JUNE 1988 

COMMISSION DECISIONS 

06-06-88 

06-29-88 

Rivco Dredging Corporation 

Quinland Coals, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06....:03-88 

06-06-88 

06-08-88 

06-10-88 

06-13-88 

06-13-88 

06-14-88 

06-15-88 

06-20-88 

06-20-88 

06-21-88 

06-21-88 

06-22-88 

06-22-88 

06-24-88 

06-24-88 

06-27-88 

06-28-88 

06-30-88 

Meramec Aggregates, Inc. 

Rushton Mining Company 

Secretary of Labor for Orville Sparks v. 

Sandy Fork Mining Company 

BethEnergy Mines, Inc. 

Garrick Gravel Incorporated 

Cobblestone, Ltd. 

Youghiogheny & Ohio Coal Company 

Samuel Griffin v. Energy Producers Assoc. 

Consolidation Coal Company 

Beaver Creek Coal Company 

Davidson Mining Inc. 

Patrick J. Burns v. Gary Klinefelter 

Zeigler Coal Company 

Consolidation Coal Company (Order) 

Patch Coal Company 

BethEnergy Mines, Inc. 

·M.A.E. West, Incorporated 

FMC Wyoming Corporation 

Western Fuels-Utah, Inc. 

KENT 88-27-R 

WEVA 85-169 

CENT 88-40-M 

PENN 88-99-R 

KENT 88-189-D 

PENN 88-107-R 

WEST 88-95-M 

WEST 86-255-M 

LAKE 86-121-R 

KENT 88-84-D 

WEVA 87-343 

WEST 88-145-R 

WEVA 88-168 

PENN 88-4-D 

LAKE 86-35 

WEVA 88-90 

CENT 88-2 

PENN 87-145 

WEVA 87-234-R 

WEST 86-43-RM 

WEST 87-166-R 

Pg. 703 

Pg. 705 

Pg. 711 

Pg. 713 

Pg. 720 

Pg. 722 

Pg. 729 

Pg. 731 

Pg. 739 

Pg. 744 

Pg. 745 

Pg. 758 

Pg. 765 

Pg. 771 

Pg. 773 

Pg. 779 

Pg. 782 

Pg. 804 

Pg. 813 

Pg. 822 

Pg. 832 
JUNE 

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

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. 

VA 87-27. (Judge Broderick, April 22, 1988) 

Secretary of Labor, MSHA v. Missouri Rock, Inc., Docket No. CENT 87-65-M. 

(Judge Broderick, April 29, 1988) 

Secretary of Labor, on behalf of Jerry Dale Aleshire and others v. 

Westmoreland Coal Company, Docket No. WEVA 84-344-D. (Judge Broderick, 

May 10, 1988) 

No cases were filed in which review was denied. 
COM .. fl.1.ISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STR!ET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

RIVCO DREDGING .CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

June 6, 1988 

Docket Nos. KENT 88-23-R 

88-24-R 

88-25-R 

88-26-R 

88-27-R 

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

Commissioners 

AMENDED ORDER 

BY THE COMMISSION: 

These five cases had been the subject of a Petition for Discretionary Review filed by RIVCO Dredging Corporation on May 9, 1988. On 

May 25, 1988, the Secretary filed a response to the same five docket 

numbers. On May 26, 1988 this Commission issued an order remanding 

the cases. 

Upon remand, the administrative law judge noted that Docket No. 

KENT 88-27-R had become moot because the Secretary had previously 

vacated the citation associated with that docket; Citation No. 

2985270. The judge submitted an inquiry to the Commission asking if 

his dismissal of KENT 88-27-R was appropriate. 

703 
In view of the previous vacation of Citation No. 2985270, inclusion of KENT 88-27-R in the Commission's remand order was an 

administrative error. Therefore the May 26, 1988 Order is amended 

to delete KENT 88-27-R from the matters to be considered by the 

judge. 

Distribution 

Gene A. Wilson, President 

Rivco Dredging Corporation 

P.O. Box 702 

Louisa, Kentucky 41230 

G. Elaine Smith, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Road 

Suite B-201 

Nashville, Tennessee 37215 

Dennis Clark, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~~ . . ...---,) ,. . {/ k' ' t .,, ·,f/'/(_,j.-7(__,(___.- f, _L(.._,L )' , _-e_ 

Joyce A." Doyle, Commissioner;> 

Administrative Law Judge Roy Maurer 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pik~, Suite 1000 

Falls Church, Virginia 22041 

704 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1988 

v. Docket No. WEVA 85-169 

QUINLA.'t>.ID COALS, INC. 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arising under the Federal Mine 

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

Act"), is before us for a second time. In a previous decision, we 

remanded the matter to Administrative Law Judge William Fauver for a 

determination of whether a violation of 30 C.F.R. § 75.200, the 

mandatory roof and rib control standard, was the result of the 

unwarrantable failure of Quinland Coals, Inc. ("Quinland") to comply 

with the standard. 9 FMSHRC 1614, 1625 (September 1987). The sole 

issue before us now is whether the judge, on remand, erred in concluding 

that the violation of section 75.200 was the result of Quinland's 

unwarrantable failure to comply. 9 FMSHRC 2159 (December 1987) (ALJ). 

For the reasons that follow, we affirm. 

The underlying facts and procedural history are set forth in 

detail in our prior decision (9 FMSHRC at 1614-1617) and may be 

sunnnarized here. Quinland owns and operates the Quinland No. 1 Mine, an 

underground coal mine located in southern West Virginia. On October 11, 

1984, an inspector of the Department of Labor's Mine Safety and Health 

Administration ("MSHA") inspected the No. 7 seal located in an entry in 

the East Mains area of the mine. 1/ In the entry, near a crosscut, the 

inspector observed a large roof fall. As the inspector walked toward 

the seal, he observed broken. roof support posts lying on the entry 

floor. He also observed cracks in the roof of the entry which ran from 

the roof fall to and over the seal. In addition, one side of the seal 

was crushed by the weight of the roof. The inspector found that these 

lf The seal was a concrete block bulkhead notched at least six inches 

into the ribs and flush with the floor and the roof of the entry. It 

was constructed following a methane explosion, and its purpose was to 

seal off the area where the explosion occurred from the rest of the 

mine. Tr. 21. See also Bureau of Mines, U.S. Department of Interior, A 

Dictionary of Mi~g-;-Mlneral, and Related Terms 975 (1968). 

705 ,•I, I 
conditions constituted a violation of 30 C.F.R. § 75.200, in that the 

roof was not adequately supported to protect persons from falls. 2/ The 

inspector also found that the violation resulted from Quinland's -

unwarrantable failure to comply with section 75.200. Accordingly, he 

cited the violation in a withdrawal order issued pursuant to section 

104(d)(l) of.the Act. ]./ Quinland abated the violation by installing 

'];_/ Section 75.200, which restates section 302(a) of the Mirn'! Act, 30 

U.S.C. § 862(a), provides in part: 

Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof 

control system of each coal mine and the means and 

measures to accomplish such system. The roof and 

ribs of all active underground roadways, travelways, 

and working places shall be supported or otherwise 

controlled adequately to protect persons from falls 

of the roof or ribs. A roof control plan and 

revisions thereof suitable to the roof conditions 

and mining system of each coal mine and approved by 

the Secretary shall be adopted and set out in 

printed form •••• 

(Emphasis added.) 

]./ Section 104(d)(l) of the Mine Act states: 

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

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation i·s of 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he shall 

include such finding in any citation given to the 

operator under this [Act]. If, during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an orcier requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection (c) of this section to be 

withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the 

706 
approximately 20 roof support posts in the entry. 

Subsequently, the Secretary proposed a civil penalty for the 

violation of section 75.200 and Quinland requested a hearing, denying 

that it had violated the standard and denying, in the alternative, that 

it was guilty of an unwarrantable failure to comply in the event a 

violation should be found. Following an evidentiary hearing, the judge 

issued a decision in which he-found a violation of section 75.200 but 

made no finding as to whether the violation resulted from Quinland's 

unwarrantable failure to comply with the standard. 8 FMSHRC 1175, 1178 

(ALJ). Reviewing this decision, we concluded that the judge erred in 

failing to consider Quinland's challenge to the unwarrantable failure 

finding associated with the violation of section 75.200, and we remanded 

the matter to the judge. 9 FMSHRC at 1619-23. 

In his decision on remand, the judge briefly revjewed the meaning 

of the phrase "unwarrantable failure." He noted the discussions of 

unwarrantable failure in the pertinent legislative history and in United 

States Steel Corp., 6 FMSHRC 1423 (June 1984). The judge opined that 

whether the "legislative history definition" of unwarrantable failure or 

the United States Steel explanation of unwarrantable failure was 

applied, Quinland unwarrantably failed to comply with the standard. 9 

FMSHRC at 2160. · The judge found that the roof conditions were highly 

dangerous and were known or should have been known to mine management 

prior to the inspector's issuance of the order. Id. The judge also 

found that the mine foreman was aware that the roof control plan 

required broken timbers to be replaced and that some timbers had not 

been replaced. 9 FMSHRC at 2160. The judge stated, "the .•• evidence 

shows that the violative roof condition was known by [Quinland) or 

should have been known by [Quinland) before [the violation was cited), 

and the failure to correct this condition was due to an unwarrantable 

failure to comply with [section) 75.200." Id. 

The judge issued his decision on December 10, 1987. On December 

11, 1987, the Commission issued decisions in two cases addressing in 

detail the proper interpretation of the term "unwarrantable failure" as 

used in section 104(d)(l) of the Mine Act. Based upon the ordinary 

meaning of the term, the purpose of unwarrantable failure sanctions 

under the Mine Act, the legislative history, and judicial precedent, we 

held that unwarrantable failure means "aggravated conduct, constituting 

more than ordinary negligence, by an operator in relation to a violation 

of the Act." Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987). On 

review, Quinland notes that in analyzing the issue of unwarrantable 

failure, the judge did not apply the aggravated conduct standard 

enunciated in these subsequently issued decisions. Further, Quinland 

asserts that in failing to comply with section 75.200, it was "guilty of 

no more than ordinary negligence." Q. Br. 6. We do not agree. · 

Secretary determines that such violation has been 

abated. 

30 u.s.c. § 814(d)(l). 

707 
Even though the judge did not literally anticipate and apply the 

aggravated conduct standard of unwarrantable failure enunciated in 

Emery, his treatment of the question of unwarrantable failure in this 

case is in accord substantively with that decision. The judge relied 

upon the statement in the legislative history that unwarrantable failure 

to comply means "the failure of an operator to abate a violation he knew 

or should have known existed, or the failure to abate a violation 

because of a lack of due diligence, or because of indifference or lack 

of reasonable care on the operator's part." Senate Connnittee on Labor, 

Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I 

Legislative History of the Federal Coal Mine Health and Safety Act of 

1969, at 1512 (1975); see also id. at 1602. The judge also relied on 

United States Steel, supra, 6 FMSHRC at 1437, wherein we stated that 

unwarrantable failure may be proved by showing that a violative 

condition or practice resulted from an operator's "indifference, willful 

intent or serious lack of reasonable care." 

In concluding in Emery that "unwarrantable failure means 

aggravated conduct, constituting more than ordinary negligence," we 

looked to the same legislative history. 9 FMSHRC at 2002. We further 

noted that in Zeigler Coal Co., 7 IBMA 280, 295-96 (March 1977), the 

Interior Board of Mine Operations Appeals had interpreted unwarrantable 

failure to mean the failure to abate conditions or practices the 

operator "knew or should have known existed or which it failed to abate 

because of [a lack of] due diligence, or because of indifference or a 

lack of reasonable care" and that in drafting the Mine Act, the Senate 

Comrilittee report cited Zeigler with approval. Emery, supra, 9 FMSHRC at 

2002 (citing S. Rep. 181, 95th Cong., 1st Sess. at 32 (1977), reprinted 

in Senate Subcommittee on Labor, Committee on Human Resources, 95th 

Cong., 2nd Sess. Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 620 (1978)). We concluded that the terms used in 

the legislative history and in Zeigler, including the formulation used 

by the judge in this case, in large measure describe aggravated forms of 

operator conduct constituting more than ordinary negligence. 9 FMSHRC 

at 2003-04. Thus, we hold that the judge's approach to resolving the 

unwarrantable failure issue is sufficiently congruent with the 

subsequently announced "aggravated conduct" test to allow us to proceed 

to an examination of the evidence supporting the judge's finding. 

The next question, therefore, is whether substantial evidence 

supports the judge's finding that the violation of section 75.200 was 

the result of Quinland's unwarrantable failure. Applying the principles 

enunciated in Emery to the case at hand, we hold that it does. 

Substantial evidence reveals that the violation was the result of 

Quinland's serious lack of reasonable care. The conditions indicating 

that the roof was not adequately supported were extensive and visually 

obvious. The judge credited the inspector's testimony that, in addition 

to the broken posts that had not been replaced and were lying on the 

floor of the entry, there was a large roof fall near the intersection of 

the entry and the crosscut, there were cracks in the roof running from 

the intersection to and over the seal, and one side of the seal was 

being crushed by the weight of the roof. 8 FMSHRC at 1178. We have 

accepted these findings previously. 9 FMSHRC at 1618. 

708 
The mine foreman testified without dispute that the mine had a 

history of bad roof conditions similar to those involved in this 

violation. Tr. 124; 9 FMSHRC at 1618. In addition, the judge concluded 

that the roof conditions were highly dangerous, and we agree. 9 FMSHRC 

at 2160. Further, Quinland itself acknowledges that the roof conditions 

existed "for·a considerable length of time and were repeatedly observed 

by ••• the operator." Q. Br. 7. Given the extensive and obvious nature 

of the conditions, the history of similar roof conditions, and 

Quinland's admitted knowledge of the conditions, we find that Quinland's 

failure to adequately support the roof was tne result of more than 

ordinary negligence and that substantial evidence supports the judge's 

conclusion that the violation resulted from Quinland's unwarrantable 

failure. !!_/ 

One final aspect of the case requires comment. In his decision 

the judge affirmed his "previous assessment of a civil penalty for $800" 

for the violation. 9 FMSHRC at 2160. The Secretary correctly notes 

that the civil penalty previously assessed by the judge was $850, not 

$800. S. Br. 8 n.3; 8 FMSHRC at 1180. The Secretary requests that we 

correct that inadvertent error. Quinland has not objected. 

Accordingly, we affirm the judge's unwarrantable failure finding for the 

violation of section 75.200, and we amend the penalty assessment to 

$850. 

Nelson, Conunissioner 

!!_/ Quinland also asserts that prior to October 11, 1984, the 

conditions were "repeatedly observed" by MSHA's inspectors but not cited 

as a violation of section 75.200. Quinland argues that MSHA's failure 

to previously cite a violation is "compelling evidence that [Quinland's] 

conduct [was] not negligent." Q. Br. 11. Our review of the record does 

not reveal that MSHA's inspectors previously observed the conditions 

that were cited as a violation on the date at issue. 

709 
Distribution 

Dennis D. Clark, Esq. 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Anthony J. Cicconi, Esq. 

Shaffer & Shaffer 

330 State Street 

P.O. Box 38 

Madison, West Virginia 25130 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

710 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MERAMEC AGGREGATES, I~C., 

Respondent 

June 3, 1988 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 88-40-M 

A. C. No. 23-00708-05502 

Meramec Aggregates, Inc. 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On December 11, 1987, the operator's request for a hearing 

was received by this Commission. Commission rules require a proposal for a penalty to be filed within 45 days of the date the 

Secretary receives a timely notice of contest. 29 C.F.R. 

§ 2700.27. The Solicitor failed to file a penalty petition. Therefore, on March 17, 1988, an order was issued directing the 

Sol.icitor to show cause why this case should not be dismissed. 

The order was mailed to the Solicitor by certified mail, return 

receipt requested, and the file contains the receipt card from 

the Solicitor. 

The file indicates that on April 27 my law clerk spoke to 

the Solicitor, Mr. Charles Mangum, who stated he would file the 

penalty petition or a response to the Show Cause Order on April 

28. But he did not do so. The Commission does not have the 

resource$ to keep reminding Solicitors to do what the Act and 

regulations require. 

Oue to the Solicitor's failure to file a penalty petition and to comply with the show cause order, this case must be and is 

hereby DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

711 
Distribution: 

Charles Mang~m, Esq., Office of the Solicitor, U. S. Department of Labor, Room 2106, 911 Walnut Street, Kansas City, MO 64106 

(Certified Mail) 

Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400, Arlington, VA 22203 (Certified Mail) 

Meramec Aggregates, Inc., 445 W. Gravoif, St. Claire, MO 63077 

(Certified Mail) 

/gl 

712 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 6 1988 

RUSHTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

. . 

: 

: 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. PENN 88-99-R 

Citation No. 2883649i 12/8/87 

Rushton Mine 

Mine ID 36-00856 

Appearances: Joseph Yuhas, Esq., Joseph T. Kosek, Esq., Rushton 

Mining Company, Ebensburg, Pennsylvania, for the 

Contestanti 

B. Anne Gwynn, Esq., Office of the Solicitor, 

U. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary. 

Before: Judge Weisberger 

Statement of the Case 

On December 21, 1987, Rushton Mining Company (Contestant) 

filed a Notice of Contest contesting Citation No. 2883649 which 

had been issued on December 8, 1987. The Secretary (Respondent) 

filed its Answer on January 11, 1988, along with a Motion for 

Continuance. On January 21, 1988, a Prehearing Order was issued 

directing the Parties to inform the undersigned on or before 

February 1, 1988, if the Notice Contest will be withdrawn in view 

of the Commission's decision in Secretary v. Quinland Coals, 

Inc., 9 FMSHRC 1614 (Sept. 1987). It further directed the 

Parties, if the Notice of Contest will not be withdrawn, to 

confer on or before February 1, 1988, to attempt to settle this 

matter, and, in the alternative, to stipulate as to facts and 

issues concerning which there is no agreement, and complete 

discovery on or before February 1, 1988. On February 2, 1988, 

Respondent filed a Motion for Relief to File Interrogatories. On 

February 8, 1988, in a telephone conference call initiated by the 

undersigned, with attorneys for both Parties, Contestant 

indicated it did not have any objection to Respondent's Motion 

for Relief to File Interrogatories. The Attorneys indicated that 

they would be available the week of February 22, for trial of 

this matter. 

713 
Pursuant to notice, the case was heard on February 24, 1988, 

in Hollidaysburg, Pennsylvania. Donald J. Klemick and Albert G. 

Gobert testified for the Respondent. Raymond J. Roeder, Horace 

C. Pysher, Jerome F. Hewitt, and Chester Switala testified for 

the Contestant. 

Contestant filed its Proposed Findings of Fact and Conclusions of Law and Brief on April 20, 1988. The Respondent filed 

its Post Trial Findings of Fact, Conclusions of Law and Memorandmn on April 25, 1988. Contestant filed a Reply Brief on April 

29, 1988. Respondent did not file any Reply Brief. · 

Regulation 

30 C.F.R. § 75.1704-2Ca> provides as follows: 

In mines and working sections opened on and after 

January 1, 1974, all travelable passageways designated 

as escapeways in accordance with § 75.1704 shall be 

located to follow, as detennined by an authorized representative ·of the Secretary, the safest direct 

practical route to the nearest mine opening suitable 

for the safe evacuation of miners. Escapeways from 

working sections may be located through existing 

entries, rooms, or crosscuts. (Emphasis added.) 

Citation 

Citation 2883649 contains the following language: 

The designated intake escapeway from the 2N-3 002 

section to the intake shaft escape facility was not 

located to follow the safest, direct practical route. 

The escapeway was designated outby from the section to 

station 7737, through crosscuts to station 7792, then 

inby to the shaft a distance of about 2100 feet. The 

safest, direct practical route would be from the 

section traveling in a direct route to the shaft of 

about 500 feet. 

Stipulations 

At the hearing the following stipulations were entered into: 

714 
1. This Administrative Law Judge has jurisdiction over~· 

this proceeding. Both the R1.~.shton Mine and Rushton -- ----......_ 

Mining Company are subject to the jurisdiction of the~....._____ 

Federal Mine Safety and Health Act of 1977. _ 

2. Pennsylvania Mines Corporation is the parent 

corporation of Rushton Mining Company. Rushton Mining 

Company operates one mine, Rushton Mine. 

3. The subject citations were properly served by a 

duly authorized representative of the Secretary of 

Labor upon an agent of the Contestant at the dates, 

times and places stated therein, and may be admitted 

into evidence for the purpose of establishing their 

issuance, and not for the truthfulness or relevance of 

any statements asserted therein. 

4. The assessment of a civil penalty in this proceeding will not affect Contestant's ability to 

continue in business. 

5. The annual production of Rushton Mine is six 

hundred seventy-six thousand two hundred and thirty-two 

tons. 

6. The annual production of the Company is one million 

three hundred and eighty-one thousand three hundred and 

ten tons. 

7. The Rushton Mine employs approximately two hundred 

and fifty-seven miners. 

8. The Contestant demonstrated good faith in the abatement of the citation. 

9. Rushton Mine was assessed two hundred sixty-nine 

violations over five hundred and eighty-three inspection days during the twenty-four months proceeding the 

issuance of the subject citation. 

10. The Parties stipulate to the authenticity of their 

exhibits, but not to their relevance nor the truth of 

the matters asserted therein. (Tr. 5-6.) 

715 
Fi·ndings of Fact and Discussion 

I. 

Based upon the Parties' stipulations, I conclu~e that I have 

jurisdiction to hear and decide this case, and that the 

Contestant is subject to the provisions of the Federal Mine 

Safety and Health Act of 1977 and regulations promulgated thereunder. 

II. 

Contestant at the 2N-3 section of its Rushton Mine designated an escapeway, hereinafter called the Rushton escapeway, 

to serve miners working in rooms 11 through 15. This escapeway 

runs in a northeasterly direction, makes a 90 degree turn to go 

in a northwest direction, makes a go· degree turn to go in a 

southwest direction, makes a 90 degree turn to go in a northwest 

direction, and makes a 90 degree turn to go in a southwest 

direction to the No. 2 shaft which is the nearest shaft for 

exiting from the 2N-3 Section. The length of this escapeway is 

approximately 1700 feet. According to 40 C.F.R. § 75.1704-2Ca), 

escapeways shall follow "· •• the safest direct practical route 

to the nearest mine opening suitable for the safe evacuation of 

miners." (Emphasis added.) Inasmuch as this escapeway heads in 

a northeasterly direction for 12 crosscuts turns left, and then 

subsequently returns in a southwesterly direction, parallel to 

the direction in which it started, and runs for approximately 15 

crosscuts to the mine opening at shaft, No. 2, it clearly can not 

be found to be a "direct" route. To find otherwise would violate 

the clear.meaning of the word "direct" as defined in Webster's 

New Collegiate Dictionary, (1979 editions) as: "la: proceeding 

from one point to another in time or space without deviation or 

interruption: straight b: proceeding by the shortest way • n 

As such, it must be found that Contestant herein violated 

section 75.1704-2Ca), supra. 

III 

Contestant, iq abatenent, upon consultation with MSHA, 

designated the MSHA escapeway to be the escapeway for the 2N-3 

Section. The MSHA escapeway runs for approximately 500 feet to 

the No. 2 shaft, and contains only one jog and this jog is less 

than 90 degrees. The MSHA escapeway has signs and was not noted 

to have any problems with its roof or floor. 

In essence, Contestant maintains that the Rushton escapeway 

is the safest route to the nearest mine opening. The Rushton 

escapeway is located in an intake entry. In contrast, the MSHA 

escapeway depends for air upon lea~age in a hole around a door 

located in the escapeway. The volume of air entering the MSHA 

escapeway, through the closed door, was measured by Donald J. 
Klemick, a MSHA Coal Mine Inspector, at approximately 1100 cubic 

feet. Klemick and Raymond G. Roeder, a professional engineer and 

Contestant's Mine Manager, disagreed as to whether the 1100 cubic 

feet a minute measured was enough air for the escapeway. However, althoug.h the Rushton escapeway would clearly have more air, 

I find that the MSHA escapeway satisfies the requirement of 

30 C.F.R. § 75.1707, inasmuch as it is ventilated with intake 

air. 

Roeder and Horace c. Pysher, Contestant's Section Foreman 

and Safety Inspector 'l'rainer, at the date the Citation was 

issued, testified, in essence, that in the event the door in the 

MSHA escapeway would be left open as the result of miners leaving 

in haste, this would have a substantial impact upon two other 

sections of the mine that depend upon the intake air from shaft 

No. 2. Klemick and Pysher explained that with the door in the 

MSHA escapeway open, there· will be much less resistance to intake 

air from the No. 2 sha.Et which is in very close proximity and 

which would reduce the flow to the other two sections. _However, 

neither Klemick nor Pysher nor any other witness stated with 

specificity the quantity of air that will be lost to the other 

sections as a consequence of a door being left open in the MSHA 

escapeway. I thus find that there was no basis to conclude that, 

with the MSHA escapeway door left open in an emergency, there 

would be either a substantial or significant reduction of air in 

other sections. 

Respondent's witnesses, including miners Jerome.F. Hewitt 

and Chester Switala, the UMW Mine Safety Committee Chairman and 

Mine UMW Safety Committeemen respectively,·testifieci, in essence, 

that in all Contestant's·other escapeways, miners are trained to 

escape in an outby direction. Thus, in their opinion, confusion 

would result at the MSHA escapeway which ... requires.miners to 

escape in an inby direction. In their opinion, this problem was 

further exacerbated by the fact that miners are not assigned to 

2N-3 section on a regular basis, and are sent there only when 

work is not .feasible in their original sections. I find that the 

record is devoid of any empirical data to support this opinion 

testimony and accordingly find it to be speculative. 

Roeder indicated that the MSHA escapeway is unsafe as it is 

routed through the working sections 11 to 15, which contain 

various equipment and where there is the potential for.a fire. 

He thus opined that a miner would have to go through the smoke to 

get to the escapeway. In contrast, Roeder indicated that with 

the Rushton escapeway one would enter the air intake entry and 

thus escape from the smoke. However, as brought out in crossexamination, it is clear that a miner working in a room in this 

717 
section would similarly have ..to traverse any working rooms that 

are positioned between his location and the Rushton excapeway, in 

order to enter the Rushton escapeway. It thus would appear that 

the same hazards of using tha MSHA e~capeway would apply equally 

to the use of- the Rushton escapeway. · 

In addition, Roeder indicated that the Rushton escapeway is 

the shortest of all the escapeways at Contestant's mine and that 

Contestant has never been cited for the length of its escapeways, 

including those that are over 10,000 feet. Also, Pysher has 

noted that due to the proximity of the No. 2 shaft, the door in 

the MSHA escapeway would be difficult to open while carrying a 

stretcher, due to the pressure on the door. Be also opined that 

the 6 inch pipe placed below the roof, which is 5 feet above the 

floor, would unduly impede the progress of a stretcher-bearer. 

Also, Switala asserted that the Rushton escapeway provides more 

alternative avenues of escape. 

I conclude that the Rushton escapeway was violative of 

section 75.1704-2(a), as it was not a direct route to the shaft. 

In the event a hazard necessitating escape from the section, it 

is clear that an indirect route containing three 90 degree jogs 

and doubling back on itself, is a greater impediment to a speedy 

exit from a dangerous situation as opposed to the MSHA escapeway, 

which is direct and less than one third of the distance of the 

Rushton escapeway. As such, it must also be considered to be the 

"safest" within the purview of section 1704-2(a), supra. 

IV. 

Klemick testified that the use of the Rushton escapeway, as 

it is longer than the MSHA one, could result in a fatality by a 

miner being exposed to smoke or could result in falls occasioned 

by the rush to leave a dangerous situation. However, in essence, 

he indicated that in the absence of specific information, as to a 

specific hazard, it would be difficult for him to tell what would 

occur if one would have to use the Rushton escapeway. As such, I 

must find that the Respondent has not met its burden in establishing that the violation herein is to be considered significant 

and substantial (see Mathies Coal Co. 6 FMSHRC 1 (January 1984)). 

718 
ORDER 

Citation No. 2883649, dated December 8, 1987, is modified in 

that it is found to be not significant and substantial. In all 

other aspects it is affirmed. 

Distribution: 

~~ Avram Weisberger 

Administrative Law Judge 

Joseph Yuhas, Esq., Rushton Mining Company, P. o. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

B. Anne Gwynn, Esq., Office of the Solicitor, u. S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

dcp 

719 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 8 1988 

SECRETARY OF LABOR, . . DISCRIMINATION 

MINE SAFETY AND HEALTH . . ADMINISTRATION CMSHA), . . Docket No. KENT 

ON BEHALF OF ORVILLE SPARKS, : 

Complainant . . BARB CD 87-18 

v. . . 

. . No • 10 Mine 

SANDY FORK MINING COMPANY, : 

. . 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

PROCEEDING 

88-189-D 

This matter is before the Administrative Law Judge upon the 

Parties' Joint Motion to Approve Settlement and Petitioner's 

Motion to Approve Settlement and Motion of Dismiss. 

Upon consideration of the stipulation of the Parties and the 

Motions filed herein, the Administrative Law Judge, being fully 

advised, finds that the Settlement between the Parties should be 

approved and the case should be dismissed. 

It is therefore ORDERED that the Respondent comply with the 

terms of the Settlement which have not already been carried out 

and that the case herein is DISMISSED. 

~~ Avram Weisberger 

Administrative Law Judge 

720 
Distribution: 

G. Elaine Smith, Esq., Office of the Solicitor, u. s. Depar~~ent 

of Labor, 2002 Richard Jones Road, Suite B201, Nashville, TN 

37215 CCerti~ied Mail) 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky, P. o. Bo~c 360, Hazard, KY 41701 (Certified Mail) 

William A. Hayes, Esq., Hayes and Tingley, Suites 202-204, 

Peoples Building, P. 0. Box al7, Middlesboro, KY 29065 

(Certified Mail) 

dcp 

721 
/ 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE .. FALLS CHURCH, VIRGINIA 22041 

JUN 101988 

BETHENERGY MINES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. PENN 88-107-R 

Order No. 2878578; 12/8/87 

Cambria Slope Mine No. 33 

Mine ID 36-00840 

Appearances: Howard K. Agran, E$q., Office of the Solicitor, 

u. S. Department of Labor, Philadelphia, 

~ennsylvania, for the Secretary; 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 

Pittsburgh, Pennsylvania. 

Before: Judge Weisberger 

Statement of the Case 

In this proceeding, BethEnergy Mines, Inc., (Contestant) 

seeks to contest a section 104Cd)(2) Order issued on December 9, 

1987. The Notice of Contest was filed on January 4, 1988, and 

the Answer of the Secretary (Respondent) was filed on January 25, 

1988. Pursuant to notice, the case was heard in Hollidaysburg, 

Pennsylvania, on February 25, 1988. Samuel J. Brunatti and 

Joseph o. Hadden, Jr. testified for Respondent. William H. 

Radebach and.John Gallick testified for Petitioner. 

Contestant filed its Brief on April 21, 1988 and the 

Respondent filed its Findings of Fact and Conclusions of Law on 

April 25, 1988. 

Stipulations 

The Parties stipulated the following facts as set forth in 

Contestant's Prehearing Memorandum: 

1. The Cambria Slope Mine No. 33 is owned and operated 

by BethEnergy. 

722 
2. The Administrative Law Judge has jurisdiction over 

this proceeding; BethEnergy and Mine No. 33 are subject 

to the jurisdiction of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. §§801 et seq. 

3. The annual production of Mine 33 is approximately 

1.7 million tons. The operator's annual production is 

approximately 6 million tons. 

4. The authenticity of the exhibits at hearing is 

stipulated, but no stipulation is made as to the facts 

asserted in such exhibits. 

5. The subject order was properly served by a duly 

authorized representative of the Secretary of Labor 

upon agents of BethEnergy and may be admitted into 

evidence for the purpose of establishing its issuance 

and not for the truthfulness or relevancy of any statement asserted therein. (Respondent's Prehearing 

Memorandum P. 2-3, Tr. 9-10.) 

6. That no clean intervening inspection had occurred since 

the issuance of the June 25, 1985, section 104Cd) Order on 

which the section 104Cd>C2> Order was based. (This stipulation is contained in Contestant's Letter of March 1, 

19 88. ) 

Regulatory Provision 

30 C.F.R. § 75.316 provides as follows: 

"A ventil::i.tion system and methane and dust c.ontrol 

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 sh~ll show the type and location 6f 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." 

723 
Approved Ventilation Plan 

Page 7 of the approved plan as pertinent provides as 

follows: 

* * * 

In addition to the other information required to 

be shown on the map, the following shall also be shown: 

* * * 

2. All stopping, regulators, overcasts, 

undercasts, air-lock and man doors. 

Revision No. 29 approved August 24, 1987, provides as 

pertinent as follows: 

Construction of Regulators 

"Regulators are constructed of concrete 

blocks or steel or a combination of both." 

