MAY 1986 

COMMISSION DECISIONS 

05-13-86 

05-22-86 

05-27-86 

05-27-86 

05-27-86 

05-27-86 

Magma Copper Company 

Duval Corporation 

Disciplinary Proceeding 

Pontiki Coal Corporation 

UMWA for James Rowe, et al. v. 

Peabody Coal Company 

Sec. Labor for James Clarke v. 

T.P. Mining, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-01-86 

05-01-86 

05-02-86 

05-02-86 

05-05-86 

05-06-86 

05-06-86 

05-07-86 

05-07-86 

05-07-86 

05-08-86 

05-08-86 

05-12-86 

05-13-86 

05-14-86 

05-14-86 

05-15-86 

05-19-86 

05-23-86 

05-30-86 

05-30-86 

05-30-86 

05-30-86 

05-30-86 

05-30-86 

05-30-86 

ALJ ORDER 

Little Sandy Coal Sales 

Canon Coal Company 

Gary Hensley v. Harlan Wallins Coal Co. 

Sec. Labor for Earl Kennedy & Larry 

Collins v. Raven Red Ash Coal Corp. 

Ronald Faust v. Asamera Minerals, Inc. 

Gary Goff v. Youghiogheny & Ohio Coal 

United States Steel Mining Co. 

Pyro Mining Company 

J & C Coal Corporation 

Sec. Labor for Mark Adams, et al. v. 

Emery Mining Corporation 

Odell Maggard v. Chaney Creek Coal Corp. 

RB J Coal Company, Inc. 

Pine Bluff Sand & Gravel Co. 

Jim Walter Resources, Inc. 

Triple B Corporation 

Florida Crushed Stone Co. 

James Eades v. Arundel Sand & Gravel Co. 

s-s-s 

Allsta_te Erectors, Inc. 

Four H Coal Company, Inc. 

Stoney Fork Coal Company 

Dorothy Mae Coal Company, Inc. 

Helen Mining Company 

Delta Sand & Gravel Company 

Franklin Consolidated Mines, Inc. 

Loukonen Brothers Stone Co. 

05-29-86 Austin Power, Incorporated 

WEST 83-17-M 

CENT 80-312-M 

Pg. 656 

Pg. 662 

Pg. 663 

Pg. 668 

Pg. 681 

D 86-2 

KENT 83-181-R 

KENT 82-103-D 

LAKE 83-97-D Pg. 687 

KENT 

PENN 

KENT 

VA 

WEST 

LAKE 

PENN 

KENT 

SE 

WEST 

KENT 

VA 

CENT 

SE 

KENT 

SE 

YORK 

CENT 

CENT 

KENT 

KENT 

VA 

PENN 

WEST 

WEST 

WEST 

85-106 Pg. 

85-201 Pg. 

86-3-D Pg. 

85-32-D Pg. 

85-116-DM Pg. 

84-86-D Pg. 

84-49 Pg. 

85-105 Pg. 

85-40 Pg. 

80-489-D(B}Pg. 

86-1-D Pg. 

85-22 Pg. 

85-149-M Pg. 

86-48 Pg. 

86-56 Pg. 

85-135-M Pg. 

85-11-DM Pg. 

86-35-M Pg. 

86-50-RM Pg. 

85-205 Pg. 

85-214 Pg. 

85-14 Pg. 

85-273 Pg. 

85-139-M Pg. 

85-144-M Pg. 

85-167-M Pg. 

693 

696 

712 

733 

736 

741 

746 

749 

799 

804 

806 

819 

823 

826 

833 

838 

841 

842 

846 

851 

853 

855 

857 

866 

869 

871 

CENT 86-40 Pg. 881 

MAY 

The following cases were granted for review during the month of May: 

Secretary of Labor v. Wilmot Mining Company, Docket No. LAKE 85-47. 

(Judge Fauver, April 3, 1986) 

Secretary of Labor v. Jim Walter Resources, Docket Nos. SE 85-36-R, 85-62, 

85-109, 85-123. (Judge Koutras, April 8, 1986) 

Secretary of Labor v. Canon Coal Company, Docket No. PENN 85-201. (Judge 

Maurer, May 1, 1986) 

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

Secretary of Labor for James Clarke v. T.P. Mining Co., Docket No. LAKE 83-97-D. 

(Reconsideration of Commission Decision) 

UMWA on behalf of Rowe, et at. v. Peabody Coal Company, Docket No. 

KENT 82-103-D, etc. (Reconsideration of Commission Decision) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

.1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 13, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEST 83-17-M 

MAGMA COPPER COMPANY 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

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

The issue is whether Magma Copper Company("Magma") violated 30 C.F .R. 

§ 57.19-128(a)(l982), a mandatory safety standard for metal and non-metallic 

underground mines. The standard, which has since been revised, provided: 

Mandatory. Ropes shall not be used for hoisting when 

they have: 

(a) More than six broken wires in any lay; 

(b) Crown wires worn to less than 65 percent of 

the original diameter; 

(c) A marked amount of corrosion or distortion; and 

(d) A combination of similar factors individually 

less severe than those above but which in 

aggregate might create an unsafe condition. ll:_/) 

1/ The standard was revised and redesignated in 1983 as 30 C.F.R. § 

S7.19a-24, 48 Fed. Reg. 53228, 53231-32 (November 25, 1983), and was 

recodified in 1985 as 30 C.F.R. § 57.19024. 50 Fed. Reg. 4082, 4119 

(January 29, 1985). 

656 
Although Magma was cited for a violation of subsection (d) of the standard, 

former Commission Administrative Law Judge Virgil E. Vail, following a 

hearing on the merits, found a violation of subsection (a) and assessed 

a civil penalty of $100. (The judge found that subsection (d) was too 

vague to be enforced.) 6 FMSHRC 1522, 1525 (June 1984)(ALJ). We granted 

Magma's petition for discretionary review and granted the American Mining 

Congress' request to participate as an amicus curiae. For the reasons that 

follow, we reverse. 

On June 10, 1982, an inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") conducted an inspection at 

Magma's Superior Mine, a copper mine and mill located near Superior, 

Arizona. The hoist in the mine 1 s No. 9 shaft was used to lower and 

raise miners into and out of the mine. During an inspection of the 

hoist the inspector observed broken and distorted wires in different 

lays of the wire rope attached to the counterweight of the hoist 

mechanism. 2/ Based on his visual inspection of the rope the inspector 

believed that there were 64 broken wires within a distance of 100 feet 

and that there were as many as four broken wires in one lay length. 3/ 

Based on his observations, the inspector determined that the wire rope 

was in an unsafe condition and issued the citation alleging a violation 

of section 57.19-128(d). Magma abated the alleged violation by installing 

a new wire rope. 

On June 15, 1982, at Magma's behest, Robert Donner, a wire rope 

engineer for Bethlehem Wire Rope Company ("Bethlehem"), examined the 

"worst section containing the worst rope lay." Donner testified that at 

that time he found three breaks in the lay. At the hearing Donner again 

examined the rope and testified that this time he observed six broken 

wires. Approximately one month after the citation was issued, Magma had 

a 12-foot piece of the rope which it considered to be the "worst section," 

cut off and sent to Bethlehem. An examination of the section revealed 

no signs of corrosion or rust and showed that the rope maintained a 

breaking strength of 350,000 pounds. (The catalogue strength of the 

rope was 358,000 pounds.) 

In February 1983, eight months after the issuance of the citation, 

Roy 1. Jameson, an MSHA health and safety specialist, examined the wire 

rope. After conducting an initial examination of the rope at the mine, 

Jameson instituted a more extensive analysis at an MSHA laboratory in 

Denver. The laboratory procedures involved ultrasonic cleaning of the 

rope and a viewing of the rope with magnification and special lighting. 

Based on that laboratory analysis, Jameson concluded that the the rope 

was unsafe. Jameson stated that he found 12 broken wires in one lay 

];./ The wire rope was composed of six wire strands. Each wire strand 

was composed of 25 individual wires. The six wire strands surrounded a 

fiber core. 

3/ A lay length is defined as "the distance parallel to the axis of 

the rope in which a strand makes one complete turn about the axis of the 

rope." Bureau of Mines, U.S. Department of the Interior, A Dictionary 

of Mining, Mineral, and Related Terms, 629 (1968). 

657 
length, that the rope had been "peened" and had a dry core, and that the 

lay length of the wire rope had been extended. !!_/ 

In finding that Magma violated section 57.128(a), the judge noted 

the argument of Magma's counsel that subsection (d) was too vague to be 

enforced and counsel's concession that subsections (a), (b) and (c-} set 

forth objective enforceable requirements. The judge agreed that subsection (d) was impermissibly vague, and stated that had he not found a 

violation of subsection (a) of section 57.128 he would have vacated the 

citation. The judge noted that subsection (a) clearly requires the 

non-use and replacement of wire ropes with more than six broken wires in 

one lay. The judge found Jameson's testimony that he observed 12 broken 

wires in one lay of wire rope to be more persuasive that that of Donner, 

who at the hearing testified that he could see only six broken wires. 

The judge therefore concluded that "a violation of subsection (a) ••• 

was established as the most credible evidence shows there were more than 

six broken wires in one lay of the cited wire rope on the counterweight." 

6 FMSHRC at 1526. 

After reviewing the record as a whole, we find that the judge's 

finding of a violation of subsection (a) is not supported by substantial 

evidence. 

The judge's finding of a violation rests on the testimony of Jameson. 

While Jameson's testimony that during his post-inspection laboratory 

analysis he found 12 broken wires in one lay length was unchallenged, 

the judge apparently failed to take into account other undisputed, 

relevant evidence. The record as a whole clearly militates against a 

conclusion that the Secretary proved that on June 10, 1982, there were 

more than six broken wires in any one lay of the wire rope. 

First, we note that the inspector testified without contradiction 

that on June 10, 1982, he observed a maximum of only four broken wires 

in any one lay. The judge did not make reference to this testimony. 

The judge likewise did not make reference to the testimony of Donner 

that, when he examined the worst rope five days after the citation 

was issued and the violation was cited, he was able to find only three 

broken wires. 

Second, the judge also did not discuss testimony concerning the 

possible change in the condition of the wire rope between the date of 

the citation and the time the rope was examined by Jameson, eight months 

later. There is no dispute that, following the citation, the wire rope 

was removed from the hoist and stored on a reel in an uncovered outdoor 

storage area. During this period, it was exposed to the elements, 

unwound twice from the reel and dragged along the ground. Thus, during 

the eight-month interval between the issuance of the citation and Jameson's 

examination of the rope, it was exposed to abnormal conditions and 

additional stresses. The judge erred in not evaluating the possible 

4/ 11Peening11 is a process whereby the metal in the wire rope flattens 

and the flattened metal extrudes beyond the outer edge of the rope. The 

extruded metal breaks off and the wire becomes brittle. 6 FMSHRC at 

1525, n.2. 

658 
impact of these conditions and stresses in determining the weight to be 

given Jameson's testimony. The weight given to evidence of an object's 

subsequent condition is dependent upon the time that has elapsed between 

the initial event and the date referenced in the testimony, as well as 

upon the likelihood of change during the interval. See, e.g., Manning 

v. New York Telephone Co., 388 F.2d 910, 912 (2d Cir-::-T968). 

Further, the techniques of laboratory analysis employed by Jameson 

to detect breaks in the wire rope were not those imposed by the MSHA 

standards governing inspection and maintenance of hoists. See 30 C.F.R. 

§ 57.19-120 et seq. (1982). Those standards contemplated regular visual 

inspection with further field testing when potential problems were 

indicated or at scheduled intervals. The record indicates that Magma's 

wire rope examination procedures met or exceeded applicable MSHA requirements. There is no credible evidence that under the examination procedures 

imposed by the MSHA standards that the inspector found, or Magma could 

have found, a violation of section 57.19-128(a) on the date of the 

citation's issuance. 5/ 

For all of the above reasons, we conclude that the judge's finding 

of a violation of 30 C.F.R. § 57.19-128(a) is not supported by substantial 

evidence. 6/ 

Finally, we address the judge's finding that section 57.19-128(d) 

is unenforceably vague. The judge stated that section 57.19-128(d) was 

too vague to convey the standard of conduct required of the mine operator. 

6 FMSHRC 1525-26. The judge was in error. We reiterate that the fact 

that a standard is drafted in general terms does not mean that it is 

void for vagueness. Many standards must be drafted broadly in order to 

be adaptable to the myriad of circumstances in a mine. Kerr McGee Corp., 

3 FMSHRC 2496, 2497 (November 1981). Such a standard, like section 

57.19-128(d), is not unenforceably vague when a reasonably prudent person, 

5/ We are aware that the record does indicate that prior to the subject 

citation being issued, replacement of the cable was under consideration, 

However, there is no indication that the reason for such replacement was 

because of non-compliance with the instant regulation. 

6/ On review Magma also challenges the judge's post hearing sua sponte 

amendment of the Secretary's complaint to assert a violation subsection (a). Magma argues that it was prejudiced by the amendment in 

that it had not been given the opportunity to fully litigate the issue. 

In light of our conclusion that the judge's finding of a violation of 

subsection (a) is not supported by substantial evidence, it is unnecessary 

to reach this assignment of error. We note in passing, however, the 

importance of compliance with Rule 15(b) of the Federal Rules of Civil 

Procedure when considering such amendments and that rule's emphasis upon 

the parties understanding that the unpleaded claim is, in fact, being 

litigated. 

659 
familiar with the mining industry and the protective purpose of the 

standard, would recognize the hazardous condition that the standard 

seeks to prevent. Ozark-Mahoning Co., 8 FMSHRC 190, 191 (February 

1986), U.S. Steel Corp., 6 FMSHRC 1908, 1910 (August 1984); U.S. 

Steel Corp., 5 FMSHRC 3, 5 (January 1983); Alabama By-Produc~4 FMSHRC 

2128, 2129 (December 1982). 

Accordingly, the decision of the administrative law judge is reversed 

and the citation is vacated. 7/ 

Richard 

.L~/t;~ V. Backley, Commissioner 

Lastowka, 

~~ '-nt-lL.nv 

L. Clair Nelson, Commissioner 

7/ Chairman Ford did not participate in the consideration or disposition of this case. 

660 
Distribution 

N. Douglas Grimwood, Esq. 

Twitty, Sievwright & Mills 

Suite 4007 

2702 North Third Street 

Phoenix, Arizona 85004 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Michael F. Duffy, Esq. 

Henry Chajet, Esq. 

American MininR Congress 

Suite 300 

1920 N Street, N.W. 

Washington, D.C. 20036 

661 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DUVAL CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 22, 1986 

CENT 80-312-M 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In this matter pending on review, the parties filed with the Commission on May 7, 1986, a joint motion for approval of settlement and 

dismissal of the petition for discretionary review. 

In the decision below, Commission Administrative Law Judge John J. 

Morris concluded that respondent Duval Corporation ("Duval") had violated 

30 C.F.R. § 57.19-120 (1984), and assessed a civil penalty of $395.00 

for the violation. 6 FMSHRC 1359 (May 1984). The Commission subsequently 

granted Duval's petition for discretionary review. The parties' dismissal 

motion states that Duval sold the mining operation in question in the 

latter part of 1985 and "no longer wishes to contest the decision of the 

administrative law judge." According to the motion, Duval is "now 

willing to pay the $395.00 penalty assessed by the judge." 

We have reviewed the settlement motion in light of the record and 

the statutory penalty criteria (30 U.S.C. § 820(i)), and conclude that 

the settlement agreed to by the parties is appropriate. Accordingly, we 

approve the settlement. 30 U.S.C. § 820(k). The joint motion is granted, 

the Commission's direction for review is vacated, and this proceeding is 

dismissed. y ~,u,/~ 

Richard V. Hackley, Commissio~ 

u /(/:: ,,,, /~v. , A~c..:~. L~..___ ~~ 

Jaunr,. s • Lastowka. cfmmissioner '-( I ··-; 

r ,.. • ' / ·" { f '. ; ' .... l . ...__ ..... _ \.. ,__" - ·~-"+ - C'-:.'\. 

L. Clair Nelson, Commissioner 

1/ Chairman Ford has not participated in the consideration or disposition of this matter. 

662 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 27, 1986 

DISCIPLINARY PROCEEDING D 86-2 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This inquiry is to determine whether disciplinary proceedings 

arising under Commission Procedural Rule 80, 29 C.F.R. § 2700.80, are 

warranted, 1/ On January 22, 1986, Commission Administrative Law Judge 

Joseph B. Kennedy referred to the Commission circumstances involving an 

operator's counsel that he believed warranted discipline. The circumstances arose during the contest of a civil penalty proceeding, and the 

judge included the disciplinary referral in his decision on the merits 

!./ Rule 80 states in part: 

Standards of conduct; disciplinary proceedings. 

(a) Standards of conduct. Individuals practicing before the 

Commission shall conform to the standards of ethical conduct required 

of practitioners in the courts of the United States. 

(b) Grounds. Disciplinary proceedings may be instituted 

against anyone who is practicing or has practiced before the 

Commission on grounds that he has engaged in unethical or unprofessional conduct, ••• or that he has violated any provisions .of 

the laws and regulations governing practice before the Commission •••• 

(c) Procedure. [A) Judge or other person having knowledge of 

circumstances that may warrant disciplinary proceedings against an 

individual who is practicing or has practiced before the Commission, 

shall forward such information, in writing, to the Commission for 

action. Whenever in the discretion of the Commission, by a majority 

vote of the members present and voting, the Commission determines 

that the circumstances reported to it warrant disciplinary proceedings, 

the Commission shall either hold a hearing and issue a decision or 

refer the matter to a Judge for hearing and decision •••• 

29 C.F.R. § 2700.80. 

663 
of the penalty case. Youghiogheny and Ohio Coal Co., 8 FMSHRC 121, 

138-141 (January 1986)(ALJ). Subsequently, the Commission granted 

Youghiogheny & Ohio Coal Company's ("Y&O") petition for discretionary 

review of the penalty aspects of the judge's decision and severed the 

disciplinary referral from the rest of the case. Our only concern here 

is with the disciplinary referral. 

The substance of the disciplinary referral concerns the conduct of 

counsel for Y&O in the penalty case. The judge asserts that counsel 

violated applicable standards of professional conduct by failing to file 

post-hearing findings of fact, conclusions of law, and supporting arguments. 

The judge also asserts that counsel abused the Commission's legal process 

by raising frivolous arguments, ignoring applicable precedents, and by 

persistently badgering the witnesses and the judge. On the grounds 

explained below, we conclude that disciplinary proceedings are not 

warranted. 

The procedural background of the underlying penalty case serves as 

a backdrop for the disciplinary referral. In assessing proposed penalties 

for the two alleged violations at issue in the penalty proceeding, the 

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

elected to waive its regular penalty assessment formula contained in 30 

C.F.R. § 100.3 and conduct special penalty assessments pursuant to 30 

C.F.R. § 100.5. As a result of the special assessments, the Secretary 

of Labor filed with the Commission a proposal for civil penalties of 

$850 and $900. Y&O answered by asserting, among other things, "The 

citations do not meet the criteria required in 30 C.F.R. [§] 100.5 to 

allow for a special assessment." Y&O requested that the citations be 

"properly assessed" under section 100.3. Y&O maintained this position 

throughout the proceeding. 

At the close of the hearing, the judge delivered a tentative bench 

decision in which he found that the two violations had occurred and that 

penalties in the amounts of $1,000 and $950 were warranted. The judge 

advised the parties that after the transcript of the hearing was received, 

he would issue an order requiring the parties to show cause why the 

bench decision should not be adopted as a final decision. Following 

this procedure, the judge subsequently adopted the bench decision and 

ordered Y&O to pay the penalties that he had assessed. 

Y&O sought review of the judge's decision. On review, the Commission 

concluded that the judge's decision was procedurally deficient because 

it violated Commission Procedural Rule 65(a), 29 C.F.R. § 2700.65(a). J:./ 

2/ Rule 65(a) states in part: 

The [Judge's] decision shall be in writing and shall include findings 

of fact, conclusions of law, and the reasons or bases for them •••• If 

a· decision is announced orally from the bench, it shall be reduced 

to writing .••• 

29 C.F.R. § 2700.65(a). 

664 
The Commission vacated the decision and remanded the matter to the judge 

to enter a new decision in accordance with the Commission's rules. 

Youghiogheny & Ohio Coal Co., 7 FMSHRC 1335 (September 1985). On remand, 

citing Commission Procedural Rule 62, the judge ordered the parties to 

file proposed findings of fact, conclusions of law, and arguments in 

support thereof in order for the judge to "determine the adequacy or 

inadequacy of ••• (the] findings [in the bench decisionJ and make whatever additions ••• appear necessary to meet the Commission's rules." 2_/ 

The Commission denied Y&O's petition for interlocutory review of 

this order. Nevertheless, Y&O did not submit any proposed findings, 

conclusions, or arguments. The judge then ordered Y&O to show cause why 

it should not be deemed in default. Y&O did not respond. The judge 

thereafter adopted his prior decision, made supplemental findings of 

fact and conclusions of law regarding the civil penalty aspects of the 

case, and referred to the Commission the question of whether the conduct 

of Y&O's counsel warranted disciplinary action. 8 FMSHRC at 123, 138-141. 

We first examine the charge that counsel failed to respond to the 

judge's order to provide findings of fact, conclusions of law, and 

arguments in support thereof. Y&O requested relief from the order, but 

the Commission denied Y&O's request. Y&O did not file the materials 

with the judge nor did it respond to the order to show cause. 

