on December 28, 

1990. 

In order to allow the Parties to prepare for trial and to 

eliminate surprise, the rules of discovery should be broadly 

applied (See, Hickman v. Taylor, 329 U.S. 495 (1947)). 

Complainant has not alleged any legal harm as a result of the 

740 
late request for discovery. Hence, the request in Interrogatory 

No. 8 is to be complied with, as, in general, the material 

requested falls within Rule 26(b)(l), supra. 

It is further ORDERED that Complainant shall, within 5 days 

of this Order, file with me, for an in camera inspection, all 

material he claims as subject to either an informant's privilege, 

or a work product privilege. 

Interrogatory No. 9 

Interrogatory No. 9 requests as follows: "Describe with 

specificity and in detail the adverse action or discrimination 

you allege has occurred as a result of his alleged protected 

activity under § 105(c) of the Mine Act. In responding, please 

identify: 

a. The names and addresses of each and every person who 

will be called upon to provide testimony in support of 

your position and summ~rize the anticipated testimony of 

each such person; and 

b. Identify each and every document and/or piece of 

evidence which is or will be relied upon to support your 

position." 

In its response, Complainant essentially referred to its 

response with regard to Interrogatory No. 8. The request set 

forth in Interrogatory No. 9 falls within the purview of 

Rule 26(b), supra. Hence, Complainant shall comply in detail to 

this interrogatory and within 5 days of this Order file with me, 

for an in camera inspection, any material that he claims is 

subject-"to the work product privilege or informant's privilege. 

Interrogatory No. 10 

Interrogatory No. 10 requests as follows: "Describe in 

detail and with specificity the facts upon which you rely in 

contending the adverse action or discrimination complained 

of was motivated, in who or in part, by alleged protected 

activity under § 105(c) of the Mine Act. In responding please 

identify~ 

a. The 

wi 

your 

each 

names and addresses of each and every person who 

be called upon to provide testimony in support of 

position and summarize the anticipated testimony of 

such person; and 

b. Identify each and every document and/or piece of 

evidence which is or will be relied upon to support your 

pos ion." 

741 
As a response, Complainant merely made reference to his 

response to Interrogatory No. 8. My ruling with Interrogatory 

No. 10 is the same as the ruling I made with Interrogatory No. 8 

for the same reasons. 

Interrogatory No. 11 

Interrogatory No. 11 provides as follows: "Explain in 

detail the remedies sought by you in this § 105(c) proceeding. 

If back pay is included in this request, please identify 

specifically the time periods for which you claim back pay." As 

a response, Complainant set forth the follow: "If Respondent 

will provide the work record at the time, Petitioner should be 

willing to provide this information." The information sought by 

this interrogatory is within the scope of Rule 26, supra, and 

hence, it is ORDERED that Complainant shall answer and comply 

with the interrogatory in full detail. 

Interrogatory No. 13 

Interrogatory No•.- 13 provides as follows: "If you contend 

that you have been subjected to discrimination and/or adverse 

consequences prohibited under§ 105(c), list each date on which 

such alleged discriminatory activity took place and identify the 

persons other than you present or otherwise involved in the 

alleged incident." 

The information sought is within the scope of Rule 26, . 

supra. Complainant shall fully and specifically comply with this 

request identifying specific dates of alleged discriminatory 

activity and the specific identity of persons present when such 

activity allegedly occurred. In complying with this request, 

names of miners who are expected to testify shall not be 

disclosed until 2 days prior to the hearing. Names of informants 

who are miners shall not be disclosed. 

Interrogatory No. 14 

Interrogatory No. 14 alleges as follows~ "Do you contend 

that it is hazardous or unsafe for you to wear metatarsal 

protection? If your answer is in the affirmative, please 

identify with specificity: 

a. Each and every fact upon which you rely in support of 

this position; 

b. The name and address of each and every person who wi 

be called upon to provide testimony in support of this 

position and summarize the testimony of each such 

person; and 

742 
c. Each and every document and/or piece of physical 

evidence which is or will be relied upon to support this 

position. 11 

The information sought is clearly within the purview of 

Rule 26, supra, and hence, it is ORDERED that Complainant shall 

comply fully with the request and shall identify persons with 

information of the facts requested, shall summarize the testimony 

of such persons and shall specifically identify the documents 

that will be relied upon. In complying with this Order, 

Complainant shall not be required, until 2 ~ays prior to the 

hearing, to disclose the names of miners who are expected to 

testify, neither shall Complainant be required to disclose the 

name of an informant who is a miner. 