Order No. 2878578 

Order No. 2878578 issued on December 8, 1987, provides as 

follows: 

The approved ventilation and methane and dust control plan was not being complied with in the 1 

West C prime area of the mine in that an intake 

regulator constructed of brattice cloth was placed 

across the 1 West left side intake entry just inby 

the junction of the No. 7 entry of left. The 

operator has no approval to construct air intake 

regulators at this location. The operator was 

previously notified that prior to constructing 

intake regulators prior approval must be obtained 

from the District Manager. The operator's 

approved plan state~ regulators will be constructed of concrete blocks or steel or a 

combination of both, not canvas. This area is 

examined each week by a cartif ied person. 

Findings of Fact and Conclusions of Law 

Based upon the stipulation of the Parties, I conclude that 

Contestant is subject to the jurisdiction of the Federal Mine' 

Safaty and Health Act of 1977, 30 U.F.C § 801 et seq., and that I 

have jurisdiction over this proceeding. 

724 
I. 

William H. Radebach, who was responsible for all the underground work at Respondent's C prime seam, testified, in essence, 

that sometime in September of 1987, there was too much air going 

up the No. 4 intake entry. Accordingly, he installed a curtain 

with an opening of approximately 2 feet by 3 feet in the upper 

right hand corner in order to decrease the amount of air going up 

this entry. The ventilation plan in affect, when the curtain was 

installed, and when it was observed by MSHA Inspector Samuel J. 

Brunatti, on December 9, 1987, did not indicate any regulator, 

door, or check curtain at the site where Radebach installed the 

curtain in question. 

It is Contestant's position, as testified by Radebach, that 

the curtain in question was installed only as a temporary measure 

pending approval of permanent stoppings in entry No. 4, which had 

been submitced to MSHA for approval on October 29, 1987. John 

Gallick, the Director of Safety for Respondent's Pennsylvania 

Division, testified, in essence, that temporary curtain checks 

are usually installed at the discretion of the foreman, as there 

are always daily adjustments being made. Essentially he indicated that subsequent to the installation of temporary curtains, 

submissions are provided to MSHA at the next six month ventilation plan review. On cross-examination, Brunatti indicated that 

he agreed that temporary canvas curtains in the work face can be 

moved in the course of the day without prior approval, and that 

if a regulator would have to be repaired a temporary curtain 

could be installed without prior approval of MSHA. 

The ventilation plan for Respondent, as indicated in 

Government Exhibit 2, required all regulators· to be shown on the 

Ventilation Plan Map. The plan does not contain· any definition 

of the term regulator nor is such a term defined in the regulations. ~he only definition in the record of the term regulator 

consists of the uncontradicted testimony of Brunatti and Joseph 

D. Hadden, Jr., MSHA's District Chief of Ventilation. Brunatti 

indicated that a brattice curtain or check redirects air from one 

entry to another, whereas a regulator is used to control the 

amount of air going through it by its opening and closing. (Tr. 

24) In similar fashion, Hadden stated that a regulator provides 

an artificial resistance in an air course, (Tr. 127), and is 

designed to provide uniform distribution of air in sections (Tr. 

139). Radebach also indicated that among other devices canvas 

checks are used to regulate air CTr. 181). Also the MSHA 

Training Manual, Government Exhibit 8, indicates that a regulator 

can be made by tacking down one corner of a check curtain. 

725 
Accordingly, I find that the check curtain in question, 

installed with one corner down in order to decrease the flow of 

air in the No. 4 entry, was a regulator. Inasmuch as the curtain 

in question was placed at a position that was not approved for 

the placement of a regulator in the ventilation plan that was in 

effect, I find that there was a violation of the ventilation plan 

and hence of section 75.316, supra. 

In reaching my decision, I did not place much weight upon 

Respondent's argument that the check curtain in question was only 

temporary, and that temporary curtains do not have to be shown on 

a ventilation plan. Gallick's testimony is to the effect that, 

in general, temporary checks are installed at the discretion of 

the foreman (Tr. 242), and thus are not required to be noted in a 

ventilation plan. I find that Brunatti's testimony clarifies 

that temporary curtains can be moved and installed on a regular 

basis when they are utilized at the working face where coal is 

actually being mined (Tr. 23, 57). He also indicated that temporary curtains could be installed at the site of a regulator if 

the latter is being· repaired (Tr. 82, 87). In contrast, the 

curtain in question was installed approximately 5,000 feet from 

the working face. Al8o, there is a doubt as to whether the 

instant canvas curtain was only temporary. I note that Radebach 

indicated, on cross-examination, that it was intented to leave 

the curtain in question" in place "forever" ir necessary or until 

MSHA had approved his plan for a permanent stopping. (Tr. 203) 

II. 

Brundtti also found the canvas curtain in question to be 

violative of a provision of the plan, Government Exhibit 4, which 

is headed "construction of regulators" and which provides that 

"Regulators are constructed of concrete blocks or steel or a 

combination of both." Radebach testified that MSHA employee Alex 

O'Rourke, upon reviewing Contestant's proposals concerning 

construction of regulators, indicated, in essence, that MSHA's 

concern was directed to the regulators used to control the return 

air on working sections. (Tr. 183) Gallick indicated when he 

met with O'Rourke, pursuant to a MSHA's request to present 

language concerning the construction of regulators, there was no 

discussion with regard to temporary regulators and the examples 

used at the diocussion related to split regulators. He said that 

it was not contemplated that the language in Government Exhibit 4 

was to include temporary regulators. However, for the reasons I 

set forth above, (infra I.), I have concluded that the curtain in 

question was a regulator. As such, the unqualified language of 

726 
the plan, as evidenced by Government Exhibit 4, required it to be 

constructed of either concrete blocks or steel or both. Inasmuch 

as the curtain in question was constructed of canvas it violated 

the approved ventilation plan. 

III. 

It is the position of the Respondent, that the violation 

herein was significant and substantial. Respondent's witnesses 

indicated that the installation of the curtain in question, with 

only an approximately 2 feet by 3 feet opening, along with the 

fa6t that the other entries in the section are closed off, could 

have the effect of decreasing the air in the gob area to the 

point where there would be insufficient air to vent the methane 

there. In this connection, reference is made to testimony that 

Contestant's ffiine produces the most methane in the State of 

Pennsylvania. Also, Respondent cites testimony to the effect 

that the curtain herein, due to its canvas construction, is 

susceptible of becoming dislodged or knocked down in a rib roll 

or roof fall. It thus is argued that should it be dislodged it 

would have the effect of reducing the air available to ventilate 

the gob area between No. 2 West and No. 1 West Sections. 

I conclude that the hazard of an accumulation of methane 

from the gob area, is contributed to by the installation of the 

curtain herein. However, I find tnat there was insufficient 

evidence to conclude that there is a "reasonable likelihood that 

the hazard contributed to will result in injury." (Mathies Coal 

Company 6 FMSHRC 1, 3-.i (January 1984); (See also, Texas Gulf, 

Inc. 10 FMSHRC (Slip. op. April 20, 1988)). I note, in this 

connection, that the Respondent has failed to introduce any 

evidence as to either the specific amount of methane in the gob 

area, or any measurement of air flow subsequent to the installation of the curtain in question. The only evidence with regard 

to methane, consists of Brunatti's statements, on cross-examination, that, based on an auto tester when he was in the area in 

question, he concluded that the methane was not in excess of one 

percent. He did not indicate the specific measurement of the 

methane. In addition, any li~elihood of an explosion is minimized by the fact that on the date in question, mining was no 

longer being performed in the No. 1 West Main Section. I thus 

conclude that the violation herein was not significant and 

substantial (see Mathies Coal Company, supra). 

IV. 

Respondent's position, that the violation herein was caused 

by Contestant's "unwarrantable failure," appears to be predicated 

upon the opinion of Brunatti that, in essence, the installation 

of the curtain in question, was a device identical to that 

requested by Respondent in its letter of October 29, 1987, and 

not accepted by MSHA on November 19, 1987, (Government Exhibit 5). 

727 
Also cited by Respondent is the testimony of Radeback agreeing 

that the regulators in use in No. 1 West Section on December 9, 

did not meet the terms of Government Exhibit 4, which sets forth 

the construction requirements of regulators CTr. 200). 

Respondent avers that accordingly contestant instal~ed the 

curtain in question knowing it did not comport with Government 

Exhibit 4. In addition, Respondent argues that Contestant's 

witnesses acknowledged that the ventilation plan does not contain 

any provisions permitting the installation or erection of such a 

temporary curtain. 

In the recent case of Emery Mining Corporation 9 FMSHRC 1997 

(December 1987), the Commission held that "unwarrantable failure," 

is more than ordinary negligence and requires "aggravated conduct." 

I find the testimony of Contestant's witnesses to be credible and I 

conclude that they acted in good faith, although in error, in 

interpreting the ventilation plan in question as not requiring 

prior approval by MSHA of the installation of temporary curtains, 

such as the one in question. Accordingly, I find that Contestant's 

violation of the section 316, supra, and the ventilation plan was 

not as a result of its aggravated conduct. Further, I find the 

testimony of Contestant's witnesses to be credible and find that 

they acted in good faith in interpreting the ventilation plan 

herein as not requiring a temporary curtain regulator to be constructed of either concrete block or steel as set forth in 

Government Exhibit 4. Accordingly, I conclude that Contestant's 

action herein did not constitute an unwarrantable failure. 

ORDER 

It is ORDERED that Citation No. 2878578 issued on December 

9, 1987, be modified to a section 104(a) Order and to reflect 

that it is not significant and substantial and is not caused by 

Contestant's unw~rrantable failure. In all other respects the 

Citation is affirmed. 

Distribution: 

Avram ~~ Weisberger 

Administrative Law Judge 

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

75th Floor, Pittsburgh, PA 15219 (Certified Mail) 

Howard K. Agran, Esq., Office of the Solicitor, u. s. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified-Mail) 

dcp 

728 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JUN 131988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GARRICK GRAVEL INCORPORATED, 

Respondent 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-95-M 

A.C. No. 24-01804-05502 

Garrick Gravel 

Appearances: Margaret A. Miller, Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

No api;>earance was made on Respondent's behalf. 

Before: Judge Cetti 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges Respondent with violation 

of three safety regulations promulgated under Federal Mine Safety 

and Health Act, 30 u.s.c. § 801 et seg., (the Act). 

This proceeding was initiated by the Secretary with the 

filing of a proposal for assessment of a civil penalty in the 

amount of $119 for each of the three violations in the total 

amount of $357. The Respondent filed a timely appeal admitting 

the violations alleged in the three citations but contesting the 

amount of the proposed penalties. 

After notice to the parties by certified mail as to time and 

place of hearing, a hearing was held in the above-captioned case 

on May 10, 1988. The Secretary was represented by Margaret A. 

Miller, Esq., Office of the Solicitor, U.S. Department of Labor. 

No one appeared on behalf of Respondent. 

The secretary's request that the record be opened to present 

documentary and oral evidence was granted. 

Richard c. Ferreira, a mine inspector employed by MSHA, 

inspected the Garrick Gravel plant on September 15, 1987. As 

a result of that inspection he issued Citation Nos. 2649490, 

2649491 and 2649492 to the Respondent, Garrick Gravel Incorporated, for the violation of 30 C.F.R. § 56.12001, § 56.12025 

and § 56.12013. 

729 
At the hearing oral and documentary evidence was presented 

fully justifying the $119 proposed civil penalty for each of the 

violations. The mine inspector testified that at no time during 

his September 1987 inspection was anyone told that no penalties 

would be assessed on the violations. 

On May 16, 1988 the undersigned Judge issued a notice of 

intention to issue a decision to uphold the violations and assess 

the Secretary's proposed civil penalty of $119 for each of the 

three violations in the total amount of $357 unless good cause 

to the contrary be shown in writing within 10 days. No response 

to the notice of intention has been received. 

In concluding that the Secretary's proposed $119 penalty 

for each of the violations is the appropriate penalty, I have 

considered the criteria set forth in Section llO(i) of the Act. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated the mandatory safety standard 

30 C.F.R. § 56.12001 as alleged in Citation No. 2649490. 

3. Respondent violated the mandatory safety standard, 

30 C.F.R. § 56.12025 as alleged in Citation No. 2649491. 

4. Respondent violated the mandatory safety standard, 

30 C.F.R. § 56.12013 as alleged in Citation No. 2649492. 

5. The appropriate penalty for each of the violations is 

$119. 

ORDER 

Citations Nos. 2649490, 2649491, 2649492 are affirmed and 

the Respondent is ordered to pay a civil penalty of $357.00 to 

the Secretary within 30 days of the date of this decision. 

st 

nistrative 

F. Cetti 

~~ Law Judge 

Distribution: 

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

Denver, CO 80294 (Certified Mail) 

Mr. Norman L. Garrick, President, Garrick Gravel Incorporated, 

P.O. Box 2966, Missoula, MT 59806 (Certified Mail) 

730 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COBBLESTONE, LTD., 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JUN 131988 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 86-255-M 

A.C. No. 05-03950-05503 

Docket No. WEST 87-25-M 

A.C. No. 05-03950-05504 

Triangle One Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Mr. Leonard w. Lloyd, Owner, Cobblestone, LTD., 

Pagosa Springs, Colorado 

pro se. 

Before: Judge Cetti 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges Cobblestone LTD. (Cobblestone) 

with violating five safety regulations promulgated under the 

Federal Mine Safety and Health Act, 30 u.s.c. § 801 et seq., (the 

Act). These cases are before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to Section 

105(d) of the Act. 

Threshold Issue: 

Respondent raises a threshold issue·of jurisdiction which 

could be depositive of these proceedings. Respondent contends 

that he was not engaged in inters.tate commerce and therefore the 

Mine Safety and Health Administration (MSHA), is without jurisdiction over his activities at his gravel pit, particularly on 

the date of inspection through the date set for abatement. 

Respondent contends that the Secretary failed to establish that 

the activities in which respondent was engaged at the time of 

inspection affected interstate commerce. 

The gravel pit in question is a family owned and operated 

enterprise. The owner, Mr. Lloyd, testified that he operates the 

pit with the help of his son, daughter and wife. He does 90 

percent of his own labor. His only employee works part time. 

731 
Mr. Lloyd testified that he purchased the ten acres on which 

the pit is located solely for the purpose of building a family 

residence. Some years later he discovered a gravel deposit on 

the-property and commenced extracting crushing and stock piling 

gravel. He extracts and crushes rock only when the weather 

permits. However, he is open all year round for sale of his 

stock piled gravel products to various contractors. Cobblestone's gross volume averages a little over $100,000 a year. It 

uses United States mail and telephones in its business 

operations. 

The primary product is crushed gravel from four-inch minus 

to three-quarter inch minus which is used for sub road and top 

road base. The contractors haul the purchased gravel from the 

site in their own trucks. Cobblestone has never delivered any of 

its products. The pit is located a little over a quarter of a 

mile from the public road. 

There are two loaders on the property. The primary loader 

is a Michigan 275B rubber tire loader. Other equipment used at 

the site are a 955 Caterpillar, a D-8 Caterpillar and several 

crushers including a jaw crusher, and a roller crusher. 

Respondent's gravel pit and crush stone operation is a mine 

within the meaning of the Act. Section 3Ch>C1> of the Act reads 

in part as follows: 

"Coal or other mine" means (A) an area of land from which 

minerals are extracted in nonliquid form ••• CB) private 

ways and roads appurtenant to such area, and CC) lands, 

excavations, ••• workings, structures, facilities, equipment, machines, tools, or other property ••• on the surface 

or underground, used in, or to be used in, or resulting 

from, the work of extracting such minerals from their 

natural deposits in nonliquid form, ••• or used in, or to 

be used in, the milling of such minerals ••• 

Respondent was extracting minerals Crock) from their natural 

deposit in nonliquid form, crushing it, and stock piling it for 

sale to various contractors throughout the year. Thus it is 

clear that respondent's gravel pit and crushed stone operation is 

a "mine" as defined in§ 3(h)(l) of the Act. 

Cobblestone, however, contends that it was not engaged in 

interstate commerce and therefore MSHA had no authority or jurisdiction to issue the citations in question on May 14, 1986. 

Respondent's contention is based upon the owners unrebutted 

testimony that on the date of inspection he was crushing and . 

producing gravel solely for his own personal use on the mile and 

a half roadway which he maintains all year round on the property 

where he has his family residence and the gravel pit. The owner 

732 
testified that his production of gravel for his own personal use 

from May 12 to May 28, 1986, was not an isolated incident. Each 

year since he commenced operating the pit, approximately six 

years ago, he has produced gravel for his personal use on the 

driveway to his residence and on his gravel haul road. 

Cobblestone also presented evidence that the gravel pit 

had been closed for production of gravel for commercial purposes 

since the Fall of .1985. The owner operator testified that he 

planned not to reopen the pit for production of gravel for 

commercial sale until June 9, 1986 and had so notified the MSHA 

Regional Office in Grand Junc~ion, Colorado. This is reflected 

in MSHA's records. 

Looking first to the Act itself, Section 4 for the Act 

states that: 

"Each coal or other mine, the products of which enter 

commerce, or the operations or products of which affect 

commerce, and each operator of such mine and every miner in 

such ·mine shall be subject to the provisions of this Act." 

"Commerce" is defined in section 3{b) of the Act as follows: 

"Trade, traffic, commerce, transportation or communication 

among the several states, or between a place in a state and 

any place outside thereof, or within the District of 

Columbia, or a possession of the United States, or between 

points within the same state but through a point outside 

thereof." 

The use of the phrase "which affects commerce: in Section 4 

of the Act, indicates the intent of Congress to exercise the full 

reach of its constitutional authority under the commerce clause. 

See Brennan v. OSHRC, 492 F.2d 1027 {2nd Cir. 1974); U.S. v. Dye 

Construction Co., 510 F.2d {10th Cir. 1975); Polish National 

Alliance v. NLRB, 322 U.S. 643 {1944); Godwin v. OSHRC, F.2d 1013 

{9th Cir. 1976). 

On reviewing the relevant case law, I conclude that Respondent's contention that MSHA had no authority to issue the 

citations on the day of the inspection {May 14, 1986) because at 

that time he was producing gravel only for his personal use is 

contrary to the prevailing law. United States Supreme Court has 

ruled that a farmer growing wheat solely for his own needs 

affects interstate commerce. The Court stated that while the 

farmer's contribution to the demand for wheat may be insignificant by itself the cumulative impact of all such production by 

others similarly situated is significant and has an impact on 

interstate commerce. See Wickard v. Filburn, 317 U.S. 111, 128, 

Cl942); Fry v. United States, 421 U.S. 542, 547 (1975). 

733 
Even though no evidence was presented to show that the 

gravel respondent produced for sale to contractors was or was not 

used solely intrastate, nevertheless it may reasonably be 

inferred that even intrastate use of the gravel would impact upon 

the interstate market. It is also reasonable to infer that some 

of the equipment respondent· was using such as the 955 

Caterpillar, the D-8 Caterpillar and the Michigan 275B rubber 

tired loader were manufactured outside the respondent's home 

State of Colorado. It has been held that use of equipment that 

has been moved in interstate commerce affects commerce. See 

United States v. Dye Construction Co., 510 F.2d 78, 82 (1975). 

It has been stated that accidents in mines disrupts 

production and causes loss of income to operators which in turn 

impedes and burdens commerce. See 30 u.s.c. Section 801Cf). 

Thus any disruption of a mines operations in safety and health 

hazards affects interstate commerce. See Marshall v. Kilgore, 

478 Supp. 4~ Marshall v. Bosack, 463 F. Supp. 800. The United 

States Supreme Court in Donovan v. Dewey, 452 U.S. 594, 602 

(1981) stated "As an initial matter, it is undisputed that there 

is a substantial federal interest in improving the health and 

safety conditions in the Nation's underground and surface mines. 

In enacting the statute, Congress was plainly aware that the 

mining industry is among the most hazardous in the country and 

that the poor health and safety record of this industry has 

significant deleterious effects on interstate commerce." 

It is concluded that under prevailing law the operations 

and prof its of Cobblestone affect interstate commerce and that 

its operation is subject to the provision of the Act. 

Docket WEST 86-255-M 

Citation No. 2634705 

This citation charges Cobblestone with a violation of 30 

C.F.R. § 56.15002 which provides as follows: 

All persons shall wear suitable hard hats when in or 

around a mine or plant where falling objects may create 

a hazard. 

. The Mine Safety inspector during his inspection of May 14, 

1986, observed that Respondent's part time employee, Mr. Hagar, 

was not wearing a hard hat while operating the jaw crusher. The 

inspector testified that the intake opening at the top of the jaw 

breaker where the material is dumped did not have a screen. 

Consequently, when some of the stones dumped into the top opening 

were pinched by the jaws and flew up in the air there was nothing 

to prevent the stones from falling on the operator's unprotected 

head. 

734 
The part-time employee was observed again on May 28th 

working in the plant area without a hard hat. At that time the 

citation was replaced by a 104Cb) noncompliance order. Thereafter the employee wore a hard hat. Both the citations and the 

noncompliance order state that only one person was affected by 

the violation. 

On the basis of the mine inspectors testimony it is found 

that at the time of the inspection the operator of the jaw 

crusher was not wearing a suitable hard hat while operating the 

jaw crusher. It is therefore concluded that there was a 

violation of 30 C.F.R. § 56.15002. 

The appropriate penalty for each citation will be discussed 

below under the heading penalty. 

Citation No. 2634707 

This citation charges respondent with the violation of 

30 C.F.R. § 56.15003 provides as follows: 

All persons shall wear suitable protective footwear when 

in or around an area of a mine or plant where a hazard 

exists which could cause an injury to the feet. 

During the May 14, 1986 inspection Roy Trujillo, the MSHA 

mine inspector, observed the owner-operator wearing a pair of 

tennis shoes while working in and around an area of the plant 

where there was a hazard from falling rocks that could cause 

injury to his feet. The mine inspector presented evidence that 

tennis shoes were not a suitable protective footwear when a 

person is in or around an area of the mine or plant where such a 

hazard exists. 

The evidence presented establish a violation of 30 C.F.R. 

§ 56.15003. 

On May 28, 1986, the citation was replaced by a 104Cb> 

noncompliance order. The citation and the 104Cb) noncompliance 

order were terminated June 17, 1986. 

Citation No. 2634706 

The citation charges respondent with a violation of 30 C.F.R. 

§ 56.12028 which provides as follows: 

Continuity and resistance of grounding systems shall be 

tested immediately after installation, repair, and modificationi and annually thereafter. A record of the resistance measured during the most recent tests shall be 

made available on a request by the Secretary or his duly 

authorized representative. 

735 
This citation states that "a continuity and ground resistance test hadn't been performed this year since the operator 

started". The mine inspector presented undisputed testimony that 

the required test had not been performed. 

On May 28, 1986, the mine inspector replaced the citation 

with a 104Cb> noncompliance order because the operator failed to 

have records showing the resistance of the grounding system. 

The operator testified that the test was made as soon as he 

could get a qualified person to make the test. The citation was 

terminated June 17, 1986. 

The evidence presented established a violation of 30 C.F.R. 

§ 57.12028. 

Citation No. 2634737 

This citation charges the operator with a violation of 30 

C.F.R. § 57.14001 which provides as follows: 

Gears; sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan 

inlets; and similar exposed moving machine parts which 

may be contacted by persons, and which may cause injury 

to persons, shall be guarded. 

The mine inspector presented evidence that there was no 

guard on the V-Belt drive for the jaw crusher's electric motor. 

The belt was opposite the bull wheel inby the ladder used to 

climb to the crusher platform. The absence of the guard created 

a pinch point hazard. The pinch point was located five feet four 

inches above the ground. 

The evidence presented establish a violation of § 57.14001. 

At the time of his re-inspection the mine inspector observed 

that the operato~ had not installed a guard for the V-Belt drive 

on the jaw crusher. He therefore replaced the citation with a 

104(b) noncompliance order. 

The violation was corrected and terminated on June 17, 1986. 

Docket No. WEST 87-25-M 

Citation No. 2634736 

Respondent was charged with a violation of 30 C.F.R 

§ 56.12032 which provides as follows: 

Inspection and cover plates on electrical equipment and 

junction boxes shall be kept in place at all times except 

during testing or repairs. 

736 
The mine safety inspector presented evidence that the cover 

was missing on the junction box for the electric motor that 

drives the jaw crusher. It was undisputed that a big rock had 

fallen and smashed the junction box. The electrical connection 

within the junction box was exposed to the weather. 

On the re-inspection of May 28, 1986 the mine inspector 

observed that the junction box still did not have a cover. Consequently, he replaced the citation with a 104Cb) noncompliance 

order. The violation was terminated on June 17, 1986. On July 

7, 1986, the citation was modified by MSHA from a significant and 

substantial to a non significant and substantial violation. 

The evidence presented established a violation of 30 C.F.R. 

§ 56.12032. 

Penalties 

Section llO(i) of the Act mandates Commission consideration 

of six criteria in assessing appropriate civil_penalties: 

Cl) the operator's history of previous violations; (2) the 

appropriateness of the penalty to the size of the business of the 

operator; (3) whether the operator was negligent; (4) the effect 

on the operator's ability to continue in business; (5) the 

gravity of the violation; and (6) whether good faith was demonstrated in attempting to achieve prompt abatement of the 

violation. 30 u.s.c. § 820Ci). 

The parties stipulated to the small size of the operator's 

business. This stipulation is appropriate and ·accepted. It was 

a small family enterprise with the operator performing most of 

the work with the help of his family and only one part-time 

employee. 

The record reflects the operator has at least a moderate 

history of previous violations. 

The operator testified as to his substantial financial 

obligations including the payment of a heavy mortgage on the 

equipment and property. Nevertheless, I find no persuasive 

evidence that the imposition of authorized penalties would adversely affect respondent's ability to continue in business. 

The operator was negligent in failing to comply with the 

standard alleged in each of the citations. Although there was no 

accident or injury during the years the respondent operated the 

gravel pit, the violations if continued unabated could have 

resulted in serious injury. 

In determining the appropriate penalty I have also taken 

into consideration that most of the work was performed by the 

operator himself and that each of the citations reflect that only 

one or two persons were affected by the violations. 

737 
The operator's failure to promptly abate the violations 

during the period of time from the May 14th inspection to the May 

25th reinspection is serious. However, I am satisfied from the 

record that the operator was sincere though mistaken in his 

belief that MSHA did not have jurisdiction or authority to issue 

the citations because during that period of time the owneroperator was producing gravel solely for his personal use. 

Taking into consideration the six statutory criteria set 

forth in Section llOCi> of the Act particularly the size of this 

family enterprise, the appropriateness of the penalty to the size 

of the business and the operator's sincere though mistaken belief 

that MSHA had no authority to issue the citations during the 

period May 12th to May 28th, I find that the appropriate civil 

penalty for each of the violations is $50.00. 

Conclusions of Law 

1. The commission has jurisdiction to decide this case. 

2. Respondent violated the mandatory safety standards as 

alleged in each of the citations. 

3. The appropriate civil penalty for each of the violations 

is $50.00. 

ORDER 

Each of the citations herein is affirmed and the respondent 

is ordered to pay a civil penalty of $250.00 to the Secretary 

within 30 days of the date of this decision. 

Distribution: 

v. Gft 

Aug t F. Cetti 

Administrative Law Judge 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Cobblestone, LTD., Mr. Leonard W. Lloyd, P.O. Box 173, Pagosa 

Springs, CO 81147 (Certified Mail) 

/bls 

738 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

YOUGHIOGHENY & OHIO COAL 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

YOUGHIOGHENY & OHIO COAL 

COMPANY, 

Respondent 

JUN 141988 

: CONTEST PROCEEDING 

: Docket No. LAKE 86-121-R 

: Order No. 28286341 8/5/86 

. . 

. . 

. . 

Nelms No. 2 Mine 

: CIVIL PENALTY PROCEEDING 

: 

: Docket No. LAKE 87-9 

: A. C. No. 33-00968-03650 . . 

: Nelms No. 2 Mine . . 

. . 

: 

. . 

DECISION 

Appearances: Patrick M. Zohn, Esq., Office of the Solicitor, U.S. 

Department of Labor, Cleveland, Ohio for the 

Secretary of Labor1 

Robert C. Kata, Esq., St. Clairsville, Ohio, for 

Youghiogheny & Ohio Coal Company. 

Before: Judge Melick 

These cases are before me upon remand by the Commission on 

May 13, 1988, to determine the validity of the order at bar 

issued pursuant to section 104(d)(l) of the Federal Mine Safety 

an_d Health Act of 1977, 30 u.s.c. § 801 et. seq., the "Act". 

More .specifically the issue on remand is whether the admitted 

violation of 30 C.F.R. § 75.1710-l(a)(2) charged in the order was 

the result of the mine operator's unwarrantable failure to comply. 

The Commission has also directed that the penalty assessment be 

reexamined in light of the determination on unwarrantability. 

Unwarrantable failure means aggravated conduct, constituting 

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

a violation of the Act. Emery Mining Corporation, 9 FMSHRC 1997 

739 
(19.87), petition for review filed 88-1019 (DC Cir. January 1988); 

Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (1987). In these 

cases the Commission compared ordinary negligence, as conduct 

that is "inadvertant," "thoughtless," or "inattentive," with 

conduct constituting an unwarrantable failure i.e. ~onduct that 

is "not justifiable" or "inexcusable". 

In this case the evidence is undisputed that on 

August 1, 1986, Youghiogheny and Ohio Coal Company (Y & 0) 

section foreman John Slates directed one of his miners, David 

Parrish, to operate a scoop tractor not equipped with a canopy 

inby the last open crosscut in the main north section of the 

Nelms No. 2 mine. Because of the mining height the operation of 

the scoop in this area without a cab or canopy was acknowledged 

to be a violation of the cited standard. 

David Parrish testified that Slates told him to operate the 

scoop in the violative manner. Moreover Slates himself admitted 

to Inspector Ervin Dean of the Federal Mine Safety and Health 

Administration (MSHA.), in the presence of Y & O mine 

superintendent Charlie Wurschum and Y & O safety director John 

Woods, that "they had used the scoop in and inby that area, inby 

the last open break," and that "it didn't have a canopy on it," 

and that "he knew that it was supposed to." (Tr. 13-14 and 

16-17). Slates also acknowledged to Inspector Dean that he had 

ordered the scoo9 tractor to be operated without a canopy in the 

last open crosscut and that he knew it was a violation (Tr. 13 

and 28). 

Under cross examination by counsel for Y & o, Inspector Dean 

thought that Slates "might have said something to the effect I 

wasn't thinking", but he was not sure that was said. In addition 

on further cross examination of Dean the following colloquy 

occurred: 

Q [By Y & O Counsel] You said he [Foreman John Slates] 

wasn't thinking. Did that lead you to believe he might 

have made a mistake? 

A [By Inspector Dean] I don't have a doubt that he made a 

mistake. 

Q I mean as opposed to intentionally breaking the law? 

A Yes. And again, I said he may have said that. I don't 

really remember what was said. 

Q Wouldn't that be very important to you to know why he 

operated that piece of equipment like that? 
A Yes. 

Q But you didn't -- you just thought he might have said it 

that he wasn't thinking at the time? 

A Yes, I guess so. [Tr. 28-29]. 

Y & O has suggested that the above testimonial exchange 

proves that Sectlon Foreman Slates did not intentionally direct 

the scoop tractor to be operated without a canopy in the last 

open crosscut and that his conduct or failure to act was 

therefore the result of mere inattention or inadvertance. 

However since a necessary premise underlying the questions 

propounded by Y & O counsel was never established (Dean could not 

"really remember" what Slates had said) the testimonial 

conclusion (that Slates was not intentionally breaking the law) 

based on that premise must be disregarded. Indeed the testimony 

of Inspector Dean is so equivocal, uncertain and ambiguous on 

this point as to be without probative value. 

In addition I can give but little weight to the answer of 

the scoop operator, David Parrish, to the ambiguous and 

speculative question under cross examination by Y&O counsel that 

he did not think his section foreman was intentionally placing 

him in a position where he might be hurt. The response is 

particularly inconsequential in the context of unwarrantability 

since the violation has not been found to be "significant and 

substantial" or serious. Parrish was also asked to speculate in 

the followin; exhange: 

Q [By Y & O Counsel] In your estimation do you think 

that possibly the section foreman may have gotten mixed 

up on where this scoop was being operated? 

A I don't believe that he got mixed up, with his 

experience, but I believe that in the confusion of 

stuff and not loading any coal -- he didn't mean to 

have it done, as far as that. John Slates is a safe 

man. He's a safe boss to work for as far as that 

(Tr.35). 

Again however such a speculative, ambiguous and conflicting 

response has no probative value to the issue at hand. 

741 
I also give but little weight to the speculation of Don 

Statler, the Y & o Safety Director who, although not present 

either at the time of the violation or at the later interview of 

Statler, suggested---that--Foreman Slates could have been confused 

in ordering his employee to operate the scoop in themanner · 

described. There is insufficient probative evidence in the 

record before me that Slates was in fact confused and there is no 

evidence that he in fact to~q_S~atler that he was confused. 

In sum there is essent1ally nothing but vague speculation to 

support Y & O's contentions in this record. 