In defense of counsel's failure to respond to the order to submit 

materials, Y&O argues that the proposed findings, conclusions, and 

arguments would have served no useful purpose in that the judge previously 

had decided the case adversely to Y&O. This argument is not well taken. 

Commission Procedural Rule 62 provides that a judge "may require the 

submission" of materials such as those that the judge ordered Y&O to 

file. Belief that an order is erroneous, unwise, or serves no useful 

purpose does not excuse compliance by counsel. The proper course of 

action, unless and until an order is stayed or invalidated on appeal, 

is for counsel to obey. Chapman v. Pacific Telephone and Telegraph Co., 

613 F.2d 193, 197 (9th Cir. 1979). Counsel cannot choose selectively 

the orders with which he will comply. Once Y&O's request for interlocutory review of the judge's order was denied, counsel was obliged to 

respond. 

This said, we also conclude that counsel's failure to respond in 

the particular circumstances obtaining here was not so egregious as to 

warrant the institution of disciplinary proceedings. Y&O and its counsel 

have asserted that counsel meant no disrespect for, or contumacy toward, 

the judge and have apologized for counsel's conduct. Moreover, counsel 

frequently has appeared before the Commission and the failure to respond 

here was apparently a first-time occurrence. Therefore, we deem it 

sufficient to caution counsel against ignoring orders issued by the 

Commission or its judges in the future. 

3/ Rule 62, 29 C.F.R. § 2700.62, states in part: 

The judge may require the submission of proposed findings of fact, 

conclusions of law, and orders, together with supporting briefs. 

665 
Concerning the judge's further assertions that counsel engaged in 

unprofessional conduct by ignoring applicable precedents and persistently 

raising frivolous arguments, we note that the essence of the judge's 

complaint is that counsel refused to recognize that "the Commission and 

its trial judges exercise their independent judgment in applying the six 

[statutory penalty] criteria and are in no way bound by the determinations 

made by MSHA." 8 FMSHRC at 125. As the judge correctly states, the 

Commission has held that once a penalty is contested and Commission 

jurisdiction attaches, a judge's determination of the amount of the 

penalty is de nova, based upon the statutory penalty criteria and the 

record info"iii"ation developed in the course of the adjudication. 

Sellersburg Stone Co., 5 FMSHRC 287 ("March 1983), aff'd, 736 F.2d 1147 

(7th Cir. 1984); United States Steel Mining Co., Inc., 6 FMSHRC 1148 

(May 1984). We, however, find that counsel's argument did not stand in 

opposiJion to this well-settled principle. Rather, it was premised upon 

the theory that in certain circumstances a Commission judge has the 

authority to remand a proposed penalty assessment to MSHA for reassessment 

under appropriate MSHA penalty regulations. As both the judge and 

counsel appear to have recognized, this issue has not yet been specifically ruled upon by the Commission, We cannot conclude that counsel's 

argument constituted frivolous advocacy. 

We further conclude that counsel did not "[persist] in badgering 

the witnesses and the trial judge." Our review of the record reveals 

that counsel was properly insistent and assertive in his questioning, 

but was not discourteous or abusive. Similarly, we have considered and 

rejected the additional asserted bases for referral urged by the judge. 

For the foregoing reasons, we conclude that disciplinary proceedings 

in this matter are not warranted. Accordingly, this inquiry is terminated • 

Joyc~le, 

(/ .. ? , 

t1, 

~ 

CorrnniSSiOr 

~ 

ames A. Lastowka, Commissioner 

6a._;_~~~ !_ 

L. Clair Nelson, Commissioner 

666 
Distribution 

Gerald P. Duff, Esq. 

Hanlon, Duff & Paleudis Co., LPA 

for Youghiogheny & Ohio 

46770 National Road West 

St. Clairsville, Ohio 43950 

Patrick M. Zohn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1240 -East Ninth St. 

Cleveland, Ohio 44199 

Robert C. Kota, Esq. 

Youghiogheny & Ohio Coal Company 

P.O. Box 1000 

St. Clairsville, Ohio 43950 

Administrative Law Judge Joseph B. Kennedy 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, VA 22041 

667 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PONTIKI COAL CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 27, 1986 

Docket Nos. KENT 83-181-R 

KENT 83-182-R 

KENT 83-183-R 

KENT 83-184-R 

KENT 83-256 

KENT 83-262 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this consolidated contest and penalty proceeding arising under 

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

(1982), the Commission granted the Secretary of Labor's petition---ror--

discretionary review of a decision by Commission Administrative Law 

Judge Joseph B. Kennedy. 1/ The judge's decision, reported at 6 F¥SHRC 

781 (March 1984)(ALJ), confirms a prior bench decision in which he 

granted a joint motion to approve a settlement. The issue presented is 

whether the judge abused his authority through the manner in which he 

addressed the settlement agreement and the circumstances surrounding the 

issuance of the pertinent citation and orders of withdrawal. For the 

reasons that follow, we conclude that the judge's decision goes beyond 

the record, includes comments lacking record support, and constitutes a 

serious abuse of authority. Accordingly, we strike the judge's objectionable comments and affirm his settlement approval on the narrow grounds 

on which it properly rests. 

I. 

Factual Background 

Pontiki Coal Corporation ("Pontiki"), a subsidiary of Mapco, Inc., 

operates Mine Number Two, an underground coal mine located in Martin 

1/ The Commission is an independent adjudicatory agency established by 

Congress to resolve legal disputes under the Mine Act. 30 U.S.C. § 823. 

The Commission is not a part of and is no way connected with the Department 

of Labor. Rather, the Department of Labor appears before the Commission 

as a party to litigation under the Mine Act. 

668 
County, Kentucky. 2/ On February 28, 1983, an inspection team from the 

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

arrived at the mine in order to conduct respirable dust and ventilation 

spot inspections. An MSHA inspector was assigned to check ventilation 

levels at several main intake/return locations. 

This inspector's notes reflect that, prior to their going underground, 

Pontiki's mine foreman could not produce any record books concerning 

recent preshift/onshift conveyor belt examinations. From the bottom of 

the slope outby for a distance of approximately 100 feet, the inspector 

observed the presence of loose coal, coal dust, and float coal dust in 

the slope conveyor belt entry. The inspector noted that, among other 

things, the material had accumulated on top of the conveyor belt pan to 

a depth of up to 12 inches, surrounding the upper belt in many places. 

The conveyor belt was operating at the time. The inspector also noted 

several other violative conditions in the area, including a damaged 

walkway and handrail and a conveyor belt discharge roller not provided 

with a guard. 

The inspection party did not proceed inby the No. 1 conveyor belt 

air locks, but instead rode a man-trip down the track entry, past the 

No. 4 conveyor belt, to an extension of the No. 1 conveyor belt. The 

inspector's notes reflect several ventilation readings and calculations 

for air flow in that vicinity. His notes show the presence of an impermissible sump pump in a return air course and the lack of a check-in/check-out 

system for supervisory personnel at the mine. The inspector's notes 

also show that Pontiki cleaned up the accumulation on the slope conveyor 

belt. 

As a result of his observations, the inspector issued several 

section 104(a) citations to Pontiki for the violative conditions that he 

encountered, and held a close-out conference with mine officials. He 

designated the accumulation violation as significant and substantial, 

but noted that the accumulation appeared to be spillage and that there 

was "[v]ery little that management can do about intermittent spillage." 

The inspector specified 8:30 a.m. on March 1, 1983, the next day, as the 

"Termination Due" date on the citation for failure to record preshift/ 

onshift conveyor belt examinations. 

After being issued the record-keeping citation, the two most senior 

Pontiki supervisors present in the mine that day walked along the conveyor 

belt lines and filled out an onshift examination report. According to 

counsel for Pontiki, the report revealed conveyor belt rollers in need 

of repair and accumulations of coal dust and float coal dust on the No. 

1 and No. 4 conveyor belts. Based on their report, which was filed at 

2/ The factual background presented in this decision is derived primarily 

from the transcript of the prehearing/settlement conference held before 

the administrative law judge on February 7, 1984, and the responses of 

the parties to the judge's pre-trial orders of September 7, 1983, and 

January 10, 1984. No evidentiary hearing was conducted. After the 

Commission directed this matter for review, several unauthorized documents 

were struck from the official record. 6 FMSHRC 1131 (May 1984). Those 

documents have not been considered in deciding this case. 

669 
the end of the daytime production shift on February 28, the mine supervisor 

and mine foreman halted production at the mine. 

The following day, March 1, 1983, the mine foreman told employees 

that there would be no production at the mine that day. He directed 

several of them to clean accumulations from around the No. 1 and No. 4 

conveyor belts, change old rollers, replace bottom rollers, and rock 

dust the areas following cleanup operations. 

At approximately 10:00 a.m. that same day, an MSHA inspection party 

returned to the mine and proceeded to walk along the idled No. 1 conveyor 

belt. Once past the conveyor belt air locks, they observed accumulations 

of loose coal, coal dust, and float coal dust ranging in depths of up to 

40 inches. These conditions existed, in varying degrees, along the 

2,000-foot course of the No. 1 conveyor belt. In several places, the 

coal and coal dust had accumulated until it covered the bottom rollers 

and touched the bottom belt. The material ranged from very dry to only 

slightly moist. The inspector issued Citation No. 2052746, a section 

104(d)(l) citation, alleging a violation of 30 C.F.R. § 75.400, as a 

result of observing these conditions. 

At the same location, the inspector noticed 52 damaged conveyor 

belt rollers, numerous places where the conveyor belt rubbed against the 

roller bracket to the extent that from 1/4 - to 1/2 - inch of the bracket 

had been worn away, and the bottom belt lying on the accumulated material 

at several locations (in one instance for a distance of 48 feet). The 

inspector issued Order No. 2052747, a section 104(d)(l) order of withdrawal, 

alleging a violation of 30 C.F.R. § 75.1725, based on the unsafe condition 

of this conveyor belt. 

A Pontiki safety inspector asked whether the MSHA inspectors could 

issue a section 107(a) imminent danger order of withdrawal instead of 

initiating the section 104(d)(l) "chain." An MSHA inspector replied 

that the conditions encountered were significant and substantial violations 

resulting from an unwarrantable failure to comply with applicable standards, 

but that there was no immediate source of ignition for the float coal 

dust. The MSHA inspectors' notes quote the safety inspector as responding, 

"We' 11 start the belts if that's what it takes to get a 107 (a) order 

issued." The MSHA inspectors informed him that the conveyor belt was 

already under a withdrawal order. 

The MSHA inspectors issued another section 104(d)(l) order of 

withdrawal, Order No. 2052748, alleging a violation of 30 C.F.R. 

§ 75.404, for lack of any evidence of preshift/onshift conveyor belt 

examinations. 11 

1_/ In a subsequent modification of this order issued on March 8, 1983, it 

was noted that some earlier dates and initials were found in the No. 1 

conveyor belt entry, but that no evidence could be found to indicate 

that examinations were conducted between February 3 and February 27, 

1983. According to the inspector, 11 to 13 production shifts were 

worked during that period as evidenced by Pontiki's preshift/ onshift 

record books for the two working sections involved. 

670 
The inspection party proceeded to walk along the idled No. 4 conveyor 

belt. From the No. 4 conveyor belt drive inby for a distance of 3,800 

feet they observed accumulations of loose coal, coal dust, and float 

coal dust ranging in depths of up to four inches. There were numerous 

piles of such material.up to 12 inches in depth. The material ranged 

from wet to very dry. As a result of observing these conditions, the 

inspectors issued a third section 104(d)(l) order of withdrawal, Order 

No. 2052750, alleging another violation of 30 C.F.R. § 75.400~ 

The inspectors' notes of the close-out conference conducted that 

day reflect that Dennis Jackson, Pontiki's Vice President for Operations, 

stated that the inspectors "were being unfair to the company." The 

notes quote Jackson as stating that "he felt [the inspectors] had 'doublebarrelled' them •.•• " The inspector who wrote this note surmised that 

Jackson's feelings "were in reference to the citation on records of belt 

examinations [and] citations and orders written on conditions found in 

the beltline." Jackson abruptly left the conference, and the inspectors 

"felt that it was best to leave at this time." 

II. 

Procedural History 

Of the citations and orders issued during the two days of inspection, 

Pontiki contested only the one citation and three orders of withdrawal 

issued on March 1, 1983. The subsequently consolidated contest and 

penalty proceeding was assigned to Judge Kennedy. MSHA's Office of 

Assessments proposed penalties of $2,294 for the four alleged violations. 

The parties submitted extensive information in response to the judge's 

pretrial orders of September 7, 1983, and January 10, 1984. 

On February 7, 1984,. the parties appeared before the judge for a 

prehearing/settlement conference. As a basis for settlement, counsel 

for the Secretary of Labor offered to reduce the penalties proposed to 

$1,900 for Pontiki's admission of the violations as written, while 

Pontiki offered to admit to violations but not to the section 104(d)(l) 

"special findings." The judge found neither offer acceptable. At the 

conclusion of the conference, the parties agreed to a settlement agreement 

proposed by the judge. He issued a bench decision approving the settlement 

agreement. !!_/ 

The written decision of March 30, 1984, confirms the prior bench 

decision. Under the terms of the settlement agreement, Pontiki agreed 

to pay a civil penalty of $7,500 to be allocated among the four violations 

as the judge deemed appropriate. Tr. 59; 6 FMSHRC at 786. (The judge 

suggested that he had "remitted" $3,000 from a previously suggested 

penalty of $10,500 in exchange for a letter from the operator admonishing 

the responsible individuals. Id; Tr. 58-60). 

4/ In his PDR, the Secretary seems to suggest that the parties may not 

actually have "moved" for such a settlement. However, the Secretary's 

trial counsel not only made no objection to the "settlement" terms as 

described by the judge, he indicated that the judge's recitation of the 

"settlement" was "agreeable." Tr. 59-60. 

671 
In addition to recapitulating the settlement terms, however, the 

judge's decision also set forth an extended discussion of his view of 

the "facts" surrounding the issuance of the citation and orders of 

withdrawal. The judge stated that because the MSHA inspectors had 

"noted" Pontiki's failure to record the results of preshift/onshift 

conveyor belt examinations on February 28, 1983, "this should have 

alerted them to conduct a physical examination of these areas." 6 

FMSHRC at 782. The judge termed the inspection sequence employed a 

"dereliction" because, by only inspecting near the slope bottom before 

proceeding down the track entry on a personnel carrier, the inspectors 

failed to observe or cite Pontiki for "enormous" accumulations of combustible material. Id. 

The judge declared: 

The record strongly suggests that the reason 

the inspectors were "persuaded" to tour around the 

main beltline and ignore the "message" of the 

omitted preshift and onshift reports was to permit 

the operator to run coal for one more shift and 

management to "voluntarily" idle the mine and 

begin cleanup operations. Indeed, the record 

shows that in return for the "advance notice" of 

the "spot" inspection that did not begin in 

earnest until March 1, 1983, the operator idled 

its production at 3:30 p.m. on Monday, February 28 

and began cleanup. The record also shows that in 

return for the operator's "cooperation" the 

inspectors expected to issue only 104(a) citations 

but were so appalled by the conditions actually 

encountered they felt compelled to issue unwarrantable failure citations and closure orders. 

6 FMSHRC at 783 (footnote omitted). The judge further asserted that at 

the time the MSHA inspectors issued the section 104(d)(l) citation on 

March 1, they were "no longer willing to turn a blind eye to the conditions 

encountered.n 6 FMSHRC at 783 n. 2. He stated that as a result of this 

action, "the operator's vice president for operations ••• felt he had been 

double crossed or 'double barrelled' as he put it." 6 FMSHRC at 783. 

The judge was critical of MSHA, in that the agency had declined to 

specially assess the violations or refer them for a determination of 

whether "knowing" or "willful" violations had been committed. 6 FMSHRC 

at 784-85. He condemned MSHA for its "cheaper by the dozen" policy of 

lumping multiple discrete violations into one citation and three orders 

of withdrawal and for the fact that the Solicitor had offered to "reward" 

Pontiki for challenging the violations by "discount[ing]" his proposed 

penalties. 6 FMSHRC at 784. The judge likened MSHA's lack of oversight 

of the Pikeville and Paintsville district offices to the type of "callous 

indifference and dereliction" at Pikeville that led to the 1976 Scotia · 

Mine disaster in which 26 people had lost their lives. 6 FMSHRC at 

784-85. 

672 
Warming to his theme, the judge stated: 

The true circumstances surrounding the truncated 

inspection of the beltline on February 28 cry out 

for investigation and explanation. The public is 

entitled to know what occurred on that date that 

later led the operator's vice president for operations to feel he had been "spun11 or "double barreled" 

by MSHA. Was there a hidden quid pro quo for the 

abbreviated inspection of the beltline on February 

28, and, if so, what was it? Was the abbreviated 

inspection of the beltline designed to alert the 

operator to the real inspection that commenced the 

next day? Or was MSHA innocent to the point of 

naivete? And, if so, what is the public to conclude 

about MSHA's capacity to serve as a sophisticated 

enforcement agency? I believe these and other 

questions deserve an answer. 

6 FMSHRC at 785. 

The judge recommended "that this matter be referred to the inspector 

general of the Department of Labor for a full and true disclosure of the 

facts relating to MSHA's failure to inspect the beltlines in question on 

February 28, 1983. 11 6 FMSHRC at 785. He also recommended "that this 

case be referred to the MSHA's office of special investigations for a 

determination of liability on the part of the operator or any [of] its 

employees under sections llO(c) and/or (d) of the Act." Id. The judge 

stated that he had "probable cause to believe" that Jackson knew of the 

existence of the violative conditions and of their gravity prior to 

February 28, 1985. Id. He stated, "[I]ronically, [this] is the same 

individual whom counsel represented would take disciplinary action 

against the mine foreman allegedly responsible for the violation" and, 

if he did so, "it must have been done with tongue-in-cheek." Id. 

In closing, the judge ordered the settlement agreement approved, 

allocated the $7,500 in civil penalties equally among the four violations, 

and ordered the Commission to take such action as it deemed appropriate 

to refer the matter to the Assistant Secretary of Labor for Mine Safety 

and Health in order to initiate the two investigations that he felt were 

justified on the above facts. 6 FMSHRC at 786. 

On May 8, 1984, the Commission granted the Secretary's petition for 

discretionary review. According to that pleading, the Secretary took 

the "unusual step" of petitioning the Commission for review of a decision 

approving a settlement "because of the egregious nature of many statements 

contained in that opinion and the fact that the integrity of certain 

individuals has been unfairly maligned." Sec. PDR and Br. at 5. The 

Commission granted the Secretary's petition and, as a result of "the 

serious allegations of possible criminal misconduct by federal employees 

and officials" contained in the judge's submissions, the Commission, sua 

sponte, also referred the matter to the Department of Justice for ~­

"appropriate action." Letter to the Attorney General from the Commission's 

673 
General Counsel dated May 18, 1984. Pending a resolution of its referral, 

the Commission deferred any further action in this case. It was on this 

ground that the Commission subsequently denied the Secretary's motion 

for expedition of his appeal. Commission Order dated June 18, 1985. 

After directing the case for review and making its referral to the 

Department of Justice, the Commission struck a number of documents from 

the official record. 6 FMSHRC 1131 (May 1984). The Commission also 

struck, as not being part of the record before the judge, the affidavit 

and memorandum attached to the Secretary's petition for discretionary 

review. Id. 

The Public Integrity Section of the Department of Justice's Criminal 

Division responded conclusively to the Commission's investigative referral 

by letter dated May 2, 1986. The letter states that the "allegations 

made by Administrative Law Judge Joseph Kennedy about possible bribery 

or the giving of advance notice of mine inspections by [MSHA] inspectors" 

were subjected to a "limited inquiry to determine whether sufficient 

evidence existed to initiate a full investigation •••. " The letter 

concludes, "Based upon the results of that inquiry, we decided that 

further criminal investigation is not warranted, and we have closed the 

matter as to the allegations of bribery and advance notice," 

III. 

Disposition 

The Secretary argues that the judge abused his authority by addressing 

in his published decision matters far beyond the scope of the proceeding 

below, making numerous statements and findings unsupported by any evidence, 

and venturing comments that are defamatory, derogatory, and inappropriate. 

Relying on the Commission's decision in Inverness Mining Co., 5 FMSHRC 

1384 (August 1983), the Secretary requests that most of the text of the 

judge's decision be stricken. 

Settlement of contested issues is an integral part of dispute 

resolution under the Mine Act. Section llO(k) of the Act provides that 

no contested proposed penalty "shall be compromised, mitigated, or 

settled except with the approval of the Commission. 11 30 U.S. C. § 820 (k). 

See also Commission Procedural Rule 30, 29 C.F.R. § 2700.30. In Knox 

COlint:Y-stone Co., Inc., 3 FMSHRC 2478 (November 1981), the Commission 

described some of the "outer boundaries" of the authority its judges 

possess in settlement adjudication. While noting that a judge's oversight of the settlement process is an adjudicative function that involves 

wide discretion, the Commission observed that the scope of that discretion 

is not unlimited. 3 FMSHRC at 2479. The Commission stated: 

Rejections [of settlement], as well as approvals, 

should be based on principled reasons. Therefore, 

we [have] held that if a judge's settlement 

approval or rejection is "fully supported" by the 

record before him, is consistent with the 

statutory penalty criteria, and is not otherwise 

674 
improper, it will not be disturbed. In reviewing 

such cases, abuses of discretion or plain errors 

are not immune from reversal. 