II. Motion for Sanctions 

In a Motion filed on March 14, 1991, Respondent seeks an 

order sanctioning Complainant's Counsel on the ground that he 

violated Fed. R. Civ P. 11 by refusing to answer interrogatories 

and by providing vagl,!e and unresponsive answers. Clearly the 

imposition of sanctions against an attorney is an extraordinary 

remedy. The rules of the Commission, 29 C.F.R. § 2700 et ~ do 

not provide any authority to sanction an attorney by ordering him 

to pay the reasonable expenses another Party has incurred because 

of a filing of a Motion that was responded to in a fashion in 

violation of Rule 11, supra. 

Ip Rushton Mining Company, 11 FMSHRC 759 (1989), the 

Commission considered the question of whether the monetary 

sanctions provided by Rule 11, supra, apply to Commission 

proceedings. In Rushton, supra, the operator had sought 

reimbursement of its litigation expenses from the Secretary under 

Rule 11, alleging that the Secretary engaged in the type of 

litigation abuse covered by Rule 11, supra. The Commission held 

that the Operator did not have a right under Rule 11, supra, to 

reimbursement of its litigation expenses. 

Respondent argues that Rushton, supra, dealt solely with the 

issue of imposing monetary sanctions on the government, and 

should not bar an injured Party from seeking Rule 11, supra, 

sanctions against a private Party. For the reasons that follow, 

I reject Respondent's argument. 

In Rushton, supra, the Commission dealt solely with the 

issue of whether Rule 11 should be applied by the Commission in 

ordering sanctions against the Federal Government where it 

allegedly violated Rule 11, supra. However, guidance may still 

be found in the Commission's decision that is helpful in 

resolving the issue herein, i.e., whether Rule 11 should be 

applied in ordering sanctions against a private Party who 

allegedly violated Rule 11. In this connection, I note, that at 

743 
the outset of its analysis, the Commission, in Rushton, supra, at 

763, took cognizance of the fact that the operator therein was 

seeking attorney's fees and costs against the government, not as 

a prevailing Party, but as "alleged victim of litigation abuse," 

but "nevertheless" noted that " .•. we have strictly interpreted 

the Act when determining whether such awards are due to 

prevailing Parties." Further, the caution of the Commission in 

providing relief in the form of an award of attorney's fees and 

costs can be seen in its statement in Rushton, supra, at 764 with 

regard to its underlining philosophy. "Thus, as we have observed 

in a number of analogous contexts, the absence of specific 

statutory authorization for an asserted from of relief under the 

Mine Act "dictates cautious review ••.. " Counsel of So. Mtns. v. 

Martin County Coal Corp., 6 FMSHRC 206, 209 (February 1984), 

aff'd, 751 F.2d 1418 (D.C. Cir. 1985). See also Kaiser Coal 

Corp., 10 FMSHRC 1165, 1196-70 (September 1988)." Also, the 

Commission in Rushton, supra, at 765, was clear to state that the 

Federal Rules of Civil Procedure are not dictated by Commission 

Rule l(b), (29 C.F.R. § 2700.l(b)) to be" lexively applied on 

procedural questions not regulated by the Mine Act, 

Administrative Procedures Act, or our own procedural rules." 

Hence, in the absence of clear authority in either the Mine Act, 

Commission Rules, or Commission precedent, I am reluctant to 

sanction complainant's Counsel and conclude that I do not have 

c authority to do same. 