Moreover the one person who could have answered the question 

at issue, Section Foreman Slates, was not even called as a 

witness by Y & o. It is a well established rule of evidence that 

if a party knows of the existence of an available witness on a 

material issue and such witness is within its power to produce 

and, if, without satisfactory explanation it fails to call him, 

an inference may be drawn that the testimony of the witness would 

not have been favorable to such party. 2 Wigmore, Evidence § 285 

(Chadbourn rev. 1979); Jones on Evidence, Presumptions and 

Inferences § 3.91. It may indeed reasonably be inferred in this 

case by the unexplained failure of Y & O to have called this most 

essential witness who was one of its own employees, that his 

testimony would not have been favorable to Y & o. The same 

inferences can be drawn from the unexplained failure of Y & O to 

have called Wurschum and woods, two of its other employees who 

were present at the meeting at which Slates made his critical 

admissions to Inspector Dean. 

Under the circumstances Y & O's claim that Slates' 

commission of the violation herein was merely the result of_ 

inadvertance, thoughtlessness or inattention is without credible 

or probative evidentiary support. In light of the strong 

affirmative evidence that Slates dir~cted Parrish to perform work 

in violation of the standard and that he knew it was a violation 

to do so, I find that his conduct was ~ggravated and neither 

justifiable nor excusable. This constitutes "unwarrantable 

failure" and the section 104(d)(l) order is accordingly affirmed. 

This evidence also supports a finding that this was an 

intentional violation and the $400 penalty previously ordered in 

this case is accocdingly warranted. 

742 
ORDER 

Order No. 2828634 is affirmed and the contest of that order 

is denied. Youghiogheny & Ohio Coal Company is directed to pay 

a civil penalty of $400 within 30 days of the date <:>f this 

decision. l 

Distribution: 

/. :\ () 

,J A :\ \ ·\· ,n ;'v' /-~'- \ Lt-'~ \''. ,t.t:ll(;N\ 

~ry M~iick \ 

Administrative La~ Judge 

(703) 756-6261 ~ 

Robert c. Kota, Esq., Youghiogheny & Ohio Coal Co., P.O. Box 

1000, St. Clairsville, OH 43950 (Certified Mail) 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

Vicki Shteir-Dunn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

nt 

743 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 15, 1988 

SAMUEL GRIFFIN, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

ENERGY PRODUCERS ASSOCIATES 

INC., 

Res ponde·nt 

.• 

. 

Docket No. KE~T 88-84-D 

BARB CD 87-37 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On February 16, 1988, you filed with this Commission a complaint of discrimination under section 105(c) of the Federal Mine 

Safety and Health Act of 1977. On April 20, 1988 a show cause 

order was issued directing you to provide information regarding 

your complaint or show good reason for your failure to do so. 

The show cause was mailed to you certified mail~ return receipt . requested and the file contains the receipt car,_d indicating you received the show cause order. You have however, not responded and complied with the show cause order. 

Accord~ngly, this case is DISMISSED. 

-- Law Judge 

Distribution: 

Mr. Samuel Griffin, P. 0. Box 43, Pathfork, KY 40863 

(Certified Mail) 

Energy Producers Associates, Inc., 948 Compton Road, Cincinnati, 

OH 45231 (Certified Mail) 

I gl 

744 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 201988 

SECRETARY OF LABOR, 

MINE SAF.ETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent . . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 87-343 

A. C. No. 46-01452-03643 

Arkwright No. 1 Mine 

Appearances: Joseph T. Crawford, Esq., Office of the Solicitor, 

u. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary; 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania. 

Before: Judge Weisberger 

Statement of the Case 

On September 28, 1987, the Secretary (Petitioner) filed a 

petition for an assessment of Civil Penalty for alleged 

violations by the Respondent of the following reg.ulations on 

June 9, 1987: 30 C.F.R. § 75.515, 30 C.F.R § 75.1725~a), 30 C.F.R. 

§ 75.902, and the following regulations on June 10, 1987: 

30 C.F.R. § 75.518-1, and 30 C.F.R. § 513-1. Respondent's Answer 

was filed on October 22, 1987. 

A Prehearing Order was issued on November 4, 1987, setting a 

hearing on this matter for January 13, 1988, in the event that no 

settlement was reached. On January 4, 1988, an Order was entered 

continuing the hearing based upon Respondent's request for 

continuance, which was not objected to by Petitioner. 

On January 20, 1988, the case was reassigned to the 

undersigned. Pursuant to notice, the case was rescheduled and 

heard in Wheeling, West Virginia, on March 22, 1988. Edwin Fetty 

and Alex Volek testified for Petitioner. John Farley, II, Donald 

s. Bucklew, and Harold P. Schaffer testified for Respondent. 

Petitioner filed its Proposed Findings of Fact, Conclusions 

of Law, and Memorandum Law on June 7, 1988, and Respondent filed 

745 
its Posthearing Brief on June 7, 1988. 

Stipulations 

At the Hearing the Parties intered into the following 

stipulations: 

a. That jurisdiction of this matter properly rests 

with the Federal Mine Safety and Health Review 

Commission. 

b. That the operator has a history of 389 assessed 

violations at this mine. 

c. The size of the operator is reflected by the 

following data: 

Ci> ·Arkwright Number 1 employees approximately 

225 employees. 

(ii) Daily production of Arkwright ~umber 1 

equals approximately between 7000 and 9000 tons, while 

annual production equals approximately 1,400,000 tons. 

(iii) The Respondent operates 33 mines. 

(iv) The annual production of all the 

Respondent's mines is approximately 41,221,321 tons. 

(V) The annual dollar volume of sales by the 

Respondent for 1988 will not be released by the 

Respondent. 

(vi) DuPont E.I. DeNemours and Company is the 

parent company: Consolidation Coal Company is a 

wholly-owned subsidiary. 

d. The violations were abated within the required time 

period in each instance. 

746 
e. Approximately two (2) miners were exposed to the 

hazard created by each violation. 

f. Injury incidence rate: 

Fatal Non Fatal* No. Days Lost* Total* 

Arkwright No. 1 

1986 0 

1987 0 

Consolidation Coal Com;eany 

1986 .09 3.23 1.49 4.81 

1987 .02 6.47 1.58 8.07 

Nation 

1986 .05 5.68 1.69 7.43 

1987 .04 7.11 2.17 9.33 

*Data on non-fatal injuries and lost work days at Arkwright 

No. 1 for 1986 and 1987 will be furnished upon receipt. 

With regard to paragraph 5(c)Cii) Arkwright I employees 

approximately 225 employees and not 4,000 as stated there. 

with regard to paragaraph 2, the daily production of 

Arkwright Number 1 equals approximately 7,000 to 9,000 tons. 

Issues 

The Respondent, the Owner/Operator of the subject 

underground mine was cited, along with the independent 

contractor, who owned and operated the equipment in issue, for 

violations of the following regulations: 30 C.F.R § 75.1725Ca), 

§ 75.902, § 75.518-1, and§ 75.513-1. The issues are whether the 

Respondent was properly cited, and whether the Respondent 

violated these regulations as well as 30 C.F.R. § 75.515. If 

these issues are found in the affirmative, it must be determined, 

in each case, whether the violations were of such a nature as 

could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. Also, it will be 

necessary, for each violation of Respondent, if any, to 

determined the appropriate civil penalty to be assessed in 

747 
accordance with section ll(i) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801, et. seq., (the Act). 

Proper Party 

It appears to be the position of the Respondent, in reliance 

upon Phillips Uranium Corporation 4 FMSHRC 549 (April 1982), that 

the independent contract herein, Frontier-Kemper, is the most 

responsible party, as it, rather then Respondent, owned and 

operated the various equipment involved in Citation Nos. 2698629, 

2698630, 2698631, and 2698632. In this connection, John Farley, 

II, the Project Manager for Frontier, the independent contractor, 

testified that prior to the commencement of its work at 

Respondent's mine, it was agreed that Respondent was to do the 

preshift and onshift examination, take the employees of the 

independent contractor in and out of the mine, perform hazard 

training, and supply power. On the other hand, the independent 

contractor was to perform all electrical work on its own 

equipment, and the Respondent was not in any way to direct the 

work force of the independent contractor. Farley also testified 

that "very seldom" were Respondent's employee at the work site. 

Harold P. Schaffer, Respondent's supervisor, testified, in 

essence, that Respondent's employees conducting its preshift 

examinations inspected only for hazardous conditions and did not 

inspect any of the independent contractor's equipment as that was 

to be done by certified persons. Farley also indicated that the 

blower, which is the subject of Citation No. 2698629, was 

designed specially for the independent contractor. Indeed, 

Farley further testified that even the independent contractor's 

electrician on the site was not familiar with this piece of 

equipment. 

In the Phillips case, supra, only the operator, rather than 

the independent contractor, was cited for violations involved in 

the specialized task of shaft construction at the operator's mine. 

The Commission, in Phillips, supra, at 552 quoted with approval 

from Old Ben Coal Company, 1 FMSHRC 1480 {1979), to the effect 

that the inclusion of an independent contractor within the 

definition of "operator" in the Act, reflects the Congressional 

intent to " •.. subject contractors to direct enforcement of the 

Act." In Phillips, supra, in reversing the judge who below had 

upheld the citations and orders issued to Phillips, the operator, 

the Commission reasoned as follows: 

"The contractors, conceded to be "operators" subject to 

the Act, failed to comply with various safety standards. 

Yet Phillips, rather than the contractors, was cited; 

penalties were sought against Phillips, rather than the 

contractors; the violations would be entered into 

Phillips' history of violations, rather than the 

748 
contractors' histories, resulting in increased 

penalties for Phillips rather than the contactors in 

later cases. Compared to Phillips' burden in bearing 

the full brunt of the effect of the violations 

committed by the contractors, the contractors would 

proceed to the next jobsite with a clean slate, 

resulting in a complete short-circuiting of the Act's 

provisions for cumulative sanctions should the 

contractors again proceed to engage in unsafe 

practices." . (Phillips, supra, at 553). 

In contrast, in the instant case, the independent contractor 

was also cited, and even was served with 104Cd) Orders, for the 

exact violations, which are the subject of Citation Nos. 2698629, 

2698630, 2698631, and 2698632. Accordingly, the rationale behind 

the Commission's decision.in Phillips, supra, is inapposite to 

the instant case, and thus is not controlling of the issue 

presented herein, i.e. as to whether the independent contractor 

and the operator are jointly liable.1/ 

In Bituminous Coal Operators Association v. Secretary of 

Interior 547 F.2nd 240 (4th Cir. 1977), the Court held, that 

under the Coal Act of 1969, the owner of a mine is liable for the 

independent contractor's safety violations without regard to the 

owner's fault. It is significant, that as stated by the D.C. 

Circuit, in International Union United Mine Workers of America, 

v. FMSHRC, (slip op., February 23, 1988, No. 87-113), "The Senate 

committee report on the bill, that later that year became the 

Mine Act, expressly took note of and approved the BCOA decision. 

S. Rep. No. 181, 95th Cong., 1st Sess. 14, reprinted in 1977 

U.S. CODE CONG. & ADMIN. NEWS 3401, 3414." The holding in~ 

Ben, supra, has, in essence, been followed by the 9th Circuit in 

Cyprus Indus. Minerals Company v. FMSHRC, 664 F.2nd 1116 

(9th Cir. 1981). In the Cyprus case, supra, at 1119, the Court 

stated that " ••• mine owners are strictly liable for the actions 

of the independent contractor violations (sic) .•••• " (See also 

Republic Steel Corporation, 1 FMSHRC 5, 9 (1979); Old Ben 

Company, 1 FMSHRC 140, 1481-83 (1979); International Union Mine 

Workers v. FMSHRC, supra). 

1/ In this connection, I find irrelevant Old Dominion Power co. 

6 FMSHRC 1886 (August 1984) and Calvin Black Enterprises, 7 

FMSHRC 1151 (August, 1985) cited by Respondent, as neither of 

these cases dealt with the issue of whether an independent 

contractor and a owner can be jointly liable. (In Old Dominion 

supra, the issue presented was whether a contractor was properly 

cited. In Calvin Black, supra the Commission affirmed the 

citation issued to a owner-~perator.) 

749 
Accordingly, based upon•the above line of cases, I conclude 

that it was proper herein to cite Respondent, along with the 

independent contractor, for violations concerning equipment owned 

and operated by the independent contractor. 

Citation No. 2698627 

Citation No. 2698627 alleges that the energized 4160 volt 

cables entering the metal disconnect switch box which was located 

on the main butt section " ••• are not provided with proper 

fittings where they are entering the metal box. The cables are 

loose running through 3 inch pipe." 

Regulation 

30 C.F.R. § 75.515 provides, as pertinent, that "Cables 

shall enter metal frames of motors, splice boxes, and electrical 

compartments only through proper fittings." 

Edwin Fetty, an Electrical Inspector for MSHA, testifed, in 

essence, that the cable in question was energized, and extended 

through a piece of pipe into the box. He said that he did not 

observe any fitting. He offered his opinion that the phrase 

"pro~er fitting," as contained in section 75.515, supra, meant a 

"secure" fitting. Essentially, it was his opinion, that the only 

"proper fitting," was a strain clamp, which in fact was provided 

to abate this violation. In contrast, Donald S. Bucklew, 

Respondent's maintenance foreman, testified that the cable in 

question entered the disconnect box through a conduit which was a 

little larger than the cable, and which was welded to the 

disconnect box. He described the conduit as being a quarter inch 

metal and running from approximately 1 inch into the box, to 4 to 

5 inches outside the box. He said that the cable, in being 

inserted in the conduit, was shoved through a tape, or rubber 

bushing, which was wrapped inside the conduit. Fetty testified 

that this connection was "not common." 

I adopt the version testified to by Bucklew with regard to 

the description of how the cables in question entered the box, 

due to my observations of his demeanor, and the detailed nature 

of his testimony. I find that the Patitioner has not established 

that the cables in question, did not ~ass "through proper 

fittings." Aside from Fetty's opinion that a proper fitting is 

only a strain clamp, and that the connection used by Respondent 

was "not common," there was no evidence presented as to 

prevailing practice. Further, Fetty indicated that because the 

cable was energized he did not test the cable by pulling it to 

see whether the connection used by Respondent held. 

750 
7 FMSHRC 1151 (August, 1985) cited by Respondent, as neither of 

these cases dealt with the issue of whether an independent 

contractor and a owner can be jointly liable. (In Old Dominion 

supra, the issue presented was whether a contractor was properly 

cited. In Calvin Black, supra the Commission affirmed the 

citation issued to a owner operator.) 

Citation No. 2698627 

Citation No. 2698627 alleges that the energized 4160 volt 

cables entering the medal disconnect switch box which was located 

on the main butt section " ••• are not provided with proper 

fittings where they are entering the medal box. The cables are 

loose running through 3 inch pipe." 

Regulation 

30 C.F.R. § 75.515 provides, as pertinent, that "Cables 

shall enter metal frames of motors, splice boxes, and electrical 

compartments only through proper fittings." 

Edwin Fetty, an Electrical Inspector for MSHA, testifed, in 

essence, that the cable in question was energized, and extended 

through a piece of pipe into the box. He said that he did not 

observe any fitting. He offered his opinion that the phrase 

"proper fitting," as contained in section 75.515, supra, meant a 

"secure" fitting. Essentially, it was his opinion, that the only 

"proper fitting," was a strain clamp, which in fact was provided 

to abate this violation. In contrast, Donald s. Bucklew, 

Respondent's maintenance foreman, testified that the cable in 

question entered the disconnect box through a conduit which was a 

little larger than the cable, and which was welded to the 

disconnect box. He described the conduct as being a quarter inch 

metal and running from approximately 1 inch into the box, to 4 to 

5 inches outside the box. He said that the cable, in being 

inserted in the conduct, was shoved through a tape, or rubber 

bushing, which was wrapped inside the conduct. Fetty testified 

that this connection was "not common." 

I adopt the version testified to by Bucklew with regard to 

the description of how the cables in question entered the box, 

due to my observations of his demeanor, and the detailed nature 

of his testimony. I find that the Petitioner has not established 

that the cables in question, did not pass "through proper 

fittings." Aside from Fetty's opinion that a proper fitting is 

only a strain clamp, and that the connection used by Respondent 

was "not common," there was no evidence presented as to 

prevailing practice. Further, Fetty indicated that because the 

cable was energized he did not test the cable by pulling it to 

see whether the connection used by Respondent held. 

751 
Accordingly, inasmuch as Petitioner has not established that 

the cable entering the disconnect box did not pass "through 

proper fittings," I find that Re~pondent herein did not violate 

30 § 75.515, supra. 

Citation No. 2698629 

On June 9, 1987, Citation No. 2698629 was issued which 

provides, as pertinent, as follows: "The over temperature device 

installed on the 2 lube rotary positive blower, Model 23000, to 

cause the blow to shut down when the temperature rises to 

approximately 325 degrees F, is not maintained in an operatable 

condition. When the normally opened contact tips on the switch 

are closed, the blower continues run. When the contact closes it 

should cause the blower to shut down. ***" 

Regulation 

30 C.F.R. § 75.1725(a) provides as follows: "Mobile and 

stationary machinery and equipment shall be maintained in safe 

operating condition • . • " 

It was the testimony of Fetty, in essence, that when he 

closed the contact tips on the over temperature device on the 

rotary blower, the blower continued to run, whereas it should 

have shut down to prevent it from over heating. He said that he 

was aware that the over temperature device had a time delay on 

it, and that when it was tested in his presence an electrician 

closed the contacts for a "long time" which was to his 

recollection more than a few seconds, and the blower still did 

not shut down. He stated that he thus concluded that the device 

was not "properly maintained." 

John Farley, project managed for the contractor, testified 

that James Walker, the independent contractor's electrician, had 

contacted the headquarters of the independent contractor on June 

9, 1987, after Fetty made his inspection, in order to determine 

how to fix the over temperature device. Fetty said that the 

electrician was told that the device had a 6 second delay and 

when the latter rechecked it it worked properly. Indeed, when 

Fetty abated the violation on the following day, he noted that 

the over temperature device was " ••. now in an operative 

condition. It will cause the blower to shut off when the 

normally open contacts are closed." There is no evidence that 

any repair was done to the device between Fetty's inspection on 

the 9th and subsequent abatement on ti.1e 10th. Fetty, who 

acknowledged that the device had a time delay on it, did not 

contradict the testimony of Farley that the amount of the time 

delay was 5 seconds. Fetty's testimony that, when tested on the 

752 
9th, the contacts were closed "for a long time," i.e. "more than 

a few seconds," doea not positively establish that the delay 

lasted more than the time delay of 6 seconds. Thus, there is 

insufficient evidence, that, when tested on the 9th, the over 

temperature device did not function as it should. There is no 

evidence that a 6 second delay renders this device unsafe. I 

find thus that it has not been established that this device was 

not maintained in a "safe operating condition." Accordingly, I 

find that there has not been any violation by Respondent herein 

of section 1725(a), supra. 

Citation No. 2698630 

On June 10, 1987, Fetty issued Citation 2698630 which 

provides, in essence, that the energized 460 oil pump mower 

installed on the 2 lube rotary blower in the main butt section 

" ••. is not provided with a fail safe device to cause the 

circuit breaker to open when either the pilot or ground wire is 

broken." The citation alleges that the above condition is a 

violation of 30 C.F.R. § 75.902 which provides that " ••• On or 

before September 30, 1970, low- and medium-voltage resistance 

grounded systems shall include a fail-safe ground check circuit 

to monitor continuously the grounding circuit to assure 

continuity which ground check circuit shall cause the circuit 

breaker to open when either the ground or pilot check wire is 

broken, or other no less effective device approved by the 

Secretary or his authorized representative to assure such 

continuity, except that an extension of time, not in excess of 12 

months, may be permitted by the Secretary on a mine-by-mine basis 

if he determines that such equipment is not available. Cable 

couplers shall be constructed so that the ground check continuity 

conductor shall be broken first and the ground conductors shall 

be broken last when the coupler is being uncoupl~d." 

In essence, Fetty testified that the pump motor in question 

has three phases and that there were no fail-safe devices which 

would cause the circuit breaker to open and deenergize, when 

either the pilot or ground wire would be broken in any point in 

the circuit. Fetty's testimony has not been contradicted. 

Accordingly, I find that it has been established that the 

Respondent herein violated section 75.902, supra, by not having a 

fail-safe ground check circuit for the pwnp motor in question. 

It was the testimony of Fetty that without a fail-safe 

device, if the ground wire would have been detached, the 

circuit-breaker would not deenergize the system. He said that if 

the insulation in the motor would break down or there would be 

damage to the conductor, this could result in voltage in the 

frame of the motor causing.injury to one touching the frame. 

However, on cross-examination, Fetty agreed that there was a 
grounding protection of the oable and if there was a problem with 

the insulation and an individual touched the motor frame he would 

not be affected. 

Although I find that there has been a violatiorr of 

section 75.902, supra, with some measure of danger contributed to 

by the violation, there is insufficient evidence to conclude that 

there was a "reasonable likelihood that the hazard contributed to 

will result in an injury," and I thus conclude that the violation 

herein was not significant and substantial (Mathies Coal Company 

6 FMSHRC l, 3-4 (January 1984)). 

For the reasons discussed above, infra, I conclude that 

gravity of the violation was low. Also, based upon the testimony 

of Farley, I conclude that the equipment herein, which contained 

the violative condition, was owned and operated exclusively by 

the independent contractor. Further, based on Farley's 

testimony, I conclude that Respondent did not have any 

contractual obligations to inspect the contractors equipment or 

supervise the work of its employees. I thus conclude that the 

negligence of Respondent herein was low. I also have considered 

the various other statutory factors in section llOCi) of the Act, 

as stipulated to by the Parties. I conclude based upon all of 

the above that the Respondent pay $20 as a civil penalty for the 

violation of section 75.902, supra. 

Citation 2698631 

On June 10, 1987, Fetty issued a citation which alleges 

essentially that the energized 500 mcm cable supplying 460 volt 

power for the 500 hp blow motor on the main butt section, ". 

is not provided with proper short-circuit and over load 

protection. The cable is protected by a 1200 amp sylvania 

circuit breaker set on 1200 amps according to the information on 

the face of the circuit breaker." 

30 C.F.R. § 75.518 provides that "Automatic circuit-breaking 

devices or fuses of the correct type and capacity shall be 

installed so as to protect all electrical equipment and circuits 

against short-circuit and overloads." 30 C.F.R. § 518-1, as 

pertinent, provides that such a ddvice " ••• which does not 

conform to the provisions of National Electric Code, 1968, does 

not ineet the requireinents section 75 .518." 

Fetty testified as to the essentials of the citation issued 

on June 10. Respondent did not rebutt this testimony and in fact 

stipulated as to these facts. Fetty explained that in his 

opinion, in essence, the setting at 1200 amps is too high for a 

cable supplying power to a 540 amp blower motor, as, in the event 

of a short-circuit, the brea.~er would not trip out a11d the 

754 
current would continue to flow until 1200 amps are reached, thus, 

taking longer to clear the circuit. Respondent maintains, in 

essence, that the amperage of the setting on the circuit breaker 

at 1200 amps is not relevant inasmuch as the breaker at 

Respondent's power center, set at 2500 amps, will trip at that 

point and thus deenergize the 500 hp motor. I find however, that 

the circuit breaker, being set at 1200 amps was not installed in 

such a way, "as to protect" the equipment of the blower served by 

the cable, and thus is violative of 30 C.F.R. § 75.518, supra. I 

also note that it was the uncontradicted testimony of Fetty that 

Respondent's engineer John Cormack agreed that the setting was 

too high. Thus, I find that the Respondent herein did violate 

section 75.518, supra, as alleged in the citation. 

Fetty indicated that in an event of a roof fall or damage to 

the cable leading to a short-circuit, an arc will result which 

will continue to present a hazard as power will not be shut off 

until 1200 amps are released. Further, it was Fetty's 

opinion that due to the setting at 1200 amps, there will be 

increased heat passing through the cable which will cause a 

breakdown of the cable if there is rock or a bent cable. In this 

connection, Fetty said that in his opinion the cable was old as 

it did not have any markings on it. It was his opinion that 

sooner or later there would be an accident due to the breakdown 

of the cable causing arcing. I find that although there is some 

measure of danger contributed to by the breaker being set at 1200 

amps, this danger is not very high considering the testimony of 

Bucklew, which I adopt as it has not been contradicted, that the 

breaker at Respondent's power center is set to trip at 2500 amps, 

and will thus deenergize the 500 hp blower motor. Further, I 

note, that on cross-examination, Fetty had agreed that the cable 

leading to the motor in question was warm and not hot, and that 

although there were some signs of abrasions on the outer jackets 

the insulation was intact. I thus find that Fetty's opinion 

that, "sooner or later" an accident will occur due to break down 

of the .installation causing arcing, falls short of establishing a 

"reasonable likelihood" that the hazard of arcing will occur 

(Secretary v. Consolidation Coal Company, 6 FRSHRC 189, at 193 

(February 1984)). Accordingly, I find that it has not been 

established that the violation herein is significant and 

substantial (Mathies Coal Company, supra). 

For the reason discussed above, infra, under Citation 

No. 2698630, I conclude that the Respondent herein exhibited only 

low negligence in violating section 75.518, supra. Further, for 

the reason discussed above, infra, I concl~de that the gravity of 

the violation herein to be low. Further, I have considered the 

remaining statutory factors in section llO(i) of the Act, as 

stipulated to by the Parties. Based upon all of the above, I 

755 
conclude that the Respondent shall pay a fine of $20 as a civil 

penalty for the violation of the above regulation. 

Citation No. 2698632 

On June 10, 1987, Fetty issued Citation No. 2698632 which 

alleges that the cable supplying 460 volts for the 500 hp motor 

on the blower in the main butt section, " ••• is not sufficient 

size to have adequate current carrying capacity. Full load 

current of the motor is 540.2 according to the name plate 

information and a 500 rncm cable is being used." This citation 

alleges a violation of section 30 C.F.R. § 75.513-1, which 

provides that "An electric conductor is not of sufficient size to 

have adequate carrying capacity if it is smaller than is provided 

for in the National Electric Code, 1986." Fetty testified that 

the code requires a size of 125 percent of the full load, and 

that in this case, the full load of the motor was 540.2 amps. He 

said he performed calculations and that the cable in question was 

"too small." Fetty also indicated that the cable was hot and 

that there were signs of deterioration. This testimony was not 

contradicted by any of Respondent's witnesses. Accordingly, I 

find based upon this testimony of Fetty, that there was a rise of 

temperature with some sign of damage to the installation material. 

Accordingly, I conclude that it has been established that the 

cable was of insufficient size as defined in section 75.513, 

supra. 

It was Fetty's testimony that with a cable being too small 

in size, therefore carrying too many amps, there will be an 

increase in heat which will break down the insulation, with 

arcing, smoke, asphyxiation, and possible high burns being 

reasonably likely to.occur. It was his opinion that continued 

operation of too small sized cable will lead to insulation breakdown which will cause contact with the ground conductors which 

will lead to a short-circuit~ He also indicated that although 

the area was rock dusted, there were wooden timbers, oil on the 

blower, and spalling coal. It was the testimony of Farley, which 

was not contradicted, that the equipment was being run at only 60 

percent of full capacity, and the amps were continually monitored. 

As such, I conclude that it has not been established that there 

was a "reasonable likelihood" of the hazard of arcing or fire 

occurring (See, Secretary v. Consolidation Coal Company, supra). 

Accordingly, I find that it has not been established that the 

violation herein was significant and substantial (Mathies, 

supra). 

I find that the negligence of Respondent herein be low, as 

analyzed with regard to Citation No. 2698629. Also, for the 

reasons which I discussed above, infra, in discussing whether the 

violation was significant and substantial, I conclude that the 

756 
gravity herein of the violation was low. Also, I have considered 

the other statutory factors in section llO(i) of the Act as 

stipulated to by the Parties. Based upon all of the above, I 

conclude that a penalty herein of $20 is reasonable and proper 

for the violation of section 75.513, supra, by the Respondent. 

ORDER 

It is ORDERED that Citation No. 2698627, and Citation 

No. 2698629 be DISMISSED. It is further ORDERED that Respondent 

pay the sum of $60, within 30 days of this Decision, as a civil 

penalty for violations of Citation Nos. 2698630, 2698631, and 

2698632. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Joseph T. Crawford, Esq., Office of the Solicitor, u. s. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

dcp 

757 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

. 

JUN 201988 

BEAVER CREEK COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: 

: 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEST 88-145-R 

Order No. 3224939; 3/17/88 

Trail Mountain #9 Mine 

Mine I.D. 42-01211 

ORDER OF DISMISSAL 

Appearances: Charles W. Newcom, Esq., Sherman & Howard, Denver, 

Colorado, 

for Contestant; 

James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Respondent. 

Before: Judge Morris 

Contestant Beaver Creek Coal Company seeks declaratory 

relief, attorneys fees and reimbursement for costs. 

Procedural History 

The Commission file reflects the following procedural 

history: 

1. On March 22, 1988 Beaver Creek filed a contest seeking a 

review of MSHA Citation 3224939, issued on March 17, 1988. The 

crux of Beaver Creek's contest of the 104(d)(2) order was that 

contestant had not accepted the cited condition as a part to its 

roof control plan (RCP). l; 

In its contest Beaver Creek also sought attorneys fees 

pursuant to Rule 11 of the Federal Rules of Civil Procedure. 

At the same time Beaver Creek moved for an expedited 

hearing. 

2. On March 24, 1988 the judge granted Beaver Creek's 

motion for an expedited hearing and set the case for March 31, 

1988. 

1/ Under existing law an operator cannot be cited for violating 

its plan unless the plan and any amendments have been adopted by 

the operator. Bishop Coal Co., 5 IBMA 231, 1 MSHC (BNA) 1367 

(1975). 

758 
3. On March 30, 1988 the hearing date of March 31, 1988 was 

cancelled. Further, Beaver Creek was granted until April 8, 1988 

to amend its notice of contest and the Secretary was granted 

until April 15, 1988 to respond. 

4. On April 4, 1988 the Secretary filed a letter indicating 

that MSHA's Order No. 3224939 was vacated on March 25, 1988. The 

letter vacating the order indicates there had, in fact, been no 

agreement on a proposed modification of Beaver Creek's RCP. 

5. On April 6, 1988 Beaver Creek filed interrogatories and 

further requested that certain documents be produced. 

6. On April 8, 1988 Beaver Creek filed an amended notice of 

contest and offer of proof and memorandum in support thereof. 

As a factual basis for its amended notice of contest Beaver 

Creek states as follows: 

A. By letter dated January 13, 1988, Exhibit A hereto, 

Beaver Creek sought a minor modification of its roof control 

plan, a request that it be allowed to go from a 10 foot cut 

to a 20 foot cut in development mining. As a part of that 

request, Beaver Creek also sought a technical amendment to 

its plan to add, as a matter of informational background in 

the plan, that it would be using remote controlled 

continuous mining machines in development pursuant to an 

approval which had been previously been given for use of 

such machines in connection with Beaver Creek's ventilation 

plan. See Exhibit B hereto. 

B. By reply letter dated February 16, 1988, Exhibit C 

hereto, MSHA "tentatively" approved a plan change going to a 

20 foot cut. However, that approval letter sought to add 

five stipulations/conditions, none of which was tied to 

mining conditions in the Beaver Creek mine as required by 

Secretary of Labor v. Carbon County Coal Co., 3 MSHC (BNA) 

1943 (1985), [7 FMSHRC 1367] and none of which was related 

to any consequences growing from the proposed change of 

going from a 10 foot cut to a 20 foot cut. MSHA issued a. 

short follow-up modification to its February 16 letter on 

February 24, 1988. See Exhibit D hereto. 

C. In a responsive letter dated March 9, 1988, (mailed 

March 14, 1988), Beaver Creek specifically objected to four 

of the proposed stipulations/conditions and agreed to accept 

one of the proposed stipulations/conditions. See Exhibit E 

hereto. 

D. Thereafter, Citation and Order No. 3224939 was issued by 

MSHA on March 17, 1988, as described in the Amended Notice 

of Contest. 

759 
E. By letter dated March 21, 1988, MSHA sought to give 

added reasons for its actions. See Exhibit F hereto. With 

regard to those three reasons, it is to be noted with 

respect to the first reasons that Beaver Creek has safely 

operated with a plan involving mining distances of up to 140 

feet, using temporary roof support, before installing full 

overhead roof support. The issue as to the location of the 

continuous miner operator, point number two in the letter, 

had not been previously raised. That issue is not related 

to the question of a 10 foot versus a 20 foot cut, and as 

previously noted, use of remote controlled continuous mining 

machines had previously been approved under Beaver Creek's 

ventilation control plan. The third issue raised in the 

letter relating to face ventilation is simply wrong in 

addition to being a new assertion. Ventilation is not extended until temporary supports have been set. 

F. By letter dated March 25, MSHA advised Beaver Creek, 

essentially, that in MSHA's view things were "to go back to 

square one" and enforcement action would commence on 

Wednesday, March 30, 1988, absent some agreement. See Exhibit G hereto. A copy of that letter was first received by 

Beaver Creek personnel by hand delivery on March 28, 1988, 

at a meeting involving Beaver Creek personnel and MSHA 

personnel at MSHA's Denver offices. 