3 FMSHRC at 2480 (citations omitted). 

The Commission previously has warned Judge Kennedy not to indulge 

in settlement "approval" decisions roaming far beyond the limited records 

typically involved in the settlement process. Inverness Mining, supra, 

5 FMSHRC at 1388-89. As the Commission has stated repeatedly, if a 

judge disagrees with a stipulated penalty amount or believes that any 

questionable matters bearing on the violation or appropriate penalty 

amount need to be clarified through trial, he is free to reject the 

settlement and direct the matter for hearing. Knox County, supra, 3 

FMSHRC at 2481-82; Tazco, Inc., 3 FMSHRC 1895, 1898 (August 1981). The 

process followed by Judge Kennedy in the present case violated these 

well-established principles. 

At the close of the prehearing/settlement conference -- during 

which, we emphasize, no evidentiary testimony had been developed --

Judge Kennedy issued a-bench decision approving the settlement agreed to 

by the parties. Tr. 59-60. According to the terms of that oral agreement, 

as related by Judge Kennedy on the record, the only issues disposed of 

were those contested by the parties -- namely, the violations reflected 

in the citation and orders of withdrawal, the appropriate civil penalty, 

and the "letter of admonition" required by the judge before he would 

approve the settlement agreement. At this stage of the proceedings, it 

should have been clear to Judge Kennedy that his written decision would 

be limited in scope by the abbreviated dispute resolution mechanism 

employed by the parties and approved by him. Instead, his subsequent 

written decision addressed numerous matters beyond the scope of the 

parties' settlement agreement and the scant -- and untried -- record in 

this matter. 

The pre-trial submissions offered in this proceeding, upon which 

the judge's decision purports to rest, were made in response to the 

judge's pre-trial orders. Not only do they lack the evidentiary character 

of testimony and evidence offered at a hearing and subjected to the 

crucible of cross-examination and trial, they also do not provide support 

for any of those portions of the decision sought to be stricken by the 

Secretary. The limited nature of these submissions reinforced the need 

for the judge to limit himself to the confines of the issues resolved, 

or fairly touched on, by the mutual consent of the parties. Inverness 

Mining, 5 FMSHRC at 1388. Cf. ABC Air Freight Co. v. CAB, 391 F.2d 295, 

305 (2d Cir. 1968), cert. denied, 397 U.S. 1006 (1970)-.~ 

We proceed to examine the judge's various objected-to pronouncements seriatim. We find all of them lacking in record support. 

A. Improper advance notice 

The record reveals that during the inspection conducted on February 28, 

1983, an MSHA inspector issued a citation for failure to record preshift/ 

onshift conveyor belt examinations. On the face of the citation, the 

675 
inspector specified 8:30 a.m., the next day, March 1, 1983, as the 

"Termination Due" date for the record-keeping citation. The establishment of a specific due date for abatement is a statutory requirement of 

the Mine Act. 30 U.S.C. § 814(a). To construe such a legal requirement 

as an improper "advance notice" that an inspection will be conducted at 

that time defies reason. 

Among other things, the purpose of a specific abatement due date is 

to put the operator on notice as to when the enforcement authority 

requires the alleged violation to be corrected. Therefore, it is logical 

for an operator to assume that a further inspection may be conducted on 

o~ shortly after that date to ascertain that the condition, in fact, has 

been corrected. Moreover, the statements of Pontiki's counsel in response 

to the judge's questioning on this issue provide no basis for a finding 

of advance notice. Tr. 54-55. Absent anything more in the record to 

support his assertion, we conclude that the judge's insinuations of 

improper advance notice lack support in the present record. Cf. 

Inverness Mining, 5 FMSHRC at 1388. 

B. Bribery 

Judge Kennedy queried whether there was "a hidden quid pro quo for 

the abbreviated inspection of the beltline on February 28." 6FMSHRC at 

785. He also asked what had led Dennis Jackson, Pontiki's Vice President 

of Operations, to feel that he had been "spun," "double crossed or 

'double barrelled' as he put it. 11 6 FMSHRC at 783, 785. The tone of 

these "queries," which relate to possible criminal conduct, renders the 

judge's statements as declarative as they are interrogative in nature. 

The Secretary argues that the judge incorrectly equated the term "doublebarrelled" with the term "double-crossed." 

In common parlance, the term "double-barrelled" means receiving a 

measure of something that is, perhaps, in excess of that required. 

Nowhere does the term "double-crossed" appear in the record. Rather, 

the existing record tends to show that when Jackson used the term "doublebarrelled," he did so in the context of Pontiki's having received a 

citation for failure to maintain records of preshift/onshift conveyor 

belt examinations as well as a subsequent order of withdrawal for lack 

of evidence that the examinations had actually been made. There is 

nothing in the record affording a shred ~f support to the judge's 

innuendo of bribery. 

C. Lax Enforcement 

Throughout the body of his decision, the judge directly or indirectly 

stated that MSHA's inspection at the Pontiki Mine Number Two constituted 

lax enforcement. 6 FMSHRC at 782-86. The Secretary argues that the 

judge should have notified the parties of his intention to address this 

issue in the context of the citation and orders. We agree. The issue 

of lax enforcement was not within the scope of the settlement agreement 

and the Secretary was not given an adequate opportunity to establish a 

record on this issue. 

676 
We also conclude that a finding of lax enforcement does not necessarily 

follow from the pre-trial submissions made by the parties. It is true 

that during their February 28, 1983 spot inspection, the MSHA inspection 

team did not observe or cite all of the accumulations, equipment, and 

inspection violations that then existed at the mine. Other violations 

discovered by them were, however, cited on that date. Absent a hearing 

at which their explanatory testimony could have been taken, the judge's 

postulates of corruption or naivete hardly exhaust the universe of 

possible explanations, and amount to no more than personal, unsupported, 

damaging speculation. 

D. Accusations of criminal conduct and defamatory comments 

The judge's decision contains a number of statements that the 

Secretary argues are defamatory, derogatory, and inappropriate. While 

fair and supported critism of MSHA or any other party appearing before 

the Commission at times may be appropriate, the judge overstepped proper 

bounds by stating or implying that the inspectors provided advance 

notice of an inspection, intentionally ignored hazardous conditions, 

arranged some type of unethical or illegal deal with Pontiki, and received 

something in return for their willingness to accomodate the operator. 

As our previous discussion indicates, these statements are not supported 

by the extant record. 

We are particularly disturbed~by the judge's allegations of advance 

notice and bribery. These are federal criminal offenses. As the Commission 

observed in another case involving unfounded criminal accusations by 

Judge Kennedy: 

Any accusation of criminal conduct is a grave 

matter, not to be undertaken lightly, especially 

by a jurist schooled in the law and aware of the 

requirements of due process. 

Belcher Mines, Inc., 7 FMSHRC at 1019, 1022 (July 1985)(emphasis in 

original) •. In Belcher, the Commission held that by attacking the personal 

reputations of individuals and by accusing them of criminal activity: 

Judge Kennedy assumed the conflicting roles of 

grand jury, prosecutor, jury, and presiding judge. 

Jurisdiction over federal criminal matters resides 

with the United States Department of Justice and 

the federal criminal justice system. If Judge 

Kennedy had reason to believe that crimes had been 

committed, he should have referred the matter to 

the appropriate authorities at the Department of 

Justice. 

7 FMSHRC at 1025. 

677 
In this case, the Commission itself referred Judge Kennedy's 

allegations tc the Department of Justice for further proceedings. 

The Department of Justice conducted a limited inquiry and ultimately 

concluded that further criminal investigation was not warranted. 

While the judge did not specifically name all of the individuals 

accused in his decision, the fact remains that in a rural, coal-mining 

region, the identity of the individuals concerned could readily be 

determined. In this regard, the Secretary has asked the Commission to 

take official notice of two front-page newspaper articles that appeared 

in the local press as a direct result of Judge Kennedy's written decision. 

We do so, and further note that the reports contain inaccurate statements 

misconstruing the statutory roles of the Commission and its administrative 

law judges and the limited scope of the record developed before Judge 

Kennedy in this proceeding. These press reports highlight the inexcusable 

damage that can be done to personal and professional reputations when 

criminal accusations are disseminated in public decisions. What makes 

such abuse especially egregious in this instance is the fact that Judge 

Kennedy's charges and criticism lack support in the record before him. 

IV. 

Conclusion 

The foregoing is not to say that Commission judges do not possess 

considerable latitude ~comment officially on relevant matters in the 

public record when the evidence before them and the circumstances warrant 

appropriate comment. The record in this case discloses that the cited 

violations were serious indeed. Pontiki's Mine Number Two is classified 

as a gassy mine, and the cited violative conditions were cause for grave 

concern. The Secretary initially proposed penalties tot~lling $2,294, 

which he was prepared to compromise to $1,900. In our view, either 

figure is inadequate under the circumstances, and the judge rightfully 

rejected them under section llO(k). We find that the $7,500 penalty 

settlement approved by the judge is supported by the record and is 

consistent with the statutory penalty criteria. Had the judge contented 

himself with assessing an appropriate penalty and had he limited his 

comments in doing so to the record developed before him, his duties 

under the Mine Act would have been discharged properly. 

678 
Accordingly, we conclude that Judge Kennedy's objectionable comments 

discussed above lack record support and are unwarranted. As noted, the 

judge's allegations of unlawful activity were referred to the proper 

authorities, who concluded that prosecutorial action was unwarranted. 

We affirm the judge's settlement approval on the narrow grounds on which 

it properly rests, and strike all but the first sentence of the last 

paragraph of his decision, which reads as follows: "Accordingly, it is 

ORDERED that the settlement approved at the prehearing/settlement conference 

of February 7, 1984, be, and hereby is CONFIRMED, and that the settlement 

amount agreed upon and paid, $7,500, be allocated equally among the four 

violations found." 5/ 

- L / 

Richard V. Backley, Comm~~ 

Joyce '2~tl.~ A. Doyle, CommiSSiOil 

5/ Chairman Ford did not participate in the consideration or disposition 

of this matter. 

679 
Distribution 

Ann Rosenthal, Esq. 

Barry Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Nick Carter, Esq. 

Pontiki Coal Corporation 

MAPCO, Inc. 

2365 Harrodsburg Road 

Suite B410 

Lexington, Kentucky 40504 

Administrative Law Judge Joseph Kennedy 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, VA 22041 

680 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 27, 1986 

UNITED MINE WORKERS OF AMERICA 

(UMWA) 

on behalf of JAMES ROWE, et al. , 

JERRY D. MOORE, LARRY D. KESSINGER 

v. 

PEABODY COAL COMPANY 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of THOMAS L. WILLIAMS 

v. 

PEABODY COAL COMPANY 

Docket Nos. KENT 82-103-D 

KENT 82-105-D 

KENT 82-106-D 

Docket No. LAKE 83-69-D 

BEFORE: Backley, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

The Commission concluded previously that Commission Administrative 

Law Judge Joseph B. Kennedy, while presiding in the above-captioned 

matter, acted improperly by: (1) engaging in a prohibited ex parte 

conununication; (2) verbally abusing attorneys appearing before him; and 

(3) commenting publicly on a pending proceeding. United Mine Workers 

on behalf of Rowe v. Peabody Coal Co., 7 FMSHRC 1136 (August 1985). The 

Commission's decision was the result of an inquiry into allegations 

contained in a letter to the Commission from Francis X. Lilly, then the 

Solicitor of the Department of Labor. 1/ Judge Kennedy has moved for 

reconsideration of the decision. For the reasons that follow, the 

motion is denied. 

1/ The Commission is an independent adjudicatory agency established by 

Congress to resolve legal disputes under the Federal Mine Safety and 

Health Act of 1977 ("the Mine Act"), 30 U.S.C. § 823 (1982). The Commission is not a part of and is in no way connected with the Department of 

Labor. Rather, the Department of Labor appears before the Commission as 

a party to litigation under the Mine Act. 

681 
Although the factual background and procedural history of this 

matter are fully described in the Commission's previous decision, we 

will briefly set forth those facts pertinent to an understanding of the 

present order. The Solicitor asserted that Judge Kennedy had initiated 

a prohibited ex parte telephone conversation with a Department of Labor 

attorney, Linda Leasure, in which they discussed the merits of the 

above-captioned discrimination proceeding. The Solicitor also asserted 

that the judge exhibited abusive conduct toward the Secretary's trial 

counsel, Frederick W. Moncrief, and toward counsel for the United Mine 

Workers of America and Peabody Coal Company at an oral argument on the 

merits of the captioned proceeding. Finally, the Solicitor asserted 

that Judge Kennedy had threatened Moncrief during a confrontation 

between the two, occurring at the judge's office subsequent to the oral 

argument. The Solicitor's letter was accompanied by affidavits from 

Leasure and Moncrief and by portions of the transcript of the oral 

argument. 

The Commission deemed the Solicitor's letter and the accompanying 

materials to be, in part, a notification of a prohibited ex parte communication and a request for appropriate action under Commission Procedural 

Rule 82. 29 C.F.R. § 2700.82. 2/ The Commission served the judge and 

the parties with copies of the Tetter and attachments. The Commission 

also severed the allegations of judicial misconduct from the merits of 

the discrimination proceedings, reassigned the merits to the Chief 

Administrative Law Judge, and retained jurisdiction over the misconduct 

allegations. 

2/ Rule 82 states: 

(a) Generally. There shall be no ex parte communication with 

respect to the merits of any case not concluded, between the Commission, including any member, Judge, officer, or agent of the Commission who is employed in the decisional process, and any of the 

parties or intervenors, representatives, or other interested persons. 

(b) Procedure in case of violation. (1) In the event an ex 

parte communication in violation of this section occurs, the Commission or the Judge may make such orders or take such action as 

fairness requires. Upon notice and hearing, the Commission may 

take disciplinary action against any person who knowingly and 

willfully makes or causes to be made a prohibited ex parte communication. 

(2) All ex parte communications in violation of this section 

shall be placed on the public record of the proceeding. 

(c) Inquiries. Any inquiries concerning filing requirements, 

the status of cases before the Commissioners, or docket information 

shall be directed to the Office of the Executive Director of the 

Commission •••• 

29 C.F.R. § 2700.82. 

682 
In order to determine whether any improper conduct.occurred, an 

inquiry was initiated by the Commission. The Commission ordered the 

judge to file a complete and detailed affidavit concerning the reported 

matters. The Commission also noted that the judge had been quoted in 

the Lexington [Kentucky] Herald-Leader as characterizing the telephone 

conversation with Ms. Leasure as a trivial incident and making critical 

comments regarding Mr. Moncrief. The Commission therefore directed the 

judge also to disclose in his sworn statement the substance of his 

conversation with the author of the article and to state whether he had 

been quoted accurately. 

In response to the Commission's order, the judge moved that the 

inquiry be dismissed and that the order directing the filing of his 

sworn statement be stayed. The judge asserted that the inquiry was 

disciplinary in nature and that the Commission had no jurisdiction to 

discipline a judge. The Commission denied the judge's motion stating: 

Before this Commission undertakes to discipline, or seek discipline of, an administrative 

law judge it needs first to determine whether any 

disciplinary action is required. The Commission 

has followed, and will continue to follow, appropriate procedures in seeking to examine the 

allegations of misconduct that have been raised in 

this matter. If the Commission later determines 

that grounds exist for forwarding this matter to 

the Merit Systems Protection Board, it will do so. 

[2_/] 

The judge subsequently filed a sworn statement and the Commission 

thereafter accepted for filing affidavits from Mr. Moncrief and Cynthia 

A. Attwood, the Department of Labor's Associate Solicitor for Mine 

Safety and Health. These affidavits responded to points raised in the 

judge's affidavit. No further affidavits or other submissions were 

filed and our decision followed. 

The judge now asserts that in reaching our decision on the basis of 

affidavits and without a confrontational hearing the Commission denied 

him due process. He also asserts that, in any event, the Commission 

lacks authority to issue a decision disciplining him and that our 

decision improperly did so. We find these assertions to be without 

merit. 

3/ Under the Civil Service Reform Act of 1978, Pub. L. 95-454, 92 

Stat. 1111 (1978), the Merit Systems Protection Board ("MSPB") hears and 

decides an employing agency's complaint proposing certain designated 

types of adverse action against an administrative law judge. 5 u.s.c. 

§ 7521 (1982); ~also 5 C.F.R. § 1201.133 (1986). 

683 
The judge's argument that he was entitled to, and was denied, an 

evidentiary hearing affording him the rights of confrontation and crossexamination discloses confusion and misunderstanding over the nature of 

the inquiry in this matter. When a possible ex parte communication is 

brought to the Commission's attention, the Commission has a legal and 

ethical responsibility under its rules to investigate the matter. 

Secretary of Labor on behalf of Ronnie D. Beavers v. Kitt Energy Corp. 

and United Mine Workers of America, 8 FMSHRC 15 (January 1986). The 

Commission also has the responsibility to investigate reported possible 

instances of unethical or unprofessional conduct in connection with 

Commission proceedings. When reports of such conduct are made to the 

Commission an appropriate means to commence our task is to solicit sworn 

statements from those who have knowledge of the alleged prohibited 

conduct. Such statements can establish facts bearing upon whether the 

action3 occurred and were in violation of the Commission's rules and 

applicable standards of conduct. See 29 C.F.R. § 2700.BO(a), (b), and 

( c) • 

Through this procedure and through the submission of motions and 

argument, an individual involved in such an inquiry has the right and 

the opportunity to be heard. There is, however, no requirement that the 

right to be heard necessarily incorporates an evidentiary hearing. When 

the record and the sworn statements received are corroborative or 

unrebutted as to the material issues, and establish a violation of the 

Commission's rules or applicable standards of conduct, it is proper for 

the Commission to enter an appropriate finding on the basis of undisputed 

material facts. As we have stated this same date in Secretary of Labor 

on behalf of James M. Clarke v. T.P. Mining, Inc., LAKE 83-97-D, slip 

op. at 4: "Summary decision based on undisputed or unrebutted factual 

allegations is a procedural course well known to the law. Due process 

is process that is due under particular circumstances, and does not 

invariably mandate trial-type proceedings. See, e.g., Hannah v. Larche, 

363 U.S. 420, 442-43 (1960) . " Conversely, when materially conflicting 

allegations exist, an evidentiary hearing may be necessary in order to 

resolve the conflicts. See T.P. Mining, supra, slip op. at 2. 

Our actions here are in accord with these principles. The judge 

was given full opportunity to be heard, as were the other individuals 

involved. The Commission solicited the judge's sworn statement. The 

Commission entertained the judge's va~ious motions and supporting 

argum~nts. In concluding that the subject communication was ex parte 

and prohibited; that the judge abused the attorneys appearing before 

him; and that the judge's comments as reported in the Lexington 

[Kentucky) Herald-Leader represented improper judicial conduct, the 

Commission relied on the public record and the non-conflicting portions 

of the sworn statements of the judge and other parties. 4/ 7 FMSHRC at 

1140-44, 1144-46, 1147-48. On the other hand, because the sworn statements 

4/ Indeed, the Commission found that the ex parte communication was 

prohibited even as described by the judge alone. 7 FMSHRC at 1143. 

684 
of the respondents were conflicting and thus failed to reveal the precise 

content of the out-of-court incident involving the judge and Mr. Moncrief, 

the Commission declined to conclude that standards of professional 

conduct were violated. 7 FMSHRC 1146-47. 

The Commission was not required by either Commission Procedural 

Rule 80 or Rule 82 to provide the judge with an evidentiary hearing. 

Rule 80 sets forth standards of conduct for "individuals practicing 

before the Commission" and provides procedures for determining whether 

discipline is warranted for violations of those standards. A Commission 

administrative law judge is not an "individual practicing before the 

Commission" and, hence, Rule 80 is totally inapplicable to the conduct 

herein involved. Further, Rule 82(b)(l) provides that in the event of a 

prohibited ex parte communication that the Commission "may make such 

orders~or take such action as fairness requiresn and that "[u]pon notice 

and hearing, the Commission may take disciplinary action against any 

person who knowingly and willfully makes or causes to be made a prohibited 

ex parte communication." As the judge is aware the Commission has not 

imposed any discipline on him. ("The Commission did not impose any 

discipline in its August 5 decision •••. " Motion for Reconsideration at 

2 n. 1.) As we have noted, it is the MSPB that by statute and regulation 

hears and decides designated types of adverse action against an administrative law judge. All that we have done is 11 to engage in an appropriate process to determine whether discipline is warranted.n 7 FMSHRC 

at 1139 n. 2. 

Therefore, the judge's motion for reconsideration is denied. 5/ 

/) 

Richard V. Backley, Commissioner f 

I 

A I La~to~

11 Commissioner 

L. Clair fl~""/ Nelson, 

I 

Commissioner 

u~ 

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

have been designated a panel of three members to exercise the powers of 

the Commission in this matter. 

685 
Distribution 

Philip G. Sunderland, Esq. 

Terris & Sunderland 

1121 12th St., N.W: 

Washington, D.C. 20005 

Cynthia Attwood, Esq. 

Associate Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Michael McKown, Esq. 

Peabody Coal Company 

P.O. Box 373 

St. Louis, Missouri 63166 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Dennis Clark, Esq. 

1100 17th St., N.W. 

Suite 800 

Washington, D.C. 20036 

Administrative Law Judge Joseph Kennedy 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

686 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

May 27, 1986 

on behalf of JAMES M. CLARKE 

v. Docket No. LAKE 83-97-D 

T.P. MINING, INC. 

BEFORE: Backley, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

The Commission concluded previously in this matter that Commission 

Administrative Law Judge Joseph B. Kennedy and counsel for respondent 

T.P. Mining, Inc. ("T.P. Miningt1), engaged in a prohibited ex parte 

communication in violation of Commission Procedural Rule 82, 29 C.F.R. 