Further, even if Rule 11, supra, or Fed. R.Civ. P. 26(g), 

supra, applies to the Commission's proceedings, the standards for 

an award thereunder have not been met. In general, as noted by 

the Commission in Ruston, supra, at 767 " ..• under Rule 11, 

monetary sanctions may be imposed if a reasonable inquiry 

discloses that a litigant's pleading or other paper is not well 

grounded in fact? is not warranted in law, or has been interposed 

for any improper purpose. Seer e.g., Westmoreland v. CBS Inc, 

770 F.2d 1168, 1174-80 (D.C. Cir. 1985). 11 

In general, it is the position of Respondent that 

complainant's responses to the various interrogatories are 

"irresponsive and evasive," demonstrate a lack of good faith, are 

not well grounded in or warranted by existing law, and are 

obvious intended to harass or cause unnecessary delay or 

needless increase in cost in this litigation. I conclude that if 

responses to interrogatories are vague and incomplete a proper 

remedy is a motion to compel, which has been made herein, but 

that these deficiencies do not f 1 within the preview those 

actions deemed by Rules 11 and 26(g), supra, to provide a basis 

for imposition of sanctions. 

Respondent, in its Motion, argues that the response of 

Complainant to various interrogatories constitute the bas for 

the imposition of sanctions under Rule 11, supra. Each of these 

are discussed below. 

744 
a. Interrogatory No. 3 

Interrogatory No. 3 requested the identity of expert 

witnesses whom Complainant intended to call. As a response, 

Complainant referred to his response to a previous interrogatory, 

in which he set forth the names of persons he indicated that he 

might call as witnesses. Petitioner clearly has the obligation 

to respond to this interrogatory in a complete fashion. However, 

the failure to do so, is not evidence of any improper purpose, 

inasmuch as a complete list of witnesses were set forth in the 

previous interrogatory. 

b. Interrogatory No. 5 

Interrogatory No. 5 sought a summary of expected testimony 

of expert witnesses. As a response, Complainant indicated that, 

inasmuch as the request called for speculation as to what the 

persons will testify to under oath, it was not complied with. He 

also maintained the request was inconvenient, unduly burdensome 

and unduly expensive. 

Complainant clearly has the obligation to reply to this 

interrogatory in detail as set forth above, I., infra in my 

ruling on the Motion to Compel. However, failure to do so under 

color of an argument that to comply would be inconvenient, 

burdensome and expensive, does not, per se, establish any ground 

for the imposition of sanctions. 

c. Interrogatory No. 7 

Interrogatory No. 7 requested Complainant to identify 

documents which he intends to introduce as exhibits at the 

hearing, and to set forth the identity of the person thorough 

whom Complainant intends to introduce the document. 

Complainant 1 s response does not describe with specificity an 

identification of the document intended to be introduced, nor 

does it identify individual documents, nor the witnesses that 

would be used to introduce these documents. As such the response 

can be characterized as vague and unresponsive" Complainant has 

been ordered above, I., infra, to fully comply with the 

interrogatory. However, the vague nature of the response and the 

failure to fully comply with the terms of the interrogatory does 

not per se establish conduct that falls within the criteria set 

forth in Rules 11 and 26(g) for the imposition of the sanctions. 

d. Interrogatory No. 8 

Interrogatory No. 8 requested, in essence, the facts and 

circumstances upon which Complainant relies in contending that he 

was engaged in protected activities. Respondent asserts that 

there was no good faith basis for Complainant's objection based 

upon work product privilege. I have ordered Complainant to 

745 
furnish, for an in camera inspection, any material alleged to be 

subject to a work product privilege. (See above, I., infra). As 

such, I certainly can not find at this point, without having 

examined the material in question, that any claim of a work 

product privilege was not warranted in law. 

Respondent also argues that Complainant's responses are 

vague, incomplete, and do not identify particulars. These 

defects are the subject of the Motion to Comply, and have been 

dealt with above, I., infra, but do not fall within the preview 

of activities causing liability for sanctions. 