G. During the course of the March 28, 1988 meeting, or in 

subsequent discussions relating to the roof control plan approval process, MSHA has taken, and continues to take, the 

following positions with regard to review and/or approval of 

Beaver Creek's current plan or any requested amendments 

thereto: 

1. MSHA understood that the s~ipulations in the February 

16, 1988 letter had been accepted by Beaver Creek 

personnel. Beaver Creek disputes that. Further, Beaver 

Creek states that MSHA Coal Mine Safety and Health 

District 9 has improperly departed from the District's 

prior plan approval practice and has begun in recent 

months attaching to many, if not all, roof control and 

ventilation control plan approval requests such as the 

request by Beaver Creek, additional "conditions" or 

"stipulations" which do not relate to changed roof 

control circumstances caused by the proposed amendment, 

but rather involve ancillary matters not addressed to 

the conditions at the particular mine. These additional 

proposed conditions/stipulations thus appear to be 

matters of personal preference rather than changes needed 

to address some inadequacy specific to the mine in 

question and its roof control plan. Such efforts to use 

the amendment process to "open" a plan are improper. 

760 
2. MSHA's position is that it may undertake a general 

review, whether in response to an amendment request or 

on its own initiative, of the Beaver Creek roof control 

plan regardless of whether the current plan "continues to 

effectively control the roof face and ribs." This 

position is contrary to the new regulations. 30 C.F.R. 

§ 75.200, 53 Fed. Reg. 2375 (January 27, 1988). 

3. MSHA's position is that in reviewing the issue of 

moving from a 10 foot cut to a 20 foot cut, it may base 

its approval of the amendment, in some part, upon nonroof control matters such as perceived traffic hazards 

or the type of production equipment to be used in advancing the face. Beaver Creek does not dispute MSHA's 

right to properly exercise its statutory powers, but it 

does dispute MSHA's position that unrelated issues, 

such as those just noted, may be raised and used as a 

basis for refusing approval of a proposed amendment to a 

roof control plan or withdrawing approval of an existing 

roof control plan. 

H. As matters are currently postured, Beaver Creek may 

imminently be subject to enforcement action including the 

possibility of closure orders which could prevent coal 

production. In these circumstances, and in light of the 

continuing dispute, Beaver Creek should be allowed to pursue 

declaratory relief rather than being unnecessarily forced to 

face MSHA enforcement action. 

7. On April 11, 1988 Beaver Creek filed a notice to take 

the deposition of witness DeMichiei. 

8. On April 12, 1988 Beaver Creek filed notices to take the 

depositions of witnesses Poncerhoff, Holgate, Jones, and Smith. 

9. On April 18, 1988 the Secretary moved for an extension 

of time to respond to the amended notice of contest and further 

moved to stay discovery until a ruling is entered on the 

Secretary's motion to dismiss. 

10. On the same date, Beaver Creek responded to the 

Secretary's motions. Beaver Creek objected to any extension of 

time on discovery. Further, Beaver Creek asserts any indefinite 

stay may prejudice its interests. Beaver Creek did not object to 

an extension until May 6, 1988 for the Secretary to respond to 

its amended notice of contest. 

11. On April 19, 1988 the judge granted the Secretary until 

May 17, 1988 to file his response to the notice of contest. 

Further, the judge further authorized Beaver Creek to proceed 

with discovery. Oral arguments were set for May 27, 1988. 

761 
• 12. Subsequently amended notices were filed by Beaver Creek 

resetting the above depositions for May 25, 1988. 

13. On May 2, 1988 the Secretary filed two motions to 

dismiss and for a protective order. The motion to dismiss was 

supported by memorandum. In her motion for a protective order, 

the Secretary seeks to protect from disclosure any deliberations 

between any agency personnel relating to contestant's claims and 

from identifying or disclosing the contents of any internal 

agency deliberative document relating to Beaver Creek's claims. 

The Secretary further submitted authorities in support of her 

position. 

The Secretary seeks the protective order as to the Beaver 

Creek's interrogatories as well as to the depositions of the 

district manager, the district engineering supervisor, and the 

district roof control supervisor. 

14. The Secretary's supplemental motion to dismiss (filed 

May 2, 1988) states that MSHA has granted the RCP modifications 

requested by Beaver Creek and the parties are no longer engaged 

in Bishop negotiations. 

15. On May 5, 1988 the Secretary filed a second motion to 

stay discovery. The Secretary states there are two days 

scheduled for depositions in Denver, Colorado and three days in 

Price, Utah. The Secretary estimates that $4,000 will be spent 

on such depositions. 

16. On May 6, 1988 Beaver Creek filed its response opposing 

the Secretary's second motion to stay. 

17. On May 9, 1988 Beaver Creek filed its response in 

opposition to the Secretary's motion for a protective order. 

18. On May 11, 1988 the judge issued an order directing the 

Secretary to respond to Beaver Creek's interrogatories. Further, 

if the Secretary believed her answers were protected by her claim 

of privilege she was directed to submit said answers for an in 

camera inspection by the judge. The depositions of all witnesses 

were otherwise stayed until the entry of an order on the Secretary's motions to dismiss. The judge's order further reconfirmed 

the oral arguments previously set for May 27, 1988. 

In connection with the Judge's Order of May 11, 1988 the 

Secretary filed two notebooks of documents for an in camera 

inspection by the judge relating to the Secretary•S-claim of 

privilege. In connection with the documents the Secretary 

requested that any matter the judge finds is not privileged be 

762 
returned to the Secretary without releasing the contents to 

Contestant. The Solicitor states this procedure will preserve 

his position in event he elects to appeal an order requiring 

disclosure. If the case is remanded the judge will grant the 

Secretary's request in this regard. 

Since the issue of privilege has not been reached in the 

case the two notebook files remain in the Commission's office in 

Denver, Colorado~ 

The Secretary further requested that the Solicitor be 

present for any in camera review. He believes that such proceedings should be ex parte because the reason for the privilege 

is not always apparent from the face of the document and the 

contents of certain documents will be revealed in an explanation 

of the privilege involved. The Secretary states this procedure 

is not without precedent since warrants are often issued with 

only the moving party present. 

It is the Judge's view that the Secretary's request should 

be denied. Her presence, without the presence of Contestant, 

would constitute an ex parte communication in violation of 

Commission Rule 82, 29 C.F.R. § 2700.82. If the case is remanded 

the judge will so rule on this issue. 

19. Oral arguments took place as scheduled. 

Discussion and Evaluation 

on Motions to Dismiss 

The two issues presented here are whether Beaver Creek is 

entitled to costs and attorneys fees and whether declaratory 

relief should be granted. 

In connection with attorneys fees and reimbursement for 

costs Beaver Creek particularly relies on Rule 11, FRCP. In 

support of its position Beaver Creek also cites Rushton Mining 

Company, 9 FMSHRC 392 (1987). 

Rushton was originally heard by Commission Judge James A. 

Broderick. After Judge Broderick entered his initial decision 

Rushton raised, for the first time and before the Commission, the 

issue of reimbursement. The Commission remanded the case to give 

Judge Broderick an opportunity to rule on the issue, 9 FMSHRC at 

393. 

In his decision after remand Judge Broderick concluded that 

Rule 11 of the Federal Rules of Civil Procedure was not applicable, 9 FMSHRC 1270 (1987). I completely agree with Judge 

Broderick's decision. Inasmuch as this is an expedited rul.ing it 

is not necessary to further review Judge Broderick's views. 

763 
Beaver Creek argues the Commission would not have remanded 

Rushton to Judge Broderick if the Commission believed Rule 11 was 

not applicable. I cannot speculate on the Commission's reasons 

for the remand. However, a Commission decision in Rushton and in 

this case will no doubt serve as a guide as to these issues. 

The second issue presented here is whether Beaver Creek is 

entitled to declaratory relief. 

As a threshold matter the Commission has jurisdiction to 

grant declaratory relief under section 5{d) of the Administrative 

Procedure Act, 5 u.s.c. § 554(e). Such authority is discretionary and it may be used to terminate controversy or remove uncertainty. Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 

447, ClOth Cir. 1983). 

However, declaratory relief is not warranted here because 

the issues are moot. The modification sought by Beaver Creek was 

granted by the Secretary. In addition, the parties have not 

reached an impasse in Bishop negotiations. Further, the relief 

sought by Beaver Creek (paragraphs 4Ca) through 4(f) of amended 

Notice of Contest) appears to be an open invitation for the 

Commission to become a third party in Bishop negotiations. 

However, without specific facts any determination made by the 

judge would be of no value. 

Beaver Creek vigorously asserts that if declaratory relief 

is not allowed here it has only two choices. It can acquiesce in 

the improper interpretative positions taken by the Secretary 

regarding roof control plan review procedures (see paragraph 4(a) 

through 4(f), amended notice of contest) or object and risk 

enforcement actions which could cause a shutdown of the mine. 

Beaver Creek is not without remedy. In Penn Allegh Coal 

Company, 3 FMSHRC 2767 (1981) the Commission .observed that the 

statute makes it clear that a plan similar to the one involved 

here is not formulated by the Secretary but is "adopted by the 

operator". While the plan must be approved by the Secretary's 

representative, who may on that account have some significant 

leverage in determining its contents, it does not follow that he 

has anything close to unrestrained power to impose terms. For 

even where the agency representative is adamant in his insistence 

that certain conditions be included, the operator retains the 

option to refuse to adopt the plan in the form required, 3 FMSHRC 

at 2772. 

In view of the foregoing factors it follows that declaratory 

relief is not warranted. 

For the foregoing reasons, the Secretary's motion to dismiss 

is granted. 

• 

Law Judge 
Distribution: 

Charles W. Newcom, Esq., Sherman & Howard, 633 Seventeenth 

Street, 3000 First Interstate Tower N., Denver, co 80202 

Ctertified Mail) 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

/bls 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS C~URCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DAVIDSON MINING INC., 

Respondent 

DAVIDSON MINING INC. 

Contestant 

v. 

SECRETARY OR LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

JUN 211988 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-168 

: A. C. No. 46-06898-03530 . . 

. . 

. . 

. . 

No. 1 Mine 

: CONTEST PROCEEDING . . Docket No. WEVA 88-82-R 

: Order No. 2953130: 12/2/87 

: 

: Mine I.D. 46-06898 

Davidson No. 1 Mine 

DECISION 

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia for 

the Secretary of Labor: 

William D. Stover, Esq., Beckley, West Virginia for 

Davidson Mining Inc. 

Before: Judge Melick 

These consolidated cases are before me under section 105Cd) 

of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et. seq., the "Act," to challenge a citation and 

withdrawal order issued to Davidson Mining Inc •. (Davidson> under 

sections 104(a) and 104Cb) of the Act, respectively, and for 

review of the civil penalty proposed by the Secretary of Labor 

for the violation alleged therein. At hearing Davidson 

acknowledged the violation and allegations set forth in the 

citation and asserted that it was challenging only the validity 

of section 104Cb) Order No. 2953130 and the amount of penalty 

proposed. 

The underlying citation alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 75.301 and 

charges as follows: 

765 
Only 2420 cubic feet of air a minute could be measured 

in the last open crosscut between No. 8 and No. 9 

entries in the 007-0 Moose Mains Section when measured 

with chemical smoke and only 1995 cubic feet of air a 

minute could be measured behind .line brattice in No. 8 

entry where roof bolting machine was preparing coal and 

only 1450 cubic feet of air a minute could be measured 

in face No. 6 entry where continuous mining machine was 

located. 

30 C.F.R. § 75.301 provides in part as follows: 

The minimum of quantity of a.i.c reaching the last open 

crosscut in any pair or set of developing entries and 

the last open crosscut in any pair or set of rooms 

shall be 9000 cubic feet a minute •••• The minimum 

quantity of air in any coal mine reaching each working 

face shall be 3,000 cubic feet a minute. 

The Section 104(b) order reads as follows: 

Only 6042 cubic feet of air a minute could be measured 

in the last open crosscut when measured with chemical 

smoke, management was building permanent undercasts and 

ventilation stoppings which were tore [sic] out due to 

a roof fall which occurred on 11/28/87. 007-0 Moose 

Mains Section right side. 

Section 104(b) of the Act reads as follows: 

If, upon any follow-up inspection of a coal or other 

mine, an authorized representative of the Secretary 

finds Cl> that a violation described in a citation 

issued pursuant co sub•ection (a) has not been totally 

abated ~ithin the period of time as originally fixed 

therein or as subsequently extended, and (2) that the 

period of time for the abatement should not be further 

extended, he shall determine the extent of the are~ 

affected by the violation and shall promptly issue an 

order requiring the operator of such mine or his agent 

to immediately cause all persons, except those persons 

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

and to be prohibited from entering, such area until an 

authorized representative of the Secretary determines 

that such violation has been abated. 

It is not disputed that the violation charged in Citation 

No. 2953127 was not totally abated within the time set forth in 

that citation and that the period of time for abatement had not 

been extended. The issue before me then is whether MSHA 

766 
In~pector Er.nest Thompson, the authorized representative of the 

Secretary, acted reasonably in refusing to extend the time for 

abatement. In this case I find that he did in fact act 

reasonably. 

Inspector Thompson was performing a general inspection at 

the Davidson No. 1 Mine on December 1, 1987, when he learned that 

a roof fall had occurred in the Moose Mains Section of the mine 

three days earlier. Thompson observed, and it is not disputed, 

that the mine ventilation had been interrupted as a result of the 

roof fall and the air was short circuited and not adequately 

ventilating the working faces. Only 2,420 cubic feet per minute 

Ccfm) of ventilating air was found at the last open crosscut 

where 9,000 cfm was required. In addition only 1,995 cfm was 

found behind the line brattice at the No. 8 entry and only 1,450 

cfm was found at the face of the No. 6 entry--locations where 

3,000 cfm was required. Thompson accordingly issued the section 

104(a) citation at bar. 

Thompson told Section Foreman James Hancock at about 

12:40 p.m. that he was then "under a citation" and that he was to 

"pull the power on his equipment and restore his ventilation." 

Although Thompson did not then inform Hancock of a specific 

abatement time Thompson anticipated that temporary check curtains 

would be hung within 20 or 30 minutes to correct the immediate 

problem of inadequate ventilation. Thompson later prepared the 

written citation on the surface around 1:30 or 2:00 p.m. setting 

forth a specific abatement time and presented it to Dale Patten, 

the company representative. No objection was then raised to the 

abatement time. 

On December 2nd Thompson returned to the subject area with 

Patten. Arriving at 10:59 a.m. he again took air readings in the 

last open crosscut and found only 6,042 cfm where 9,000 cfm was 

required. Thompson observed that the belt conveyor had been 

advanced forward one or two crosscuts, and that there had been 

additional coal production as evidenced by several new connecting 

crosscuts. He estimated that since the citation had been issued 

there had been 6 to 8 hours of coal production with a r~gular 

crew (48 man hours) taking 8 or 9 cuts of coal. Stoppings had 

also been erected inby the fall area necessitated by the belt 

move and Thompao11 estimated that this involved an additional 

12 man-hours. 

Thompson thereupon &old Patten that he was issuing a section 

104(b) order, basing his decision on the evidence that they had 

"run coal", made a belt move, and added 11ew stoppings--

indicating to him that they had had time to correct the 

ventilation problem but chose rather to continue running coal. 

Thompson was also concerned that the continued inadequate 

767 
ventilation increased the danger from the accumulation of methane 

and other dangerous gases. This hazard was exacerbated by the 

extraction of virgin coal in a coal seam having a history of 

methane liberation Ci.e. the Cedar Grove Coal Seam) and in a coal 

seam located below the water table. 

Subsequent examination of the mine preshif t reports 

confirmed to Thompson that mining had continued without adequate 

ventilation evan after the citation had been issued. It is not 

disputed that the designation on the preshift report for the 

evening shift Cp~l3 Exhibit G-5) "LOB R =3,010 cfm" means that 

during the preshift examination between 2:00 a.m. and 3:30 a.m. 

on December 2, the ventilation was not legally sufficient.· The 

report Cp.14 Exhibit G-5) does not show that the ventilation was 

corrected before coal was .mined. 

In closing argument Davidson claimed that the "whole 

situation reeks of unreasonableness" and that Inspector Thompson 

should have extended the abatement time to permit completion of 

an undercadt rather than have issued the subject order. Davidson 

argues that the initial abatement time set forth in the citation 

was not reasonable. It maintains that Inspector Thompson and 

Mine Superintendent Larry Presley had agreed to abate the 

violative condition by the construction of an undercast and 

implies that it must therefore have been understood by Thompson 

that the violative condition could not have been abated within 

the limited time given in the citation. 

Inspector Thompson denies however that there was any such 

agreement and, to the contrary, testified that he anticipated 

that temporary controls would have been erected within 20 or 30 

minutes to abate the immediate ventilation problem. Inasmuch as 

Thompson did in fact provide a relatively short abatement time in 

the citation, it is readily apparent that he did in fact 

anticipate the use of temporary measures to quickly abate what he 

perceived to be a hazardous condition. Whether or not there was 

an additional agreement to construct an undercast as a permanent 

solution to the ventilation deficiency is therefore not 

particularly relevant. 

I also find Davidson's complaint that it was not given 

sufficient time to abate to be less than credible for the reason 

that it did not object to that abatement time when the citation 

was issued and complained only after Thompson had already issued 

the 104(!::>) order the next day. If company officials truly 

believed they had reached an agreement to defer abatement until 

they had time to complete construction of a permanent undercast 

it is reasonable to expect that they would have immediately 

protested the brief time allowed by Thompson in his citation and 

have requested an extension. Under the circumstances I find that 

768 
the abatement time set forth •in the citation was reasonable for 

the immediate construction of temporary corrective measures--and 

that Davidson knew that the abatement time was reasonable for 

that purpose. In light of this evidence I also reject Davidson's 

claims that temporary corrective measures were aot -feasible or 

could not have been achieved before the order was issued. 

' 

Davidson also argues that it did not mine coal without 

adequate ventilation after the citation had been issued. However 

in light of Davidson's own "Daily and On-Shift Reports" 

(Exhibit G-5 pps. 13-14> I find this claim to be without merit. 

Indeed even Mine Superintendent Fredley conceded that the re2orts 

show that the inadequate ventilation reported on December lSL at 

the last break on the right side was not corrected before 

resumption of coal production in that area. Thus the credible 

evidence supports Inspector Thompson's belief at the time he 

issued the subject order that Davidson had produced coal without 

adequate ventilation after the issuance of the citation and 

contrary to his specific instructioas to mine officials. In 

order to prevent further violations and exoosure of miners to 

hazardous conditions and in light of David~on's demonstrated bad 

faith in continuing to mine coal without proper ventilation it 

was particularly important and reasonable for Thompson to have 

issued a section 104(b) o.cder of withdrawal requiring all miners 

not working on the abatement to be removed. Indeed I find that 

this basis for issuing the order was sufEicient in itself 

regardless of whether the original abatement time was reasonable 

vel non. Under the cicc~mstances I find that Order No. 2953130 

was properly issued and is valid. 

I also find that the violative condition was the result of 

operator negligence. The roof fall that initially caused the 

ventilation problems occurred chree days before the citation was 

issued so the operator ahould have· beea on particular notice for 

ventilatioa pr0olems. Moreover it is not disputed that there was 

so little air in the cited area when Thompson tested it that his 

anemometer would not even move. In spite of these conditions 

Davidson continued to mine coal until the citation was issued. 

The evidence that Davidson continued coal production without 

adequate ventilation even after the issuance of the citation and 

it3 failure to have abated the violative condition within the 

time prescribed also show bad faith. Moreover, the continued 

mining of coal ~ithout adequate ventilation greatly increased the 

gravity of the violation. As Inspector Thompson observed, the 

continued mining of coal could have created excess methane and 

coal dust without adequate ventilation greatly incceasing the 

potential for a fatal mine fire or explosion. In assessing a 

civil penalty in this case I hava also considered Davidson's 

769 
size and history of violations. Under the circumstances I find 

that a civil penalty of $1,000 is appropriate. 

ORDER 

Citation No. 2953127 and Order No. 29531:60 are affirmed and 

the Contest of the Order is denied. Davidso~Mining Inc. is 

hereby directed to pay a civil penalty of $li~OO within 30 days 

of the date of this decision. ~~ I) 

0 {/ } ; ~ t.l 

r\~~~u~ 

Distribution: 

Gary Mell. ck \\ 

Admini$trati ve\·;Law Judge 

( 703) ~ 7,56-6261 \\ 

< ~ ' i I v 

Mary K. Spencer, Esq., U.S. Department of Labor, Office of the 

Solicitor, Room 516, Arlington, VA 22203 (Certified Mail) 

William D. Stover, Esq., 41 Eagles Road, Beckley, WV 25801 

(Certified Mail> 

nt 

770 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

PATRICK J. BURNS, 

Complainant 

v. 

GARY KLINEFELTER~ 

( U • S • S TE EL COM PAN Y } 

Respondent 

Before: Judge Merlin 

June 21, 1988 

DISCRIMINATION PROCEEDING 

[}ocket No. PENN 88-4-D 

PITT CD 87-10 

ORDER OF DISMISSAL 

On October 5, 1987, you filed with this Commission a 

complaint of discrimination under section 105(c) of the Federal 

Mine Safety and Health Act of 1977. 

On this same day you were sent a letter from the Commission 

informing you of what was needed to be done in order for your complaint to be processed. On January 19 and again on March 23, 

1988, my law clerk spoke with the complainant's wife and informed 

her of what the complainant needed to do so that the complaint could be p~ocessed. 

Finally on April 20, 1988 a show cause order was issued 

directing you to provide information regarding your complaint or 

show good reason for your failure, to do so. The show cause was 

mailed to you certified mail, return receipt requested and the 

file contains the receipt card indicating you received the show 

cause order. You have however, not responded and complied with 

the show cause order. 

Accordingly, this case is DISMISSED. 

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Mr. Patrick J. Burns, Jr., 125 Cumberland Avenue, Masontown, PA 

15461 (Certified Mail} 

771 
Mr. Gary Klinefelter, Ventilation Foreman, U. S. Steel Mining 

Company, Inc., P. 0. Box 711, Waynesburg, PA 15370 

(Certified M~i 1) 

Mr. Thomas Shumaker, Int'l. H&S Rep., District 4, 32 S. Mains 

Street, Masontown, PA 15461 (Certified Mail) 

I gl 

772 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 221988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petition.er 

v. 

ZEIGLER COAL COMPANY, 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket Np. LAKE 86-35 

A.C. No. 11-01845-03586 

Zeigler No. 5 Mine 

DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for 

Petitioner; Brent L. Motchan, Esq., Vice-President 

and General Counsel, Zeigler Coal Company, 

Fairview Heights, Illinois, for Respondent. 

Before: Judge Maurer 

Statement of the Case 

This case is before me upon a petition for assessment of 

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

Health Act of 1977, 30 u.s.c. § 801, et seq., the "Act", in which 

the Secretary charges the Zeigler Coal Company (Zeigler) with one 

violation of the mandatory standard at 30 C.F.R. § 75.200. The 

general issues before me are whether the company has violated the 

regulatory standard as alleged in the petition and, .if so, the 

appropriate civil penalty to be assessed for the violation. 

The hearing was held as scheduled on March 28, 1988, at 

St. Louis, Missouri. Documentary exhibits and oral testimony 

were received from both parties. 

The Mandatory Standard 

Section 75.200 of the mandatory standards, 30 C.F.R. 

§ 75.200 provides as follows: 

§ 75.200 Roof control programs and plans. 

Each operator shall undertake to carry out on a continuing 

basis a program to improve the roof control system of each 

773 
coal mine. and the means and measures to accomplish such 

system. The roof and ribs of all active underground 

roadways, travelways, and working places shall be supported 

or otherwise controlled adequately to protect persons from 

falls ot the roof or ribs. A roof control plan and 

revisions thereof suitable to the roof conditions and mining 

system of each coal mine and approved by the Secretary shall 

be adopted and set out in printed form on or before 

May 29, 1970. The plan shall show the type of support and 

spacing approved by the Secretary. Such plan shall be 

reviewed periodically, at least every 6 months by the 

Secretary, taking into consideration any falls of roof or 

ribs or inadequacy of support of roof or ribs. No person 

shall proceed beyond the last permanent support unless 

adequate temporary support is provided or unless such 

temporary support is not required under the approved roof 

control plan and the absence of such support will not pose a 

hazard to the miners. A copy of the plan shall be furnished 

to the Secretary or his authorized representative and shall 

be available to the miners and their representatives. 

The Cited Condition or Practice 

Order No. 2614140 cites a violation of 30 C.F.R. § 75.200 

for the following condition: 

The roof control plan approved for this mine was not 

being followed in unit No. 2 in the cross-cut between 3 

and 4 South entries at 2550 feet. The machine operator 

while loading coal was 3-1/2 feet inby the last row of 

permanent roof support in the cross-cut. The roof 

control plan for this mine states that work shall not 

be performed inby unsupported roof. Unit 2 in South 

off west off 2nd main North off 1st Main West off Main 

North. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted: 

1. On August 26, 1985, Zeigler had a roof control plan in 

compliance with MSHA regulations, which had been approved by 

MSHA. 

2. During the 24 ~onth period preceding the issuance of the 

instant order of withdrawal, Zeigler had a total of 38 assessed 

violations. 

774 
3. During the calendar year preceding the issuance of the 

instant order of withdrawal, the Zeigler No. 5 Mine had produced 

985,638 tons of coal and the controlling entity produced 

2,872,758 tons of coal. 

4. Payment of the proposed assessed penalty would not 

affect Zeigler's ability to remain in business. 

5. The Commission and the presiding administrative law 

judge have jurisdiction over this pr'oceeding. 

Discussion and Analysis 

Inspector Jesse B. Melvin, who issued the subject ord~r on 

August 26, 1985, testified on behalf of the Secretary. He has 

been a coal mine inspector for some 15-1/2 years, and further 

testified as to his qualifications, training and experience with 

MSHA and previously as an underground coal miner for 19 years. 

While inspecting the Zeigler No. 5 Mine on August 26, 1985, 

Inspector Melvin deduced by his observations and a series of 

measurements that the operator of a continuous mining machine on 

an earlier shift had travelled 3-1/2 feet inby permanent roof 

support. He therefore concluded that a violation of 30 C.F.R. 

§ 75.200 had occurred and so issued the§ 104(d)(2) order at bar. 

The continuous miner had been mining in the crosscut from 

the No. 3 entry side towards the No. 4 entry on the shift prior 

to the inspection. However, the continuous miner was not in the 

crosscut when the inspector viewed the area on August 26, 1985. 

Since the mining machine was no longer in the unbolted 

crosscut at the time of his inspection, the inspector calculated 

the position of the miner operator vis-a-vis the last row of roof 

bolts by a series of measurements he made with the assistance of 

Mr. Johnson, a safety committeeman travelling in the mine with 

him. They observed the impression left by the front edge of the 

pan of the mining machine on the bottom and measured from there 

back to the last row of roof-bolts which was 23-1/2 feet. They 

then located the continuous mining machine in an adjacent area 

and measured it from the front of the pan to the miner operator's 

seat. That distance turned out to be 19 feet. Subtraction 

yielded the result that the miner operator on the previous shift 

had proceeded inby permanent roof support by approximately 3-1/2 

feet. 

The accuracy of the 23-1/2 foot pan-to-bolt measurement 

necessarily depends on the ability to see the impression of the 

pan on the bottom. The ins[)ector is positive he observed the 

impression of the pan on the bottom. He explained that where 

775 
anything heavy sits down on something that is soft, it will leave 

an impression of it. Then, when it (the pan) drags back, it 

shows where the machine has travelled backwards. Mr. Johnson 

also testified that the impression of the pan was clear. He 

stated that after the crosscut was bolted, enabling-him to get in 

there, he assisted Inspector Melvin with the measurement by 

holding his end of the tape measure at the edge of the pan 

impression. Mr. Dennis Collins, a former timberman at the 

Zeigler No. 5 Mine, further corroborated the testimony of the 

inspector and Johrison on this critical point. He testified that 

he witnessed the Melvin/Johnson measurement and also observed the 

tracks of the continuous mining machine pan on the bottom. 

Mr. Don Kroll, currently the manager of safety and training 

at the Murdock Mine of the Zeigler Coal Company, testified on · 

behalf of the respondent. On the date in question herein, he was 

in the safety department at the Zeigler No. 5 Mine and had 

accompanied the inspector that day. He testified that at that 

time, in the crosscut from 3 to 4, there was a 1-1/2 foot notch 

left on the left hand rib and a 4-1/2 foot notch along the right 

hand side, of a 17 foot wide crosscut. The respondent's point 

being that it would have been very difficult, although admittedly 

not impossible, to get the head of the miner through that hole in 

the crosscut and therefore the miner operator himself could not 

have penetrated so deeply as to be under unsupported roof. 

Mr. Kroll also testified that he did not see any mark or 

track from the pan of the continuous miner on the bottom. 

I make the necessary credibility finding concerning the 

visibility of the impression of the pan on the bottom in favor of 

the Secretary. Three witnesses, including the iQspector, state 

they clearly saw it and recognized it as an impression of the 

miner's pan on the bottom. I also find it credible that the 

measurement from the front of that pan impression back to the 

last row of bolts was 23 or 23-1/2 feet. This was also 

corroborated testimony. I further find as a fact that the 

distance from the front of ~he pan of the miner back to the 

operator's seat on the miner was measured to be and is 19 feet. 

It therefore follows that I agree with the inspector and find as 

a fact that the miner operator was inby permanent roof support by 

a distance of 3-1/2 feet. I therefore conclude that the 

Secretary has established a violation of 30 C.F.R. § 75.200, as 

alleged. 

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." National Gypsum, 3 FMSHRC at 825. 

776 
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained: • · 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial-under 

National Gypsum the Secretary ••• must prove: (1) 

the underlying violation of a mandatory safety 

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

measure of danger to safety--contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

The Co1nmission has 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). (Emphasis deleted). They 

have emphasized that, in accordance with the language of section 

104(d)(l), it is the contribution of a violation to the cause and 

effect of a hazard that must be significant and substantial. 6 

FMSHRC at 1836. 

I have already found an underlying violation of the 

mandatory safety standard. The safety hazard contributed to by 

the violation and the consequences of the same are obviously 

serious injury and/or death from a roof fall. The only remaining 

elarnent is the reasonable likelihood that the hazard contributed 

to will result in an event, such as a roof fall in which someone 

will be seriously injured or killed. In this regard, Inspector 

Melvin testified that there had already been roof falls in other 

units close to the cited area and that in his opinion it 

is reasonably likely to expect miners working under unsupported 

roof to be seriously injured or killed in the event of a roof 

fall in such an area. The continuous miner had a canopy 

installed and the roof conditions in the crosscut were generally 

described as good, but I nevertheless conclude that the instant 

violation of the cited mandatory safety standard was significant 

and substantial and serious. 

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), 

appeal dism'd per stip., No. 88-1019 CD.C. Cir. March 18, 1988), 

and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 

19S-7), the Com.'11ission held that "unwarrantable failure means 

aggravated conduct, constituting more than ordinary negligence, 

by a mine operator in relation to a violation of the Act." 

In this case, the Secretary argues that Zeigler demonstrated 

a moderate degree of negligence. All of the Secretary's evidence 
is to that effect. The order is marked that way and the 

inspector testified consistent with that marking at the hearing. 

Therefore, even making this finding as urged by the Secretary, as 

I do for purposes of assessing the civil penalty, that is not 

sufficient to sustain an "unwarrantable failure" firiding. 

Furthermore, there is no other evidence contained in this re__cord 

that would support a finding of aggravated conduct on the part of 

Zeigler with respect to this violation. Accordingly, I will 

modify the§ 104(d)(2) order at bar to a citation issued under 

§ 104(a) of the Act, and affirm the significant and substantial 

violation of 30 C.F.R. § 75.200 as such. 

With regard to the civil penalty to be assessed in this 

case, I have throughly reviewed the record and considering the 

statutory criteria contained in§ llO(i) of the Act, conclude 

that an appropriate penalty for the violation found herein is 

$400. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order No. 2614140 properly charged a violation of 30 

C.F.R. § 75.200 and properly found that the violation was 

significant and substantial. However, the order improperly 

concluded that the violation resulted from Zeigler's 

unwarrantable failure to comply with the mandatory safety 

standard involved. Therefore, the violation was not properly 

cited in a § 104Cd)(2) order. Accordingly, Order No. 2614140 IS 

HEREBY MODIFIED to a § 104(a) Citation and AFFIRMED. 

2. The Zeigler Coal Company IS HEREBY ORDERED TO PAY a 

civil penalty of $400 within 30 days of the date of this 

decision. 

Distribution: 

Roy J M urer 

Administrative Law Judge 

Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 S. Dearborn St., 8th Fl., Chicago, IL 60604 

(Certified Mail) • 

Brent L. Motchan, Esq., Vice President & General Counsel, Zeigler 

Coal Co., 331 Salem Place, Fairview Heights, IL 62208 (Certified 

Mail) 

slk 

778 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 22, 1988 

SECRETARY OF LABOR, CIVIL PE~ALTY PROCEEDING MI~E SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 88-90 

A. C. ~o. 46-01318-03789 

v. Robinson Run Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

DISAPPROVAL OF SETTLEMENT 

ORDER TO SOLICITOR TO SUBMIT !~FORMATION 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement of 

the violation involved in this case. 