§ 2700.82. 7 FMSHRC 1010 (July 1985). '};./ That conclusion resulted from 

]j Rule 82, entitled "Ex parte communications," provides: 

(a) Generally. There shall be no ex parte communication with 

respect to the merits of any case not concluded, between the 

Commission, including any member, Judge, officer, or agent of the 

Commission who is employed in the decisional process, and any of 

the parties or intervenors, representatives, or other interested 

persons. 

(b) Procedure in case of violation. (1) In the event an ex 

parte communication in violation of this section occurs, the 

Commission or the Judge may make such orders or take such action as 

fairness requires. Upon notice and hearing, the Commission may take 

disciplinary action against any person who knowingly and willfully 

makes or causes to be made a prohibited ex parte communication. 

(2) All ex parte communications in violation of this 

section .shall be placed on the public record of the proceeding. 

(c) Inquiries. Any inquiries concerning filing requirements, 

the status of cases before the Commissioners, or docket information 

shall be directed to the Office of the Executive Director of the 

Commission •••• 

29 C.F.R. § 2700.82. 

687 
an inquiry conducted to detennine whether Rule 82 had been violated 

during the course of pre-trial proceedings in this case, Through counsel, 

Judge Kennedy has moved for reconsideration of the Commission decision. 

For the reasons that follow, the motion for reconsideration is denied, 

The thrust of the motion for reconsideration is that the judge was 

entitled to, and was denied, notice of the specific charges against him 

and an evidentiary hearing. This assertion evidences a misunderstanding 

of the nature of this proceeding and the meaning of Rule 82. As shown 

below, the judge not only had full notice of the concerns at issue in 

this matter and not only received such process as was due under the 

circumstances, but in addition he, through his counsel, demanded termination of the inquiry short of an evidentiary hearing. 

The factual background and procedural history of this matter are 

fully described in the Commission's previous decision (7 FMSHRC at 

1011-14), and will not be repeated in detail here. In view of the tone 

of the present motion for reconsideration, however, it bears re-emphasis 

that the challenged inquiry was triggered by the judge sending an 

unsolicited letter to the Commission baldly announcing that "the basis 

for the settlement [of the underlying discrimination case] was fully 

disclosed in a discussion between counsel for the operator and the trial 

judge to which [counsel for the Secretary] was not a party." Because 

the judge's statement indicated on its face that an ex parte communication 

had occurred, the participants to the conversation, namely, the judge 

and the operator's counsel, were ordered to submit affidavits "providing 

full disclosure of the details and substance" of their conversation. 

When an alleged ex parte communication is brought to the Commission's 

attention, the Commission has a legal and ethical responsibility to 

pursue the matter. See, e.g., Secretary of Labor on behalf of Ronnie D. 

Beavers et al. v. Ki~Energy Corp., 8 FMSHRC 15 (January 1986). An 

appropriate means of commencing that task is for the Commission to 

examine the record of the relevant proceeding and to solicit statements 

from those who may have engaged in such a communication or have knowledge 

of the events at issue, in order to examine facts bearing on the question 

of whether a violation of Commission rules occurred, If the results of 

such a preliminary inquiry plainly disclose that no impropriety transpired, 

the whole matter can then be terminated. See, e.g., Beavers, supra, 8 

FMSHRC at 17-21. Conversely, when the record and the statements received 

are corroborative or unrebutted as to the pertinent issues and establish 

a violation, a summary conclusion that a violation occurred may be 

wholly proper under Rule 82 and settled norms of due process. If materially 

conflicting allegations surface, however, a hearing may be necessary. 

Against this background, we turn to the judge's allegations that the 

procedures followed by the Commission in this specific inquiry were 

improper. 

688 
After the Commission received Judge Kennedy's unsolicited letter 

disclosing that he had engaged in an off-the-record conversation with 

counsel for one of the parties before him, the Commission solicited 

affidavits from the participants to the conversation. The initial 

statements received from Judge Kennedy and the operator's counsel were 

extremely summary in nature. Their statements averred that on March 28, 1984, 

they had engaged in a brief telephone conversation pertaining to the status 

of the settlement, including whether a settlement check had been mailed 

to the claimant. 7 FMSHRC at 1012-13. After the submission of these 

statements, the Commission received and accepted from Michael McCord, 

the Secretary of Labor's appellate counsel, a sworn statement containing 

further information relevant to the March 28 telephone conversation. In 

his statement, the Secretary's appellate counsel asserted that he had 

reason to believe, because of conversations with the operator's counsel, 

that tfie initial statements filed with the Commission did not disclose 

fully the substance and the details of the March 28 telephone conversation. 

The Secretary's appellate counsel alleged that the operator's counsel had 

told him that the March 28 conversation included complaints by Judge Kennedy 

regarding alleged misconduct by the Secretary's trial counsel and an inquiry 

by Judge Kennedy as to whether the operator's counsel intended to seek a 

particular document from the Secretary. 7 FMSHRC at 1013. 

Because the Secretary's appellate counsel's statement suggested a 

much more extensive telephone conversation than was described initially 

by Judge Kennedy and the operator's counsel, and because the description 

of the Secretary's appellate counsel was based on his conversation with 

the operator's counsel, the Commission ordered the operator's counsel to 

submit a further affidavit. In his second affidavit, received on 

September 20, 1984, the operator's counsel stated that during the conversation in question, Judge Kennedy repeatedly had complained to him about 

the conduct of the Secretary's trial counsel and had asked him whether 

he intended to request the Secretary's investigative file -- suggesting 

that such a course of action might be helpful. 7 FMSHRC at 1014. Judge 

Kennedy filed no response to the affidavits of the Secretary's appellate 

counsel or to the second affidavit of the operator's counsel. };_/ 

On October 10, 1984, after both of the now-challenged statements 

had been received by the Commission, counsel for the judge requested 

that the Commission close the record in this inquiry. Counsel stated: 

2/ The operator's counsel apparently did not serve his second statement 

upon the judge. This defect was cured when the judge obtained a copy 

shortly after the statement was received by the Commission. 

689 
The record, which now consists of affidavits from 

Judge Kennedy, [the operator's counsel] and [the 

Secretary's appellate counsel], as well as a 

number of letters from myself on behalf of the 

Judge, is unquestionably sufficient to enable the 

Commission to bring the inquiry to an end. J:./ 

1/ I therefore request that the Commission 

formally close the record in this .•. inquiry. 

In my August 24 letter to you, I indicated that I 

intended to depose [the Secretary's appellate 

counsel] and [the operator's counsel]. I have now 

concluded that these depositions are not necessary. 

Acting upon this request and because there existed no material factual 

disputes, the Commission closed the record and proceeded to consider all 

details and substance of the March 28 telephone conversation. On July 

10, 1985, we issued our decision stating our findings and conclusions. 

Only after entry of findings adverse to him did the judge belatedly 

assert that he was not afforded sufficient opportunity to deny or rebut 

the opposing accounts of the conversation. This argument is without 

merit. 

The assertion by the judge that he was not afforded sufficient 

opportunity to respond is belied by his counsel's statement, which 

establishes that the judge had full knowledge of the contents of the 

affidavits, believed that the documents in the record were sufficient 

and requested that the inquiry be closed. Furthermore, nothing had 

prevented the judge from responding to the affidavits prior to making 

his request that the record be closed. The judge's contention that he 

lacked notice of the allegations of the ex parte communication in this 

matter strains credulity and is rejected. The judge's additional claim 

that he was denied an evidentiary hearing fails for the same reasons. 

It was he who failed to avail himself of the opportunity to rebut the 

assertions of the operator's counsel and the Secretary's appellate 

counsel, and it was he who sought to close this inquiry short of a 

trial. 

The Commission issued its decision on the basis of the record, the 

judge 1 s own statement and the unchallenged and consistent statements of 

other involved invididuals. Summary decision based on undisputed or unrebutted factual allegations is a procedural course well known to the 

law. Due process is the process that is due under particular circumstances, and does not invariably mandate trial-type proceedings. See, 

e.g., Hannah v. Larche 363 U.S. 420, 442-43 (1960). Moreover, Commission 

Rule 82 does not require a trial in all cases, but rather states that if 

a violation occurs, the "Commission ••. may make such orders or take 

such action as fairness requires." 29 C.F.R. § 2700.82(b). A hearing 

is required only if the Commission contemplates the taking of disciplinary action. Id. The Commission has not disciplined the judge. As the 

690 
judge's own submission states: "The Commission did not impose any 

discipline in its July 10 decision, but instead retained 'for further 

consideration, the question of appropriate discipline."' The Commission 

only has concluded that a prohibited ex parte communication occurred. ]_/ 

We conclude that the process afforded in this matter falls well 

within the substantial discretion given an administrative agency in 

adopting, interpreting, and applying procedural rules. See, e.g., 

American Farm Lines v. Black Ball Freight Service, 397 U.S. 5~539 

(1980); Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447, 451 

(10th Cir. 1983). Because the judge failed to offer a rebuttal at a 

time appropriate and available under our procedure, and because the 

matter was closed at his counsel's clear and specific request, the 

judge's submission of a belated "declaration" denying the account of the 

ex parte conversation sworn to by the other participants was untimely 

and is~rejected. 