Respondent also refers to Complainant's refusal to identify 

and summarize anticipated testimony of witnesses. Complainant 

alleges that this request is burdensome and inconvenient. The 

failure to respond to the request has been dealt with above, 

I., infra, but Complainant's failure in this regard does not 

justify the imposition of sanction. 

e. Interrogatory No. 9 

Interrogatory No. 9 required Complainant to describe the 

adverse action which he alleged, and to provide the identity of 

witnesses and documents which are relied upon. In essence, 

Respondent argues that Complainant's· responses are vague, 

evasive, and unresponsive. Respondent is correct in its 

characterization of Complainant's response and this has been 

dealt with above, I., infra, in m¥ ruling on the Motion to · 

Compel. However, providing a vague unspecific response is not an 

activity set forth in either Rules 11 or 26(g), supra, which 

provides a basis for the imposition of sanctions. 

f o Interrogatory No. 10 

Interrogatory No. 10 required Complainant to detail the 

facts relied upon in his allegation that adverse action was 

motivated in whole or part by protected activities, to identify 

the persons whose testimony will be offered in support of his 

position, and to identify those documents that are relied upon. 

Complainant did not provide any response other than stating as 

follows: "See answers No. 8 and No. 9." The lack of response 

has been noted above, I., infra, in my ruling on the Motion to 

Compel. However, failure to answer an interrogatory is not one 

of the actions set forth in Rules 11 and 26(g), supra, to warrant 

an imposition sanction. 

g. Interrogatory No. 11 

Interrogatory No. ~1 requested Complainant to explain in 

detail the remedies sought and to identify specifically the time 

period for which he claims back pay. Respondent argues that 

Complainant's response that he was seeking all remedies provided 

746 
under Section 105(c) including back pay, constitutes a refusal to 

provide the requested information. This issue has been dealt 

with above, I., infra, in my ruling on the Motion to Compel. 

However, although the response is vague and does not provide the 

specificity requested, it does not fall within the scope of 

actions set forth in Rules 11 and 26(g), supra, which constitute 

a basis for the imposition of sanctions. 

h. Interrogatory No. 13 

' Interrogatory No. 13 requested Complainant to list dates on 

which alleged discriminatory activity occurred, and to identify 

the persons present or involved in the incidents. Complainant 

responded that the discrimination occurred over a period of from 

1988 to the presentu and indicated that those persons whom he 

intends to call as witnesses are identified in the answer to a 

previous interrogatory. In essence, Respondent argues that the 

response, being vague, evasive, and unresponsive, is the basis 

for sanctions. While the response is vague, unspecific and not 

responsive, that issue has b~_en dealt with above, I., infra, in 

my ruling on the Motion to Compel. However, the fact that the 

response is vague and not responsive to the interrogatory, does 

not form the basis for the imposition of sanctions as per 

Rules 11 and 26(g), supra. 

i. Interrogatory No. 14 

Interrogatory No. 14 requested Complainant to state the 

facts relied on supporting his contention that it is either 

hazardous or unsafe to wear metatarsal protection and to identity 

the witnesses and documents, which will be offered in support of 

his claim. Respondent, in essence, argues that Complainant's 

response is vague and attempts were not made to identify the 

information" Although the response is not specific and is not 

responsive to the interrogatory, these issues are discussed 

above, I., infra, in my ruling in the Motion to Compel. However, 

I find that Complainant 1 s response does not fall within the 

activities delineated in Rules 11 and 26(g), supra, as forming 

basis for the imposition of sanctions" 

Wherefore, taking into account all the above, it concluded 

that Respondent's Motion for Sanctions is without merit, and is 

DENIED 

£ei~ 

747 

Administrative Law Judge 

(703) 756-6210 

FAX (703) 756-6201 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 30199t 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 91-43 

A.C. No. 46-01453-03933 

Humphrey No. 7 Mine 

DECISION GRANTING IN PART AND DENYING 

IN PART MOTION TO APPROVE SETTLEMENT 

Before: Judge Fauver 

The Secretary of Labor has moved for approval of a 

settlement of three citations, under § llO(k) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

citation No. 3314307 charges a violation of 30 C.F.R. 

§ 75.515, alleging that the power cable on a permanent pump was 

not properly entered into the junction box of the pump motor. 