This case involves a violation of 30 C.F.R. § 75.1720-1 

in that ~ix miners were not w~aring distinctively colored hard 

hats. The penalty was originally assessed at $311 and the pro- posed settlement is for $250. Jn her motion, the Solicitor 

asserts that, among other things, the reduction is warranted 

because gravity was less than originally thought. The motion 

states that the employees involved were maintenance personnel who 

were temporarily assigned to the mine to repair equipment. The 

motion further states that at all times these employees were 

accompanied by a superintendent who "w~s aware of their lack of 

experience and certification." According to the Solicitor's 

motion, there was little likelihood that these miners would be 

confused with experienced miners. 

The Commission and its Judges bear a heavy responsibility in 

settlement cases pursuant to section llO(k) of the Act which 

provides: 

(k) No proposed penalty which has been 

contested before the Commission under section 

105(a) shall be compromised, mitigated, or 

settled except with the approval of the 

Commission. * * * 

779 
See S. Rep. ~o. 95-181, 95th Cong., 1st Sess. 41-5 (1977), 

reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources,-'95th Cong., 2d Sess., Legislative History of the 

Federal Mine-Safety and Health Act of 1977, at 632-633 (1978). 

Penalty proceedings before the Commission are de nova. 

Neither the Commission nor its Judges are bound by tlle-setretary' s proposed penalties. Rather, they must determine the appro- priate amount of penalty, if any, in accordance with the six 

criteria set forth in section llO(i) of the Act. Sellersbur~ 

Stone v. Federal Mine Safety and Health Review Commission, 7 6 

F. 2d 1147 (7th Cir. 1984). 

The Commission has recently reaffirmed the authority of its 

Judges to review ~nd, where necessary, disapprove settlements, 

stating: · 

* * * Settlement of contested issues and 

Commission oversight of that process are 

integral parts of dispute resolution under 

the Mine Act. 30 U. S. C. § 820(k); see 

Pontiki Coal Corp., 8 FMSHRC 668, 674--rM'ay 1986). The Commission has held repeatedly 

that if a judge disagrees with a penalty proposed in a settlement he is free to reject 

the settlement and direct the matter for 

hearing. See,~, Knox Countl Stone Co., 3 

FMSHRC 2478, 2480-81 (~ovember 981). A 

judge's oversight of the settlement process "is an adjudicative function that necessarily 

involves wide discretion." Knox County, 

3 FMSHRC at 2479. 

* * * * * 

Secretary of Labor v. Wilmot Mining Company, 9 FMSHRC 686 

(April 1987). 

Based upon the Solicitor's representations set forth above, 

I cannot conclude that the recommended reduction in the penalty 

is warranted. If anything, the facts as set forth by the Solicitor make the violation appear more serious and highlight the 

operators negligence. The operator should have taken partic~lar 

care because the miners were inexperienced. In addition, their 

inexperience and lack of certification put them at greater peril 

and therefore, increased gravity. Under the circumstances the 

original assessment seems modest indeed. 

780 
Accordingly, the Solicitor is ORDERED to s~bmit additional 

information in support of her motion for settlement within 20 

days from the date of this order otherwise this case will 

promptly be set for hearing. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Therese I. Salus, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Mr. Danny Quesenberry, Vice President, Consolidation Coal 

Company, P. O. Box 1632, Fairmont, WV 26554 (Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

781 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 41988 

SECRETARY OF LABOR, CIVIL PENALTY PROC~EDING 

Docket No. CENT 88-2 

A.C. No. 34-01353-03509 

MINE SAFETY AND HEALTH 

ADMINIS'l'RATION (MSHA), 

Petitioner 

. . 

v. 

Welch Mine 

PATCH COAL COMPANY, 

Respondent 

. . 

Appearances: 

Before: 

DECISION 

Michael Olvera, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

the Petitioner; 

Marcus A. Wiley, Mining Engineer, Wiley 

Engineering, Inc., Broken Arrow, Oklahoma, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of 

civil penalties filed by the petitioner against the respondent 

pursuant to section llOCa) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 820(a), seeking civil penalty 

assessments in the amount of $1,050, for.five alleged violations of mandatory training standard 30 C.F.R. § 48.26(a). 

The respondent filed an answer denying the violations,•and a 

hearing was held in Tulsa, Oklahoma. Although the parties 

waived the filing of posthearing briefs, I have considered 

their oral arguments made on the record during the hearing in 

my adjudication of this matter. 

Issues 

The issues presented in this case include the following: 

Cl> whether the respondent violated the cited mandatory training standard; (2) whether the violations resulted from an 

unwarrantable failure by Patch Coal Company to comply with the 

requirements of the cited standard; and (3) whether or not the 

782 
violations were significant and substantial. Assuming the 

violations are affirmed, the question next presented is the 

appropriate civil penalties to be assessed pursuant to the 

penalty criteria found in section llOCi> of the Act. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301, et seq. 

2. Sections llO(a), llO(i), 104Cd), and 105(d), of the 

Act. 

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

Stipulations 

The parties stipulated to the following (Tr; 3-4): 

1. The respondent's history of prior violations consists of two (2) citations issued 

during the twenty-four (24) months prior to the 

violations in this case, over a period of 

twenty-two C22) inspection days. 

2. The respondent's annual 1986 coal 

production was 28,000 tons, with first-quarter 

1987 production of 12,000 tons. 

3. The r~spondent admits to "technical 

violations". of the training requirements of 

30 C.F.R. § 48.26Ca>, but contests the inspector's gravity and negligence findings. 

Discussion 

The contested section 104Cd)(l) citation and orders were 

issued by MSHA Inspector Johnny M. Newport in the cou~se of an 

inspection which he conducted at the mine on April 13, 1987, 

and they are as follows: 

Section 104Cd)(l) Citation No. 2839121, issued on 

April 13, 1987, at 8:30 a.m., cites an alleged violation of 

30 C.F.R •. § 48.26Ca), and the condition or practice is 

described as follows: 

Mr. Gary Layton determined to be a newly 

employed experienced miner operating a 988-B 

front-end loader at pit 004-0load rear dump 

trucks. A discussion with Mr. Layton revealed 

783 
he had received no newly employed experienced 

miner training. Mr. Layton had been working at 

this mine for approximately three weeks. 

The inspector made gravity findings of "reasonably 

likely" resulting in "fatal" injuries, and he concluded that 

the violation was "significant and substantial." He also made 

a negligence finding of "reckless disregard," and included all 

of these findings on the face of the violation form by marking 

the appropriate places under Section II, "Inspector's 

Evaluation." · 

At 8:45 a.m., on April 13, 1987, the inspector issued 

section 104(d)(l) Order No. 2839123, which states as follows: 

Mr. Scott Bullard determined to be a newly 

experienced (employed) miner operating a 

caterpillar 769B rear dump truck at pit 004-0 

had not received newly employed experienced 

miner training. Mr. Bullard had been working 

at this mine for approximately two weeks. 

At 9:15 a.m., on April 13, 1987, the inspector issued 

section 104(d)(l) Order No. 2839125, which states as follows: ,, 

Mr. Gaylin Rogera determined to be a newly 

employed experienced miner operating a 

caterpillar 769-B rear dump truck at pit 004-0 

had not received newly employed experienced 

miner training. Mr. Rogers has been working at 

this mine for approximately three weeks. 

At 9:15 a.m., on April 13, 1987, the inspector issued 

section 104(d)(l) Order No. 2839127, which states as follows: 

Mr. Rick Nash determined to be a newly 

employed e~perienced miner operating a 

Caterpillar 9-L bulldozer at pit 004-0 had not 

received newly employed experienced miner 

training. Mr. Nash has been working at this 

mine for approximately three weeks. 

At 9:45 a.m., on April 13, 1987, the inspector issued 

section 104(d)(l) Order No. 2839129, which states as follows: 

Mr. Larry Pitts, determined to be a newly 

employed experienced miner operating a 

Caterpillar 9-L bulldozer at pit 004-0 had not 

received newly employed experienced miner 

784 
training. Mr. Pitts has been working at this 

mine for approximately three weeks. · 

The inspector made gravity and negligence findings with 

respect to the aforementioned four orders identical to those 

made in connection with the initial section 104Cd)(l) Citation 

No. 2839121. 

Petitioner's Testimony and Evidence 

MSHA Inspector Johnny M. Newport testified as to his 

experience and background, and he confirmed that he issued the 

citation and orders in question during his inspection of the 

respondent's mining operation on April 13, 1987. Mr. Newport 

described the respondent's mining operation as a surface pit 

coal mine utilizing a drag line, front-end loaders, and rear 

dump trucks. At the time of his inspection, the cited 

employees were removing overburden with bulldozers, and were 

operating endloaders and rear dump trucks. During the 

inspection of the equipment he asked each of the five cited 

miners whether they had received newly employed experienced 

miner training, and they replied that they had received no 

such training from the respondent (Tr. 8-11). 

In response to a question as to why he concluded that the 

lack of the required training would "reasonably likely" result 

in injuries, Mr. Newport responded as follows (Tr. 11-12): 

A. It would be reasonably likely that an accident would occur, based on their experience, 

the hazards involved with moving overburdan, 

leaving the high wall, plus the general aspects 

of just the coal mine industry; it's a hazardous business. 

Q. You've found, I guess in your experience, 

that as the amount of training of an employee 

goes down, t~e chance of accidents go up? 

A. That's true; yes, sir. 

In response to a question as to why he concluded that any 

injuries resulting from the lack of training could reasonably 

result in fatalicies, Mr. Newport responded as follows (Tr. 

12): 

A. Basically, because of the hazards involved 

in the coal mining industry. If a person is 

not trained to notice certain aspects of high 

785 
walls, the patterns of equipment movement, 

where they dump, what method is being mined, 

there's a reasonable likelihood that it would 

result in a fatality. 

Q. Was there anything in particular with the 

types of machines that they were using at this 

present time that would lead you to believe 

that a fatality could occur? 

A. It's large equipment that's being used in 

the mining industry. 

Q. Could you say that if the injury did occur, 

it would probably be of a reasonably serious 

nature? 

A. Yes, sir, in my opinion, it would. 

Mr. Newport stated that his negligence finding of "reckless disregard" was based on the fact that during the respondent's oper~tion oE a prior pit with a drag line, he discussed 

training with mine superintendent Doug Cook, and it was his 

understanding that depending on their experience, Mr. Cook 

knew.the types of training required of miners. Mr. Newport 

stated that Mr. Cook has a copy o~ the "C.F.R." and the mine 

training plan. Mr. Newport confirmed that the respondent was 

cooperative during his inspection (Tr. 13). 

On cross-examination, Mr. Newport stated that at the time 

he asked the employees whether they had received training, he 

had reviewed the respondent's training plan and asked about 

the location of the first aid station and first aid supplies, 

and no one could answer his questions in this regard. He also 

asked about communications, general mine policies, and accident reporting, and the only safety items that the employees 

were aware of were the need to wear hard hats and safety shoes. 

Mr. Newport identified copies of two training certificates for 

cited employees Gary Layton and Gaylin Rogers, and he confirmed that at the time of his inspection the employees could 

not produce copies of the certificates, and Mr. Newport confirmed that he could not find them among the mine records he 

reviewed (Tr. 13-16; exhibits R-1, R-2). 

Mr. Newport confirmed that all of the cited employees 

were experienced miners, but were newly employed by the respondent for 1 to 3 weeks prior to his inspection. When asked to 

explain the basis for his conclusions that the lack of the 

required training pursuant to the respondent's approved plan 

786 
would expose each of the cited miners to "serious injuries" or 

that it was reasonably likely that each miner would likely be 

involved in an accident of a reasonably serious nature, 

Mr. Newport responded as f9llows (Tr. 19-21): 

THE WITNESS: At the time that I made the 

inspection, it did have a high wall. The 

gentlemen working next to the high wall, or the 

spoil banks, come8, nee in contact, but in that 

general area. Per se, just on a flat, as this 

floor, it 1 3 reasonably likely it could be less 

---.._than that. 

-----~ ~ Going and coming from this pit, though, 

·there's hllls. You could have a flat tire, 

steering, .blowing the hydraulic hose is a 

common occurrence in the coal mines with heavy 

equipment. 

JUDGE KOUTRAS: I understand all that, but how 

would training this fellow keep those events 

from happening? You could have the 

best-trained miner in the world operating a 

front-end loader and all of a sudden, his 

hydraulic goes out because maybe the front-end 

loader is defective or it wasn't inspected for 

brakes or it had a broken hose or something 

like that. I suppose that's what Mr. Wiley is 

asking you. 

THE WITNESS: In the portion of the training 

with trucks, front-end loaders, there's a 

mining method. It's either a left-hand method 

or a right-hand method. 

If a certain person has been trained in a 

right-hand method and this company is doing the 

opposite, if he's not properly trained to his 

aspect, they could run into each other. 

The size of the equipment could play a big 

importance on that gentleman getting hurt or 

hurt seriously, so it does play a big 

importance. 

Some of the other coal companias, for 

example, that one truck -- you're sitting here, 

and it's anywhere from zero to maybe 15 feet. 

787 
We have some people that pass like on the highway, which is called the "left-hand method," 

whereas other people, for safety purposes --

they do that for --

JUDGE KOUTRAS: In this case, did you make 

those determinations individually for all these 

people or· did you just assume that since they 

weren't trained, they would be exposed to all 

of these things that generally could happen at 

any operation? 

THE WITNESS: Yes, it could generally happen. 

JUDGE KOUI'RAS: You didn't, for example, take 

each of ~hese people and determine what their 

jobs wer~ and all that business, whether it was 

left-hand or right-hand and all that business; 

did you? 

THE WITNESS: Each is supposed to be incorporated in the Training Plan to go about it, sir. 

Referring to his inspection report of April 13, 1987, 

Mr. Newport confirmed that he issued a citation for the lack 

of a front horn on a motor grader and inadequate brakes on 

mobile equipment. The citations were issued at a different 

pit than those where tne untrained miners were working, and 

Mr. Newport conceded that no citations were issued for the 

work environment in which these miners were working. However, 

Mr. Newport took the position that the cited equipment 

travelled to the pit where the employees were working (Tr. 

23-26). 

In response to further questions concerning his gravity 

and negligence findings, Mr. Newport stated as follows at (Tr. 

31-32): 

JUDGE KOUTRAS: Did you, Mr. Newport, find any 

conditions at that mine when these fellows were 

working that would lead to any unusual circumstances in the form of hazards? 

THE WITNESS: Not at that time, sir, but as far 

as the conditions during this inspection, it 

was during the winter and with the high walls, 

when the sun dries them out and then we have 

the rains, there's a possibility rocks could 

788 
fall from the high wall: There's people on 

foot cleaning coal. 

JUDGE Kou·rRAS: This would be true in any 

surface mining environment; wouldn't it? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: So you would come to the same 

conclusion if you'd gone to the next one down 

the road? You would come to all these 

conclusions? 

THE WITNESS: Even at the ones to the next 

mine, we asked them on their training. Once 

the initial time period that a person starts at 

a mine -- Some mines give training on a 

monthly basis for these same aspects. By law, 

they're required eight hours of annual 

refresher training to go over these things. 

And, at (Tr. 39-40): 

As far as I was concerned, Mr. Cook did 

know; he's an experienced mining engineer. 

He's be~n in the business for at least --

better than 20 years; he's familiar with this. 

Unle'3s him and this gentleman have some 

agreement, as far as I am concerned, yes, sir, 

it's just total disregard. 

Mr. Newport coniirmed that he did not have the mine training plan with him at the time he interviewed the employees by 

their equipment, and that he did not review the plan with them 

item-for-item to insure that they had received training in 

each of the subjects listed on the plan. He assumed that they 

were aware of these items, and aside from their knowledge of 

the requirements for safety shoes and hard hats, the employees 

told him that they had not received all of the training 

required by the plan (Tr. 42). 

Mr. Newport confirmed that MSHA's training requirements 

require different degrees of training, depending on the 

experience of the miner. Pursuant to the respondent's training plan, newly employed experienced miners are required to 

receive 3 hours of training, and new miners with no experience 

are required to receive 40 hours of training. He confirmed 

that the type of training required oi the citad miners in this 

789 
ca3e appears at page 5 of the training plan (exhibit P-1, Tr. 

42). He also believed that the "hazard training" indicated on 

the training certificates for Mr. Layton and Mr. Rogers is the 

type of hazard training given to mine visitors, rather than to 

newly hired experienced miners (Tr. 43). 

Mr. Newport confirmed that all of the cited miners were 

withdrawn from the mine, and that the citations were timely 

abated after the miners received the requisite training from 

an individual who is on retainer with the respondent CTr. 45). 

He also confirmed that the cited miners had worked at least 

2 years at other mines (Tr. 51). 

Mr. Newport stated that his prior conversation with 

Mr. Cook concerning training took place while he was on a spot 

inspection of another mine. Mr. Newport explained that this 

mine was along the same haulage road used by the respondent, 

and Mr. Cook advised him at that time that the respondent was 

considering opening up a new pit. During a conversation in 

the mine.office, Mr. Newport stated that he advised Mr. Cook 

that "you need to remember the training," and Mr. Cook 

responded that "it would be taken care of." Since Mr. Cook 

was responsible for the entire mine, Mr. Newport believed that 

he was adequately informed about the training requirements 

(Tr. 53-54). Mr. Newport confirmed that he had no knowledge 

that Mr. Callahan had done any training. Assuming that he 

did, since he was not an MSHA certified trainer with a "blue 

card," Mr. Newport would still have issued the citations for 

improper training (Tr. 56-57). 

Respondent's Testimony and Evidence 

Marcus A. Wiley, Professional Engineer and President, 

Wiley Engineering Company, stated that he was designated by 

the respondent's mine superintendent, Doug Cook, to represent 

the respondent in this matter because his firm in on retainer 

by the respondent a3 a consulting firm. Mr. Wiley asserted 

that the respondent has an excellent compliance recor~ and is 

concerned for the saiety of its employees. He confirmed that 

the respondent's principal reason for contesting the violations was based on it3 desire to challenge the inspecto~'s 

finding that the respondent exhibited a "reckless disregard" 

for MSHA's training requirements. He conceded that the 

complete training required by section 48.26(a), was not given 

to the five newly hired experienced miners cited by Inspector 

Newport. Mr. Wiley maintained that the employees did receive 

some "hazard recognition" training from one of his contractor 

employees, John Callahan, and he submitted copies of training 

certificates issued to two of the cited miners (Gary Layton 

790 
and Gaylin Rogers) which indicate that they received this 

training on March 30, 1987 (Exhibits R-1 and R-2; Tr. 6-8). 

Mr. Wiley explained that Mr. Callahan was one of three 

employees of his firm who are certified by the State of 

Oklahoma as mine training supervisors, and that Mr. Callahan 

was a certified mine foreman assigned as the pit supervisor at 

the respondent's mine. Conceding that Mr. Callahan was not an 

MSHA "approved" training instructor, Mr. Wiley nonetheless 

maintained that the training given to the cited miners by 

Mr. Callahan concerned hazard recognition and avoidance, 

emergency and evacuation procedures, and health and safety 

standards, and that some of this training overlapped MSHA's 

training requirements for newly employed experienced miners. 

Mr. Newport stated that he has never met Mr. Callahan and 

was not aware of his supervisory responsibilities. Mr. Wiley 

explained that this was aot unusual since Mr. Cook was the 

individual identified under IY1SHA' s mine ID number as the 

responsible person at the mine. Mr. Wiley assumed that 

Mr. Newport would have contacted Mr. Cook in regard to the 

citations which he issued and would not necessarily speak with 

Mr. Callahan. Mr. Newport confirmed that during his inspection he did not speak with Mr. Cook or Mr. Callahan, and he 

explained tnat Mr. Cook's name appears on the citation forms 

as the pertion to whom he served tne citations because Mr. Cook 

had previously instructed him to put his name on all citations 

issued at the mine (Tr. 26-30). 

Mr. Wiley pointed out that the respondent did have an 

MSHA approved training plan in effect at the time of the 

inspection conducted by Indpector Newport, and that after the 

withdrawal of the affected miners, they received immediate 

training in order to abate the violations, and that the respondent's training plan was amended to include mine superintendent Cook as one of three individuals certified by MSHA as 

approved training instructors. Prior to the inspection, 

Mr. Cook was not an approved trainer. Inspector Newpo,rt 

agreed that this was the case, and he stated that the citations could have been avoided if the respondent had upgraded 

its training plan to include Mr. Cook and Mr. Callahan as MSHA 

certified and approved training instructors (Tr. 26-27; 

48-50). 

Mr. Wiley candidly conceded that while the complete and 

proper MSHA training may not have been provided by the respondent in this case, he feels personally responsible for this, 

but believes that the severity of the inspector's conclusion 

that the violations were the result of the redp6ndent's 

791 
"unwarrantable failure" to comply with MSHA's training requirements is not justified (Tr. 34-35). · 

Findings and Conclusions 

Fact of Violations - 30 C.~.R. § 48.26(a) 

The rebpondent is charged with five alleged violations of 

mandatory tl'.:'aining standard 30 C.F.R. § 48.26(a), which mandates certain training for newly employed e.xperienced miners. 

The standard requires that such .ininers complete a program of 

instruction in seven t.opical categories which are as follows: 

1. Introduction to work environment. 

2. Mandatory health and training standards. 

3. Authority a11d responsibility of 

supervisor's and miners' representatives. 

4. Transportation controls and communication 

systems. 

5. Escape and emergency evacuation plans; 

firewarning and firefighting. 

6. Ground controls; working in areas of 

highwalls, water hazards, pits, and spoil 

banks; illumination and night work. 

7. Hazard recognition. 

Inspector Newport confirmed that he issued the violations 

during the course of an inspection and after interviewing the 

five miner equipment operators while they were engaged in work 

involving the removal of overburden at the surface pit mine in 

question. The miners confirmed to the inspector that while 

they were aware of the requirements for wearing hard hats and 

safety shoes, they had not received any newly employed experienced miner training as required by the respondent's approved 

training plan. The inspector also confirmed that the cited 

employees could not produce copies of any training certif icates indicating that they had received the required training, 

and he could not find any copies of any such certificates 

during his review of the appropriate mine records. 

The record establishes that while the cited equipment 

operators were exparienced miners trained in the operation of 

792 
• the equipment they were oparating at the time of the inspection, they were newly employed miners at the respondent's mine 

and had worked there for several weeks prior to the inspection. 

Further, the respondent has stipulated and admitted that the 

employees in question had not received the required training 

specified in section 48.26Ca), as well as its own MSHA approved 

mine training plan. Under all of these circumstances, I conclude and find that the failure by the respondent to provide 

the required newly employed miner training for the five cited 

employees in question constituted violations of the requirements of mandatory training standard 30 C.F.R. § 48.26(a), and 

the violations ARE AFFIRMED. 

The Unwarrantable Failure Issue 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows 

at 295-96: 

In light of the foregoing, we hold that an 

inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable failure to comply with such standard if he 

determines that the operator involved has 

failed to abate the conditions or practices 

constituting such violation, conditions or practices the operator knew or should have known 

existed or which it failed to abate because of 

a lack of due diligence, or because of indifference or lack of reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded that it means "aggra'iTated conduct, constituting more 

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

violation of the Act." Emery Mining Corporation, 9 FMSHRC 

1997 (December 1987); Youghiogheny & Ohio Coal Company, 

9 FMSHRC 2007 (December 1987); Secretary of Labor v. Ru~hton 

Mining Company, 10 FMSHRC 249 (March 1988). Referring to its 

prior holding in the Emery Mining case, the Commission stated 

as follows in Youghiogheny & Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that is "inadvertent," "thoughtless" or 

"inattentive," unwarrantable conduct is conduct 

that is described as "not justifiable" or 

793 
"inexcusable." Only by construing unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do unwarrantable failure sanctions 

assume their intended distinct place in the -

Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of 

the phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of 

the phrase "unwarrantable failure.• "Unwarrantable" is defined as "not justifiable" or 

"inexcusable." "Failure" is defined as "neglect 

of an assigned, expected, or appropriate action." 

Webster's Third New International Dictionary 

{Unabridged) 2514, 814 {1971) {"Webster's"). 

Comparatively, negligence is the failure to use 

such care as a reasonably prudent and careful 

person would use and is characterized by 

"inadvertence," "thoughtlessneds," and "inattention." Black's Law Dictionary 930-31 {5th ed. 

1979). Conduct that is not justifiable and 

inexcusable is the result of more than inadvertence, thoughtlessness, or inattention. * * * 

I take note of the fact that in this case the petitioner's 

proposed civil penalty assessments for the violations in question were processed by MSHA's regular assessment procedures, 

taking into account the aix statutory civil penalty assessment 

criteria found in aection llO{i) of the Act. Although MSHA had 

discretion to waive the regular asaes.3ment formula in determining the amount of the proposed civil penalty assessments for 

the violations in question and to apply a more stringent 

"special assessment" procedure pursuant to 30 C.F.R. § 100.5, 

it did not do so in this case. Two of t.he categories listed 

among the guidelines for determining whether or not a "special 

assessment" is appropriate are found in section 100.S{b) and 

Ch), and they are as follows: 

{b} Unwarrantable failure to comply with 

mandatory health and safety standards; 

* * * * * * * 

Ch) Violations involving an extraordinary 

high degree of negligence or gravity or other 

~nique aggravating circumstances. 

794 
Notwithstanding the inspector's "unwarrantable failurert 

and "reckless disregard" negligence findings, MSHA opted not 

to levy "special assessments" for the violations in question, 

and its trial counsel could offer no explanation as to why 

MSHA did not choose to waive the regular assessment formula in 

connection with the violations in question. 

The evidence in this case establishes that the respondent 

was aware of MSHA's training requirements for newly employed 

experienced miners, and had adopted an approved training plan 

pursuant to the appropriate MSHA regulations. The evidence 

also establishes that at least two of the affected miners 

received some hazard recognition training, and I have no 

reason not to believe Mr. Wiley's assertions that all of the 

miners received at least a minimum of training regarding 

hazard recognition. Mr. Wiley impressed me as a credible 

individual who readily accepted responsibility for the failure 

by the miners to receive the full 3-hour training required by 

MSHA's regulation. The evidence also establishes that the 

miners in question, who no longer are employed at the mine, 

were experienced equipment operators who knew how to operate 

their equipment, and were instructed to wear safety shoes and 

hard hats. 

Inspector Newport confirmed that the respondent had always 

previously been in compliance with the required training regulations and had received no prior citations for violating MSHA's 

training standards. As a matter of fact, Mr. Newport stated 

that when he went to the mine for his inspection he was under 

the assumption that all of the miners had been trained because 

he had never experienced any prior training problems with the 

respondent, and as an example, he cited the fact that John 

Hare, an individual in the employ of the contractor, and who 

was li~ted in the approved training plan as an MSHA qualified 

traini11g instructor, had always conducted the proper training 

pursuant to the respondent's plan {Tr. 51, 59). 

Although the respondent's mine $Uperintendent Dou,g Cook 

did not appear or testiiy at the hearing, I take note of, and 

find credible, the answer that he filed in this case. In his 

answer to the penalty assessment proposal filed by the ~etitioner, Mr. Cook conceded that he was aware of MSHA's training 

requirements, and has always made a sincere effort to comply 

with those cequirement3. This statement is supported by the 

inspector's testimony that the re:3pondent has always been in 

compliance with tne subject training requirements. Conceding 

the fact that t'Vir. Callahan, a contracl:. employee of Wiley 

Engineering, waa not listed as an HSHA approved training 

instructor in its approved training plan, Mr. Cook maintained 

795 
that this w~s an "oversight." This contention is supported in 

part by the fact that during the abatement process, the respondent's training plan was subsequently modified to include 

Mr. Cook as an MSHA certified training instructor, and 

Inspector Newpo.ct confirmed that had Mr. Cook or Mr. Callahan 

been included in the plan as qualified training instructors, 

the violations could have been avoided. 

I also take note of the fact that in his answer, Mr. Cook 

asserted that all of the affected miners were familiar with 

the equipment they were operating at the time of the inspection, and that they had received "orientation (walk-around) 

training" from Mr. Callahan prior to starting work at the mine. 

Mr. Cook apparently believed that since Mr. Callahan was an 

experienced surface miner certified by the State of Oklahoma 

as a mine foreman, qualified to train miners, he also met 

MSHA's requirements as an individual qualified to train the 

respondent's miners pursuant to the contract with Wiley 

Engineering. This position by Mr. Cook was corroborated by 

Mr. Wiley who believed that Mr. Cook thought he was acting 

properly, and Mr. Wiley, in hindsight, candidly conceded that 

he should have insured that all of the training topics listed 

in MSHA's regulation W8re covered during the training of the 

miners in quest~on (Tr. 61-62). 

Inspector Newport testified that he based his negligence 

finding of "reckless disregard" on the fact that on a prior 

brief visit to another pit operated by ~he respondent, he 

reminded Mr. Cook about the need f0r training in the event the 

respondent were to open a new pit, and that Mr. Cook had the 

training plan and a copy of the "C.F.R." available for reference. Mr. Newport conceded thac at the time of his inspection, he did not have the training plan with him, nor did he 

review it with the miner's who informed him that they had not 

received all of the required training, but had been instructed 

to wear safety shoes and hard hats. 

In further explanation ot his "reckless disregar~' negligence finding, and in particular Mr. Cook's knowledge of the 

training requirements, Mr. Newport stated that "it was my 

understanding that he knew that depending on a person's.experience on what type of training had to be given." Mr. Newport 

also commented that "I thought I covered it pretty good. 

Maybe I didn't'; I'll say maybe there's something I left out" 

(Tr. 13). At another point during the hearing, Mr. Newport 

3tated "As far as I was concerned, Mr. Cook did know; he's an 

experienced mining engineer. He's been in the business for at 

least -- better than 20 years; he's familiar with this" ( •rr. -

39-40). 

796 
On the facts of this case, and after careful review and 

consideration of the record, I find no credible support for 

the inspector's "reckless disregard" negligence finding. Nor 

can I find any credible evidence to aupport an "unwarrantable 

failure" finding. To the contrary, I conclude and find that 

at most, the inspector's rationale for making the disputed 

finding supports a negligence finding ranging from "ordinary" 

to "moderate," rather than one supporting any conclus·ion that 

the respondent's conuuct was inexcusable, or egregious, or 

that it exhibited the absence of the slightest degree of care. 

In short, I find no evidentiary support for any conclusion 

that the respondent's failure to insure that the cited newly 

employed experienced miners received all of the required training was the result of any aggravated conduct of the kind 

described by the Commi3sion in its recent holdings on this 

question. Accordingly, the inspector's unwarrantable failure 

findings for each of the violations ARE VACATED. 

Modification of Citations and Orders 

In view of my unwarrantable failure findings, the contested section 104(d)(l) citation and orders are modified to 

section 104Ca) citations. See: Old Ben Coal Company, 

2 FMSHRC 1187 (June 1980); Consolidation Coal Company, 

3 FMSHRC 2207 (September 1981); Youngstown Mines Corporation, 

3 FMSHRC 1793 (July 1981). 

The Significant and Substantial Violations Issue 

A "significant and substantial" violation is described in 

section 104(d)(l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly 

designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825_ (April 

19 81) • 

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

Commission explained its interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

797 
of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a 

discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the language of section 104Cd>Cl), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

S"t'eel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

Although I agr.ee that any mining operation, whether it be 

a surface pit mine such as the one operated by the respondent 

in this case, or an underground mine, generally involves a 

working environment exposing miners to potential hazards and 

dangers, the question of whether any particular violation is 

significant and substantial must be based on the particular 

facts surrounding the violation, including the nature of the 

mine involved, Secretary of Labor v. Texasgulf, Inc., Docket 

Nos. WEST 85-148-M and WEST 86-83-M, decided by the Commission 

on April 20, 1988; Cement Division, National Gypsum Co., 

supra; Youghigheny & Ohio Coal Company, supra. 

With regard to the training requirements found in section 

48.26Ca), I agree that such training promotes mine safety by 

making miners aware of the hazards associated with their 

particular jobs tasks, and I have affirmed an inspector's 

"S&S" findings where the facts and circumstances clearly established that the lack of training presented a reasonable likelihood of serious injuries associated with such a violation, 

Secretary of Labor v. Highwire, Incorporated, 10 FMSHRC 22, 

67-68 (January 1988). 

798 
On the facts of the case now before me for adjudication, 

the record establishes that the cited miners who lacked the 

training required for newly employed experienced miners were 

experienced equipment operators who were trained in the operation of the particular equipment they were operating at the 

time of the inspection. The facts also establish that at 

least two of the miners, as well as the others, received some 

minimum type of "orientation" and hazard recognition training, 

and were aware of the fact that they should wear hard hats and 

safety shoes. The respondent has conceded that all of the 

affected miners had not received the complete 3-hour training 

mandated by the respondent's training plan and the cited 

training standard, and the violations have been affirmed. The 

issue is whether or not these violations were significant and 

substantial, and whether the facts and evidence adduced by 

MSHA in support of the inspector's "S&S" findings support 

those findings. 