Accordingly, the administrative law judge's motion for reconsideration 

of the Commission's decision of July 10, 1985 is denied. 4/ 

~~~d~~/ Richard V. Backley, Commissione~\/ 

3/ The judge's extended reliance on the procedure set forth in Commission 

Rule 80 is seriously misplaced. Rule 80 expressly sets standards of 

conduct, and procedures for addressing breaches thereof, for "individuals 

practicing before the Commission." A Commission administrative law 

judge is not such an individual. 

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

have been designated a panel of three members to exercise the powers of 

the Commission in this matter. 

691 
Distribution 

Philip G. Sunderland, Esq. 

Terris & Sunderland 

1121 12th St., N.W. 

Washington, D.C. 20005 

John J. Malik, Jr., Esq. 

Malik, Knapp, Kigerl & Frizzi 

3381 Belmont St. 

Bellaire, Ohio 43906 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Joseph B. Kennedy 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

692 

ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 1, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

LITTLE SANDY COAL SALES, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-106 

A.C. No. ~5-l2133-03502. 

No. 1 Tipple or Tipple Mine 

Appearances: Charles F. Merz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; Edgar B. Everman, President, 

Little Sandy Coal Sales, Grayson, Kentucky, for 

Respondent. 

Before: Judge Fauver 

The Secretary of Labor brought this action for civil 

penalties under section lOS(d) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801, et seq. Having 

considered the hearing evidence and the record as a whole, 

I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following: 

FINDINGS OF FACT 

1. At all times pertinent, Respondent operated, in 

Kentucky, a coal processing facility, consisting of a scale, 

scale house, parts and lubricant storage trailer and a 

portable coal-processing system including coal cleaning, 

screening, crushing and loading equipment with inner-connecting 

conveyor belts. The processing system was powerep by a 400-

volt power unit and diesel engine. 

2. On May 18, 1982, Inspector R.C. Hatter inspected 

Respondent's facility and determined that Respondent was not 

conducting electrical tests and examinations of electrical 

equipment as required by 30 C.F.R. § 77.502. He issued 

Citation 960642 (for not recording electrical inspections) , 

allowing Respondent until May 21, 1982, to comply with the 

cited standard. Because of Respondent's failure to abate 

693 
the cited condition, on November 8, 1982, Federal Inspector 

Barry Lawson issued a withdrawal order (No. 2053102) to shut 

down its operations until the outstanding citation was 

complied with. That order was terminated the next day 

because of prompt compliance with the electrical standard. 

3. On February 15, 1983, Inspector Hatter inspected 

Respondent's facility and determined that Respondent had 

failed to conduct periodic noise surveys .as required by 30 

c.F.R. § 71.803. He issued Citation 9976274 (for not recording 

noise inspections), which was terminated on March 15, 1983, 

after timely abatement of the cited condition. 

DISCUSSION WITH FURTHER FINDINGS 

Respondent's failure to record periodic noise and 

electrical tests was due to negligence. Respondent contends 

that the standards should not have applied to its operations 

because it was a small operation, not subject to significant 

changes in noise or electrical conditions. This argument is 

not sound on the facts or the law. Respondent's equipment 

and processes involved many variables that could change 

noise or electrical conditions, rendering the required 

inspections important for safety and health purposes. Also, 

the law does not permit an operator to reduce or omit the 

required inspections based on its opinion of the need for 

such inspections. If an operator believes that the particular 

facts of its business justify a modification of the application 

of self-inspection requirements, section lOl(c) of the Act 

provides a procedure for petition to the Secretary to grant 

a modification in appropriate cases. Respondent did not 

attempt to use this procedure, but simply ignored the inspection 

requirements of the Federal Regulations. 

Respondent is a small business. The violations are 

serious in that the required inspections are an important 

preventive safety protection of the miners. Considering all 

of the criteria of section llO(i) for assessing civil penalties, 

a penalty of $50 is found appropriate for the violation of 

30 C.F.R. § 71.803. Considering all the factors 0£ section 

llO(i), and the greater seriousiness of the electrial 

reporting violation, and the bad faith delay of achieving 

compliance with that standard, a civil penalty of $150 is 

found appropriate for the violation of 30 C.F.R. § 77.502. 

694 
CONCLUSIONS OF LAW 

1. At all relevant times, Respondent's facility was a 

mine within the meaning of the Act. 

2. Respondent violated 30 C.F.R. § 71.803 as alleged 

in Citation 9976274, and is ASSESSED a civil penalty of $50 

for such violation. 

3. Respondent violated 30 C.P.R. § 77.502 as alleged in 

Citation 960642, and is ASSESSED a civil penalty of $150 for 

such violation. 

ORDER 

Respondent shall pay the above civil penalties in the 

total amount of $200 within 30 days of this Decision. 

Distribution: 

(_)~~ William Fauver 

Administrative Law Judge 

Charles F. Merz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Mr. Edgar B. Everman, President, Little Sandy Coal Sales, 

P.O. Box 335, Grayson, KY 41143 (Certified Mail) 

kg 

695 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 1, 1986 

SECRET.ARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

· Petitioner 

v. 

CANON COAL COMPANY, 

Respondent 

DECISION 

Docket No. PENN 85-201 

A. C. No. 36-06478-03518 

Pitt Gas Mine 

Appearances: Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

Joseph Mack, III, Esq., Thorp, Reed & Armstrong, Pittsburgh, Pennsylvania, 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. section 801, et seq., the 

"Act," in which the Secretary has charged the Canon Coal Company with five violations of the mandatory safety standards. 

Prior to the commencement of taking testimony in this case, 

however, the parties settled§ 104(a) citation number 2403073, 

alleging a violation of 30 C.F.R. § 75.202 and proposing a 

$58.00 c1vil penalty and a second§ .'104{a) citation, number 

2403082, which alleged a violation of 30 C.F.R. § 75.200 and 

assessed a $98.00 civil penalty. There was no reduction in 

the assessed penalties proposed, and I granted·the motion to 

approve settlement on the record {Tr. 9). 

The remaining three alleged violations were tried 

before me at a scheduled hearing on January 9, 1986, at 

Pittsburga, Pennsylvania. Documentary evidence and oral 

testimony were received on behalf of both parties, and both 

parties have filed post-hearing briefs, including proposed 

findings of fact and conclusions of law. 

The general issues before me are whether the company 

has violated the regulatory standards as alleged in the 

petition and, if so, the appropriate civil penalty to be 

assessed for the violation(s). 

696 
The Mandatory Standard 

The mandatory standard involved in each of the three 

remaining violations is 30 C.F.R. § 75.200 which provides 

as follows: 

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 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 Conditions and/or Practices 

On October 9, 1984, a fatal roof fall accident occurred 

at Canon Coal Company's Pitt Gas Mine. As a result of the 

subsequent Federal Mine Safety and Health Administration investigation, the following cita±ions, still at 'issue, were 

issued to the company. · 

Section 104(a) Citation No. 2403072 cites a violation 

of 30 C.F.R. § 75.200 for the following alleged practice: 

Based on evidence disclosed during the investigation of a fatal roof fall accident, the torque 

was not tested on any of the roof bolts installed 

in the area just outby the accident scene as required by Item No. 12 on page 7 of the safety 

precautions of the approved roof control plan. 

697 
Paragraph No. 12 on page 7 of the approved roof control 

plan states: 

Immediately after the first bolt is installed 

in each place and prior to installing the second 

bolt, the torque shall be tested on the first bolt 

and thereafter at least one roof bolt out of every 

four shall be tested by a qualified person. If any 

of the bolts tested do not fall within the required 

torque range, the remaining previously installed 

bolts on this cycle shall be tested. If the majority of the bolts still fall outside the required 

torque range, necessary adjustments shall be made 

and the required torque range obtained. If the 

required torque ranges are not obtained, supplementary support such as different length bolts 

with adequate anchorage, posts, cribs, and/or 

crossbars shall be installed. 

The second citation still at issue in this case, § 104(a) 

Citation No. 2403074, likewise cites a violation of 30 C.F.R. 

§ 75.200 and states: 

During the course of a fatal roof fall accident 

it was revealed that in the haulage entry outby 

the accident scene, temporary roof supports were 

not properly installed as required by safety 

precaution No. 19 in that 2 rows of jacks (2 in 

each row) were installed in the unsupported area 

that varied from 16 to 18 feet in width. The 

approved roof contrrol plan requires temporary 

supports to be installed across the opening on 

not more than 5 foot centers. This violation 

did not contribute to the roof fall accident. 

Paragraph No. 19(a) (2) on page 8 of the approved roof 

control plan states: 

19(a). Where roof falls have occurred and 

at all overcast, boom hole, and other construction 

s s that require removal of mine roof material, 

(e.g., by blasting, by ripping ~ith a continuousmining machine, by cutting with a cutting machine, 

or other means), the roof shall be considered unsupported. If miners are required to enter such 

areas, either to travel over the fallen material, 

to clean it up, or to perform other duties, the 

roof shall be supported adequately. Mine management shall devise and have posted in writing at 

698 
the scene of such unsupported roof a plan incorporating, but not limited to, the following procedures: 

* * * 

(2) Adequate temporary support on not more 

than 5-foot centers shall be installed at the edge 

of the fall where work is to be started. A minimum of four posts or jacks shall be used. 

Finally, § 104(d) (1) Order No. 2403083, also citing 30 

C.F.R. § 75.200 states: 

During the course of a fatal roof fall accident 

investigation, it was revealed that a miner was 

working under inadequately supported roof along 

the main track haulage 450 feet outby the No. 3 

belt drive on 10-09-84. Roof, about 45 inches 

thick, 6 feet long and 13 feet wide fell, 

striking the miner. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Tr. 12-13): 

1. The Pitt Gas Mine is owned and operated by the 

Respondent, Canon Coal Company. 

2. Canon Coal Company's ~itt Gas Mine is subject to 

the jurisdiction of the Federal Mine Safety and Health Act 

of 1977. 

3. The Administrative Law Judge has jurisdiction over 

these proceedings. 

4. The subject citations were properly served by a 

duly authorized representative of the Secretary.of Labor 

upon an agent of the Respondent( atthe dates, times, and 

places stated therein, and may be admitted into evidence 

for the purpose of establishing the issuance, and not for 

truthfulness, or relevancy of any statements asserted therein. 

5. The assessment of a civil penalty in this proceeding will not affect the Respondent's ability to continue in 

business. 

6. The appropriateness of the penalty, if any, to the 

small size of the coal operator's business should be based 

upon the fact that the Pitt Gas Mine's annual production 

699 
tonnage is one hundred twenty-one thousand eight hundred and 

twenty (121,820), annual production tons, and the Canon Coal 

Company's annual production tonnage is one hundred twentyone thousand eight hundred and twenty (121,820). 

7. The Respondent demonstrated good faith in attaining 

compliance after the issuance of the 104(a) citation. 

8. The parties stipulate to the authenticity of their 

exhibits, but not to their relevance, nor the truth of the 

matters asserted therein. 

Discussion and Analysis 

Taking the citations in the order presented, I will 

first deal with Citation No. 2403072, concerning the 

issue of whether the torque was or was not tested on the 

roof bolts just outby the accident scene as required by the 

approved roof control plan. 

The Secretary's first witness concerning this part of 

the case was Mr. Barry Sadler, a miner employed by the Canon 

Coal Company. He had been working "off and on" as a roof 

bolter helper on the day of the fatal accident, assisting 

Bobby Rock, the roofbolter. The job that day was to trim 

low roof areas along the main track haulageway using a 

Dosco mining machine. They would first trim the roof with 

the Dosco, then back the Dosco out so that a roof bolting 

machine could be brought in, bolt the newly trimmed portion 

of roof and so on, repeating the process. 

Sadler states that they were installing four (4) foot 

roof bolts on the edges and six (6) foots in the middle. As 

the bolts were being installed, he asked Rock how well they 

were anchoring and he (Rock} said they were anchoring "good." 

Most importantly to the Secretary's case, Sadler testified that there was a torque wrench on the roofbolting machine 

but he never observed him (Rock) us.ing the wrench that day. 

However, he was unable to unequivocally state whether or not 

he did use it. This was further clarified during crossexamination of Mr. Sadler. He agreed he had spent a considerable amount of time away from the bolter, going back 

and forth to get bolts, changing bits, and getting cribs. 

He had also been to lunch while others continued to bolt. 

The following exchange took place at Tr. 50-51: 

Q. Okay. 

working 

So, you weren't observing the bolter 

day, I take it? 

A. No, I only seen him that one time when he 

was drillin' there, and I seen that little bit 

of -- it was like, was loose there, you know. 

700 
Q. Okay. 

A. And, I told Rocky about it. Rocky says, don't 

worry about it. He shoved the bolt up in it, 

tightened it, and it just -- it went tight. 

Q. So, Rocky was bolting, Steiner was bolting, 

Koci, did he do any bolting? 

A. Not -- I don't know who was boltin'. They 

they both were supposed to have been boltin'. 

Q. Okay. 

A. But, I don't know who was boltin', though. 

Q. So, it is possible, isn't it, that they, 

when you weren't watching, they took a wrench out, 

and 

A. Could of, yeah, right. You mean torquin', 

you mean, right? 

Q. Yes. 

A. No, they did -- could have, right. 

Q. So, they could have been using the wrench that 

was on the 

A. Yeah. 

Q. Bolting machine, to torque the --

A. Yes, this was --

Q. To check the torque 

A. Yeah. 

Inspector Moody also testified concerning this alleged 

violation. He interviewed Mr. Sadler during the investigation subsequent to the accident. His interpretation of what 

Sadler told him led him to conclude that none of the roof 

bolts in the haulageway were being torqued on the day of the 

accident, and the instant citation was issued on the basis 

of this conversation with Sadler. 

Inspector Moody had also tested the torque on the roof 

bolts that were installed outby the roof fall area on the 

day following the accident. He torqued twenty-four (24) 

701 
roof bolts and found nine {9) below a hundred foot-pounds 

of torque and fifteen (15) above a hundred foot-pounds of 

torque. He concedes, however, that it would be fairly common for the torque to either lessen or increase a day after 

it was installed. In any event, he testified that the torque 

tests he performed had nothing to do with his issuance of 

this citation. He relied entirely on the interview with 

Mr. Sadler. 

The Secretary's reliance on Sadler to prove up this 

violation is misplaced. I find that the testimony of 

Mr. Sadler is at best neutral. He did not see any bolts 

being torqued, but nor is he able to say how many, if any, 

were torqued, or that none were torqued. There is simply 

no direct evidence in this record that the pertinent provision of the roof control plan was or was not being complied with. Additionally, reading the record as a whole, 

there is no reliable circumstantial evidence to resolve 

this dilemma either. In short, the Secretary has failed 

to bear his burden of proof necessary to establish the 

violation cited in the instant citation, and it must be 

dismissed. 

Curiously, the Secretary did not present any direct 

evidence from the miners who actually bolted on the day in 

question as to whether or not they had been complying with 

the roof control plan concerning checking torque. 

The second citation at issue in this case, Citation No. 

2403074, concerns an alleged violation of Safety Precaution 

19(a) (2) of the roof control plan. The Secretary contends 

that the temporary supports being utilized by the bolters on 

the day in question were inadequate because the applicable 

provision requires that temporary supports be installed on 

not more than five-foot centers at the edge of the fall 

where work is to be started. They were using two rows of 

jacks, two per row in the unsupported area of the haulage 

track entry which varied in width, but was greater than 15 

feet in some places. Ergo, in.those places where the haulageway was greater than 15 feet in width, the supports were 

on greater than 5 foot centers and there would therefore be 

a violation of the cited standard. 

The respondent, however, contends that Safety Precaution 

19(a) (2) applies only where work is being performed at the 

edge of a fall. It is not contended that the work in question in this case was being performed at the edge of a fall. 

The statute and the standard require the parties to 

agree on a roof-control plan. Once the operator has adopted 

702 
and MSHA has approved the plan, its provisions are enforceable as though they were mandatory standards. Zeigler Coal 

Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976). Thus, a 

question concerning the parties' intent and understanding 

as expressed in an approved plan is an important one. Before 

we can undertake to determine whether a plan was violated, 

we first need findings as to what the plan requires. 

Shamrock Coal Co., 5 FMSHRC 845, 848-52 (May 1983); Penn 

Allegh Coal Co., 3 FMSHRC 2757, 2769-70 (December 1981). 

Only after this is determined can those requirements be 

applied to particular facts to resolve whether a violation 

of the plan has occurred. Id. The same principle applies 

to the more basic question of whether a particular provision 

of the plan is applicable to the situation at hand. 

In this case, the paragraph in question (19(a)) begins: 

"Where roof falls have occurred and at all overcast, boom 

hole, and other construction sites that require removal of 

mine roof material. ••• " This main paragraph goes on to 

require that the roof shall be considered unsupported at 

all these sites and further that if miners are required to 

enter any of these enumerated areas, the roof shall be 

adequately supported. Subparagraph (2) under paragraph 

19(a) then specifically addresses only one of the conditions 

addressed in the main paragraph, i.e., roof falls, stating 

that "adequate temporary support on not more than 5-foot 

centers shall-be installed at the edge of the fall where 

work is to be started" (emphasis added). 

The respondent argues that this requirement contained in 

subparagraph (2) addresses a particular type of work site, 

and there is no indication that it is intended to apply to 

the other types of work sites addressed in the introductory 

paragraph. Counsel states in his brief that "[h]ad the 

parties intended otherwise, they co~ld easily have so provided." I agree they could have easily drafted the requirements more concisely. 

On the other hand, the Secretary's position is and 

Inspector Moody testified that the term "fall" as utilized 

within Safety Precaution No. 19{a) (2) e~compasses not only 

roof falls with reference to the term "at the edge of the 

fall," but also, falls of roof caused by the removal of roof 

by blasting, ripping with a continuous mining machine, or 

cutting with a cutting machine or other means at the construction site. As a practical matter, this interpretation 

of the requirement is the only one that makes any sense, 

reading the paragraph and its subparagraphs together in 

their entirety. Therefore, I find that the provision of 

the roof control plan cited in the instant citation is applicable in this case and is sufficiently definite to be 

legally ~nforceable. 

703 
I will now turn to the facts of the alleged violation 

of the cited standard. Mr. Sadler's testimony that the roof 

bolting process used on October 9, 1984, utilized a total of 

four (4) jacks, two jacks per row, is unrebutted and apparently uncontested. Therefore, I find as a fact that two 

rows of jacks, two jacks per row, were installed as temporary support during the roof bolting process in the haulage 

entry outby the accident scene on the day of the accident. 

Inspector Moody testified that he had taken measurements of the entire area that was bolted that day. The 

width of the entry according to his notes ranged from 14 

feet, 10 inches to 18 feet, 6 inches. 1/ He conceded that 

for those areas in which the entry was-sixteen (16) feet 

wide or less, the use of the two jacks per row would have 

been adequate and there was no violation. However, in those 

four areas where the entry was wider than sixteen feet, the 

company was in violation of the roof control plan, and on 

that basis, the citation was issued. Inspector Moody cal~ 

culated the width of the haulageway by measuring the distances between roof bolts placed across the haulageway and 

then adding up those measurements to obtain a total width. 

Since the roof bolts were not placed in exactly a straight 

line across the haulageway, I understand that these measurements would be skewed to the high side. However, I find 

that the essence of the Inspector's testimony, which I find 

credible, is that there were four areas wider than fifteen 

(15) feet bolted that day utilizing temporary supports on 

centers in excess of five (5) feet in violation of the roof 

control plan and I so find. 

Mr. Remington, the respondent's safety director, also 

testified that the width of the haulageway is anywhere from 

fourteen (14) to a little over eighteen (18} feet, "depending on where you measured it up thr01:igh there. 11 

Mr. James Kaczmark, the mine foreman, had examined the 

roof in the haulage area that day and had found an area that 

sounded "drummy ... He stated that this did not necessarily 

mean bad top but you should be cautious of the top. He 

specifically told his crew to be cautious in securing the 

roof and he was in the area throughout the shift. This 

indicates to me that he knew or should have known that his 

men were not complying with paragraph 19(a) (2) of the roof 

control plan in those areas of the haulageway that were wider 

than fifteen (15) feet. His realization that caution was in 

order in securing the roof should have made him even more 

aware of the importance of compliance with the roof control 

1/ Inspector Moody's notes reflect the following width 

measurements: 15'5"; 14'10"; 15'6"; 15'0"; 16'2"; 16'11"; 

18 1 6 11 ; and 16'4 .. (GX-6). 

704 
plan. It was readily discernible that his men were only 

using two jacks per row and the operator is certainly chargeable with the knowledge of how wide the haulageway is and the 

contents of the roof control plan. I therefore find that the 

operator's negligence with reference to this citation was 

high. I further find, based on the testimony of Inspector 

Moody, that the gravity of the cited violation is serious 

in that even though this violation had nothing to do with 

the roof fall that did occur later that day, it created the 

type of hazard that would be reasonably likely to result in 

a roof fall and serious or fatal injuries to at least one 

miner. A penalty of $79 is assessed, as proposed. 

Finally, Order No. 2403083 was issued subsequent to a 

fatal roof fall accident for an alleged violation of 30 

C.F.R. § 75.200 (inadequately supported roof). 

More specifically, it is the Secretary's position that 

the roof along the left side of the haulage track rib, for 

the distance of the overhanging brow, was inadequately supported in that the distances from the rib to the first roof 

bolt were in excess of five feet in several instances, and 

that a roof fall did in fact occur in the area which was 

inadequately' supported and one miner was killed. 

In order to set the scene where and when the fatal roof 

fall occurred, it is necessary to go back and reiterate the 

substance of what had occurred earlier that day. 

On the day of the accident, the Dosco miner was 

bogged down at the beginning of the shift and had to be 

freed by using cribs to level it. There were places in 

this haulageway that the Dosco could not be moved laterally 

because it's weight and the soft ground caused it to sink 

into the muddy floor. The Dosco has an oscillating head 

on it which normally would allow the 'roof to be cut down 

"rib to rib," but in this instance, it would not go all the 

way over to the left rib in these muddy and soft areas. 

Even using cribs to level it, tqe m~ner would still sink on 

the left side making it impossible to get a clean cut on the 

left. As a consequence, the roof trimming left a brow along 

the left rib. Further, because the boom of the Dosco was 

aimed at the left rib, as it mined it deposited debris under 

the brow. Because the Dosco itself prevented bringing in 

wagons to load the debris, the respondent planned to remove 

it after the Dosco had passed through the area, and then 

secure the brow with cribs. 

The roof-trimming operation proceeded that day in a 

cycle of first cutting with the Dosco, then taking the Dosco 

out far enough that a roof-bolting machine could be 

705 
brought out from a crosscut, then bolting the trimmed portion of roof and so on until the final cut of that day. 

Since that cut only involved about a foot of low roof separating two bolted areas, the Dosco was trammed inby after 

the trimming was completed. James Steiner, the deceased, 

and Barry Sadler were instructed to watch the miner's trailing cable until it cleared the area. At one point Steiner 

observed that the cable was hung up in some debris along the 

left rib, under the brow. He went to free it. As he was 

attempting to free the cable, Sadler, who was approximately 

eight (8) feet outby Steiner, observed the mine roof dripping. As Sadler yelled a warning, Steiner stepped out into 

the haulageway where a large rock fell out of the roof, 

killing him. Shortly thereafter, several feet of roof 

adjacent to the space left by the rock that killed Steiner 

also fell. 

The respondent's position is that Steiner was killed by 

a large rock that fell without warning from a roof that was 

considered excellent, had stood completely unsupported · 

without falls for many years before it was bolted in 1978 

and, in addition, was thoroughly bolted at the time it fell. 

The Pitt Gas Mine was first opened in 1912 and worked 

continuously until 1943 when it was abandoned. The mine 

was reopened in 1978, at which time the new owner bolted 

the theretofore wholly unsupported haulageway. This haulageway had never had falls in the past and was considered 

to be "excellent roof in both directions [from the fall] 

for thousands of feet." It was composed of several inches 

of roof coal under several feet of sandrock. 

As hereinbefore stated, on the day of the accident, 

Kaczmark had found a portion of the roof "drummy" and had 

cautioned his men to be careful secur.ing the roof. At 