The inspector observed that insulated leads were exposed on the 

outs of the box. The settlement motion states that "the 

hazard presented by the violation that continued operation of 

the pump might cause the insulated ·leads to rub against the 

junction box resulting in the insulation failing and junction box 

and pump motor becoming energized." The Secretary moves to 

settle this charge by reducing the penalty and reducing the 

citation from a "significant and substantial" violation to a 

non-S&S violationi on the ground that "the Secretary does not 

bel that she can demonstrate, by a preponderance of the 

evidence, a reasonable likelihood that the hazard contributed to 

would result in an injury of a reasonably serious nature. 11 

In a similar case involving a cable entering a pump, the 

Commission affirmed a decision by a Commission judge holding that 

the violation was significant and substantial. 

Co., Inc., 7 FMSHRC 327 (1985). The judge found the pump 

vibrated and, in the absence of a bushing, the vibration could 

cause a cut in the insulation. He accepted the testimony of the 

748 
inspector that the cut in the insulation could cause the pump to 

become the ground and, if the circuit protection failed, anyone 

touching the pump frame could be shocked or electrocuted. Based 

on the evidence, the judge concluded that the violation was S&S. 

5 FMSHRC 1788 (1983). 

In reviewing the judge's holding, the Commission stated, 

inter alia: 

On review, U.S. Steel argues that the facts 

indicated that the occurrence of the events necessary 

to create the hazard, the cutting of the wires' 

insulation and failure of the electrical safety 

systems, are too remote and speculative for the hazard 

to be reasonably likely to happen and, consequently, 

that the judge erred in concluding that the violation 

was significant and substantial. 

We have held prev~9usly that a violation is 

properly designated significant and substantial "if, 

based on the particular facts surrounding that 

violation, there exists a reasonable likelihood that 

the hazard contributed to will result in an injury or 

illness of a reasonably serious nature.'' Cement 

Division, National Gypsum Co.~ 3 FMSHRC 822, 825 (April 

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

1984), we explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the 

Secretary of Labor must prove: (1) the 

underlying violation of a mandatory safety 

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

is, a measure of danger to safety--

contributed to by the violation; (3) a 

reasonable likelihood that the hazard 

contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance with the 

language of section 104(d) (1), it is the contribution 

of a violation to the cause and effect of a hazard that 

must be significant and substantial. See 6 FMSHRC at 

1836. 

749 
Applying these principles to the instant case, we 

affirm the judge's holding that the cited violation 

properly was designated significant and substantial. 

U.S. Steel's only witness did not deny that the missing 

bushing could contribute to a shock hazard. [Emphasis 

added.] Rather, because of the pump's circuit fuses 

and its dual grounding system, he described the chance 

of miners being shocked or electrocuted as "very 

slight." Moreover, the inspector effectively testified 

that if the cited condition were left uncorrected an 

accident involving shock or electrocution was 

"reasonably likely" to occur. The inspector's 

statement that a person could serve as a better ground 

than the frame ground itself if the insulation on the 

wires was cut, was not refuted by U.S. Steel, and was 

accepted by the judge. The fact that the insulation 

was not cut at the time the violation was cited does 

not negate the possibility that the violation could 

result in the feared accident. As we have concluded 

previously, a determination of the significant and 

substantial nature of a violation must be made in the 

context of continued normal mining operations. 

[Emphasis added.] U.S. Steel Mining Co., 6 FMSHRC 

1573, 1574 (July 1984). The administrative law judge 

correctly considered such continued normal mining 

operations. He noted that the pump vibrated when in 

operation and that the vibration could cause a cut in 

the power wires' insulation in the absence of a 

protective bushing. In view of the fact that the 

vibration was constant and in view of the testimony of 

the inspector that the insulation of the power wires 

could be cut and that the cut could result in the pump 

becoming the ground [emphasis added], we agree that in 

the context of normal mining operations, an electrical 

accident was reasonably likely to occur. 

Accordingly, we conclude that substantial evidence 

supports the judge's conclusion that the violation in 

this case was properly designated significant and 

substantial. * * * [7 FMSHRC at 328-329.] 