In the instant case, Inspector Newport confirmed that he 

issued no citations for any other safety infractions for the 

work environment where the miners in question were working at 

the time of his inspection. He also conceded that the equipment operators were experienced and trained in the operation 

of their equipment, and he found no unusual mine conditions or 

hazardous circumstances present in the areas where the miners 

were working. Although he alluded to citations which he 

issued at the time of his inspection for the lack of a front 

horn on a motor grader and inadequate brakes on some mobile 

equipment, he conceded that these violations were found at a 

different pit location from that in which the untrained miners 

in question were working, and there is no evidence that any of 

the equipment 'being operaced by the miners in question was 

unsafe or otherwise defective. The inspector also confirmed 

that he found no violations associated with the high wall or 

spoil bank located in the general area where the miners were 

working, and he confirmed that the miners would not be "in 

contact" with those areas CTr. 19-21; 25). 

Although Mr. Newport indicated that his inspection was 

"during the winter" and that there was a possibility that 

rocks could fall from the highwall when it dries out after a 

rain and that people would be on foot cleaning coal, (Tr. 31), 

the fact is that the citations were issued in April, and there 

is no evidence to establish that it had rained or that any of 

the miners in question were exposed to any rock fall hazards. 

Inspector Newport alluded to the .fact that the equipment 

which lacked a front horn or adequate brakes travelled to the 

799 
pit where the miners in question were working, and he took the 

position that "it's all one mine." However, there is no probative evidence that this equipment was in fact operated at the 

pit where the miners in question were working. Under the circumstances, I give little weight to this testimony and find it 

too remote and general to establish that the miners were in 

fact exposed to these equipment hazards, or that their lack of 

training would have contributed to any hazards associated with 

those violations. 

In support of his conclusion that the lack of training 

would reasonably likely result in injuries to the experienced 

miners in question, Inspector Newpor,t relied on the general 

hazards associated with moving overburden and the hazardous 

nature of the coal mining industry as a whole. In support of 

his conclusion' that it was reasonably likely that any injury 

associated with the lack of training would result in a fatality, Mr. Newport relied on the fact that the miners were operating "large equipment," and "because of the hazards involved 

in the coal mining industry" (Tr. 12). He also believed that 

an individual who was not trained to recognize certain aspects 

of high walls, equipment movement and dumping patterns, and 

the method of mining being followed would reasonably likely to 

be exposed to fatal injuries. He further alluded to the fact 

that the operation of front-end loaders and trucks entails 

right-handed and left-handed mining methods and vehicle passing patterns, and that if equipment operators are not trained 

in these methods they could run into each other. 

There is no evidence in this case that the experienced 

equipment operators who had worked at the mine eor 2 or 3 weeks 

prior to inspector Newport's inspection were oblivious to the 

mining methods and equipment passing procedures alluded to by 

the inspector as part of the basis for his "S&S" findings. 

Although it is true that the miners may not have been formally 

trained in these matters pursuant to general topical subject of 

"Transportation controls and communication systems" which is 

part of t.he respondent's training progca1n, Mr. Newport, conceded 

that he did not review the training plan with the miners with 

whom he spoke to determine their knowledge of these matters, 

nor did he make any determinations as to the mining method 

being utilized at t~e time of his inspection, or the specific 

equipment passing procedures being utilized by these operators. 

Inspectoc Newport admitted that the miners told him that 

they were aware of the itemized training subjects listed in 

the training plan, but had not received all of the training 

listed herein (Tr. 42). Given the fact that at least t~o of 

them received some kina or hazard recognition training, and 

800 
that all of them knew about ~he wearing of hard hats and 

safety shoes and were experienced equipment operators who had 

worked at the mine for weeks before the inspection without any 

apparent difficulty or accident or injury incidents, I find it 

difficult to believe that they were totally ignorant of the 

appropriate work procedures associated with the operation of 

their equipment. Further, Mr. Newport conceded that he simply 

assumed that the lack of training·exposed the miners to 

injuries and fatalities generally associated with any mining 

operation (Tr. 19-21). 

On the facts of this case, and after careful review and 

consideration of Inspector Newport's testimony in support of 

his "S&S" findings as to each of the violations, I conclude 

and find that these findings were based on general and speculative assumptions that a lack of training would expose miners 

to injuries and fatalities generally associated with any mining operation, rather than on any specific prevailing mining 

conditions from which one could conclude that the miners in 

question were in fact exposed to mine hazards likely to result 

in injuries of a reasonably serious nature. In short, I conclude and find that the petitioner has failed to establish by 

a preponderance of the credible and probative evidence adduced 

in this case that the violations were significant and substantial. Accordingly, the inspector's findings in this regard 

are rejected and they ARE VACA'rED. 

Size of Business and Effect of Civil Penalty Assessments on 

the Respondent's Ability to Continue in Business 

Respondent's representative staced that the Welch Mine 

employs a minimum of 15 miners, and a maximum of 30. He confirmed that at the time the violations were issued, the mine 

employed 15 miners, and currently employs less than five. 

Petitioner's counsel agreed that the respondent is a small 

surface coal mine operator. Under these circumstances, and 

taking into account the respondent's coal production as stipulated to by the parties, I conclude and find that the respondent is a small mine opecator. Further, absent and information 

to the contrary, I also conclude and find that the civil penalties assessed for the violations which have been affirmed 

will not adversely affect the respondent's ability to continue 

in business. 

History of Prior Violations 

The parties stipulated to the respondent's history of 

prior violations. Based on that stipulation, I conclude and 

find that the respondent has a good compliance record, and 

801 
there is no evidence that it has been previously cited for any 

violations of MSHA's training standards. 

Negligence 

I conclude and find that the respondent knew or should 

have known about the training requirements found in section 

48.26Ca), and that its failure to exercise reasonable care to 

insure that this training was given to the newly employed 

experienced miner.:> in question constitutes a moderate degree 

of negligence on its part. 

Gravity 

Although I have found tnat on the facts of this case the 

violations in question were not significant and substantial, I 

nonetheless conclude and find that the failure to adequately 

train the newly employed experienced miners in question constituted a serious violation of the training requirements of section 48.28(a). The failure to adequately train a miner could 

under certain conditions and circumstances, result in exposing 

a miner to potential and possible mine hazards. 

Good Faith Compliance 

Inspector Newport confirmed that the respondent exhibited 

good faith in timely abating the violations. He confirmed 

that after the miners were withdrawn from the mine, they 

received immediate training administered by a contractor who 

was an MSHA approved training instructor, and the orders were 

terminated. Under the circumstances, I conclude and find that 

the respondent exercised good faith compliance in abating the 

violations. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the civil penalty assessments criteria 

found in section llO(i) of the Act, I conclude that the following civil penalty assessments for the violations which have 

been affirmed are reasonable and appropciate: 

30 C.F.R. 

Citation No. Date Section Assessment 

2839121 04/13/87 48.26(a) $75 

2839123 04/13/87 48.26(a) $75 

2839125 04/13/87 48.26(a) $75 
2839127 

2839129 

04/13/87 

04/13/87 

4d.26(a) 

48.26(a) 

ORDER 

$75 

$75 

The respondent IS ORDERED to pay civil penalty assessments 

in the amounts shown above within thirty (30) days of the date 

of this decision. Upon receipt of payment by the petitioner, 

this matter is dismissed. 

Distribution: 

Michael Olvera, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Marcus A. Wiley, Wiley Engineering, Inc., 7832 South Elm 

Place, Broken Arrow, OK 74011-4353 (Certified Mail) 

Mr. Doug Cook, Superintendent, Patch Coal Company, P.O. 

Box 295, Welch, OK 74369 (Certified Mail) 

/fb 

803 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 241988 

SECRETARY·OF LABOR, : CIVIL PENALTY PROCEEDINGS MI~E SAFETY AND HEAL'r& 

ADMINISTRATION, CMSHA), 

Petitioner 

v. 

BETH ENERGY MINES, INC., 

Respondeai: 

: Docket No. PENN 87-145 

: A.C. No. 36-00840-03606 

Docket No. PENN 87-155 

A.C. No. 36-00840-03607 

Docket No. PENN 87-188 

A.C. No. 36-00840-03612 

: Docket No. PENN 87-224 

: A.C. No. 36-00840-03617 . . Cambria Slope No. 33 Mine 

DECISION 

Appearances: William T. Salzer, Esq., and Evert vanWijk, Esq. 

Con the brief), Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania for the Secretary of Labor: 

R. Henry Moore, Esq., Buchanan Ingersoll· 

Professional Corporation, Pittsburgh, Pennsylvania 

for Respondent. 

Before: Judge Melick 

These cases are before me upon the 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, 

30 u.s.c. § 801 et. seq., ~he "~ct" c;::harging Beth Energy.Mines, 

Inc., (Beth Energy) with five violations of regulatory standards. 

The general issues before me are whether Beth Energy violated the 

cited regulatory standards, and, if so, whether those vioiations 

are of such a nature as could significantly and substantially 

contribute to the cause and effect of a mine safety or health 

hazard, i.e. whether the violations are "significant and 

substantial". If violations are found, it will also be necessary 

to determine the appropriate civil penalty to be assessed in 

accordance with section llOCi) of the Act. 

804 
Docket Nos. PENN 87-145 and.PENN 87-224 

At hearing the parties moved to settle Order No. 2691012 

proposing a reduction in penalty from $850 to $650. Based upon 

the documentation and representations presented pos~-hearing I 

conclude that the profferred settlement is appropriate under the 

criteria set forth in section llOCi) of the Act. 

Citation No. 2691218 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.1704 and charges as 

follows: 

The intake escapeway for 14 left G. West Mains and 

G. West Mains left sections was not maintained to 

insure passage at all times of any person, including 

disabled persons in that the first overcast inby S.S. 

4979 in No. 5 entry of G. West Mains had steps to cross 

over it and the distance between the steps ranged from 

16 inches to 8 inches through which a person could fall 

also the steps over the 2 overcast where the escapeway 

crosses from the left side of G. West to the right had 

spaces between the steps from 4 inches to 11 inches 

through which a person could fall. These overcast 

[sic) were from 66 incheB to 72 inches high and had 6 

or 7 s~eps each. Also from S.S. 1126 in No. a entry 

through a xcut to No. 9 entry and outby on No. 9 entry 

to S.S. 1240+50 feat. The travelway had piles of rock 

at lease one-foot high across the escapeway. 

Citation No. 2698137 similarly alleges a "significant and 

substantial" violation of the same regulatory standard and 

charges as follows: 

The alternate escapeway for the E East left, E East 

right, 4LT E East and 5LT E East which is the left side 

return of E East is not being maintained to insure 

passage at all times of any person, including disabled 

persons. At 3 locations steps were built over overcast 

and gaped [sic] between the steps up to 9 inches were 

present that a person or a part of a person could fa~l 

through causing injuries in the event of an emergency. 

The 3 locations are Cl) inby overcast in the 2nd set in 

the return both sets of steps the top set was 9 inches 

from the top of the overcast (2) inby overcast in the 

3rd set in the return both sides steps were gaped [sic] 

from 4 to inches (3) inby overcast in. the 4th set on 

the return inby side steps had gaps from 4 to 6 inches. 

The Secretary maintains that the cited conditions 

constituted a violation of that part of the standard at 30 C.F.R. 

§ 75.1704 which reads as follows: 

805 
At least ~wo separate and distinct travelable 

passageways which are maintained to insure passage at 

all times of any person, including disabled persons, 

and which are to be designated as escapeways ••• shall 

be provided from each working section ••• and shall be 

maintained in safe condition. 

It is apparent that the language of this standard is 

expressed in general terms so that it may be adaptable to myriad 

situations affecting the safety of escapeways. See Kerr-McGee 

Corp. 3 FMSHRC 2496 (1981). Accordingly questions of liability 

fbr alleged vidlations of this standard must be resolved by 

reference to whether a reasonably prudent person, familiar with 

the mining industry and the protective purpose of this standard, 

would have recognized the hazardous conditions that the standard 

seeks to prevent. Ozark-Mahoning Co., 8 FMSHRC 190 (1986); Great 

Western Electric Co.; 5 FMSHRC 840 (1983); U.S. Steel Corp., 5 

FMSHRC 3 (1983); Alabama By-Products Corp., 4 FMSHRC 2128 (1982). 

Specifically the maintenance of escapeways in safe condition 

must be measured against the test of what a reasonably prudent 

person, familiar ~ith the mining industry and protective purpose 

of the standard, would have provided in order to meet the 

p.cotection intended by thE3 standard. rhe Commission has stated 

that the reasonably prudent person test contemplates an 

objective, and not subjective, analysis of all surrounding 

circumstances, factors and considera~ions bearing on the inquiry 

at issue. Great Wedtern, sup.ca., 5 FMSHRC at 842-843. 

Citation No. 2691218 charges two categories of violation, 

namely, excess gaps between the steps over the overcasts in the 

intake escapeway and piles of rocks across the escapeway. The 

evidence on these issues is essentially undisputed. The first 

overcast was approximately 66 inches high. The gaps in the steps 

on one side of this overcast were unifo.cmly 8 inches, except 

between the top step and the top of the overcast where the 

horizontal distance between the st~p and the top of the overcast 

was 16 inches. This step was level with the top of the overcast. 

The gaps on the other side of the overcast were nearly of uniform 

width of between 4 to 6 inches. The second overcast was 

approximately 72 inches high and the gaps were from 4 to 11 

inches. The cited pile of rocks was about one foot high and two 

to three feet ~ide and continued across the entry. 

The steps cited in Citation No. 2698137 had been in 

existence for several months to a year. At the second set of 

overcasts in E East the top step on each side was 9 inches from 

the oveccast. At the third set of overcasts in the alternate 

escapeway there were gaps of 4 to 6 inches. These sets of 

overcasts were all approximately 4 1/2 feet high. 

806 
The horizontal gaps in the steps in both G West and E East 

were almost uniformly 4 to 6 inches with the exception of the gap 

between the top step and the top of the overcast. In three 

instances this gap exceeded 6 inches but the top step and the top 

of the overcast were in the same horizontal plane with no 

vertical rise between the steps. One set of steps had uniform 

gaps of 8 inches. All of the cited steps were constructed of 

wood and were six feet wide with treads of uniform width. The 

backs of the steps were open. ~he steps in E East had handrails. 

MSHA Inspector Gene Ray, who issued these citation, opined 

that the existence of gaps of varied widths in the steps created 

a hazard because miners "could very easily not see the hol.e 

between the steps and fall into it and get injured." He further 

described the hazard as follows: 

If people had to evacuate these ••• sections in an 

emergency situation, and they would be in a hurry ••• 

they would fall between--that they would slip into one 

of these gaps, that they could become injured ••. they 

could receive a sprain or a broken leg. Also, in that 

they would be injured, it would slow them down in the 

process of evacuating the mine in case of an emergency. 

Ray also observed that miners "could trip and injure 

themselves" over the rock piles while traveling the escapeway in 

an emergency situation. · 

Within this framework I conclude that a reasonably prudent 

person familiar with the tactual circumstances surrounding the 

cited conditions would have recognized that the irregular gaps up 

to 16 inches wide in the steps over the overcast and the 

described pile of rocks created hazardoua conditions in the 

escapeways such as to constitute violations of the cited 

standard. 

I also find that the violations were "significant and 

substantial". The described violations contributed to the 

discreet safety hazard of tripping or slipping and/or falling 

through the uneven gaps in the steps and of tripping over the 

piles of rocks. I~ is reasonably likely to expect such a hazard 

to result in injuries such as sprains oc factures and that such 

injuries would be of a reasonably serious nature. See Mathies 

Coal Co. 6 FMSHRC l (1984). The hazards ~ould also be greatly 

exarcebated by an evacuation through the cited areas during an 

emergency. 

I find however that the operator is chargeable with but 

little negligence with respect to the violations charged in 

Citation No. 2691218. The evidence shows that although some of 

807 
the gaps in the steps had existed for up to ten years and in 

areas subject to MSHA inspections, no citations or other notice 

had been given that they constituted violations. Similarly with 

the respect to the rock piles, Beth Energy is chargeable with but 

little negligence. There is no evidence to show that Beth Energy 

officials had prior knowledge of the rocks in an area that is not 

subject to frequent inspections. However since the violations 

charged in Citation No. 2698137 were found on June 15, 1987, five 

months after notice of similar violations in Citation No. 

2691218, it is .clear that the operator should have corrected the 

cited conditions. Its failure to have done so constitutes 

negligence. 

Oocket No. PENN 87-155 

On February 11, 1987, MSHA Inspector William L. Davis issued 

Citation No. 2691158 pursuant to Section 104(a) of the Act. the 

citation alleges a "significant and substantial" violation of the 

standard at 30 C.F.R. § 75.202 and charges as follows: 

The roof was found to be inadequately supported in that 

the 6" x 8" x 5' crossbars (2) of them were broke [sic] 

and several showed signs of exce8sive weight on them, 

therefore this entry is not safe for travel by a 

certified person for weekly examinations. Located in 

the No. 8 entry between the second and third crosscut 

inby survey station Ho. 7226 of the No. 10 entry of the 

F West Mains. 

The citation was issued following an inspection of the F 

West Mains area by Inspector D:::ivis and Foreman Roger Mcintosh on 

February 11, 1988. The F West area was an inactive area where 

mining had not occurred for several years. The only persons who 

regularly encered the subject area were mine examiners who 

perform weeKly examinations of the bleeder evaluation points and 

the return air courses. Such ex:aminat.ions were being made in the 

Nos. 8, 9, or 10 entries, depending on the condition of the 

particular entry, and these entries were in common. 

The evidence shows that Davis had never previously inspected 

this area and neither he nor Mcintosh knew the precise route 

followed by the mine examiner who traveled these entries. 

While Davis first testified that they were able to follow the 

precise route of the mine examiner by tracking footsteps in the 

coal dust, he later admitted that the footprints could have been 

made years earlier when the section was active. 

Davis testified that he and Mcintosh passed through the F 

West entries until they arrived at spad No. 7145 in the No. 8 

entcy. Just beyond that point, he noticed that 2 crossbars used 

808 
for roof support were broken' Davis and Mcintosh then turned 

left in a crosscut and proceeded to che No. 9 entry. They looked 

down the No. 9 entry and observed that the bottom was heaved and 

there was roof pressure in the No. 9 entry beyond where they were 

standing. Davis thought it was not feasible to travel in the No. 

9 entry so they travelea to the No. 10 entry and apparently 

proceeded down the ~o. 10 entry. 

According to Davis, the citation was abated by marking a 

route of travel in the No. 8 entry between a row of timbers and 

the right hand rib. In issuing the citation, the inspector 

assumed that the mine examiner was traveling under the bad roof 

in the No. 8 entry but had no idea which entry the mine examiner 

actually traveled. 

Ralph Keefe, a union mine examiner, testified that he made 

the weekly examination the week before the subject citation and 

had regularly made such examinations. His normal route of travel 

was to proceed down the No. 8 entry to spad 7145. Keefe would 

then turn left (as Inspector Davis did) and travel over one 

crosscut to the No. 9 entry. He would turn right down the No. 9 

entry and travel two crosscuts. According to Keefe he would then 

turn right and travel in a crosscut back to the No. 8 entry thus 

avoiding all of the dangerous areas in the entries (See Exhibit 

R-2). He would then turn left through a crosscut to the No. 10 

entry and travel three crosscuts in the No. 1-0 entry because of 

the fall in the No. 9 entry. 

The route avoided bad roof in the No. 8 entry beyond spad 

7145, it avoided bad roof beyond the crosscut where the examiner 

turned from the No. 9 to the No. 10 entry and it avoided the bad 

roof behind the area where the examiner entered the No. 10 entry. 

Keefe specifically testified that he did not travel under the 

cited bad roof in the No. 8 entry when making his weekly 

examination of the F West returns. He had been making 

examinations in this area for a year and a half before the 

citation and was aware of this area of bad roof. According to 

Keefe the route had also been marked so that the cited area in 

the No. 8 entry could be avoided. 

I find the testimony of Keefe to be entitled to significant 

weight as he clearly was the person most knowledgeable about the 

cited area, having been the mine examiner for the previous year 

and a half, and was the only witness having first hand knowledge 

of the actual route traveled during the mine examinations. On 

the other hand Inspector Davis was clearly not familiar with the 

cited area and was inspecting it for the first time. Moreover 

Davis did not question the mine examiner to determine the route 

he traveled or avail himself of the opportunity to accompany the 

examiner along his regular route. Davis also acknowledged that 

809 
it was difficult, it not impossible, because of the condition of 

the mine floor, to otherwise determine which path was followed by 

the mine examiner. Under the circumstances he could only 

speculate as to the route traveled. Davis also contradicted 

himself in a_critical respect by first stating that-bad roof 

prevented all passage in the No. 10 entry but later admitting ' 

that there was no area of bad roof along the route Keefe followed 

in the No. 10 entry. 

Under the circumstances I do not find that the Secretary has 

sustained her burden of proving that a violation has occurred 

herein. Accordingly Citation No. 2691158 is vacated. 

Docket No. PENN 87-188 

Citation No. 2691708 alleges a violation of the regulatory 

standard at 30 C.F.R. § 75.1707 and charges as follows: 

The isolated intake air escapeway, designated as such 

by the operator (no. 2 entry) and the "D" East Mains 

trolley haulage Cno. 3 entry) were not separated. This 

area was developed after March 30, 1970 and this 

isolated escapeway is used by the 6 left active 

working section. The first crosscut between no. 2 and 

no. 3 entries inby survey station no. 5074 was open and 

air was passing from no. 3 entry into no. 2 entry. The 

air is in common at the first crosscut inby survey 

station no. 5074 and also for two crosscuts outby this 

area where the intake air and escapeway goes into the 6 

left working section; however, the air traveling in 

towards the 6 left section was splitting at the mouth 

of this section with a small amount of air going inby 

in the no. 2 entry. The air passing inby in no. 2 

entry is preventing the track/trolley air from entering 

6 left section at this time. 

The cited standard provides as relevant hereto that "the 

escapeway required by this section to be ventilated with intake 

air shall be separated from the belt in trolley haulage entries 

of the mine for the entire length of such entries to the 

beginning of the working section ••• " The term "working section" 

is defined in the regulations as all areas of a coal mine from 

the loading point of the section to and including the working 

face. See 30 C.F.R. § 75.2Cg)(3). In this case it is not 

disputed that the belt tail would be considered the loading 

point. 

The Secretary argues that although the intake escapeway 

"curls" around in a "horseshoe" away from the working face, 

from the loading point to the faces would nevertheless be inby 

810 
and everything from the loading point in the other direction and, 

implicitly, doubling back, would be outby~ MSHA Inspector Ronald 

Miller's testimony in this regard is not disputed. Accordingly, 

from the reference point at the belt tail of the 6 left section 

"any point t~aveling out the belt entry would be therefore outby". 

Under the circumstances it id clear that under the cited standard 

the operator was required to maintain a separation between the 

intake air and the trolley haulage entcy in the cited areas. 

Beth Energy maintains that it did provide such separation 

without permanent stoppings by use of a pressure differential. 

However the persuasive evidence in thi.s case through the 

testimony of MSHA's expert witnesses is that pressure separation 

alone is not sufficient under the cited standard unless a 

specific exception is granted under the regulation or under the 

procedure for the approval of ventilation plans. According to 

Inspector Miller the "separation" tha~ is required by industry 

standards is a physical barrier or stopping. 

According to ~SHA ventilation specialist Samuel Burnetti, 

in mines where pressure separation is permitted a physical 

barrier such as a regulator must also be used in conjunction 

therewith to provide adequate control. Even Beth Energy Mine 

foreman Nick Carpinello acknowledged that he would not permit an 

air pressure differential between an intake escapeway and the 

track trolley for any of the crosscuts where the two directly 

parallel each other and that such separation would ~e in 

violation of the cited standard. Carpinello also acknowledged 

that if the air flow in the escapeway should reverse then the air 

from the track trolley would indeed enter the escapeway. This 

testimony corroborates that of the MSHA experts supporting the 

rationale of the regulation to avoid a potential hazard. 

Under the circumstances I find that MSHA's construction of 

the standard to be consistent with accepted industry practice and 

the "reasonable person" test discussed supra. Under the 

circumstances the failure of Beth Energy to have erected 

permanent stoppings as cited constituted a violation of 

30 C.F.R. § 75.1707. 

I do not find however that the Secretary has met her burden 

of proving the necessary probabilities of an occurrence to 

establish the violation as "significant and substantial". See 

Mathies Coal Co., supra. The testimony of Burnetti and Miller 

concerning the potential for an air reversal that could cause 

track air to flow onto the intake escapeway was speculative and 

based on presumptions of fact not established in the record. For 

the same reasons I do not find that the Secretary has proven that 

the violation was of high gravity. 

811 
I also find that Beth Energy is chargeable but with little 

negligence in regard to this violation. This finding is based in 

part on the confusion caused by the unusual "horse-shoe" design 

of the escapeway. It is also based on the evidence that Beth 

Energy had previously utilized pressure separation without being 

cited and that a prior violation had been vacated by MSHA 

officials on the basis that a separation was in fact being 

maintained by positive air flow. 

In determining appropriate civil penalties in these cases I 

have also considered that the mine operator is of moderate' size 

and does not have a significant history of violations. I also 

have taken it into consideration that the violative conditions 

were abated in a good faith and timely manner. 

Accordingly I find that the following civil penalties are 

appropriate: Docket No. PENN 87-145 - Order No. 2691012 

(settled) $650; Citation No. 2691218 $75. Docket PENN 87-155 

Citation No. 2691158 (vacated). Docket No. PENN 87-188 -

Citation No. 2691708 $100. Docket No. PENN 87-224 - Citation No. 

2698137 ..;.$250. 

ORDER 

Citation No. 2691158 is vacated. Order No. 2691012 and. 

Citation Nos. 2691218, 2E91708 and 2698137 are affirmed and Beth 

Energy Mines, Inc., is directed to pay civil penalties to lling 

$1,075 within 30 days of the date of this d 

Distribution: 

Evert H. vanWijk, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 <Certified 

Mail) . 

R. Henry Moore, Esq., Buchanan Ingersoll Professional 

Corporation, 58th Floor, 600 Grant Street, Pittsburgh, PA 15219 

(Certified Mail) 

nt 

812 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 271988 

M.A.E. WEST, INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL'rH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

M.A.E. WEST, INCORPORATED, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEVA 87-234-R 

Citation No. 2909484; 5/14/87 

: Docket No. WEVA 87-235-R 

Citation No. 2909485; 5/14/87 

: Docket No. WEVA 87-236-R 

Citation No. 2909486; 5/14/87 

Docket No. WEVA 87-237-R 

Citation No. 2909487; 5/14/87 

Docket No. WEVA 87-238-R 

Order No. 2909488; 5/14/87 

Docket No. WEVA 87-239-R 

Citation No. 2909489; 5/14/87 

MAE West Preparation Plant 

Mine ID 46-03755 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-92 

A.C. No. 46-03755-03534 

M.A.E. West Preparation Plant 

DECISIONS 

Appearances: Mark M. Neil, Esq., Rist, Neil & Associates, 

and William D. Stover, Esq., M.A.E. Services, 

Inc., Beckley, West Virginia, for the 

Contestant/Respondent; 

JacK E. Strausman, Esq., Office of the 

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

Virginia, for the Respondent/Petitioner. 

813 
Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern six Notices of 

Contests filed by M.A.E. West Incorporated pursuant to section 

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

30 u.s.c. § 815(d), challenging the validity of four section 

104(a) citations, with special "significant and substantial" 

(S&S) findings, and two section 107Ca) imminent danger orders 

issued at M.A.E. West's Preparation Plant on May 14, 1987. 

The citations and orders were issued after the conclusion of a 

fatal accident investigation conducted by MSHA (Exhibit G-27). 

A hearing was conducted in Beckley, West Virginia, during 

May 24-25, 1988, and the parties appeared and participated 

fully therein. 

Applicable Statutory and Regulatory Provisions 

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

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

2. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Issues 

The issues presented in these proceedings are as follows: 

1. Whether or not the conditions and 

practices cited in the imminent danger orders 

constituted an imminent danger within the 

meaning of section 107(a) of the Act. 

2. WhetheL or not the conditions or 

practices described in the citations issued 

pursuant to section 104(a) of the Act constituted violations of the cited mandatory safety 

standards, and if 30, ~hether or not these 

violations were significant and subdtantial. 

3. The appropriate civil penalty assessments that should be ass~ssed against M.A.E. 

West for the violations in question, taking . 

into account the civil ~enalty assessment 

criteria found in section llO(i) of the Act. 

814 
Stipulations 

The parties stipulated to the following <Exhibit ALJ-1; 

Tr. 5-6): 

1. MAE West, Inc. is a West Virginia 

corporation located at 41 Eagles Road, Beckley, 

West Virginia 25801. 

2. MAE West, Inc. operates a bituminous 

coal preparation plant at Uneeda in Boone 

County, West Virginia. 

3. The federal mine identification number 

for the MAE West Prep. Plant is 46-03755. 

4. MAE West, Inc., and the operation of 

the MAE West Prep. Plant, are subject to the 

jurisdiction of the Mine Safety and Health Act 

of 1977, as amended, 30 u.s.c. § 801 et seq. 

5. The Administrative Law Judge has 

jurisdiction over this proceeding. 

6. The inspector who issued the subject 

104(a) citations (numbers 2909484, 2909485, 

2909487, and 2909489) and the subject 107Ca> 

imminent danger orders (numbers 2909486 and 

2909488) was a duly authorized representative 

of the Secretary of Labor. 

7. The subject 104Ca) citations (numbers 

2909484, 2909485,2909487 and 2909489) and the 

subject 107 (a) immi11ent dange.c orders (numbers 

2909486 and 2909488) were properly served upon 

the operator in accordance with sections 104(a) 

and 107Ca) of the Acc. 

8. Copies of the subject citations and 

orders, and the subsequent modifications or 

terminations issued, are authentic and may be 

admitted into evidence for the purpose of 

establishing their issuance and not for the 

truthfulness of any statement therein. 

9. A copy of Form R-17, the Assessed 

Violation History Report for the MAE West, Inc. 

Prep. Plant accurately sets forth the number 

and types of violations assessed for said plant 

815 
during the period from May 12, 1985 to May 11, 

1987 and may be admitted into evidence. 

10. For purposes of section llO(i) of the 

Act, MAE West, Inc. is a moderate-sized 

company. 

11. The imposition of the proposed civil 

penalties will not affect the operator's 

ability to continue in business. 

12. For purposes of section llO(i) of the 

Act, the operator demonstrated good faith in 

achieving compliance with the Act after being 

notified of the subject 104(a) violations 

(numbers 2909484, 2909485, 2909487, 2909489). 

Bench Ruling 

During opening statements at the hearing, MSHA's counsel 

moved for leave to amend and modify section i07(a) Order 

No. 2909486 to cite a violation of 30 C.F.R. § 77.404(c) 

rather than 30 C.F.R. § 77.516 (Exhibit G-3-a). Counsel also 

moved to amend and modify section 104(a) Citation No. 2909487 

to cite a violation of section 77.404(c), rather than section 

77.516, and to delete the sentence which originally appeared 

in item #8, "condition or practice" on the face of the original citation form, which read "The practice is contrary to the 

National Electrical Code section 430-86" (Exhibit G-4-a). 

M.A.E. West's counsel filed a previously prepared written 

objection to the proposed modifications and amendments, and 

after further arguments on the record, MSHA's request was 

granted, and the objection was rejected (Tr. 8). 

Discussion 

The contested citations and orders, as modified and 

amended, are as follows: 

Section 104(a) "S&S" Citation No. 2909484, 30 C.F.R. 

§ 77.502 (Exhibit G-1): 

The conduit provided for the 480 volt a.c. 

three phase circuit for the drive motor of the 

ra~ coal bypass belt, also called the breaker 

reject belt, included a junction box that was 

damaged to the extent .chat muck and water were 

allowed to accumulate in it. This resulted in 
a power lead shorting to ground, and it shorted 

out the start-stop controls of the Koppers 

rotary breaker. 

Section 104(a) "S&S" Citation No. 2909485, 30 C.F.R. 

§ 75.516 (Exhibit G-2): 

The No. 14 AWG control leads for the JDG 

switch of the Koppers rotary breaker were 

spliced 12 feet inby the large splice box 

located on the underside of the 2nd floor of 

the breaker building. The splice shorted to 

the conduit and shorted the start-stop switches 

for the Koppers rotary breaker. The splice was 

located inside a run of conduit tubing, not 

acceptable in the National Electrical Code, 

section 346-14 for rigid metal conduit, and 

section 345-14 for intermediate metal conduit. 

Section 107(a) Imminent Danger Order No. 2909486, 

30 C.F.R. § 77.404(c), (Exhibits G-3 and G-3-a): 

During the investigation of a fatal 

accident, it was revealed that a practice of 

working on and inside the Koppers rotary 

breaker without locking out the circuit breaker 

which was the disconnecting device, existed. 

Section 104(a) "S&S" Citation No. 2909487, 30 C.F.R. 