the hearing, both he and Safety Director Mel Remington 

testified that the "drumminess" in the Pitt Gas Mine was 

not uncommon and was due to the gradual separation of roof 

coal from the underlying rock. ."Drumminess" was. not 

thought to indicate the presence of a "bad top," although 

it warranted caution due to the possibility that roof coal 

could fall. Furthermore, the statements of the miners 

working in the haulageway that day given to the inspectors 

investigating the accident gave no indication that they 

observed anything untoward about the roof prior to the 

fall. 

Inspector Moody testified and included in his Report 

of Investigation that after the accident a slip and clay 

vein was visible in the haulageway where the roof had 

706 
fallen. However, he conceded that he could not determine 

whether this condition was observable before the roof fell. 

Respondent's Safety Director, Mr. Remington, conducted 

his own after-accident investigation of the scene. Remington inspected the rock that fell on Steiner, as well as 

each roof bolt recovered from the fall site. He also took 

measurements of the depth of each bolt hole that was left in 

the roof following the accident. Respondent's Exhibit No. 1 

sets out the results of these measurements and depicts the 

location of bolt holes in the fall area. 

Remington's findings may be summarized as follows: 

(1) The rock that killed Steiner was shaped like an 

elongated triangle or inverted "V" formed by the convergence of two slips. 

(2) The base of the "triangle 11 of rock was approximately 6-8 feet long and the rock was approximately 13 feet 

wide and 6 feet high from the base to the apex of the 

"triangle." Three bolts were almost entirely imbedded from 

the base to the apex of the 11 triangle" along its width (i.e. 

across the entry) protruding from 1 to 3 inches through the 

apex into the solid rock above. A fourth bolt went through 

the tapered edge of the rock on its left end, anchoring 

approximately 50 inches into the rock above. 

(3) Twenty-nine (29) roof bolts were recovered from 

the fall site of which twenty-eight (28) had been installed 

that day as opposed to the 1978 bolting. 

(4) The measurement of the holes left by bolts that 

either came down during the roof fall or were removed during the clean-up indicated that there had been 6-foot 

bolts along the brow on the left side of the haulageway, 

directly over the place where Steiner was at the time of 

the accident. Because no 6-foot bolts had been installed 

during the 1978 bolting of the ~aulageway, these were newly 

installed roof bolts. Therefore, his· conclusion· was that 

the roof directly over Steiner at the time of the accident 

had been bolted that same day with 6-foot bolts. 

(5) Roof coal adhered to the base of this rock so that 

all that was visible from the entry was coal top and coal 

ribs. 

Apropos this last finding, whether the rock that fell 

out on Steiner was located at the convergence of two slips 

707 
as urged by the respondent or at a slip and clay vein as 

testified to by Inspector Moody, there is no proof in this 

record that the defect or fault was observable before the 

rock fell out, killing Mr. Steiner. 

There are several places in this record where, as the 

respondent suggests, it is obvious that Inspectors Moody 

and Swarrow are of the belief that a roof fall is in and of 

itself, without more, conclusive proof that the roof was inadequately supported, and therefore a violation of 30 C.F.R. 

§ 75.200 is proven. I believe more of a showing of culpability is required. The regulations do not impose absolute 

liability on operators to be insurers of mine roofs. The 

regulations do require a reasonable standard of care on the 

part of mine operators to see that their miners are working 

under adequately supported roof. What is adequate must 

depend on all the circumstances of which the operator is 

actually aware as well as those with which he is chargeable 

with knowledge of. 

Other than the fact that the roof fell, Inspector Moody 

is of the belief that the roof was inadequately supported 

because of the spacing of the bolts and the lack of bolts 

along the left side of the haulageway for the distance of 

the overhanging brow. More specifically, the distances from 

the left-hand rib to the first roof bolt were in excess of 

five (5) feet in several instances where the overhanging 

brow ran along the left side of the entry. The longest 

distance was eight (8) feet, six (6) inches immediately 

outby the roof fall area. 

Mr. Sadler testified that this was because of the 

overhanging brow and the debris located along the left rib. 

He stated that they were bolting as near to the lip as they 

could. Otherwise, they were bolting.on approximately four 

to five foot centers. The brow itself was approximately 

two (2) to three (3) feet wide. Therefore, the measurements 

between the edge of the brow and the first bolts would be aoproximately three {3) to six (6~ feet varying along its 

length. · 

The respondent's evidence regarding the adequacy of the 

bolting in.the roof-fall area and immediately outby the accident scene is credible and convincing. That evidence, 

depicted on Respondent's Exhibit No. 1, shows the location 

of 29 roof-bolt holes and their measured depth in and immediately outby the fall area. They represent twenty-nine 4 

and 6 foot roof bolts installed on approximately 4-5 foot 

centers throughout the area of the fall. Twenty-eight of 

them had been installed on the very day of the accident. 

708 
Four of ,them were in the rock that killed Steiner. Unfortunately, only one of the four went completely through the 

inverted V-shaped triangular rock far enough to anchor 

into the strata above. The other three did not anchor into 

the solid strata above that rock because they were put into 

the apex of the inverted "V," which was approximately six 

(6) feet thick. They anchored into the rock itself. The 

holes of these three bolts are depicted and circled on 

Exhibit No. R-1 as extending 3", l", and 2" into the mine 

roof, from right to left, respectively. The fourth bolt 

(also circled in blue on R-1) went through the edge of the 

rock and anchored some 50" into the strata above, but was 

obviously not enough to hold the rock up by itself. 

There has been no allegation that the respondent violated it's roof control plan with regard to the number of 

roof bolts installed in this area or their pattern of installation. While the Secretary correctly points out that 

it is not necessary to prove a violation of the roof cont+ol 

plan in order to sustain a violation of 30 C.F.R. § 75.200, 

the evidence must show that the operator knew or should have 

known that a condition existed that required additional 

support and yet it was not provided. 

Inspector Robert E. Swarrow issued the instant § 104(d} (1) 

order on October 10, 1984, the day after the accident. He 

testified concerning that issuance at Tr. 185: 

Q. Okay. And, did you and Mr. Moody talk about this 

Citation? 

A. Yes. 

Q. Did you and he agree that this Citation should 

be issued? 

A. Yes. 

Q. And, upon what basis? 

A. The mine roof in that area was not adequately 

supported. 

Q. In your opinion, why wasn't it adequately supported? 

A. Because the roof fell. 

Q. Any other factors? 

A. No. 

709 
Inspector Moody is of a like opinion. He testified at 

Tr. 143-144: 

Q. Okay. So, is it your position that no matter 

what the company did, if there is a fall you would 

have an inadequately supported roof? 

A. I believe that would be a good position. 

* * * 

Q. I didn't ask you that. You testified that because there was a fall there, you concluded that the 

roof was inadequately supported, and that's your 

position? 

A. That's correct. 

I have to agree with the respondent's assertion that. 

these two inspectors apparently decided a day after the accident and before the investigation was fairly underway, let 

alone completed, that there is a violation of 30 C.F.R. 

§ 75.200 any time a roof falls. Consequently, they apparently did not think it necessary to investigate much farther 

than documenting the fact of the roof fall itself and the 

tragic death of Mr. Steiner. Most importantly, they failed 

to produce any evidence to the effect that any objective 

signs existed prior to the accident that would have alerted 

a reasonably prudent mine operator to a condition that required roof support over and above that normally required. 

In summary, the Secretary has not borne his burden of 

proof to demonstrate that the area was inadequately supported considering the circumstances that the operator 

either actually knew or with due dil.igence could have 

ascertained prior to the accident. For the reasons stated 

herein, Order No. 2403083 is dismissed. 

ORDER 

Based on the foregoing facts and conclusions of law, I 

enter the following order: 

1. The motion for approval of settlement concerning 

Citation No. 2403073 is granted and a penalty of $58 is 

assessed. 

2. The motion for approval of settlement concerning 

Citation No. 2403082 is granted and a penalty of $98 is 

assessed. 

710 
3. Citation No. 2403072 and all penalties therefor 

are vacated. 

4. Citation No. 2403074 is affirmed and a penalty of 

$79 is assessed. 

5. Order No. 2403083 and all penalties therefor are 

vacated. 

Accordingly, the respondent is ORDERED TO PAY the sum 

of $235 within 30 days of the date of this decision. 

Maurer 

trative Law Judge 

Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U. S. Department of Labor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Joseph Mack, III, Esq., Thorp, Reed & Armstrong, One Riverfront Center, Pittsburgh, PA 15222 (Certified Mail) 

711 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GARY HENSLEY, 

v. 

HARLAN WALLINS 

Appearances: 

Before: 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 2, 1986 

. . DISCRIMINATION PROCEEDING 

Complainant . . Docket No. KENT 86-3-D 

MSHA Case No. BARB CD 85-59 

COAL COMPANY, . . Respondent . . No • 1 Mine 

DECISION 

Gary Hensley, Wallins, Kentucky, pro se; 

Karl Forester, Esq., Forester, Forester, 

Buttermore, & Turner, Harlan, Kentucky, for 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

by the complainant Gary Hensley against the respondent pursuant to section 105(c) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq. Mr. Hensley filed his 

initial complaint with the Secretary of Labor, Mine Safety and 

Health Administration CMSHA}. Following an investigation of 

his complaint, MSHA determined that a violation of section 

105(c) had not occurred, and Mr. Hensley filed his pro se complaint with the Commission. A hearing was conducted in 

Duffield, Virginia. 

The complainant alleges that he was discharged by the 

respondent for refusing to do work in the underground mine 

operated by the respondent. The complainant maintains that 

he was hired as an "outside man, 11 had no prior underground 

mining experience or training, and that the respondent's 

request for him to work underground made him nervous. 

Issue 

The issue in this case is whether the complainant's 

refusal to follow the instructions of mine management to do 

712 
work in the underground mine was protected activity under 

section 105(c) 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 105(c)(l), (2) and (3) and llOCa) and Cd) 

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

§§ 815(c)(l), (2) and (3). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Procedural Matters 

The hearing in this case was scheduled to begin at 

9:30 a.m., on March 26, 1986, and the parties were so informed 

by my notice of hearing of February 21, 1986. In view of the 

fact that the complainant failed to appear at the appointed 

hour, I delayed the beginning of the hearing until 9:55 a.m., 

and made an attempt to contact the complainant by telephone at 

his residence but no one answered the phone. The respondent's 

counsel moved to dismiss the complaint because of the failure 

of the complainant to appear and prosecute his complaint. I 

reserved my ruling on the motion and closed the hearing at 

10:00 a.m. After this was done, the complainant appeared, and 

the hearing was reconvened at 10:10 a.m. The complainant 

explained that he arrived late at the hearing because he was 

looking for a witness but could not find him. I advised the 

parties that I intended to proceed with the hearing, and 

respondent's counsel declined my invitation to comment and did 

not object (Tr. 3-9). 

The record in this case reflects that the respondent was 

initially represented by Counsel Rodney E. Buttermore, Jr., 

of the firm Forester, Forester, Buttermore & Turner, Harlan, 

Kentucky. Mr. Buttermore filed his notice of representation 

and filed all prehearing pleadings on behalf of the respondent. On Monday, March 25, 1986, the day before the hearing, 

my secretary received a telephone call from Mr. Buttermore's 

secretary or associate informing her that Mr. Buttermore was 

out of the country, would be unable to attend the hearing, 

and a continuance was requested. I telephoned Mr. Buttermore's 

office and discussed the matter with Mr. William Forester, a 

member of the firm. Mr. Forester could offer no explanation as 

to why Mr. Buttermore had not informed me earlier of his departure from the country, and expressed his apologies. I informed 

Mr. Forester that I intended to proceed with the hearing as 

scheduled, and he assured me that someone from his office would 

713 
appear to represent the respondent. Mr. Karl Forester, a 

member of the firm, appeared on March 26, 1986, and represented 

the respondent in this matter. Under the circumstances, I have 

substituted Mr. Forester as counsel of record in this case, and 

have not heard further from Mr. Buttermore. Prior to the 

commencement of the hearing, Mr. Forester was afforded an opportunity to review the official file in this matter, and he did 

so. 

Discussion 

Mr. Hensley filed his discrimination complaint with 

MSHA's District 7 Office on July 25, 1985. His complaint 

states as follows: 

On July 13, 1985, I reported for work as 

usual. The mines was going to do dead work. 

When I got there (2d shift), the section boss, 

Don Curtis, told me they wanted me to go inside 

to help clean up, shovel and stuff like that. 

I told him I was not going inside cause I had 

never worked in the mine before and had never 

had any training. Curtis asked me if I. wanted 

to tell him to tell Jr. (Cletis Robbins), I 

told him no, I'd tell him, which I did. 

Robbins told me I could either go inside or go 

home cause they were not running coal and had 

nothing for me to do on the outside. I told 

him Okay and left. 

By letter dated September 4, 1985, MSHA's district manager advised Mr. Hensley that MSHA conducted an investigation 

of his complaint, and that based on its review of the information gathered during the investigation, MSHA determined that 

a violation of section 105(c} of the Act had not occurred. 

Mro Hensley was informed of his right to pursue the matter 

further with the Commission. 

By letter dated September 29, 1985, Mr. Hensley filed 

his complaint with the Commission. His letter states in pertinent part as follows: 

I was hired by Gus Robbins (Cletis 

Robbins, Jr., brother and his boss). Gus told 

me when I was hired my job was to run the end 

loader and to answer the outside phone, watch 

the outside belt head and grease. I was the 

outside man. 

714 
About 3 or 4 weeks before I was fired on 

a Saturday evening on 2nd shift, Gus Robbins 

asked if I had any inside training or worked 

inside before. I told him no. He told me to 

go get a light and hard hat and go inside. I 

did not answer him right away. One of the 

workers told me if I wanted to keep my job I 

better go inside the mine and work so I did. 

This left no one outside that night to answer 

the phone or anything. I worked 9 or 10 hours 

inside that night with the electrician. I 

came outside about 2 or 3 a.m. with one of the 

ram car drivers to throw the disconnects in 

with a hot stick. The power was off most of 

that night inside the mines. I thought that 

was the last and only night I would have to go 

inside and work. I was not hired as an inside 

coal miner. This inside mining work made me 

nerves (sic) and worried me. 

Testimony Presented by the Complainant 

Complainant Gary Hensley testified that. on July 13, 1985, 

he reported for work on the second shift and was advised by 

foreman Don Curtis that Mr. Cletis Robbins wanted him to go in 

the mine and work that evening. Mr. Hensley told Mr. Curtis 

that he did not care to work inside the mine because he had no 

underground training or experience. He reminded Mr. Curtis 

that he was hired to work outside the mine answering the mine 

phone or doing what was needed on the outside. Mr. Hensley 

confirmed that he then spoke with Mr. Robbins and told him 

that he did not care to go underground to work, and that 

Mr. Robbins responded "Well, go home. You're fired" (Tr. 

11-12). 

Mr. Hensley stated that a month or so prior to his discharge Mr. Robbins asked him if he had any underground experience or training and that he told him that he .did not. 

Mr. Hensley stated that he had not previously worked around 

coal mines and that his job with the 'respondent was his first 

mining job. He confirmed that he had driven a coal truck 

since he was 18 years old (Tr. 12). 

Mr. Hensley stated that on one prior occasion before his 

discharge he did work underground at Mr. Robbins' request, 

and that this was the same night that Mr. Robbins asked about 

his training. Mr. Hensley stated that he worked underground 

that night because he needed the job and was afraid of being 

fired. He confirmed that no coal was being mined that night 

715 
and that he performed "dead work," helped an electrician "a 

little bit," and helped move a belt structure (Tr. 13). 

Mr. Hensley· stated that he was first employed by the 

respondent in May, 1985, and that he was hired as an "outside 

man" earning eight dollars an hour. His last day of employment was July 13, 1985, the evening he was fired (Tr. 15). 

He confirmed the accuracy of his prior statement in the complaint filed with the Commission which indicates that 

Mr. Robbins told him he could either go inside the mine or go 

home because the mine was not running coal that day and there 

wqs nothing for him to do on the outside, and that he 

(Hensley) replied "Okay" (Tr. 15-16). 

Mr. Hensley confirmed that when Mr. Robbins fired him it 

was done orally and he was not given anything in writing. He 

stated that he was concerned about working underground even 

though coal was not being mined because no one would be on 

the outside to contact in the event of an emergency. He. confirmed that he voiced no objection to working underground on 

the prior occasion because one of his friends told him that 

if he refused, he would be fired. He also stated that since 

he had never worked underground before "I just went ahead and 

went to see what it was like anyway" (Tr. 18). 

Mr. Hensley stated that since his discharge he has been 

employed as a tractor trailer truck driver on a part-time 

basis for a friend from October, 1985, to the present (Tr. 

20). 

On cross-examination, Mr. Hensley stated that his last 

day of employment was a Saturday, and while the mine was 

closed for vacation the week before, he did not believe it 

was closed for the week immediately preceding his discharge. 

He confirmed that the mine was not running coal on July 13, 

the day.he was fired, and that he was asked to go inside to 

shovel muck (Tr. 20). He explained that he was asked to go 

inside the underground mine to shovel under t~e belt line and 

to clean up the trash. He was told that once he was through 

·with that work, he was to ask Mr. Curtis what else was needed 

to be done. He confirmed that he chose not to go inside and 

work (Tr. 21). 

Mr. Hensley reviewed a copy of his July 25, 1985, statement made·to MSHA, and confirmed that it does not contain a 

statement that he had been fired. He explained that he did 

state that he had been fired and "They just didn't write it 

on there, I guess" (Tr. 22). He stated that the following 

Monday he telephoned Gus Robbins to make sure he knew about 

716 
Cletis Robbins firing him, and that Gus Robbins stated that 

"whatever Junior says is what goes" (Tr. 23). 

Mr. Hensley confirmed that at no time did he complain to 

mine management or to MSHA about any danger or unsafe conditions in the mine, and that he was treated just as the other 

workers at the mine were treated. He denied that when he was 

hired he told Mr. Gus Robbins that he had worked "over on the 

north side of Pine Mountain" (Tr. 23). He also denied that. 

he told Cletis Robbins "I aint going to muck that belt" when 

they had the conversation on July 13 (Tr. 23). 

Mr. Hensley confirmed that he did work underground on 

another occasion with Gus Robbins during vacation and that he 

had forgotten about it. He stated that the work entailed 

pulling a miner cable CTr. 23-24). In response to further 

questions from the bench as to why he believes he has been 

discriminated against by the respondent, Mr. Hensley responded 

as follows (Tr. 24-27): 

A. Well, the way I figured it, I was hired 

for outside -- outside man. They asked me to 

go underground. I never had no training or 

any experience underground. I didn't feel I 

should've been underground. 

Q. The couple or three times you were underground, they weren't running coal. Right? 

A. Right. 

Q. They just wanted you to go in there and 

muck? 

A. Yes o 

Q. Which, I understand, is kind of a nasty 

job, isn't it? 

A. Yeah. But I never mucked none. Both 

times, I never mucked no coal both times I 

went underground. 

Q. What's involved? All you do is take a 

shovel and shovel it? 

A. Shovel under the belt and throw it up on 

top of the belt. 

717 
Q. How much training do you need for that? 

A. None. I done that outside. 

Q. If you did it outside, why would you be 

reluctant to do it inside? 

A. The mine just scared me. I didn't like it 

inside. 

Q. Even though it was dead work and no coal 

being run? 

A. Right. 

Q. Did you believe, when you took the job 

there, there was a possibility you'd be called 

on to do work other than just outside work? 

A. No, I didn't, because when Gus came down 

to my house and hired me, I asked him what I 

had to do. He said, "All you have to do is 

run the endloader and answer the phone, take 

care of what needs to be done outside." 

Q. Where did you operate the endloader, 

outside? 

A. Yeah. 

Q. All the time? 

Ao Yeah, backing coal back on the belt line. 

Qo Mr. Forester asked you a question about 

the one time you were underground working at 

the portal. The portal is the entrance to the 

mine, right? 

A. Yeah. 

Q. Is that where you were working? 

A. No. 

Q. You never worked near the portal? 

A. Yeah, I shoveled coal. 

718 
Q. How far into the mine did you go? 

A. I really don't know exactly, but it took 

we rode back in a ram car back to where the 

old miner was and stuff. I was back where the 

miner was that one night I went in -- where 

they had the miner and stuff. 

Q. Did you help the electrician? 

A. Yes. 

Q. Did you at any time complain to anybody 

that was there? Did they have a section 

foreman there? 

A. Yeah, Don Curtis. 

Q. Did you say anything to them? 

A. No. No, I didn't want to get fired or 

nothing, you know. I wanted to keep working. 

Respondent's Testimony 

Gus Robbins, confirmed that he is the president of the 

respondent coal company, and that he has 10 years of mining 

experience. He described the mine as a conventional coal 

mining operation using a continuous miner. The mine works 

two shifts a day, and the coal is mined during the second 

shift, and loaded on trucks on the day shifts. The coal is 

transported to the belt line by tractors, and once out of the 

mine 7 it is hauled to a processing plant by truck. The mine 

has been in operation for approximately 4-1/2 years, and it 

employs 20 miners. 

Mr. Robbins stated that he hired Mr. Hensley in May, 

1985 to replace an outside man who had quit. ~r. Robbins 

stated that Mr. Hensley was previously employed as a truck 

driver hauling coal from the mine, but that he was laid off. 

Mr. Hensley asked him for a job, and Mr. Robbins went to his 

home and hired him. Mr. Robbins stated that when he hired 

Mr. Hensley, he explained that his primary job would be outside work, but made it clear to him that there would be occasions when he would be required to check the belt lirie and to 

keep it clean and free of muck at the portal and mouth of the 

drift. Mr. Robbins indicated that he explained the duties of 

the job to Mr. Hensley, instructed him as to what would be 

719 
required of him, and took him to the mine and explained the 

safety precautions to him <Tr. 32). 

Mr. Robbins stated that during the vacation period for 

the first week of July, 1985, the mine was down and did not 

produce coal. However, work had to be done to clean up the 

belt line, the air courses, and to generally "get the mine in 

shape" to resume production after vacation. Mr. Robbins 

stated that he posted a notice on the mine bulletin board 

stating the work that would be required during the vacation 

period, and that this work was done on the first shift. 

Although Mr. Hensley normally worked the second shift, he was 

asked to work the first shift to help out during the vacation 

period. 

Mr. Robbins stated that at the time he asked Mr. Hensley 

to help out during the vacation week, he asked him if he had 

prior underground experience. Mr. Hensley told him that he 

"had a little time across the mountain," and Mr. Robins took 

this to mean that he worked at mines at Pine Mountain. 

Mr. Robbins stated that he advised Mr. Hensley that he would 

be working with the vacation crew cleaning up the air courses 

and helping to drag cable for a continuous miner which was 

brought in to help clean up the mine. Mr. Robbins stated 

that Mr. Hensley agreed to do this work and at no time complained to him about the work, or the fact that he would be 

required to be underground. Mr. Robbins stated that when he 

informed Mr. Hensley that he would be underground helping to 

keep the cable out of the way, Mr. Hensley responded "Yeah, 

no problem. I don't care" (Tr. 35). 

Mr. Robbins stated that Mr. Hensley worked for 3 days 

underground during the vacation period in question, and that 

he helped drag the continuous miner cable. He also was in 

and out of the mine getting tools and otherwise helping 

Mr. Robbins who was performing maintenance work on the 

continuous-mining machine. In addition to Mr. Robbins and 

Mr. Hensley, there were three other miners and a foreman present on the first shift during the vacation work. Mr. Robbins 

stated that during this period Mr. Hensley did not complain 

about the work, voiced no safety or other concerns about 

being underground, and in fact stated that he had no problem 

in pulling the cable. 

Mr. Robbins produced copies of the mine payroll records 

for the vacation period in question, and he confirmed that 

the records reflect that Mr. Hensley worked 30 hours that 

week. Although the records do not reflect the number of days 

worked, Mr. Robbins stated that he can personally confirm 

720 
that Mr. Hensley worked at least 3 days during this period, 

and that he was in and out of the underground mine helping 

him. Mr. Robbins also confirmed that no coal was mined during this time, and that the work performed by Mr. Hensley was 

confined to general clean-up duties, dragging or moving a 

cable, and bringing tools in and out of the mine. 

Mr. Robbins stated that he was not present on Saturday, 

July 13, 1985, when his brother Cletis, or "Junior," spoke 

with Mr. Hensley about his refusal to muck the belt. 

Mr. Robbins denied that Mr. Hensley was fired, and he stated 

that had he been fired, his "time clock" work record would 

have been so noted. Mr. Robbins stated that it was his 

opinion that Mr. Hensley voluntarily quit his job. He confirmed that the mine work records reflect that Mr. Hensley 