The Commission's affirmance of an S&S violation on the 

evidence in U.S. Steel would indicate that the Commission's test 

of an S&S violation is a practical and realistic question whether 

the violation presents a substantial possibility of resulting in 

injury or disease, not a requirement that the Secretary prove 

that it is more probable than not that injury or disease will 

result. Thus, vibration of the pump might cause the insulation 

to wear down to bare wire, but if the missing bushing were 

laced by the company beforehand, ~.g., in a periodic 

examination, the wire would not become bare; and even if the 

company's future examinations missed the violation, and the wire 

750 
became bare, this would not cause shock or electrocution if the 

circuit breaker system functioned properly. The inspector's 

opinion that injury was "reasonably likely" did not change the 

scenario of possibilities into a combined probability that the 

company would not detect the violation, the wire would become 

bare, and the circuit breaker system would also fail to function. 

A substantial possibility of injury, yes, but not a showing that 

injury was more probable than not. In sum, the logical basis for 

the holding of an S&S violation was a scenario of a substantial 

possibility that the violation could contribute to shock or 

electrocution, not a scenario of probability that it was more 

likely than not that such an accident would occur. 

Inasmuch as the operative test in U.S.Steel is a substantial 

possibility of injury, rather than proof that injury was more 

probable than not, the Commission's use of the phrase "reasonably 

likely to occur" or "reasonable likelihood" does not preclude an 

S&S finding where only a substantial possibility of injury or 

disease is shown by the evidence. This interpretation is 

consistent with the statutory definition, which does not use the 

phrase 11 reasonably likely to occur" or "reasonable likelihood" in 

defining an S&S violation. Under the statute, an S&S violation 

exists if "the violation is of such nature as could significantly 

and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard" (§ 104(d) (1) of the Act; 

emphasis added) . 

The settlement motion does not state or show a factual.basis 

for concluding that the alleged violation did not present a 

substantial possibility of resulting in injury within the context 

of continued normal mining operations. Determination of that 

issue will depend on a fuller presentation and evaluation of the 

facts" The settlement will therefore be rejected. 

Citation No. 3314314 charges a violation of 30 C.F.R. 

§ 75.517, alleging that a trailing cable to a continuous miner 

was not adequately insulated. The inspector observed that the 

outer jacket of the cable had been damaged and taped but the tape 

was worn, exposing the insulated leads. The Secretary moves to 

settle this citation by reducing the penalty and reducing the 

sitation to a non-S&S violation, on the ground that the Secretary 

ndoes not believe that she can demonstrate, by a preponderance of 

the evidence, a reasonable likelihood that the hazard contributed 

to would result in an injury of a reasonably serious 

nature. • . . " 

The settlement motion does not state or show a factual basis 

for concluding that the alleged violation did not present a 

substantial possibility of resulting in injury within the context 

of continued normal mining operations. For the reasons discussed 

above, I find the motion to be insufficient as to this citation. 

751 
Citation No. 3314316 charges a violation of 30 C.F.R. 

§ 75.303(a), alleging that an adequate preshift examination was 

not performed on part of the mainline track entry. The proposed 

settlement is to pay the original proposed penalty without 

changing the citation. I have considered the documentation and 

reasons for this proposal and find that the settlement is 

consistent with the purposes of § llO(i) of the Act. The 

settlement will therefore be approved as to this citation. 

ORDER 

1. The motion to approve settlement of Citation No. 3314307 

and citation No. 3314314 is DENIED. 

2. The motion to approve settlement of citation No. 3314316 

is GRANTED. 

3. Respondent shall pay, _the approved penalty of $2 59 for 

Citation No. 3314316 within 30 days of this decision. 

Distribution: 

~~ ::rM-Cv~ William Fauver 

Administrative Law Judge 

Page H. Jackson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Ballston Towers #3, 4015 Wilson Boulevard, Room 516, 

Arlingtonp VA 22203 (Certified Mail) 

Walter Jo Scheller 1 Esq", Consolidation Coal Company, Legal 

Department, 1800 Washington Road, Pittsburgh, PA 15241 

(Certified Mail) 

Mro Basil Callen, United Mine Workers of America, (UMWA), 

309 Wagner Road, Morgantown, WV 26505 (Certified Mail) 

/fb 

752