§ 77.404(c) (Exhibits G-4 and G-4-a): 

The investigation of a fatal accident 

revealed that a practice of not turning power 

off and locking out the circuit breaker for the 

Koppers rotary breaker existed when work was 

being performed on the machine. The circuit 

breaker was the power disconnecting device. 

Secl:ion 107Ca) Ircmlinent Dangar Order No. 2909488, 

30 C.F.R. § 77.516, (Exhibits G-5): 

During the investigation of a fatal accident it was found that so1ne circuit breakers in 

the cir=uit breaker room of the breaker bQilding which wera the power disconnecting devices 

for tne motor circuits were not provided with a 

means to be locked out when work was being 

performed. 
Section 104(a) "S&S" Citation No. 2909489, 30 C.F.R. 

§ 77.516, (Exhibit G-6): 

Some circuit breakers used as the oower 

disconnecting devices for motor circuit~ in the 

breaker building were not provided with a means 

to be locked out when work was being performed 

on the machines. This is contrary to the 

National Electrical Code section 430-86. These 

circuit breakers included the rock bin undercut 

gate, the 2-48 inch slope conveyor, and the 

main. 

MSHA's Testimony and Evidence 

In support of its position in these proceedings, MSHA 

presented the testimony of Federal Mine Inspectors James E. 

Davis and Roy w. Milam. Inspector Davis prepared the official 

report of investigation concerning the accident in question, 

and he testified as to his findings which were included in the 

report, as well as to certain information developed during 

interviews with certain witnesses in the course of the investigation (Exhibits G-27 and G-30). Inspector Milam, the individual who issued the contesced citations, testified as to the · 

facts and circumstances concerning his electrical inspections, 

and the reasons for the issuance of the citations in question. 

During the second day of the hearing, and during a break 

in the cross-examination of Inspector Milam, the parties 

advised me that they had reached a proposed settlement in all 

of these matters, and MSHA's counsel requested some additional 

time to contact his off ice for the purpose of discussing and 

clearing the proposed settlement with his supervisor. 

Counsel's request was granted, and the hearing was recessed to 

accommodate the parties in their further settlement negotiations. 'rhe hearing was subsequently recomrened, and the 

parties advised me that they had reached an agreement and proposed settlement of all of the cases, and they were afforded 

time to present their settlement motions, including supporting 

arguments on the record. MSHA's counsel confirmed that Inspectors Davis and Milam agreed with the terms of the settlement, 

which are as follows (Tr. 55-60): 

1. Docket Nos. WEVA 87-234-R, 

WEVA 87-235-R, and WEVA 87-239-R. With regard 

to section 104(a) "S&S" Citation Nos. 2909484, 

2909485, and 2909489, the parties are in agreement that the citations may be affirmed as 

issued and modified by the inspector. M.A.E. 

818 
West agreed to pay the full ru~ount of the proposed civil penalty assessments for the violations in question, and agreed to withdraw its 

contests in this regard. 

2. Docket No. WEVA 87-238-R. The parties 

agreed that the contested section 107(a) Imminent Danger Order No. 2909488, may be affirmed 

as issued and modified by the inspector, and 

M.A.E. West agreed to withdraw its contest in 

this regard. 

3. Docket Nos. WEVA 87-236-R and 

WEVA 87-237-R. With the concurrence of Inspector Milam, the parties agreed to amend and 

modify section 107(a) Imminent Danger Order 

No. 2909486 and section 104(a) "S&S" Citation 

No. 2909487, so that the "condition or practice" described by the inspector will read as 

follows: 

During the investigation of a 

fatal accident it was concluded that 

Chester Asbury entered the Koppers 

Rotary Breaker for the purpose of 

repairs and maintenance without the 

power being off in violation of 

30 C.F.R. § 77.404(c). 

The inspector's "high" negligence finding 

with respect to Citation No. 2909487 is reduced 

to "moderate," thereby justifying a reduction 

of the original civil penalty assessment. 

The parties agreed that the contested 

order and citation, as amended and modified 

abova, may be affirmed as issued, and subsequently amended and modif.ied. M.A.E. West 

agreed to withdraw its contests in this regard. 

With respect t0 MSHA's proposed civil 

penalty assessment of $8,000, for the Citation 

No. ~9094a7, MSHA agreed to raduce its proposed 

penalty asses3ment for this violation to 

$7,000, and M.A.E. West agreed to pay that 

amount in satisfaction of the violation. 

819 
Conclusion 

Aiter careful review and consideration of the pleadings, 

and the arguments presented by the parties in support of the 

proposed settlement disposition agreed to by the parties in 

these proceedings, the proposed settlements were accepted and 

approved :from the bench. Further, pursuant to the requirements of Commission Rule 30, 29 C.F.R. § 2700.30, I conclude 

and find that the settlement agreements are reasonable and in 

the public interest, and my bench decisions in this regard ARE 

REAFFIRMED. 

ORDER 

All of the citations, orders, and violations in issue in 

these proceedings ARE AFFIRMED. M.A.E. West IS ORDERED to pay 

the following civil penalty asaessments for the violations in 

question, within thirty (30) days of the date of these 

decisions and order: 

Citation/ 30 C.F.R. 

Order No. Date Section Assessment 

2909484 05/14/87 77.502 $ 255 

2909485 05/14/87 77.516 $ 255 

2909487 05/14/87 77.404(c) $7,000 

2909489 05/14/87 77.516 $ 180 

IT IS FURTHER ORDERED that the Notices of Contests filed 

by M.A.E. West in connection with the contested violations in 

i3sue in these proceedings ARE DISMISSED. Upon receipt of 

payment of the aforesaid civil penalty assessments by the petitioner, the civil penalty proceeding ia likewise dismissed. 

~~Kouf;~ Administrative Law Judge 

- 820 
Distribution: 

William D. Stover, Esq., M.A.E. Services, Inc., 41 Eagles 

Road, Beckley, WV 25801 (Certified Mail} 

Mark M. Neil, Esq., Rist, Neil & Associates, 1800 Harper Road, 

Beckley, WV 25801 (Certified Mail} 

Jack E. Strausman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail} 

/fb 

821 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

FMC WYOMING CORPORATION, 

Contestant 

'v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

FMC WYOMING CORPORATION, 

Respondent 

and 

UNITED STEEL WORKERS OF 

AMERICA, 

Intervenor 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

JUN 2 81988 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 86-43-RM 

Citation No. 2647693; 11/23/85 

Docket No. WEST 86-44-RM 

Order No. 2647694; 11/23/85 

Docket No. WEST 86-45-RM 

Order No. 2647695; 11/23/85 

FMC Trona Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-110-M 

A.C. No. 48-00152-05535 

FMC Trona Mine 

DECISION 

Appearances: James H. Barkley, Esq., Margaret A. Miller, Esq., 

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

Denver, Colorado, 

for Respondent/Petitioner; 

James Holtkamp, Esq., Vancott, Bagley, Cornwall & 

McCarthy, Salt Lake City, Utah, 

for Contestant/Respondent; 

Stan Loader, Staff Representative, United Steelworkers of America, Rock Springs, Wyoming, 

Intervenor. 

Before: Judge Cetti 

Statement of the Case 

These consolidated contest and civil penalty proceedings 

arise under the Federal.Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et~., Cl982)("Mine Act"). The Secretary on 

behalf of the Mine Safety and Health Administration CMSHA) 

charges the FMC Wyoming Corporation ("FMC") with violating three 

regulatory safety standards. 

822 
The three violations charged are based upon MSHA's mine 

inspector Robert Scheneman's November 19th inspection of FMC's 

Trona mine surface facility. 

Factual Background 

FMC operates a trona mining and processing facility near 

Green River, Wyoming. The trona is found in thick underground 

seams. FMC extracts the trona from its natural deposits by using 

underground mining and in situ leaching methods. Adjacent to the 

mine is a large surf ace plant where the trona is processed into 

various products. 

The citation and orders in these proceedings arise not from 

extracting or processing trona but from maintenance work done by 

FMC's maintence crew on the No. 3 turbine in the "Sesqui" 

powerhouse, located in the surface plant. The turbine is one of 

three turbines which are used to generate electricity for use at 

the surf ace plant. The turbines and associated boiler are 

enclosed in the powerhouse which has large doors on the west side 

for heavy equipment access. 

STIPULATIONS 

The parties stipulated as follows: 

1. FMC is a large operator. 

2. The violations were abated within the period proscribed. 

3. Payment of the amended penalties will not impair FMC's 

ability to continue in business. 

4. The operator's history of prior violations is average 

for an operator of its size. 

Citation No. 2647693 

This citation was issued under section 104(a) of the Mine 

Act on November 23rd by MSHA Inspector Robert Scheneman. 

The citation alleges a violation of 30 C.F.R. § 57.5002 

which mandates the following: 

Dust, gas, mist, and fume surveys shall be conducted as 

frequently as necessary to determine the adequacy of 

control measures. 

In the citation MSHA inspector Robert Scheneman correctly 

states the facts as follows: 

The company Industrial Hygienist was not notified when 

work was being started to remove the asbestos type in823 
sulation from the No. 3 turbine in Sesqui Powerhouse. 

There were no surveys taken to determine if the people 

working were overexpo_sed to asbestos. The Industrial 

Hygienist did take samples after the work was done and 

they were cleaning up. 

This citation was modified from a 104Ca) citation to a 

104Cd)(l) citation on December 12, 1985. 

On November 4, a maintenance crew supervised by FMC foreman 

John Wilfong began the process of dismantling the No. 3 turbine 

for its scheduled 5-year overhaul. 

The dismantling work began with the removal of the turbine 

covers and blanket insulation. The blanket appeared to be made 

of "grayish" fiberglass cloth 2 inches thick. It extended only 

along the flange area of the turbine cover. The blanket insulation was placed over the handrail behind the control room 

which is near the turbine. 

Next the maintenance crew removed the flange bolts using a 

hydraulic wrench and separated the halves of the turbine. This 

process took approximately three days and entailed the chipping 

away of insulation around the bolts. 

The insulation in the bolt area appeared to be a hardboard 

type mortar. As the insulation was chipped away, the pieces fell 

on either side of the turbine down to the first floor below. The 

mortar was enmeshed in chicken wire. Underneath the mortar were 

bricks of insulation,held in place by baling wire. The removal 

of the mortar insulation entailed cutting the chicken wire with 

pliers and chipping some of the mortar to loosen it from the 

bricks. The chicken wire with the mortar then fell underneath 

the turbine to the floor below. The brick insulation was removed 

by cutting the baling wire, allowing the bricks to fall to the 

floor beneath the turbine. The brick insulation was a soft 

chalky substance that would stick under a thumb nail if scratched. 

The mortar and brick insulation removal required approximately 

two to four hours of work. The total time taken to remove the 

insulation was about three days. The insulation debris was left 

scattered about the area for approximately two weeks. 

It is undisputed that FMC did not take dust surveys during 

the three day period the maintenance crew removed the insulation 

nor during the following two weeks. It it also undisputed that 

MSHA never took any air samples at any relevant time. 

During the bolt removal process, some dust was kicked up 

into the air. Before the bolt could be removed the crew had to 

use hammers to remove the second layer of insulation. This 

plaster like insulation was held together with chicken wire. It 
was soft and would crumble when hit. As the material .was broken 

up it was dropped or thrown to the floor below. As the insulation was dropped to the floor it created dust. One 

maintenance employee described the dust as a heavy flour type 

dust that would fly up when hit. 

The maintenance foreman in charge of the crew was John 

Wilfong. He had been assigned the task of overhauling the No. 3 

turbine by his immediate supervisor, Mike Hruska. Foreman 

Wilfong was asked by three members of his crew whether insulation 

they were handling contained asbestos, and whether it was safe to 

handle it. The foreman gave them vague assurances that it was 

safe. Hruska as well as Wilfong saw the insulation being removed 

from the turbine. 

On November 18, 1985, FMC's industrial hygienist Carl Watson 

came to the Sesqui powerhouse to check on the work of an independent outside contractor who had a crew that specialized in 

removal of material containing asbestos. This crew wore protive clothing and equipment. This crew was engaged in removing 

insulation containing asbestos from the 61 foot high upstairs 

ceiling of the facility. The building was properly posted with 

warning signs. This ceiling insulation removal is unrelated to 

the citation and orders in this case except to show FMC awareness 

and attention to airborne hazards. During his November 18th 

check of the Sesqui powerhouse, FMC's industrial hygienist first 

became aware that insulation had been removed from turbine No. 3. 

He indicated to the foreman Mr. Wilfong that the insulation 

blankets could contain asbestos and asked that they be properly 

bagged. He also directed that the insulation on the floor below 

the turbine be cleaned up by wetting the insulation and putting 

it into plastic bags. Two employees cleaned up the insulation 

after it had been wetted down. Those engaged in the cleanup wore 

protective clothing with canister masks. 

On the following day, November 19, 1985, MSHA Inspector 

Robert Scheneman was making a regular inspection at the FMC 

facility. The inspector came to the powerhouse to check on FMC 

personnel cleaning up insulation material taken off the turbine. 

When the inspector arrived at the No. 3 turbine he saw Carl 

Watson, FMC's industrial hygienist taking samples and observed 

the cleanup crew wearing protective clothes and masks cleaning up 

the insulation. 

The mine inspector took a "grab" sample out of one of the 

bags of insulation, which he sent to Denver MSHA Tech Support for 

analysis. The report, petitioner's exhibit 1, indicates that the 

sample contained 4.4 percent amosite and .3 percent crysotile by 

weight. 

825 
FMC presented evidence that it had in place at the time of 

the issuance of the citation a policy regarding asbestos identification and cleanup (Ex. P-2, P-6). I am satisfied from the 

evidence presented that if the foreman Wilfong had been aware 

that the insulation contained asbestos or that had Mr. Watson the 

industrial hygienist had been aware that the insulation was being 

removed, that the appropriate policy guidelines would have been 

implemented. 

Approximately 17 months before the issuance of the current 

citation and orders FMC's Industrial Hygienist, Mr. Watson, had 

distributed a memorandum dated July 1, 1985 to senior managers at 

the FMC plant. (Ex. P-3). This memorandum showed the results of 

sampling and analysis for asbestos in various materials located 

throughout the facilities. Included in the memo was the analysis 

of the No. 3 turbine insulation which showed that it contained 

asbestos. Mr. Hruska, the general maintenance foreman, an 

immediate supervisor of Wilfong, testified that he does not 

recall seeing the July 1, 1985, memorandum before the turbine 

overhaul began and consequently did not advise Mr. Wilfong that 

the No. 3 turbine insulation contained asbestos. 

The cited safety standard, § 57.5002, mandates that dust 

surveys be conducted as frequently as necessary to determine the 

adequacy of control measures. It is a broad general standard. 

Such a standard should be evaluated by reference to an objective 

standard of what actions a reasonably prudent person familiar 

with all the facts, including those peculiar to the mining 

industry, and the protective purpose of the standard, would have 

taken to provide the protection intended by the standard. 

Section 57.5002 is broadly written so as to be adaptable to 

myriad circumstances. This safety standard is of central importance in the crucial regulatory area of avoiding overexposure 

to airborne hazards. 

Upon review of the entire record I'm satisfied and find that 

a reasonably prudent person familiar with the facts including 

those peculiar to the mining industry and the protective purposes 

of the standard would have conducted dust surveys to determine 

what control measures would be adequate to prevent the possible 

overexposure of the employees working with the insulation. Dust 

surveys should have been conducted during the three days the 

maintenance crew removed the insulation from turbine No. 3. 

Since respondent took no dust surveys during that period of time 

respondent violated and thwarted the protective purposes of the 

standard. 

Without air samples there is no way to determine whether any 

employee in the maintenance crew was overexposed. 

Respondent's contention that the application of§ 57.5002 is 

conditioned on a finding of exposure to airborne contaminants in 

826 
excess of the permissible limit defined in § 57.5001 is rejected. 

The rationale of the Commission's decision in Tammsco, Inc., and 

Schmarje, 7 FMSHRC 2006 [3 MSHC 2026] (December, 1985) is not 

applicable to the facts and the safety standard charged in this 

case. 

Section 104(d)(l) of the Mine Act provides that a violation 

is significant and substantial if it is of "such nature as could 

significantly arid substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." 30 u.s.c. 

§ 814(d)(l). 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, 3 FMSHRC 

822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984) the Commission explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary ••• must prove: Cl) 

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. 

The Commission has explained that the third element of the 

Mathies formulation "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) (emphasis deleted). They 

emphasized that, in accordance with the language of section 

104(d)(l), 30 u.s.c. § 814(d)(l), it is the contribution of a 

violation to the cause and effect of a hazard that must be 

significant and substantial. Id. In addition, the evaluation of 

reasonable likelihood should be made in terms of "continued 

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

1573, 1574 (July 1984). Applying these principles to the instant 

case. It is concluded that the cited violation is not of a 

significant and substantial nature. 

The Review Commission has ruled that "unwarrantable failure 

means aggravated conduct, constituting more than ordinary 

negligence, by a mine operator in relation to a violation of the 

Act." It based this conclusion on the ordinary term "unwarrantable failure". The purpoie of unwarrantable failure 

sanctions with in the Mine Act, the Act's legislative history 

and judicial precedence. The Commission stated that whereas 

negligence is conduct that is "inadvertent," "thoughtless," "or 

827 
inattentive," conduct constituting unwarrantable failure is 

conduct that is "not justifiable" or "inexcusable". The 

Commission pointed out that by construing unwarrantable failure 

by a mine operator to mean aggravated conduct constituting more 

than ordinary negligence, can unwarrantable failure sanctions 

assume their intended distinct place in the Act's enforcement 

scheme. See Emery Mining Corp., 9 FMSHRC 1997, 2001, 2004 

C December 198 7) Ci.nd Youghiogheny and Ohio Coal Co., 9 FMSHRC 

2007, 2010 {December 1987). Applying these principles to the 

facts of this case I find that the violation of Section 56.5002 

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

The violation was caused by ordinary negligence . For purposes 

of determining the appropriate penalty, I would evaluate the 

degree of negligence at the upper range of ordinary negligence. 

The evidence shows that FMC was not indifferent to the 

hazard of airborne asbestos. It had shown an awareness and 

attention to this hazard. As previously stated FMC had in place 

at the time of the issuance of the citations a policy regarding 

asbestos identification and cleanup CExs. P-2 and P-6). FMC's 

industrial hygienist Mr. Watson distributed a memorandum dated 

July 1, 1985, to senior managers at the FMC plant regarding the 

results of various sampling and analysis for asbestos, including 

an analysis of the No. 3 turbine insulation (Ex. P-3). There is 

no evidence indicating that had the maintenance foreman been 

aware that the insulation contained asbestos or that had the 

industrial hygienist been aware that the insulation in the No. 3 

turbine was being removed, that FMC's asbestos policy guidelines 

would not have been implemented. 

The record also shows FMC was not indifferent to the hazards 

of airborne asbestos dust. At the time of the current inspection 

FMC had an independent contractor with a crew wearing protective 

clothes and equipment removing insulation containing asbestos 

from the ceiling of the building that housed the turbine. While 

ceiling insulation removal was unrelated to the citation and 

orders in this case it indicates FMC's awareness and attention to 

the hazard of airborne asbestos dust. These efforts to eliminate 

the hazard of airborne asbestos dust tend to support the 

conclusion that FMC's failure to comply with the safety standard 

in question was due to ordinary negligence rather than to 

aggravated conduct exceeding ordinary negligence. 

For purposes of determining the appropriate penalty FMC's 

degree of negligence in violating the safety standard is 

evaluated as reaching the upper range of plain ordinary negligence. Considering FMC's large size, that the payment of appriate penalties will not impair FMC's ability to continue in 

business, that FMC's history of prior violations is average for 

an operation of its size, and the potential seriousness of the 

violation it is found that the appropriate penalty for FMC's 

violation of § 57.5002 is $600.00. 

828 
Order No. 2647694 

This Order was vacated at the hearing upon motion by the 

Secretary of Labor. The Secretary's counsel stated he had 

reviewed the applicability of the standard and the sufficiency of 

the evidence and determined not to proceed with Order No. 2647694 

(failure to provide special protective equipment and clothing). 

The Secretary's motion to withdraw the proposal for penalty and 

vacate the citation was granted over the objection of the 

Intervenor. 

Order No. 2647695 

This Order was originally issued by the mine inspector as a 

citation under section 104Cd)(l) of the Act. The order alleges a 

violation of 30 C.F.R 57.18002(a)(b) which provides: 

(a) A competent person designated by the operator shall 

examine each working place at least once each shift for 

conditions which may adversely affect safety or health. 

The operator shall promptly initiate appropriate action 

to correct such conditions. 

Cb) A record that such examinations were conducted shall 

be kept by the operator for a period of one year, and 

shall be made available for review by the Secretary or 

his authorized representative. 

The MSHA inspector, in the citation alleges: 

The people responsible for setting up this maintance [sic] 

job failed to notified [sic] the people doing the work that 

they would be working with asbestos. Their company memo 

section 3-CB) states that when they do work of this type, 

removing asbestos insulation while making repairs. The 

Industrial hygiest [sic] will be notified when this type of 

work is being done so he can observe the job and recommend 

protective equipment. They have a list of all places that 

have asbestos present. The place were [sic] the violation 

occurred was document [sic] on the list. They did not 

clean up after every shift. And placed in the proper container =or disposal. This is a failure of the operator to 

take appropriate safety measure [sic] to insure that the 

employees were adequately protected. While working in this 

area. There were eight (8) people doing the work plus the 

foreman, and supervisor in this area. This job took from 

Nov. 4 to Nov. 18, 1985 with no protection provided. For 

the employees involved. There is no records [sic] showing 

off [sic] examinations of this area. 

On December 12, 1985, Inspector Scheneman modified this 

citation to a 104(d)(l) order. 

829 
To establish a violation of 30 C.F.R. § 56.18002 the 

Secretary must prove by a preponderance of the evidence that a 

competent person failed to make an examination of the working 

place or that no record of the examination was made. Upon 

careful review of the record I find that the Secretary failed to 

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

competent persons or that no record of the examinations were 

made. 

The log of the examination of the Sesqui powerhouse during 

the period of the No. 3 turbine overhaul shows the date and shift 

on which the examinations were conducted and the name of the 

person conducting the examinations and the work places examined. 

This log was introduced into evidence by FMC as its Exhibit D-27. 

FMC also introduced into evidence an MSHA program directive, 

dated November 20, 1979, in which MSHA clarified the record 

keeping requirements of the safety standards (Ex. D-26). The 

program directive specifies that the items that must be recorded 

in order to comply with record keeping requirements are: 

(a) the date and shift; 

Cb) the person(s) conducting the examination; and 

Cc) the working places examined. 

The MSHA's program directives also specifies that: 

Citations for violations of this standard are to be issued 

only where there has been a failure to cond~ct an examination of a working place or a failure to record that 

an examination has been done. The standard is not to be 

used to cite an operator for a hazard that is not specifically covered by another standard, or for a hazard that 

is already covered by another mandatory standard, or for 

imminent danger. 

I'm satisfied that the program directive as it relates to 

this case correctly interprets the safety standard in the manner 

intended by its promulgator. On careful review of the record I 

find that the evidence presented at the hearing does not 

establish a violation of 30 C.F.R. § 57.18002. 

Conclusions of Law 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated the mandatory safety standard 30 

C.F.R. § 57.5002 as alleged in Citation No. 2647693. The 

appropriate civil penalty for this violation is $600.00. 

3. FMC's violation of § 57.5002 was not significant and 

substantial and was not caused by FMC's unwarrantable failure to 

comply. 

830 
4. FMC did not violate 30 C.F.R. § 57.18002(a)(b). Order 

No. 2647695 is vacated and the proposed penalty set aside. 

S. Order No. 2647694 and its related proposed civil 

penalty, upon motion by the Secretary of Labor, are each vacated. 

ORDER 

Docket No. WEST 86-43-RM 

Docket No. WEST 86-110-M 

Citation No. 2647693 as modified to a citation issued 

pursuant to Section 104(a) is affirmed and the respondent is 

ordered to pay a civil penalty of $600.00 to the Secretary within 

within 30 days of the date of this decision. 

Docket No. WEST 86-44-RM 

Docket No. WEST 86-45-RM 

Docket No. WEST 86-110-M 

Order Nos. 2647694 and 267695 and their related proposed 

penalties are each vacated. 

Distribution: 

F. Cetti 

istrative Law Judge 

Margaret A. Miller, Esq., James H. Barkley, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80294 (Certified Mail) 

James Holtkamp, Esq., Vancott, Bagley, Cornwall & McCarthy, 50 s. 

Main Street, Suite 1600, P.O. Box 45340, Salt Lake City, UT 

84145 (Certified Mail) 

Mr. Stan Loader, Staff Representative, United Steelworkers of 

America, District 33, P.O. Box 1315, Rock Springs, WY 82902 

(Certified Mail) 

/bls 

831 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

WESTERN FUELS-UTAH, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTERN FUELS-UTAH, INC., 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JUN 3O1988 

. . 

: 

. . 

. .. 

: 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 87-166-R 

Order No. 2835325; 3/21/87 

Docket No. WEST 87-167-R 

Citation No. 2835326; 3/22/87 

Docket No. WEST 87-168-R 

Citation No. 2835327; 3/22/87 

: Docket No. WEST 87-169-R 

Citation No. 2835328; 3/22/87 

Mine I.D. 05-03505 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-251 

A.C. No. 05-03505-03540 

Deserado Mine 

DECISION 

Appearances: Karl F. Anuta, Esq., Boulder, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Respondent/Petitioner. 

Before: Judge Lasher 

The penalty case was consolidatedwith the four contest 

proceedings at hearing---which as reflected in the caption 

involve a Section 103Ck> withdrawal order and 3 citations. The 5 

dockets arise under and the Commission has jurisdiction pursuant 

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

Section 801 et~ (1982) (herein the Act). 

The four enforcement papers Corder and 3 citations) were 

issued by MSHA Inspector Dale L. Hol~opeter subsequent to the 

occurrence of a serious accident which occurred at approximately 

9:25 a.m., on March 20, 1987, near the Deserado mine, an underground coal mine operated by Contestant/Respondent (herein 

Western Fuels) in Rio Blanco County, Colorado. 

832 
One of the citations (No. 2835327) charged that the alleged 

violation described therein was "significant and substantial". 

The other 2 Citations <numbered 2835326 and 2835328) did not 

contain "S&S" designations. 

A. General Findings 

The Deserado Mine is an underground coal mine located near 

Rangely, Rio Blanco County, Colorado. Coal is taken from the 

mine to a preparation plant from which it is transported for 

several miles to a train loadout area by an overhead conveyor CT. 

27, 55, 153). 

The parties, in addition to stipulations as to jurisdiction, 

admissibility of underlying documentation and mandatory penalty 

assessment criteria, also submitted the following written 

stipulations: 

a. On Friday, March 20, 1987, at about 9:25 a.m., a nonfatal powered haulage accident occurred on the County Road 

78 at the Beltline Conveyor Overpass CCNV-2). Dale J. 

Ackerman, truck/light equipment operator, and Michael G. 

Smith, heavy equipment operator, were seriously injured 

when the Euclid, RD-50, end dump haulage truck, with the 

bed raised, struck the overpass, causing the truck to overturn onto its left cab side. The accident occurred because 

the haul truck operator failed to lower the truck bed after 

dumping refuse material at Pit 2/3 l; · 

b. The accident was reported by the (mine) operator to the 

MSHA office in Glenwood Springs at approximately 12:00 

noon on March 20, 1987. 

c. The No. 2 Beltline conveyor overpass is above County 

Road No. 78 and is used as a haul road by Western Fuels 

with express permission of Rio Blanco County and Bureau of 

Land Management. 

d. The No. 2 Beltline Conveyor overpass was not at the time 

of the accident marked and did not contain warning signals. 

1/ The evidence of record also overwhelmingly established that 

the driver of the truck, Ackerman, for whatever reason, failed to 

lower the truck bed and then drove the truck approximately 2 

miles from the pit to where the bed struck the overpass as the 

truck attempted to proceed underneath. 

833 
Inspector Hollopeter, who is stationed in Denver, was 

advised of the accident by his supervisor sometime after 

"noontime" on Friday, March 20, 1987. After packing, he drove 

from Denver to Craig, Colorado that afternoon. That night he 

prepared his equipment, etc. for the ensuing investigation, and 

the following morning traveled from Craig to the mine where he 

met with company and union officials at approximately 8 a.m. CT. 

28-32). He was advised by Mine Superintendent John Trygstad that 

the haulage truck-with the bed thereof in the raised position--

had struck the overland conveyor structure. At the conclusion of 

the meeting, Inspector Hollopeter issued the Section 103Ck) 

Order-- based on what he was told at the meeting-- to insure the 

safety of the miners CT. 33-38, 55). Following the meeting, 

Inspector Hollopeter, accompanied by Western Fuels' Safety 

Director Jerry Kowlok, went to the accident scene, and then to 

Pit 2-3, i.e. the refuse pile CT. 40, 59). 

It was Inspector Hollopeter's understanding, and I so find 

from the entire record, that Dale Ackerman, the driver of the 

50-ton capacity truck on the trip in question, his second of the 

day CT. 132), started out from the preparation plant on March 20 

with a load of refuse, proceeded down the 2-lane haul road 

{County Road 78) to the refuse pile Cpit) where he dumped the 

refuse material, picked up passenger Smith, and was traveling 

back down the gravel-dirt haul road to the preparation plant when 

the accident occurred as above noted about 9:25 a.m. at a point 

about 1.75 miles from the pit CT. 41, 44-48, 132, 256-257). The 

speed limit on the haul road from the refuse pit {dump) is 30 

m.p.h. CT. 256). 

The accident occurred when the right side of the front of 

the "headache rack" Ca protective part of the bed extending out 

over the cab to keep falling objects from striking the cab and 

the truck operator) struck the overpass structure CT. 60-61, 71, 

362; Exs. M-11, 12 and 13). 

The truck ended up on its left side following the accident; 

Michael G. Smith, an "authorized" passenger CT. 243, 260, 294, 

295) was removed from the truck at 10:40 a.m. and Ackerman, whose 

lower left leg had to be amputated at the scene, was removed from 

the truck at 12 noon CT. 52-53, 116; Ex. M-14). 

After his arrival at the accident scene {and the refuse 

pit), Inspector Hollopeter took various measurements and 

photographs of the truck, overpass structure, and accident scene 

{Ex. M-6 through M-13) CT. 41, 50-58). 

The overpass structure {sometimes referred to as an overhead 

conveyor) extends over the haul road in an arch, the lowest point 

of which is 20.16 feet and highest point being 27 feet; there was 

a clearance of approximately 26 feet at the point where the truck 

struck it CT. 65, 68, 138, 141). The conveyor is in the center 

834 
of the structure itself with walkways on either side. One effect 

of the withdrawal order was to prohibit persons from walking on 

these walkways (T. 78). When the bed of the truck is raised it 

extends upward at a 60 degree angle and is about 28 feet 4 inches 

in height. The truck thus failed to clear the overpass by about 

18-24 inches (T. 69 ). With the bed raised, there was thus no 

place the truck could have cleared the overpass (T. 70). In its 

travel position, i.e., with the bed lowered, the height of the 

truck is 14 feet 5 inches (T. 72). 

B. Docket No. WEST 87-166-R 

Validity of Withdrawal Order No. 2835325 

The Order was issued pursuant to Section 103(k) of the Act 

which provides: 

"In the event of any·accident occurring in a coal or other 

mine, an authorized representative of the Secretary, when 

present, may issue such orders as he deems appropriate to 

insure the safety of any person in the coal or other mine, 

and the operator of such mine shall obtain the approval of 

such representative, in consultation with appropriate State 

representatives, when feasible, of any plan to recover any 

person in such mine or to recover the coal or other mine or 

return affected areas of such mine to normal." 

Subsequent to its issuance at 8:50 a.m. on March 21, 1987, 

the Order was modified four times by Inspector Hollopeter. 

Western Fuels contends that the Order as modified, was 

improperly issued since its purpose was not to insure the safety 

of persons in the mine, but rather was intended to preserve 

evidence (T. 202). The Order itself charges no violation and 

MSHA seeks no penalty in connection therewith (T. 9). 

The "Condition or Practice" involved in the Withdrawal Order 

was set forth by Inspector Hollopeter in Section 8 thereof as 

follows: 

The mine has experienced a nonfatal powered haulage 

accident on the surface haul road (County Rd. 78) at No. 2 

Beltline Conveyor overpass. This order is issued to assure 

the safety of persons until an examination or investigation 

is made to determine the area is safe. An investigation 

party of company officials, state and county officials, 

safety committeemen are permitted to enter the area. 

Section 15 of the Withdrawal Order, wherein the "Area or 

Equipment" to be withdrawn is to be described, was filled in by 

Inspector Hollopeter as follows: 

835 
"The No. 2 Beltline Conveyor overpass structure 150 feet each 

side of the haul road and the haul road 150 feet easterly 

and westerly of the structure, except the southern portion 

of the haul road to permit traffic to pass." 

Inspector Hollopeter issued the Order to ensure the safety 

of persons until an investigation could be conducted (T. 34-36, 

142). 