worked 60 hours for the week ending July 13, 1985, and that 

he worked 30 hours for the week ending July 6, 1985 (Tr. 40). 

In response to questions by Mr. Hensley, Mr. Robbins 

confirmed that he spoke with Mr. Hensley by telephone on 

Monday, July 15, and that Mr. Hensley asked him if he had 

been fired. Mr. Robbins stated that he informed Mr. Hensley 

that "he needed to get with Cletis Robbins. To my knowledge, 

he hadn't told me anything about it if he fired anybody, and 

he needed to see Cletis Robbins" (Tr. 37). 

Cletis Robbins, Jr., testified that he has 10 years of 

mining experience and that he is the mine superintendent. He 

confirmed that he is the brother of Gus Robbins, and is known 

as "Junior." He stated that he worked the first shift and 

part of the second shift. Mr. Hensley worked the second 

shift (Tr. 44). 

Mr. Robbins stated that he was on vacation during the 

first week of July, 1985, and returned the following week. 

He confirmed that on Saturday, July 13, 1985, he determined 

that work had to be performed underground on the belt line 

while coal was not being produced, and he instructed section 

foreman Don Curtis to inform Mr. Hensley that ·he would be 

expected to "muck out the belt" at the portal and under the 

belt as required. Mr. Robbins estimated that there was 8 to 

10 tons of coal which had to be cleaned up, and the only way 

to do this was to shovel or "muck it" manually.· Most of the 

work was required to be done at the portal or close to it. 

Mr. Robbins stated that after he advised the second shift 

crew as to the work that was expected to be done, Mr. Hensley 

informed him that he would not do the mucking work. 

Mr. Robbins stated that he informed Mr. Hensley that this was 

721 
the only work available for him and that he was expected to do 

it. Mr. Hensley refused, and Mr. Robbins stated that 

Mr. Hensley simply "turned around and left. 11 Mr. Robbins 

denied that he ever told Mr. Hensley that he was fired. 

Mr. Robbins explained his conversation with Mr. Hensley as 

follows (Tr. 45-46): 

A. And when he came in, he told me, "I'm not 

going to muck that belt." I just turned 

around and told him, I said, "Well, that's all 

I've got for you to do." And he said, "Well," 

he said, "That's okay," and he turned around 

and left and I never seen him again. 

Q. You heard his testimony that you fired him 

at that time. Did you or did you not? 

A. I never did tell him he was fired. 

Q. Now, you indicated you told him that he 

would be -- or Don Curtis told him he would be 

mucking the belt at the portal. What is a 

portal? 

Ao That 1 s a canopy going back into the mines. 

Q. And you were talking about the belt that 

carried the coal out of the mine? 

A. Yes. 

Qo How much work was there to be done there? 

A" Iid say about eight or ten tone 

Q. How was this work to be done? 

A. With a shovel, manually. 

Qo Was this location very near the entry of 

the mine or the portal of the mine? 

A. Yes. 

Q. Had it been daylight at the time, could 

the work have been done without even having a 

light -- a cap and light? 

A. It could've been until it got dark. 

722 
Mr. Robbins stated that prior to July 13, he never 

assigned Mr. Hensley to underground work, but that he always 

mucked around the belt, answered the outside phone, and operated a loader outside. Mr. Robbins stated that these duties 

were not full-time duties and that Mr. Hensley would be 

expected to do other work assigned to him (Tr. 47). 

In response to questions by Mr. Hensley, Mr. Robbins 

confirmed that Mr. Hensley never complained about his outside 

work or the belt mucking work at the portal. He conceded 

that at the time Mr. Hensley refused to work on the belt on 

July 13, he (Robbins) told him to "go home." Mr. Robbins 

stated that the outside job vacated by Mr. Hensley was left 

open for a week before someone was hired to fill the job CTr. 

4 8). 

Don Curtis, respondent's section foreman, testified that 

he has 18 years of mining experience and is a certified .mine 

foreman. He confirmed that he was on vacation during the 

mine vacation week and that he worked the second shift during 

the period May through July, 1985. On Saturday, July 13, 

1985, the second shift was in the process of cleaning and 

dusting the underground belts and no coal was being mined. 

He assigned men to clean up all along the belt line, and he 

intended to assign Mr. Hensley to clean the first belt next 

to the outside drift mouth of the mine. However, as soon as 

he told Mr. Hensley that he was going inside the mine to clean 

and muck the belt, Mr. Hensley informed him that he was not 

going. He heard Mr. Hensley inform Cletis Robbins that he 

would not work on the belts and Mr. Robbins told Mr. Hensley 

that there was no other work to do that evening. Mr. Curtis 

did not hear Mr. Robbins tell Mr. Hensley that he was fired 

(Tr" 49-52). 

Mr. Curtis stated that Mr. Hensley worked one prior evening underground while a section was being moved. Mr. Hensley 

did not complain to him about working undergrqund on that 

occasion, never complained about any safety problems, and 

never complained that the company was discriminating against 

him in any way CTr. 52-53). 

Mr. Curtis stated that on July 13, he had no idea why 

Mr. Hensley was reluctant to do the mucking work and that 

Mr. Hensley gave him no reason. He simply told him that he 

was not going to do the work (Tr. 54). 

Mr. Hensley was recalled, and he stated that after his 

termination he did not speak with anyone about getting his 

723 
job back, and he stated that he did not wish to go back and 

work underground. He stated that when he refused to work on 

July 13, it was his understanding that he was asked "to go 

inside and start at the portal and go all the way through." 

The work would normally entail shovelling coal on the belt, 

and since he usually averaged 3 hours a night shovelling coal 

which had fallen off the belt at the outside portal, he did 

not consider the work hard and it did not bother him. The 

coal would often accumulate knee deep in that location as it 

came out of the mine and he often spent three or four times a 

night shovelling it (Tr. 57). 

Mr. Hensley confirmed that at the time Mr. Gus Robbins 

assigned mine personnel to work inside the mine during vacation he (Robbins) explained to everyone what had to be done. 

Mr. Hensley explained further as follows (Tr. 58-59): 

A. Yes, he explained it. He said he wanted 

to pull a cable behind the miner and the man 

that was there that run the miner was the day 

shift foreman, and he kept me outside as much 

as he could because he knew I didn't like 

going inside. I stayed out one day and taped 

up cable and stuff for the miner. He done 

that to keep me from going inside because he 

knew I didn't like going inside. 

Q. But the time you went inside, did you, in 

fact, take care of the cable? 

A. Yes. 

Q. Do you recall Mr. Robbins' testimony about 

him requiring you to go in and out to carry 

tools? 

A. Yes, I carried tools to him several trips. 

Q. That did happen? 

A. Yes. 

Q. So, I take it in a nutshell, your reluctance was to be underground -- regularly working' underground? 

A. No. 

Q. You didn't like that? 

724 
A. No. 

Q. And you feel even though you were required 

to be underground at times when coal was not 

being run -- when they actually were not in 

production, but just bringing tools in and 

out, that that caused you some problem, too? 

A. Yeah. I didn't like going in underground. 

It shook me up. I was scared of it. 

Q. Well, now when you were first hired, you 

heard the testimony of Mr. Robbins that he 

indicated to you that most of the time, you'd 

be expected to work outside, but there were 

occasions when they may have to call on you to 

do work --

A. He never said that to me. He just told me 

what I stated awhile ago about just running 

the highlift and taking care of anything outside. He never mentioned anything about going 

in underground. 

Q. Well, let's assume you had no work outside 

to do on a given day -- had that ever happened? 

A. They'd break down at night sometimes and 

wouldn't run no coal, and I'd just stay outside. They'd come out and get parts. I'd get 

the parts for them. 

Q. What would you be doing? 

A. I would grease, check oil and stuff. 

Grease the outside belt line, fuel the highlift up. 

Findings and Conclusions 

In order to establish a prima facie case of discrimination under section 105(c) of the Mine Act, a complaining miner 

bears the burden of production and proof to establish (1) that 

he engaged in protected activity and (2) that the adverse 

action complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2768, (1980), rev'd on other grounds sub. 

nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 

125 
(3d Cir. 1981); and Secretary on behalf of Robinette v. United 

Castle Coal Company, 3 FMSHRC 803 (1981). Secretary on behalf 

of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 

(1984). The operator may rebut the prima facie case by showing either that no protected activity occurred or that the 

adverse action was in no way motivated by protected activity. 

If an operator cannot rebut the prima facie case in this manner it may nevertheless affirmatively defend by proving that 

(1) it was also motivated by the miner's unprotected activities alone. The operator bears the burden of proof with 

regard to the affirmative defense. Haro v. Magma Copper 

Company, 4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not shift from the complainant. Robinette, supra. 

See also Boich v. FMSHRC, 719 F.2d 194 C6th Cir. 1983); and 

nonovan v. Stafford Construction Company, No. 83-1566, D.C. 

Cir. (April 20, 1984) (specifically-approving the Commission's 

Fasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.Ed.2d 667 

(1983). 

One critical issue in this case is whether or not 

Mr. Hensley was discharged because of his refusal to perform 

work assigned to him by foreman Don Curtis and/or mine superintendent Cletis Robbins. The respondent suggests that 

Mr. Hensley voluntarily quit his job and was not fired, and 

Gus and Cletis Robbins testified that they never specifically 

told Mr. Hensley that he had been fired. Mr. Hensley's first 

complaint to MSHA on July 13, 1985, contains no assertion 

that he had been fired. Mr. Hensley's complaint letter of 

September 29, 1985_, to the Commission contains a passing 

reference to the purported firing. 

Mr. Hensleyvs termination occurred on a Saturday. It is 

clear that it came about as a result of Mr. Hensley's refusal 

to work underground cleaning the belt, and after some conversation between Mr. Hensley and Cletis Robbins. Mr. Hensley's 

earlier statement to MSHA is that when Mr. Robbins advised 

him that there was no outside work to be done .and gave him a 

choice to either go underground or go home, Mr~ Hensley 

responded "o.k." and opted to go home. Mr. Robbins' testimony at the hearing is consistent with this earlier version. 

However, at the hearing, Mr. Hensley testified that when he 

opted to go home rather than work underground, Mr. Robbins 

told him that he was fired. Mr. Hensley made no attempt to 

get his job back, did not report to work on the following 

Monday, but instead telephoned Gus Robbins to inquire as to 

whether he knew that Cletis Robbins had fired him. Gus 

Robbins' response was "whatever Junior (Cletis) says goes." 

Foreman Curtis confirmed that after Mr. Hensley's work 

726 
refusal, Cletis Robbins told him there was no other work that 

evening, and Mr. Curtis did not hear Mr. Robbins say that 

Mr. Hensley had been fired. 

Gus Robbins testified that when Mr. Hensley telephoned 

him on Monday, July 15, Mr. Hensley asked him "Was I fired?" 

(Tr. 37). Mr. Robbins stated that Cletis Robbins said nothing to him about firing Mr. Hensley, and that his work records 

do not reflect that he was discharged. Cletis Robbins testified that after he told Mr. Hensley to go home, he got his 

dinner bucket and went home, and he heard nothing further from 

him. Mr. Robbins also testified that Mr. Hensley's job was 

left open, and a week passed before it was filled. He denied 

that he hired a replacement that same weekend (Tr. 48). 

After careful consideration of all of the testimony in 

this case, I cannot conclude with any degree of certainty 

that Mr. Hensley was in fact directly fired by mine superintendent Cletis Robbins. However, on the basis of the circumstances surrounding this incident, including Mr. Robbins' 

statements and actions when he gave Mr. Hensley the option of 

working underground or going home, I conclude that Mr. Hensley 

was "constructively discharged" by Mr. Robbins on July 13, 

1985. Given the option of working or going home, Mr. Hensley's 

choice of the latter, his failure to report for work the next 

available work day, and his subsequent telephone call to Gus 

Robbins lead me to conclude that Mr. Hensley had reasonable 

grounds for believing that he had been discharged. 

It is well settled that the refusal by a miner to perform 

work is protected under section lOS(c)(l) of the Act if it 

results from a good faith belief that the work involves safety 

hazards, and if the belief is a reasonable one. Secretary of 

Labor/Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2 BNA 

MSHC 1001 (1980), rev'd on other grounds, sub nom Consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3d cir:-1981); Secretary 

of Labor/Robinette v. United Castle Coal Co., 3 FMSHRC 803, 

2 BNA MSHC 1213 (1981); Bradley v. Belva Coal .Co., 4 FMSHRC 982 

(1982). Secretary of Labor v. Metric Constructors, Inc., 

6 FMSHRC 226 (Feb. 1984), aff'd sub 'nom., Brock v. Metric 

Constructors, Inc., 3 MSHC 1865 (11th Cir. 1985). Further, the 

reason for the refusal to work must be communicated to the mine 

operator. Secretary of Labor/Dunmire and Estle v. Northern 

Coal Co., 4 FMSHRC 126 (1982). 

Although not directly stated as such, Mr. Hensley's complaint implies that his work refusal of July 13, was based on 

the fact that he lacked prior underground experience and 

training. In his original written complaint to MSHA, 

727 
\ 

Mr. Hensley stated that he informed mine foreman Don Curtis 

that he would not help shovel the belt and clena up underground because he lacked training and had never been in the 

mine before. However, the evidence adduced in this case 

reflects that prior to July 13, Mr. Hensley worked underground 

in the mine on severeal occasions without voicing any objections concerning safety or lack of training. 

Gus Robbins testified that he hired Mr. Hensley because 

"he seemed like a pretty good guy who wanted to work" (Tr. 

31). Mr. Robbins explained that he knew Mr. Hensley as a 

truck driver who regularly hauled coal from the mine, and 

that when he was laid off from his driver's job he (Hensley) 

asked him for a job. Mr. Robbins further explained that he 

went to Mr. Hensley's home to hire him, and then took him to 

the mine to explain the work expected of him and to familiarize him with the mine and to explain mine safety precautions. 

Gus Robbins testified further that answering the te·lephone and operating an endloader were not full-time duties, 

and that Mr. Hensley was expected to do other work as 

assigned, i.e., checking the belt line as it entered the mine 

to insure that it was working, and mucking the belt. 

Mr. Robbins confirmed that Mr. Hensley had always mucked 

around the belt by the portal, and that this was part of his 

job. Mr. Robbins impressed me as a credible witness, and his 

testimony regarding the work expected of Mr. Hensley when he 

was first hired was confirmed by Mr. Hensley's testimony that 

he of ten spent 3 hours an evening shovelling and mucking the 

belt area near or inside the portal and that he did not consider this to be hard work. 

There is no evidence in this case that Mr. Hensley ever 

communicated his fear of underground work or lack of training 

to the respondent. There is nothing in the record to support 

Mr. Hensley's assertion that his failure to object to working 

underground prior to July 13, was because of his fear of being 

fired. As a matter of fact, Mr. Hensley's prior written complaints made no mention of this concern on his·part, and he 

testified that when called upon to work underground the first 

time, he did so "to see what it was like" (Tr. 18). Further, 

the evidence in this case establishes that at no time during 

his employment with the respondent did Mr. Hensley ever complain abo~t his asserted fear of working inside the mine. He 

filed no safety complaints with MSHA or mine management, never 

expressed any concerns for his safety, and never objected to 

working underground. Mr. Hensley confirmed that he was 

treated like all other miners, and there is no evidence of any 

animosity towards him or mistreatment by mine management. 

728 
The evidence in this case establishes that at no time 

was Mr. Hensley asked or required to work underground while 

the mine was in production. During the vacation period 

Mr. Hensley worked with Mr. Gus Robbins underground while no 

coal was being mined. Mr. Robbins stated that he posted a 

notice at the mine informing mine personnel of the work to be 

done cleaning up the air courses, moving a miner in, and 

"getting the mine in shape." Although Mr. Hensley normally 

worked the second shift, which was the production shift, he 

was assigned to the first shift to help do the vacation week 

"dead work." Mr. Hensley confirmed that Mr. Robbins explained 

what work was to be done during this time, and at no time did 

he voice any safety or lack of training concerns. 

Although Mr. Hensley testified that he only worked one 

day underground during the vacation period, the credible testimony of Gus Robbins indicates otherwise. Mr. Robbins testified that he personally worked underground with Mr. Hensley 

periodically for at least 3 days during the vacation period, 

and the mine records establish that during that week 

Mr. Hensley worked a total of 30 hours. 

Mr. Robbins testified that during the vacation work, 

Mr. Hensley help to pull the miner cable to keep it clear of 

the miner which was mucking. Mr. Hensley did not object, and 

instead stated that he had "no problem and didn't care." 

When the miner experienced some hydraulic problems, 

Mr. Hensley was in and out of the mine periodically assisting 

Mr. Robbins by bringing in tools and parts as required by 

Mr. Robbins while he was repairing the miner. Mr. Robbins 

stated that Mr. Hensley was in and out of the mine "numerous 

times" during this period, and that they were no further than 

450 to 500 feet inside the mine. Mr. Hensley confirmed that 

he was in and out of the mine helping Mr. Robbins, and there 

is nothing to suggest that he voiced any safety or lack of 

training concerns. 

. Mr. Hensley's contention that he had no prior training 

and no formal underground mine training while employed by the 

respondent stands unrebutted. The respondent produced no 

testimony or evidence to establish that Mr. Hensley received 

any formal training while in its employ. I take official 

notice of MSHA's training requirements found in Part 47, 

Title 30, Code of Federal Regulations, and recognize the fact 

that placing an untrained miner underground may constitute a 

violation of MSHA's mandatory safety or training requirements. 

However, there is no evidence in this case that the respondent has ever been cited for any such violation, and there is 

729 
no evidence that Mr. Hensley ever requested training and was 

denied it, or that he ever lodged any complaints with management concerning his lack of training. 

With regard to Mr. Hensley's prior mining experience, 

his assertion that he had no such experience and had always 

worked as a coal haulage truck driver stands unrebutted by 

the respondent. Although Gus Robbins alluded to certain 

statements attributed to Mr. Hensley that he previously "had 

a little bit of time across the mountain" (Tr. 35), that 

statement was not further explained, and there is no credible 

evidence supporting any inference or interpretation that this 

statement, if made and standing along, indicates that 

Mr. Hensley had prior underground mining experience. 

Taken at face value, the lack of training and prior 

underground experience could conceivably support an inference 

that Mr. Hensley's refusal to work underground on July 13, 

was out of concern for his safety. However, given the fact 

that Mr. Hensley voiced no safety concerns when he refused to 

work, the fact that he had previously worked underground without objections, the fact that his previous work was always 

done when the mine was down and out of production and while 

he was under the direct supervision of an experienced mine 

foreman and mine operator, and the fact that Mr. Hensley had 

never voiced any safety complaints or concerns when asked to 

perform certain intermittent work underground leads me to 

conclude that any claim by Mr. Hensley that his work refusal 

was prompted out of concern for his safety is unsupportable. 

There is no evidence in this case that the underground 

work required of· Mr. Hensley exposed him to any safety 

hazards. The record establishes that in each instance when 

he was assigned underground work, it entailed trips in and 

out of the mine bringing in tools, cleaning up the belt, 

assisting in the dragging of a cable, and helping an electrician take some equipment outside. In each instance, the mine 

was not producing coal and was down for "dead work." 

Mr. Hensley was apparently provided with a hard hat and cap 

light, the mine operator had briefed him on safety precautions when he was first hired, and he was always under the 

supervision of experienced mine personnel. Further, Mr. Gus 

Robbins' unreubtted testimony, which I find credible, 

reflects that when the mine was down during the vacation week 

for "dead work," Mr. Robbins posted a notice on the bulletin 

board announcing the work to be done, and that when he 

explained this to Mr. Hensley he did not object, and stated 

that he didn't care and had no problem. 

730 
I believe that the crux of the dispute in this case lies 

in the fact that at the time he was first hired, Mr. Hensley 

believed that his job would only entail work outside the mine. 

His earlier complaint statements reflect his understanding 

that the job would only require him to answer the telephone, 

operate an endloader, and do other outside work. 

In his complaint to the Commission, Mr. Hensley makes no 

mention of the fact that he worked underground during the 

vacation period which was testified to during the hearing. 

In referring to the one prior occasion when he did work underground, Mr. Hensley alluded to the fact that he was not hired 

as an inside man, and that he believed that this would be the 

last and only time he would be asked to work inside the mine. 

In response to questions during the hearing as to why he 

believed he was discriminated against, Mr. Hensley indicated 

that since he was scared of being underground and that "it 

shook him up," he was reluctant to work underground on a regular basis, even during the time when the mine was out of· production and only "dead work" such as belt cleaning and mucking 

was being done. Under these circumstances, I conclude that 

even if he had formal training, Mr. Hensley would still be 

reluctant to work underground because of his personal dislike 

for the underground environment and his preference to do the 

outside work for which he believed he was originally hired. I 

further conclude that Mr. Hensley's refusal to work on 

July 13, was based on his belief that mine management's work 

assignments requiring him to go inside the mine when it was 

out of production were becoming more and more routine and that 

unless he resisted, he would soon find himself performing more 

work which he did not believe should be assigned to him as an 

"outside man. n 

In view of the foregoing findings and conclusions, I 

cannot conclude that the record in this case supports a conclusion that Mr. Hensley's refusal to follow mine management's 

work assignment on July 13, 1985, was based on a reasonable 

good faith belief on his part that the performance of the work 

would expose him to any underground safety hazards. I further 

conclude and find that Mr. Hensley's assertion that his work 

refusal was prompted by his lack of training and experience is 

not bona fide. Accordingly, the complaint IS DISMISSED, and 

the requested relief IS DENIED. 

~~-(f~ Administrative Law Judge 

731 
Distribution: 

Mr. Gary Hensley, Rt. 1, Box 117, Wallins, KY 40873 

(Certified Mail) 

Karl Forester, Esq., Forester, Forester, Buttermore & Turner, 

P.S.C., P.O. Box 935, Harlan, KY 40831-0935 (Certified Mail) 

/fb 

732 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 2, 1986 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

Docket No. VA 85-32-D 

MSHA Case No. NORT CD 84-7 

EARL KENNEDY, 

LARRY COLLINS, 

v. 

Mine No. 1 

Complainants 

RAVEN RED ASH COAL 

CORPORATION, 

Appearances: 

Before: 

Respondent 

AMENDED DECISION 

Sheila K. Cronan, Esq., Office of the Solicitor, 

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

for the Complainants; 

Daniel R. Bieger, Esq., Copeland, Molinary & 

Bieger, Abingdon, Virginia, for the Respondent. 

Judge Koutras 

By motion filed April 23, 1986, the Secretary requests that 

I reconsider my decision of April 7, 1986, with respect to the 

applicable interest rate to be applied to the back pay awarded 

the complainants. The Secretary states that the interest rates 

for part of the back pay periods in question should be more than 

the 9 percent referred to in my decision. The Secretary seeks 

leave to compute and file the necessary interest computations 

to cure the minor defect in my decision. 

Commission Rule 65, 29 C.F.R. § 2700.65, authorizes the 

Judge to correct clerical mistakes and errors arising from 

oversights or omissions in his decision. I consider the subject 

matter of the Secretary's request to fall within the rule. 

Accordingly, the Secretary's motion IS GRANTED, and my decision 

is amended as follows: 

733 
1. The words 11 at a rate of 9 percent until it is paid" are 

deleted from lines 2 and 6, on page 40, and they are replaced 

with the words 11 in accordance with the Commission-approved 

formula set out in Secretary ex rel. Bailey v. Arkansas-Carbona 

Co., 5 FMSHRC 2042, 2 050-2054 (Dec. , 1983) . " 

2. The following new paragraph is inserted between the 

second and third full paragraphs on page 40, as follows: 

Complainant shall submit a statement no more 

than 30 days after the date of this Amended 

Decision stating the total amount of interest that 

is due on the back wage award to each employee, to 

the date of this Amended Decision. Respondent 

shall have 10 days from the date the statement is 

submitted to reply. 

3. The second full paragraph on page 40 is replaceq with 

the following: 

This order is not final until the exact 

amount due is determined and ordered to be paid. 

4. Footnote 1 on page 40 deleted. 

The Amended Decision should now read as follows: 

ORDER 

The respondent IS ORDERED to pay the complainant Earl 

Kennedy the sum of $2,170, less any amounts normally withheld 

pursuant to state and Federar-I'aw, with interest to the net 

back-pay award in accordance with the Commission-approved 

formula set out in Secretary ex rel. Bailey v. Arkansas-Carbona 

Co., 5 FMSHRC 2042, 2050-2054 (Dec., 1983). 

The respondent IS ORDERED to pay the complainant Larry 

Collins the sum of $10,600 less any amounts normally withheld 

pursuant to state and Federal law, with interest to the net 

back-pay award in accordance with the Commission-approved 

formula set out in Secretary ex rel. Bailey v. Arkansas-Carbona 

Co., 5 FMSHRC 2042, 2050-2054 (Dec. 1983). 

Complainant shall submit a statement no more than 30 days 

after the date of this Amended Decision stating the total amount 

of interest that is due on the back wage award to each employee, 