At 1:40 p.m. on March 21, 1987, the Inspector issued the 

following modification: 

103Ck) Order is modified to allow the operator to move the 

Euclid R-50 (Company No. 4) from the accident area to the 

shop area. Also, the closure of a section of this haul 

road is now removed from this order. 

At 7:35 p.m. on March 21, 1987, this second modification~/ 

was issued: 

The 103(k) Order is modified to show the area of the No. 2 

Beltline Conveyor (overland conveyor) closure from the 150 

feet on each of the haul road changed to just the No. 2 

Beltline Conveyor Overpass structure and belt at the main 

supports north of the haul road to the main supports south 

of the haul road. 

At 11:39 a.m. on March 22, 1987, this third and final 

modification was issued by Inspector Hollopeter: 

The 103(k) Order is modified to allow repairs to the No. 2 

beltline conveyor overpass and operation of the conveyor 

belt this being based on the Chief Engineer opinion which 

was given and to allow repairs on the Euclid R-50 (Company 

No. 4) haulage truck, with stipulation that the District 

Office, MSHA, CMSH&H, Denver, co., be notified of any defective item found and that we get a report of the damage 

and repairs done to the truck. 

If an independent shop is to do the repairs, we are to be 

notified so that we might be present during examination 

or testing. 

One effect of the Withdrawal Order, as previously noted was 

to prohibit persons from walking on the walkways alongside the 

conveyor. The operation of the conveyor was also "closed" by the 

2/ Upon the issuance of this second modification, the coverage 

of the Order would have remained on the "curved arched portion of 

the overpass structure", the truck, and the conveyor belt (T. 

153). 

836 
order CT. 85, 86). The order did not prevent traffic on the 

haulage road (County Road 78) from travelingunder the overpass 

structure, and thus would not have the effect of preventing the 

same kind of accident from happening had another Euclid truck 

proceeded under the overpass with its bed raised CT. 80-85). 

This is a moot point, however, since there was only one such 

truck operating at the time-- the one involved in the subject 

accident CT. 87). The Inspector testified he also put an order 

on the truck to "prevent people from being in or around" it CT. 

87-88) although this is not specifically reflected in Section 15 

(Area or Equipment) of the order itself. 

At the time of his initial investigation, Inspector 

Hollopeter did not know the truck was being driven-- why/or what 

caused the truck to be driven-- with the bed in a raised position 

CT. 73, 77). He considered the possibility that there was a malfunction which would have caused the bed to be in a raised 

position CT. 77, 151). 

Inspector Holiopeter issued the first modification of the 

Withdrawal Order because the County wanted the truck moved and so 

that the truck could be moved off the road to the shop area 

allowing traffic to move in both directions CT. 151). At the 

time of its issuance he had not checked out and cleared the 

overpass structure for safety CT. 74-76, 142, 189). He described 

his concerns relating to the overpass as follows: 

"Just underneath, looking at the conveyor, I saw where --

the side which the truck had contacted, initially, and --

at the initial contact point, I saw, on the lattice work, 

where there was (sic) braces broken out, bent out. And, 

also, the I-beams were bent, twisted underneath it." 

CT. 77) 

The Inspector was also concerned about the cracking of paint 

around the bolts of the overpass which may have been caused by 

the accident CT. 147-149 ). ~/ 

Following issuance of the first modification which permitted 

removal of the damaged truck from the accident area, the Inspector again examined the conveyor structure. He testified as 

to what he observed: 

"On the easterly side of the structure, which was the side, 

which the haulage truck had initially contacted, I saw 

3/ Although not well articulated by the witness, I infer that 

this concern ws directed toward the possible traumatic effect the 

impact of the collision had on the structure. 

837 
the lattice work bent, braces broken out completely on one 

end, and bent out. The metal, which was bent. 

For a distance along the bottom of the conveyor, I observed 

some of the I-beams going across underneath this structure, 

bent. Also, I notice on the opposite side of the impact 

area, paint which appeared to be cracked, which was apparently caused by the impact. 

Q. But, it was on the opposite side of the conveyor? 

A. Yes." CT. 89) 

Surface Area Foreman Jack L. Monfrada described what he saw 

when he arrived as follows: 

"There was some beams and lattice work that was -- one 

lattice work was broke and pokin' up on the air, and you 

could see where these beams had been bent. They were 

horizontal beams, across the bottom of the structure. 

CT. 342) 

After this visual examination and conducting interviews CT. 

89-91) Inspector Hollopeter issued the secnd modification at 7:35 

p.m~ on March 21, 1987. He explained what led to issuance of the 

second modification: 

"Mainly, my understanding was that the company were Csic) 

havin' security people stay at that area to prevent people 

from goin' in the accident area -- or, under the 103K Order 

area. And, they'd have to keep people -- they said they 

was going to keep people there all the time. And, at that 

particular time, I didn't feet the Order should be lifted, 

because I had concern on the structure, but I felt the Order 

cold be modified to bring the distances in from 150 feet 

just to -- just so the Order would pertain to the overland 

conveyor structure, that went across the road. And, that 

-- that way you wouldn't need to have a -- anyone secure 

the area, or -- as far as havin' a person there all the 

time." 

CT. 90-91) 

xxx xxx xxx xxx 

I was concerned about the amount of metal, which was damaged 

-- your braces, your I-beams, which were bent; the cracking 

of the paint, walkway, everything. 

I was concerned about if the conveyor was operated, how 

much -- this metal was fatigued -- there could have been 

maybe an accident, shortly thereafter, if it was turned on. 

Just -- I had concern. 

838 
Q. And, concern about. the safety of anyone who might walk 

up on that conveyor belt? 

A. Yes. 

(T. 92) 

The third modification was issued at 11:34 a.m. on Sunday, 

March 22, 1987, to permit Western Fuels to repair the conveyor 

belt, it being the opinion of Western Fuels Chief Engineer Mike 

Weigand that upon completion of such the conveyor belt could be 

safely operated CT. 92-94) Inspector Hollopeter remained 

concerned about the safety of the structure and wanted MSHA 

"technical support people" to examihe it. The third modification 

thus continued MSHA 6ontrol over this aspect of the matter. By 

letter he requested them to examine it and subsequently received 

a written report back indicating the structure was safe which led 

to issuance of a fourth modification of the Order in May, 1987 

CT. 93-96, 98) which removed the structure from the effect of the 

Order CT. 97). At this point only the truck remained under the 

control of the Order CT. 98). Following further investigation of 

the truck and the Inspector's receipt of information that the 

truck had no indications of defective parts, malfunction, etc., 

Inspector Hollopeter terminated the subject Section 103Ck> 

withdrawal order CT. 98-100). 

Michael J. Weigand, Western Fuels' Chief Engineer at the 

Deserado Mine, testified that when he inspected the overpass 

structure on the day of the accident he observed that one of the 

diagonal braces had broken loose and there was "some damage" to 

the ends of some I-beams which run "roughly parallel to the road" 

underneath the structure (T. 363). He felt that the photographs 

in the record as exhibits C-5, 10, 16 and 17 accurately depicted 

the damage to the structure imediately after the accident CT. 

362-368). Mr. Weigand indicated that his inspection disclosed a 

5-inch deflection of the structure the existence of which "was 

possible" bef6ie the accident (T. 371). He conceded that "there 

could be some effects from that accident" that could "weaken" the 

structure over the "longterm" CT. 373-374) and the relatively 

extensive repairs made to the structure after the accident were 

done because such were reimbursed by insurance, it took a shorter 

time to perform the repairs in that manner, and it was decided to 

do it "right" so that the structure would last its projected 

30-year term CT. 374-376). 

During the MSHA investigation in the 2-day period following 

the accident, Mr. Weigand participated and gave his opinion to 

Inspector Hollopeter that the structure "was safe" (T. 377-378 ). 

It was also his opinion that the structure was not a "dangerous 

overpass" either before or after the accident CT. 386). 

On cross-examination, this exchange, of some significance, 

between Mr. Weigand and MSHA's counsel occurred: 

839 
Q. All right. And, you did tell Mr~ Hollopeter, as I understand, that it was your opinion that there were some braces 

that should be replaced on this overpass? 

A. I felt that if immediate work was done, that that's the 

part that should have been done, yes. CT. 392} 

Mr. Weigand also conceded the possibility that the cracked 

paint on the structure occurred as a result of the truck's impact 

with it CT. 396). 

Maintenance Superintendent Anthony Lauriski described the 

damage to the overpass structure as follows: 

A. There was two trusses tore loose, and the hand rail was 

sort of bent in one spot, and there was some damage to the 

supports that go across and hold the walkway up CT. 410). 

Western Fuels' Safety Instructor/Inspector David G. Casey, 

who in the beginning took charge of the rescue operation, 

described the damage to the structure this way: 

"We had a couple of cross-beams that were tore loose- they 

were vertical beams, and a few I-beams that had been bent." 

CT. 450) 

Mr. Casey expressed the opinion that the overpass was not 

dangerous, perilous or risky either before or after the accident 

(T. 452, 461) for persons or vehicles to travel under or near CT. 

461-462). 

As to that part of the Order pertaining to the truck, Mr. 

Laruiski testified that he first "knew" there was no malfunction 

which would have caused the bed to raise (and thus cause the 

accident) when the valve was disassembled after the truck was 

taken to the repair shop CT. 419}. This is supportive of the 

Inspector's judgment. 

Although Western Fuels, in its Brief, repeats several times 

the charge that Inspector Hollopeter's issuance of the Section 

103(K} Order was to "preserve evidence"- an allegedly unauthorized purpose, I find no direct or substantive support in 

the record, arguments or briefs for making such a finding. 

Inspector Hollopeter testified that he issued the subject order 

so that could "go in and look at the area to insure the safety of 

the miners" CT. 34). Scrutiny of the actions of the Inspector, 

from the time of his notification of the accident through his 

ensuing investigation and issuance of the Order and its three 

primary modifications, supports the contention of the Petitioner 

that "Throughout the course of the investigation, as Mr. 

Hollopeter learned more of the accident and investigated the 

840 
which an Euclid R-50 (Co No. 4) End dump haulage truck 

contacted the No. 2 Beltline Conveyor overpass and the two 

miners in the cab were seriously injured. MSHA Glenwood 

Springs, CO. field office was notified of the accident 

12 p.m. on 3/20/87." 

The standard alleged to have been violated was, 30 C.F.R. 

50.10 (entitled "Immediate Notification") which is placed in the 

codification system of the regulations under Subchapter M 

(entitled "Accidents, Injuries, Illnesses, Employment, and 

Production in Mines"), under Part 50 thereof (entitled "Notification, Investigation, Reports and Records of Accidents, 

Injuries, Illnesses, Employment and Coal Production in Mines") 

and lastly under Subpart B thereunder (entitled "Notification, 

Investigation, Preservation of Evidence"). Section 50.10 

provides: 

"If an accident occurs, an operator shall immediately 

contact the MSHA District or Subdistrict Office having 

jurisdiction over its mine. If an operator cannot 

contact the appropriate MSHA District or Subdistrict 

Off ice it shall immediately contact the MSHA Headquarters 

Office in Washington, D.C., by telephone, toll free at 

(202) 783-5582." 

The issue posed by Western Fuels in connection with this 

Citation is: 

"Does an operator violate the immediate reporting obligation of the regulations where he delays advising MSHA 

for 2 hours while devoting full attention to the rescue 

of injured miners, and where the delay does not exacerbate 

the rescue efforts or hinder the subsequent accident investigation?" ~/ 

It has been stipulated, and the record also reflects, that 

the accident occurred at 9:25 a.m. and that Western Fuels 

reported it to MSHA's Glenwood Springs Office at 12 noon CT. 107, 

109, 448). This coincides with the 2 1/2 hour period of the 

6/ It is initially noted that the questions whether the delay 

Cl> exacerbated rescue efforts, or (2) hindered MSHA's investigation, would relate more directly to the penalty assessment 

factor of seriousness, rather than to the occurrence of an infraction of the standard cited. Obviously, at the time of delay 

in notification, the ultimate effects thereof may not be 

recognizable and the elements of proof inherent in the 

phraseology of the regulation contain no such exception for 

situations where there is no prejudicial effect. A roof-control 

requirement, for example, is not self-abnegating where the violation of such does not cause an injury - causing fall. 

841 
site, he was able to modify the order to keep in line with what 

he knew, while still ascertaining that no further injuries would 

occur." The nature of the possible hazards which the impact 

might have sustained to the structure (See Ex. C-2) and the 

possible problems with the truck which could have caused the bed 

to raise without operator negligence, all adequately evidenced in 

this record, would have made it irresponsible for the Inspector 

to have Cl> proceeded without issuing the Order, or (2) to have 

terminated the Order prematurely. I find no support in the 

record for the proposition that the Order was issued either 

routinely or for the sole-or primary-purpose of ireserving 

evidence pending a post-accident investigation. _/ 

Western Fuels' contention (Brief, p. 22) that "The inspector 

used a club when a simple 'please' would have been sufficient," 

ignores the responsibility placed on the Ins~ector by the Mine 

Act to insure safety in such circumstances. _I 

There being no admissions or substantive or probative 

evidence upon which to conclude otherwise, it is found that the 

exercise of discretion by the Inspector in issuing the Order and 

its modifications was appropriate in the circumstances and that 

such Order and its modifications should be affirmed. 

c. Docket No. WEST 87-167-R 

Citation No. 2835326 

The "Condition or Practice" deemed a violation by Inspector 

Hollopeter was described in Section 8 of the Citation as follows: 

"The operator did not immediately contact the MSHA District 

or Subdistrict office having jurisdiction over its mine 

of an accident which had injuries to two miners which had 

reasonable potential to cause death. A non fatal powered haulag~ accident occurred on 3/20/87 about 9:25 a.m. in 

!/ The Inspector, under Section 103(j) of the Act, certainly 

does have an independent obligation and responsibility to take 

appropriate measures "to prevent the destruction of any evidence 

which would assist in investigating the cause or causes" of an 

accident. 

~I The responsibility for determining structural damage to the 

overpass and conveyor, any truck malfunction, and any patent or 

latent safety hazards stemming therefrom, is recognized as a 

considerable one. Any question in the mind of the sole person 

bearing this burden in mine safety enforcement would necessarily 

be resolved on the side of safety. 

842 
rescue operation CT. 111). Evidence of record {Ex M-5) indicates 

that passenger Mike Smith called in the accident on his two-way 

radio (hand-held pack-set) at approximately 9:23 a.m. The first 

a.m. The first individual on the scene was a Coca-Cola delivery 

man. When he first arrived at the scene he thought no one was in 

the truck but upon investigation he saw and heard Mike Smith 

calling on the radio for help. When he heard no response to the 

first call for help, he got on Mike's radio and repeated the call 

for help. Immediately upon receiving the call that two miners 

were trapped in an overturned haul truck, the Western Fuels 

ambulance was dispatched and the Rangely District Hospital was 

notified at approximately 9:27 a.m. that their ambulance was also 

needed. The Rangely Rural Fire Protection District was also 

notified at this time. A Western Fuels Security Guard was 

dispatched immediately to the scene and arrived at 9:26 a.m. This 

security guard and the preparation plant foreman arrived in a 

Ford pickup {security vehicle). 

Western Fuels' Safety Director at the time, Jerry Kowlok CT. 

406), who did not testify, reported to Inspector Hollopeter that 

he contacted the Glenwood Springs office at about 12 noon and 

that he was "the only person designated to contact MSHA on an 

accident" CT. 109, 110, 339, 421, 447, 466-467). Mr. Kowlok did 

not make this report until after he had left the accident scene 

CT. 448, 459, 460). Mr. Kowlok had a radio at the scene of the 

accident, was in contact with his security base which had a 

telephone, and thus had the means by which to immediately notify 

MSHA of the accident (T. 335-336, 406, 429-430, 434, 459-460, 

468-469). 

Some of the general purposes of immediate notification are 

(1) determination of the type of accident, (2) getting the 

nearest available MSHA inspectors to the accident site, (3) 

allowing MSHA the opportunity to supply expertise to the 

situation as well as special equipment and special rescue teams, 

and (4) prevention of future accidents CT. 109-110). According 

to the Inspector, however, no such rescue teams, etc. were 

actually available for use in rescuing the two miners trapped in 

the truck in the instant situation CT. 176-180). On the other 

hand, MSHA was deprived of any opportunity to immediately 

investigate or be present at the accident site to assist in 

rescue or attempt to prevent further injuries. There was no 

allegation or evidence that notifying MSHA would have been a 

futile act i.e., that based on past inept performances by MSHA in 

accident situations, that Western Fuels was justified in 

believing a 2 1/2 hour delay would make no difference. 

Further, there was. no evidence presented that it was 

impossible- or even difficult- for Western Fuels to have notified 

MSHA imediately CT. 335-340, 341, 361, 406-408, 420, 428-432, 

460, 466-468). There clearly was available the means of 

843 
communicating with MSHA and various management and other 

personnel available to do it. It is thus concluded that the 

violation as charged in the Citation occurred and that Western 

Fuels was negligent in the commission of such. The regulation 

infracted constitutes a highly important aspect of mine safety 

process and enforcement in terms of both accident investigation 

and assistance and is eroded only at considerable cost in the 

perspective of future accidents and tragedies. The importance of 

this regulation is related to the role Congress has mandated for 

inspectors in the Act itself (See Sections 103(j) and Ck) thereof). Although the probability that the delay did not affect 

rescue or investigation processes, the humanitarian interests of 

Western Fuels' personnel, and the emotionally traumatic aspects 

of the incident itself are to be inferred from the record overall 

and stand in some mitigation of the considerable seriousness and 

culpability to be attributed to the violation, 7; the $20 penalty 

sought by the Secretary, being but a token sum,-is not considered 

appropriate. A penalty of $150.00 is assessed. 

D. Docket No. WEST 87-168-R 

Citation No. 2835327 

The "Condition or Practice" charged to be a violation by 

Inspector Hollopeter was described in Section 8 of the Citation 

as follows: 

"The equipment, Euclid R-50 CCo. No. 4) End dump haulage 

truck, being driven from the Pit 2-3 Refuse dump to the 

preparation plant was not secured in the travel position. 

A nonfatal powered haulage accident occurred, severely injuring the operator and passenger of the truck, when the 

raised truck bed struck the No. 2 Beltline Conveyor Overpass. Through interviews .it was determined that it is the 

Company policy to have the bed of the truck lowered when 

traveling." 

The standard allegedly violated was subsection {s) of 30 

C.F.R. § 77.1607 pertaining to "Loading and Haulage Equipment1 

Operation", which provides: 

7/ The parties, as part of their written stipulation {Court Ex. 

I> concurred that Western Fuels is a large bituminous coal mine 

operator and that it proceeded in good faith in attempting to 

achieve rapid compliance after notification of all the alleged 

violations. As part of the same stipulation, the parties 

submitted into evidence a computerized history of prior violations {Ex. M-1) indicating that Western Fuels had 129 previous 

violations in the 2-year period preceding the issuance of the 

subject Citations. 

844 
"When moving between work areas, the equipment shall be 

secured in the travel position." .. ~/ 

Inspector Hollopeter designated this to be a "significant 

and substantial" violation on the face of the Citation, giving 

rise to what appears to be the contention raised by Western 

Fuels: "Should an operator be charged with a significant and substantial violation where a driver, contrary to common sense, 

company policy, and specific operational instruction, operates a 

dump truck without lowering the bed" (Western Fuels Brief, p. 33). 

It is noted parenthetically at this juncture that the phraseology 

of this contention appears directed more to the mine safety 

concepts of "liability without fault" and mitigation of the 

penalty assessment criterion of negligence than to the "significant and substantial" formula. 

I first find that it is a violation, whether or not a 

"significant and substantial" one. Thus, in reaffirming the 

strict liability or "liability without fault" doctrine's 

application in mine safety matters in Western Fuels-Utah, Inc., 

10 FMSHRC 256 (March 25, 1988), the Commission pointed out that 

the principle of liability without fault requires a finding of 

liability even in instances where the violation results from 

unpreventable employee conduct. It thus rejected the notion of 

an exception to the rule even for unforeseeable employee 

misconduct. ~/ The parties have stipulated, and, the record is 

clear, that the accident occurred because the truck operator 

failed to lower and secure the truck bed. The bed was raised 

when the accident occurred CT. 408, 418-419). The truck thus was 

not in "travel position" as the standard requires and Ackerman 

was driving the truck between work areas when the accident 

occurred. This constitutes a violation of the pertinent standard. 

For purposes of liability- as distinguished from penalty 

assessment purposes-- a miner's negligence or misconduct is 

properly imputed to the mine operator. Secretary v. A.H. Smith 

Stone Company, 5 MSHRC 13 (1983). The question of negligence 

imputation for penalty purposes will be taken up subsequently 

herein. 

In a recent decision Secretary v. Texasgulf, Inc., 10 FMSHRC 

(April, 1988} the Commission reaffirmed its position as 

to proof of significant and substantial violations: 

8/ "Travel position" for the truck in question required the bed 

to be secured in its lowered position CT. 113, 242, 253-254). As 

noted in the Citation itself and established at the hearing, 

Western Fuels' policy required the truck, when moving, to have 

the bed in the lowered "travel" position (T. 112-115, 226-227, 

310). 

9/ I conclude elsewhere herein that the accident in question 

occurred as a result of Mr. Ackerman's unforeseeable negligence. 

845 
"Section 104Cd)(l) of the Mine Act provides that a violation 

is significant and substantial if it 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." 30 U.S.C. § 814(d)(l). 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, 3 FMSHRC 822, 

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

(January 1984) the Commission explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary 

must prove: Cl) 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. 

The Commission has explained further that the third element 

of the Mathies formulation "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) (emphasis deleted). We have emphasized that, in accordance with the language of section 104Cd)(l), 30 u.s.c. 

§ 814Cd)(l), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and 

substantial. Id. In addition, the evaluation of reasonable 

likelihood should be made in terms of "continued normal 

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

1574 (July 1984)." 

In the circumstances of this case, the infraction of the 

safety standard was clearly established, as well as the fact that 

the violation contributed to the creation of a discrete safety 

hazard. Not only was there a reasonable likelihood that the 

hazard contributed to would result in an injury, but the hazard 

actually occurred, that is, it came to fruition when the raised 

truck bed struck the overpass structure, the direct result of 

which were the serious injuries to Ackerman and Smith CT. 

115-118, 408; Ex. M-5). This is found to be a "significant and 

substantial" violation. 

We turn now to the questions of negligence and mitigation. 

Mr. Ackerman was a full-time employee whose primary job was to 

846 
drive the Euclid R-50 haul truck and another haul truck whose 

dumping mechanism was similar to that of the Euclid. Ackerman 

would normally Cat least since December, 1986) make 8-13 trips a 

day from the preparation plant -to the refuse dump CT. 220-222, 

286). Ackerman was familiar with the road-and by inferencethe presence of and characteristics of the overpass he was to 

travel under CT. 283-286; See also "General Findings", supra). 

Western Fuels established that in December, 1986, Mr. 

Ackerman had been trained in the operation of the Euclid R-50 

truck by its Surface Area Foreman, Daniel J. Rideout CT. 

216-218). 

This training covered proper dumping procedures which 

Rideout described as follows: 

"The proper dumping procedures would be to make sure your 

area -- where you're backing on up to --- that there's 

no obstructions or anything in the way, like that. Try 

to be on as level ground as possible, and. set your dump 

bed; put your truck in neutral, sound the horn, dump your 

load; lower your bed; sound your horn, again; release your 

dump brake; put it in gear, and that's basically it; you're 

done." 

CT. 220) (emphasis added) 

Rideout described the Euclid R-50 as an "easy-to-drive", 

stable truck which had no tendency to tip over, and said there 

was no occasion on which it should be driven with the bed raised 

CT. 225-226). Ridout reiterated the company "policy" of not 

driving the truck with the bed raised and pointed out that such 

is set forth also in the "Operator Handbook" for the truck, Ex. 

C-7, at p. 33-35, CT. 227, 253, 293). Truck drivers were 

directed to keep a copy of the Handbook in the truck and to read 

it in their idle time CT. 228, 289). Rideout had never seen 

Ackerman driving with the bed up and would have disciplined him 

had he done so CT. 232-233). Rideout was certain that in 

meetings with his drivers, which I conclude would have included 

Mr. Ackerman, that the need for lowering the truck bed before 

traveling was discussed CT. 248, 258, See also T. 288). The 

drivers, however, were not specifically advised that the haul 

truck with the bed up would not clear the overpass, nor were they 

specifically advised what the height of the truck was with the 

bed raised CT. 258). Nor were they specifically advised what the 

clearance of the overpass was CT. 259). This was the only 

overpass the truck drivers would have occasion to drive under 

CTr. 259). 

The overpass was constructed in 1982 and would have been in 

existence throughout Mr. Ackerman's tenure as truck driver CT. 

251). 

84 7 
At the time of the accident there was no sign or notice in 

the cab of the truck to remind the driver to lower the bed CT. 

270) although such notice was apparently installed thereafter CT. 

270, 323). There was an "indicator" (depicted in Exhibit C-11) 

which comes down in front of the truck's windshield from which 

the truck driver can determine if the bed was raised or lowered 

CT. 255-256, 262-263, 296). 

Jack L. Munfrada, a Surface Area Foreman, described the bed 

indicator in the following examination sequence: 

"Q. Is there any other way, when you're sitting in the 

driver's seat, or in the passenger's seat, that you can 

see that the bed is in the air? 

A. Yes. There's a bed indicator on the bed of the truck. 

If the bed is lowered, it is in the right-hand corner, 

visually through the eight-inch window, and it is a round 

-- in diameter, approximately five inches, with a decal --

a red and white decal, with a black figure, pointing back 

towards the dump box. Also, you can see it through the 

driver's mirror, very plainly. 

Q. You can see the bed through the driver's 

A. Yes. You could see it out the passenger door window 

you could se~ the headache rack. And, also, if the bed 

was up in the daytime, you'd notice the change in light." 

(T. 296-297). 10/ 

Based on its maintenance records and "Pre-shift Operator's 

Check Lists", Western Fuels had no indication to believe that the 

subject truck was not functioning properly in proximity to the 

accident CT. 402-406, 410-413) and in the absence of any other 

evidence to the contrary, and in light of the evidence indicating 

operator failure as the cause of the bed not being lowered to 

travel position, it is inferred and found that the truck was in 

proper operating condition at the time of the accident. 

The record in this proceeding indicates that the cause of 

the accident was the operator's failure to lower the bed before 

proceeding on to the haul road and moving the vehicle to its 

point of impact with the overpass structure. 

10/ From this dialogue as well as other evidence CT. 255-259) 

indicating other reasons why a truck driver would normally know 

or be aware of the raised bed, I find and infer that for a driver 

of the truck in question to proceed along the haul road with the 

truck bed raised and not have such fact enter the stream of his 

consciousness would be an unusual occurrence and one which would 

not be foreseeable by his foreman or other management CT. 471). 

848 
David G. Casey, Western Fuels' Safety Instructor, testified 

that he visited Mr. Ackerman in the hospital on the day of the 

accident and recounted this conversation concerning what had 

.happened: 

Q. And, did he explain to you what happened? 

A. Yes. And -- and he said that he spaced it he 

couldn't believe that he'd spaced it out. 

xxx xxx xxx 

"The Witness: He couldn't believe that he'd spaced it out 

-- referring to the dump bed being up." 

CT. 455-456) 

When pressed to develop his understanding of Ackerman's use 

of the phrase "spaced out", Mr. Casey stated: 

"The Witness: -- and he said "spaced out", and then we 

he said "I can't believe If----- up", and he repeated it 

again, "I can't believe I did that", you know." 

CT. 471) 

From this and other evidence of record indicating Ackerman 

was a "good" employee who had received safety training CT. 

439-445) it is concluded that the accident resulted from Mr. 

Ackerman's negligent oversight in not lowering the bed of the 

truck, and that such negligent conduct was not foreseeable by 

Western Fuels' responsible management personnel. Southern Ohio 

Coal Co., 4 FMSHRC 1459, at 1463-1464 (1982). In this 

connection, it is further noted that there is no evidence of 

prior accidents having occurred at the overpass CT. 465). 

While a mine operator is not necessarily shielded from 

imputations of negligence even where non-supervisory employees 

such as Mr. Ackerman are concerned, A.H. Smith Stone Co., 5 

FMSHRC 13 (1983), for the negligence of the miner to be attributed to the operator, consideration must be given the 

foreseeability of the miner's conduct, the risks involved, and 

the operator's supervision, training and discipline of its 

employees. Here, the record indicates that the mine operator 

fulfilled its obligations as to training and in the establishment 

of its policy as to not operating the truck with the bed raised. 

MSHA, in its brief does not contend (or discuss) imputation. Mr. 

Ackerman's negligence in the commission of the violation will not 

be imputed to Western Fuels, Southern Ohio Coal Co., supra, at 

1465. 

In view of the seriousness of this violation, and upon 

evaluation of the other general mandatory penalty assessment 

849 
factors previously discussed in connection with Citation No. 

2835326, a penalty of $300.00 is determined to be appropriate and 

assessed. 

E. Docket No. WEST 87-169-R 

Citation No. 2835328 

The "Condition or Practice" deemed a violation by Inspector 

Hollopeter was described in Section 8 of the Citation as follows: 

"The No. 2 Beltline Conveyor Overpass above the haul road 

(County Rd. No. 78) was not conspicuously marked or warning 

devices installed when necessary to insure the safety of 

the workers. A nonfatal powered haulage accident occurred 

when an Euclid R-50 End dump (Co. No. 4) raised bed contacted the overpass while traveling on the haulage road. The 

operator of the truck and passenger were severely injured. 

At the time of the investigation the overhead clearance 

was not marked. 

The standard allegedly violated was Subsection (c) of 30 

C.F.R. 77.1600 (entitled "Loading and haulage; General") which 

states: 

"Where side or overhead clearances on any haulage road 

or at any loading or dumping location at the mine are 

hazardous to mine workers, such areas shall be conspicuously marked and warning devices shall be installed 

when necessary to insure the safety of the workers." 

Although the Inspector originally charged that this was a 

"significant and substantial" violation, the Citation was 

subsequently modified to delete such designation upon further 

investigation CT. 158-160). 

Western Fuels contends that the Conveyor (CNV-2) overpass 

was not "hazardous tomine workers" and thus warning signs (or 

devices) were not required. 

Evidence in the record establishes that other than speed 

limit signs CT. 448) there were no signs, warnings, "clearance" 

signs or flashing lights on the overpass structure or conveyor 

(T. 118-121, 189-192, 245-246, 259, 463), or on the road on 

either side of the structure CT. 189, 448). Specifically, there 

was no sign on the overpass which said what the clearance was (T. 

259). Inspector Hollopeter was of the opinion a hazard existed 

because there was no sign warning of the clearance of the 

overpass structure either on the structure itself or back along 

the haul road (T. 121-125). 

sso 
There are no regulations applicable in mine safety matters 

which establish height requirements for structures such as the 

subject overpass CT. 382 >. 

The U.S. Department of Transportation's Manual on Uniform 

Traffic Control Devices (Ex. C-14) requires signs when less than 

12 inches clearance is provided over the highest vehicle being 

used on the roadway CT. 380-381). 

Chief Engineer Weigand expressed the opinion that prior to 

the accident the overpass structure was not "dangerous" 

"perilous" or "risky" CT. 386). As noted previously, there had 

been no prior accidents at the overpass, and in view of Cl) the 

significant clearance height of the overpass (ranging from 20-27 

feet approximately), (2) the general compliance of the structure 

with requirements other governmental agencies CT. 380-384)), (3) 

the general opinions of Western Fuels witnesses that the overpass 

was not "perilous" or dangerous, C4) the vagueness of MSHA's 

evidence and theory that the overpass was hazardous, and C5) the 

fact that the accident under scrutiny herewas caused by the 

forgetfulness of a truck driver who broke the rule against 

driving with the bed raised and who had been passing under the 

overpass some 20 times a day for months, it is concluded that the 

overpass clearance was not "hazardous" within the meaning of the 

regulation cited and that no violation occurred. 

ORDER 

Cl> Withdrawal Order No. 2835325 and its modifications are 

affirmed. 

C2) Citations numbered 2835326 and 2835327 (including its 

"Significant and Substantial" designation) are affirmed. 

C3) Citation No. 2835328 is vacated. 

Contestant/Respondent Western Fuels shall pay the Secretary 

of Labor the total sum of $450.00 as and for the civil penalties 

hereinabove assessed on or before 30 days from the date of this 

decision. 

. .~ ~"' 1' 

).J~A~t . . ~~, ... /C _ /t ' "t7 . ~~ ~ 

~1chael • Lasher, Jr. 

Administrative Law Judge 

851 
Distribution: 

Karl F. Anuta, Esq., P.O. Box 1001, 2120 13th Street, Boulder, CO 

80306 (Certified Mail) 

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

CO 80294 (Certified Mail) 

United Mine Workers of America, Local 1984, District 15, Box 615, 

Rangely, CO 81648 (Certified Mail) 

/bls 

*U.S.GOVERNl!IENT PRINTING OffICE:19BB-201-735183005 852