to the date of this Amended Decision. Respondent shall have 

10 days from the date the statement is submitted to reply. 

734 
This order is not final until the exact amount due is 

determined and ordered to be paid. 

~t:A. Administrative tfo/ia~ Law Judge 

Distribution: 

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203 

(Certified Mail) 

Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.O. 

Box 1296, Abingdon, VA 24210 (Certified Mail) 

/fb 

735 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

May 5, 1986 

RONALD A. FAUST, 

Complainant 

DISCRIMINATION PROCEEDING 

v. . 

. Docket No. WEST 85-116-DM 

MD 84-39 

ASAMERA MINERALS (U.S.), Gooseberry Mine 

INC., 

Respondent 

DECISION 

Appearances: Mr. Ronald A. Faust, Sparks, Nevada, 

pro se: 

Before: 

Craig Haase, Esq., Haase, Harris & Morrison, Reno, 

Nevada, 

for Respondent. 

Judge Morris 

This case arose upon a complaint of discriminatory discharge 

filed by the complainant with the Secretary of Labor under 

section 105(c}(2) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. §et~, Cthe Act). The Secretary, after investigation, declined to prosecute the complaint. The complainant, Ronald A. Faust, then brought this proceeding directly 

before this Commission as permitted under section 105Cc)(3) of 

the Act. 

Complainant alleges he was discharged in violation of 

section 105(c)(l) of the Act. l; After notice to the parties, a 

hearing was held in Reno, Nevada on March 12, 1986. 

Complainant was granted leave to file a post-trial submission but no such brief nor request for any extension was 

filed. 

l/ Section 105(c)(l) provides: 

No person sha11 discharge or in any manner discriminate against 

or cause to be discharged or cause discrimination against or 

otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant for employment 

in any coal or other mine subject to this Act because such miner, 

representative of miners or applicant for employment has filed or 

made a complaint under or related to this Act, including a 

complaint notifying the operator or the operator's agent, or the 

{footnote continued) 

736 
Review of the Case 

Ronald A. Faust and Jerry Lee Moritz testified for the 

complainant. At the close of the complainant's case the judge 

granted respondent's motion to dismiss on the grounds that the 

evidence failed to establish that complainant had been engaged in 

an activity protected by the Act. 

The Commission case law requires that in order to establish 

a prima facie case of discrimination under section l05(c) of the 

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

proof to establish that (1) he engaged in protected activity, and 

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

that activity. Secretary on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2797-2800 {October 1980), rev'd on other 

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. United 

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

may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was not in 

any part motivated by protected activity. If an operator cannot 

rebut the prima facie case in this manner it nevertheless may 

defend affirmatively by proving that Cl) it was also motivated by 

the miner's unprotected activities, and (2) it would have taken 

the adverse action in any event for the unprotected activities 

alone. The operator bears the burden of proof with regard to the 

affirmative defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 

1936-38 (November 1982). The ultimate burden of persuasion does 

not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. 

See also Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)1 

nonovan-v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 

1984)(specifically approving the Commission's Pasula-Robinette 

test). The Supreme Court has approved the National Labor 

Relations Board's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-403 (1983). 

The evidence shows that Ronald A. Faust, 32 years of age, 

was employed by respondent Asamera Minerals (Asamera) from 

Fn. 1/ continued 

representative of miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant for 

employment is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 101 or 

because such miner, representative of miners or applicant for 

employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about 

to testify in any proceeding, or because of the exercise by such 

miner, representative of miners or applicant for employment on 

behalf of himself or others of any statutory right afforded by 

this Act. 

737 
September 29, 1983 until July 1984. He was a contract miner at 

the Gooseberry mine in Storey County near Reno, Nevada {Tr. 

8-10). 

In September 1983 Faust with two or three partners in stope 

806 mined the gold and silver ore {Tr. 10-12). Faust's initial 

wage was $10.50 an hour. It was later increased to $11 (Tr. 12). 

On July 30th Faust with his partner blasted 30 holes in the 

stope. The blast brought down the raise. As a result the scram 

between raises 806 and 805 was plugged off because it filled with 

sand (Tr. 13-16, 20>. In order to breath Faust reduced the air 

pressure and breathed off of the air hose for about an hour, or 

until the air cleared (Tr. 14). Breathing off of the air hose 

caused Faust's lungs to become coated with oil (Tr. 14). 

The following morning Faust went to St. Mary's Hospital 

where he remained for six days. A portion of the time he was in 

intensive care (Tr. 15). 

After he returned home he did not return to work at Asamera. 

He was fired by his manager, Tom Lambert, for blasting in the 

stope (Tr. 17, 20). At no time did Faust have any conversations 

with the company about such blasting but he asserts it was common 

practice to remain in the stope while blasting (Tr. 18). Faust 

offered several written statements by coworkers confirming his 

testimony concerning blasting in the stope {Tr. 18, 19; Ex. Cl 

thru CS). 

Faust had never been told how he should have blasted in the 

stope. On five prior occasions when he had blasted it had 

cleared in 10 minutes because the ventilation had remained open 

(Tro 24). Faust's supervisor obtained the blasting material; he 

knew each time Faust blasted (Tr. 24, 25). 

Complainant indicated that he had never told anyone at 

Asamera that there was a safe or unsafe way to blast (Tr. 25). 

At the hearing Faust identified and read his original 

statement to MSHA (Tr. 27; Ex. C6). He basically reviewed his 

statement (Tr. 27-31). The handwritten statement concluded with 

several questions. They were: "why wasn't accident reported by 

mine?" and "why hasn't 805 raise been maintained?" and "why 

hasn't scram between 806 and 805 been maintained?" (Tr. 31; Ex. 

C6). 

Faust was working 40 hours a week at Asamera. After being 

terminated his next employment was seven months later earning $14 

an hour. He claims loss of wages for seven months at $11 an hour 

(Tr. 32, 33). 

Jerry Lee Moritz testified that he was Faust's partner at 

the time of this incident. Moritz was also hospitalized (Tr. 

34-36). He indicated that it was common practice to blast in the 

stope (Tr. 31). Other companies follow different procedures: 

738 
the miners usually drill the holes, put in the blasting powder, 

set the cha~ge and withdraw. They will return after the area has 

cleared (Tr. 36, 37). 

Moritz also stated that at a safety meeting a few weeks 

before this incident he mentioned there was no ventilation in 

stope 806. The safety man replied that the condition was caused 

by the temperature of the outside air (Tr. 36, 37). 

Discussion 

At the close of the complainant's case respondent moved to 

dismiss the complaint. After considering the exhibits and the 

evidence the judge dismissed the complaint. The conclusion 

reached was that the complainant had failed to offer any evidence 

that he was engaged in an activity protected by the Act. 

Complainant's claim against respondent rests on the 

proposition that it was common practice to blast while the miner 

remained in the stope. He followed this practice and, after 

being injured, he was fired (Tr. 32). 

Faust's evidence develops facts that are safety related and 

there may be some form of discrimination in the operator's 

actions. But Faust's actions were not an activity protected 

under the Mine Safety Act. Accordingly, his claim of discrimination should be dismissed. 

Conclusions of Law 

Upon the record and the factual determinations construed 

most favorably to complainant, the following conclusions of law 

are entered: 

lo The Commission has jurisdiction to hear and decide this 

mattero 

2. Complainant failed to prove that he was engaged in an 

activity protected by the Act. 

3. Complainant was not discharged, for engaging in any 

activity protected by section 105(c) of the Act. 

ORDER 

Based on the entire record and the conclusions of law, 

I enter the following order: 

The complaint of discrimination filed herein is dismissed 

with prejudice. 

rative 

orris 

~ 

Law Judge 

739 
Distribution: 

Mr. Ronald A. Faust, 30 East H Street, Sparks, NV 89431 

(Certified Mail) 

M. Craig Haase, Esq., Haase, Harris & Morrison, 6121 Lakeside 

Drive, Suite 240, P.O. Box 70250, Reno, NV 89570-0250 (Certified 

Mail) 

/blc 

740 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 6, 1986 

GARY GOFF, A.K.A. GARRY GOFF, : DISCRIMINATION PROCEEDING 

Complainant 

v. 

THE YOUGHIOGHENY AND OHIO, 

COAL COMPANY, 

Respondent 

. . 

. . 

. 

. 

. . 

Docket No. LAKE 84-86-D 

MSHA Case No. VINC CD 84-03 

Nelms No. 2 Mine 

DECISION 

Appearances: Frank K. Leyshon, Esq., Leyshon & Leyshon, 

Cambridge, Ohio for Complainant1 

Gerald P. Duff, Esq., Hanlon, Duff & Paleudis 

Co., LPA, St. Clairsville, Ohio for Respondent. 

Before: Judge Melick 

This case is before me on remand by the Commission to 

determine whether the Complainant, Gary Goff, was discharged 

by The Youghiogheny and Ohio Coal Company (Y&O) because he 

was "the subject of medical evaluation and potential transfer" under the regulatory standards set forth in 30 C.F.R. 

Part 901/ and therefore in violation of section 105(c)(l) of 

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

801 et. ~, the "Act.".~/ For the reasons that follow I 

find that Mr. Goff was not discharged in violation of that 

section of the Act. 

1/ Under Part 90 a miner who has been determined by the 

Secretary of Health and Human Services to have evidence of 

the development of pneumoconiosis is given the opportunity to 

work without loss of pay in an area of the mine where the 

average concentration of respirable dust in the mine atmosphere during each shift to which that miner is exposed is 

continuously maintained a~ or below 1.0 milligrams per cubic 

meter of air. 

~/ Section 105(c)(l) of the Act provides in part as follows: 

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, ••• 

in any coal or other mine ••• because such miner, 

• • • is the subject of medical evaluations and 

potential transfer under a standard published pursuant 

to section 101 [of the Act] •••• 

741 
The evidence shows that Mr. Goff began working for Y&O 

in 1976 as a salaried foreman and continued working in a 

supervisory capacity until his discharge on Januaiy 20, 1984. 

From 1980 to early January 1984 Goff worked at the Y&O 

Allison Mine primarily on the surface. The Allison Mine was 

not then producing coal and was in the process of recovering 

equipment and closing down following an explosion. When the 

Allison Mine was closed completely in January 1984, Goff was 

transfered to the Nelms No. 2 Mine, the only Y&O mine then 

remaining in operation. 

Nelms No. 2 is an underground mine and with the exception of the surf ace superintendant all the supervisory 

employees were required to work underground. Goff was to be 

a labor foreman working primarily in the outby areas of the 

mine away from the face where the coal is actually extracted. 

He would also be expected to work closer to the face at times 

filling in for absent section foremen. 

Goff testified that on his first day at the Nelms No. 2 

Mine he gave Mine Manager Charles Wurscham copies of doctor's 

notes and x-rays. The reports included physician's 

statements that he had "borderline pneumoconiosis" and 

"pneumoconiosis" and brief "Rx" notes that he should not work 

"underground." Goff also told Wurscham to keep him out of 

the dust. On the fourth day of his new job, Goff claims that 

his chest was "tight" so he called in sick. Goff visited his 

doctor that day and later called the mine advising a mine 

official that he would be off "for 2 weeks or until he 

recovered." 

Apparently because of Goff's reluctance to work underground, the existence of inconclusive and rather summary 

medical evidence, and past experience with altered doctor's 

slips, Y&O then set up its own appointment on January 13, 

1984, for Goff to be medically examined. According to this 

exam, including x-ray interpretation by· certified "B" 

Readers, Drs. Terry Elliott and Robert Altmeyer,3/ Goff did 

not have pneumoconiosis. The x-rays were reported as 

"essentially normal" and of an "essentially healthy chest." 

Spirometry tests, measuring the breathing capacity of the 

lungs, pulmonary function tests and arterial blood gas tests 

were also reported as "normal." 

In particular Dr. Terry Elliott stated in reference to 

the January 13, 1984, examination of Goff as follows: 

3/ A "B" reader is a person receiving the highest 

qualifications to read x-rays for evidence of pneumoconiosis 

by the National Institute of Occupational Safety and Health. 

742 
"Chest x-ray was within normal limits. No evidence 

of pneumoconiosis was seen. 

There was no evidence of any significant respiratory or pulmonary disease physiologically. 

I find no medical reasons at this time that would 

prevent Mr. Goff from being able to work underground as a supervisor." 

Dr. Altmeyer agreed and said: 

"On the basis of the above studies, there is no 

evidence of.any significant respiratory or 

pulmonary disease, physiologically." 

On or about January 14, 1984, Goff mailed a letter and 

copies of some x-rays to the Federal Mine Safety and Health 

Administration (MSHA), requesting a determination of eligibility for a "Part 90" transfer. There is no evidence however that Y&O had any knowledge of this application. Meanwhile Goff also wrote a letter to Y&O personnel manager Don 

Weber on January 16, 1984, in which he asserts that he had a 

note from his doctor advising that he was "unable to perform 

the duties" as labor foreman due to pneumoconiosis and that 

he "should be worked outside the mine do [sic] to the extent 

of pneumoconiosis shown in the two x-rays" and that "until 

you have a job for me that is out o.f the dust I will be off 

work under doctor's advice." 

On January 19 Goff, who had still not returned to work, 

met with Weber and Wurscham to review the results of the most 

recent medical exam. Goff was told that based upon the 

medical reports he would be able to return to work and that 

if he did not report for work the next day he would be fired. 

Goff never did return to work as directed and was accordingly 

discharged effective January 20, 1984. 

In order for Mr. Goff to establish a prima facie violation of section lOSCc)(l) of the Act, he must prove by a 

preponderance of the evidence that he engaged in an activity 

protected by that section and that his discharge was motivated in any part by the protected activity. Secretary ex. 

rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC 

2686 (1980), rev'd on other grounds sub, nom. Consolidation 

Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). See 

also Boitch v. FMSHRC, 719 F.2d 194 (6th Cir. 1983) and NLRB 

v. Transportation Management Corp., 462 U.S. 393 (1983) ,--

affirming burden of proof allocations similar to those in the 

Fasula ·case. 

In determining that Y&O was not motivated in any part in 

discharging Goff by his being "the subject of medical evaluation and potential transfer" under 30 C.F.R. Part 90, I note 

743 
first of all the absence of any evidence that any Y&O 

personnel knew, prior to his discharge, that he had filed a 

Part 90 application. In addition, although Y&O officials had 

been apprised by Goff prior to his discharge of some medical 

evidence that he had pneumoconiosis, that evidence was inconclusive and of questionable reliablity. 

On the other hand, at the time of Goff's discharge, Y&O 

had obtained the results of a current and complete medical 

evaluation of Goff's condition including reports by certified 

"B" Readers concluding that Goff did not have pneumoconiosis, 

that his lungs were normal and that he could return to work 

as a labor foreman without restriction. These conclusions 

were supported ·by a battery of medical tests including 

spirometry tests, pulmonary function studies and arterial 

blood gas tests. Under the circumstances Y&O officials could 

reasonably have given greater weight to the credible medical 

evidence that Goff did not have pneumoconiosis. It may 

reasonably be inferred therefore that the Y&O officials who 

discharged Goff did so under the belief that indeed he was 

not then "the subject of medical evaluation and potential 

transfer" under Part 90 because the best medical evidence 

then available showed that he in fact did not have 

pneumoconiosis. 

In addition it is contrary to reason and common sense to 

believe that even had it been known that Goff had applied for 

Part 90 status, that Y&O would have had any reason to discharge him on that basis. Under Part 90 (30 C.F.R. § 90.1) a 

qualifying miner is entitled only to transfer to a dustreduced area where the concentrations of respirable dust are 

less than 1 milligram per cubic meter of air. The miner is 

not entitled to transfer if he is already working in an area 

that meets these standards. In this regard wurschum believed 

that the entire Nelms No. 2 Mine complied with the Part 90 

requirements. Indeed it is not disputed that in 1984 the 

average respirable dust concentration in the outby areas of 

the Nelms No. 2 Mine where Goff would ordinarily be expected 

to work as a labor foreman, was only 0.55 milligrams per 

cubic meter. Even in the inby areas of the mine near the 

faces the ~espirable dust concentration was less than the 1 

milligram per cubic meter requirement. 

Thus it is apparent that even had Goff become a Part 90 

miner he would not have been entitled to any transfer or 

change in his work assignment as a labor foreman. Accordingly it is not reasonable to believe that Y&O would have 

been motivated to disharge Goff for the reasons alleged even 

had it been known that he would become eligible for Part 90 

status. In other words since Part 90 status for Goff would 

have had no effect on his work assignment there would have 

been no reason to discharge or discriminate against him 

744 
because of his being "the subject of medical evaluation and 

potential transfer" under Part 90. 

Under the circumstances Goff has failed in his burden of 

proving that Y&O was motivated in any part in discharging him 

because he was "the subject of medical evaluation and 

potential transfer" under the Part 90 regulatio s. His 

complaint of unlawful discharge is accordingly nied and 

this proceeding dismissed. 

Distribution: 

Mr. Gary Goff, 57920 

(Certified Mail) 

Jacobsburg, OH 43933 

Frank K. Leyshon, Esq., Leyshon & Leyshon, 114 Southgate 

Parkway, P.O. Box 129, Cambridge, OH 43725 (Certified Mail) 

Gerald P. Duff, Esq., Hanlon, Duff & Paleudis Co., LPA, 

Richland Office Building, 46770 National Road West, 

St.Clairsville, OH 43950 (Certified Mail) 

rbg 

745 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 6, 1986 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: 

. . 

. . Docket No. PENN 84-49 

A. C. No. 36-00970-03537 

v. Maple Creek No. 1 Mine 

: 

UNITED STATES STEEL MINING 

COMPANY, INC., 

Respondent . . 

Appearances: 

Before: 

DECISION 

Vicki J. Shteir-Dunn, Esq., Office of the 

Solicitor, U. s. Department of Labor, Arlington, 

Virginia for Petitioner; 

Billy M. Tennant, Esq., United States Steel 

Corporation, Pittsburgh, Pennsylvania for 

Respondent, United States Steel Mining Company, 

Inc. 

Judge Merlin 

On March 28, 1986 the Commission reversed my determination 

that the operator was negligent and remanded the case to me "for 

recomputation of an appropriate penalty11 • Pursuant to the Commission's decision I issued an order dated March 31, 1986 

directing the parties to submit their recommendations regarding 

an appropriate penalty amount on or before April 28, 1986. They 

have now done so. 

I originally assessed a penalty of $7,500. 

The operator recommends a penalty of $150 on the ground 

there was no negligence. 

The Solicitor recommends a penalty of $7,500 which represents no change from what I assessed before the Commission overturned my ruling on negligence. In support of a $7,500 penalty 

the Solicitor argues that the two decedents were negligent and 

that their negligence is attributable to the operator. The Solicitor acknowledges that the Commission specifically held that it 

could not consider this issue because it had not been raised at 

the trial level. Nevertheless, the Solicitor argues that the 

746 
commission's view of what it could consider was wrong and that I 

have "the opportunity to consider this issue." I reject the Solicitor 1 s arguments as without merit and mischievous. I could 

not now assess a penalty on the basis of decedents' negligence 

(assuming there was such negligence and that it could be imputed 

to the operator), because the present record does not specifically address that issue and the operator has not had an opportunity to be heard on it. Even more importantly, the Commission's remand is very specific and limited, i.e., recomputation 

of an appropriate penalty in light of its decision. I am bound 

by the terms of the remand as laid down by the Commission. If 

the Solicitor believes the Commission's view of what it could 

consider was erroneous or if the Solicitor wants a broader remand, she should have requested reconsideration by the Commission. 

Presentation of these arguments at this stage constitutes nothing 

more than an invitation to ignore the terms of the Commission's 

remand and defy its mandate. This, of course, I cannot and will 

not do. My views on the merits of this case are set forth in my 

original decision. But the Commission has spoken and it has held 

differently. Whatever significance an issue in a particular case 

may have, the principle that a trial Judge is bound by the 

holdings of his appellate tribunal is of transcending importance. 

The Solicitor's argues next for a penalty "only slightly 

lower" than $7,500 on the basis that even if there was no negligence, the gravity of the violation justifies such an amount. I 

reject this because it wholly fails to take account of the fact 

that negligence was a crucial factor in my original assessment of 

$7,5-00. As the record and the decisions at both the trial and 

Commission levels demonstrate, the issue of the foreman's negligence was the reason the operator sought a hearing. Again, the 

Solicitor invites me to thwart the Commission's will, an approach 

I most emphatically reject. 

I also reject the operator's recommendation of a $150 

penalty because it does not adequately reflect the other five 

statutory criteria which must be considered in addition to 

negligence. 

As I originally found, the violation was very serious. { 

At the hearing the parties stipulated as follows with 

respect to the other criteria (Tr. 5): (1) imposition of any 

penalties herein will not affect the operator's ability to 

continue in business; (2) the violation was abated 1/ in good 

faith; (3) the operator's history of prior violations is average; 

and (4) the operator's size is large. 

!/ The court reporter failed to correctly transcribe "abated". 

747 
It is hereby ORDERED that a penalty of $450 be assessed 

which the operator is ORDERED TO PAY within 30 days from the date 

of this decision. 

Chief Administrative Law Judge 

Distribution: 

Vicki J. Shteir-Dunn, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Louise Q. Symons, Esq., United States Steel Corporation, 600 

Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

Billy M. Tennant, Esq., United States Steel Corporation, 600 

Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

/gl 

748 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 7, 1986 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

. . Docket No. KENT S5-105 A.C. No • 15-13920-03539 

v. . . Docket No. KENT 85-141 

PYRO MINING COMPANY, 

Respondent . . A.C. No. 15-13920-03548 

Appearances: 

Before: 

. . Docket No. KENT 85-142 

A.C. No. 15-13920-03549 

. . Docket No. KENT 85-159 . . A.C. No • 15-13920-03550 

Docket No. KENT 85-167 . . A.C. No • 15-13920-03551 . . 

: Docket No. KENT 85-180 

A.C. No. 15-13920-03554 

Pyro No. 9 Wheatcroft 

DECISIONS 

Thomas A. Grooms, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Petitioner; 

Bruce Hill, Director of Safety and Training, 

Pyro Minirig Company, Sturgis, Kentucky, for 

the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These civil penalty proceedings concern proposals for 

assessment of civil penalties filed by the petitioner against 

the respondent pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(a). The petitioner seeks civil penalty assessments against the respondent 

749 
for 15 alleged violations of certain mandatory safety standards found in Part 75, Title 30, Code of Federal Regulations. 

The respondent filed timely answers and contests, and hearings were held in Evansville, Indiana. The parties filed no 

posthearing briefs or proposed findings and conclusions, but 

I have considered the oral arguments made by the parties on 

the record during the hearing in the adjudication of these 

matters. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.l et seg. 

Issues 

The primary issues presented are Cl) whether the conditions or practices cited by the inspectors constitute violations of the cited mandatory standard, and (2) the appropriate 

civil penalties to be assessed for the violations, taking into 

account the statutory civil penalty criteria found in section 

llOCi) of the Act. Additional issues raised by the parties 

are disposed of in the course of these decisions. 

Stipulations 

The parties stipulated that the respondent is subject to 

the Act, and that at all times relevant to these proceedings, 

the overall coal production for the respondent's operating 

company was 5,200,080 tons, and that the production for the 

Pyre No. 9 Wheatcroft Mine was 1,662,825 tons. They also 

stipulated that the payment of the assessed proposed civil 

penalties will not adversely affect the respondent's ability 

to continue in business, and that the violatio.ns were abated 

in good faith. 

Discussion 

KENT 85-105 

Section 104 Ca) "S&S" Ci ta ti on No. 25 07205, January 29, 

1985, 30 C.F.R. § 75.1722: "The north conveyor belt was not 

guarded on the bottom side where the No. 4 unit supply road 

passed under the belt. There are exposed moving parts that 

could be contacted by employees travel (sic) under the 

conveyor." ~-

750 
Section 104(a) "S&S" Citation No. 2507206, January 30, 

1985, 30 C.F.R. § 75.400: "Loose coal and coal dust had 

accumulated in the Nos. 5, 6, and 7 return entrys (sic) and 

connecting crosscuts for 100 feet outby spad No. 9+536 on the 

No • 2 unit • " 

Section 104(a) "S&S" Citation No. 2507208, January 31, 

1985, 30 C.F.R. § 75.503: "The loader used to load coal on 

the No. 3 unit (# L23) was not maintained in a permissible 

condition in that the packing glan (sic) to the right head 

motor was loose. The service wire to the left light was cut 

and not insulated." 

Section 104(a) "S&S" Citation No. 2507209, January 31, 

1985, 30 C.F.R. § 75.313: "The methane monitor installed on 

the L23 loader used on the No. 3 unit was not maintained in 

that the sensor head was stopped up with oil and dirt to the 

point it would not operate." 

MSHA Inspector George Newlin confirmed that he issued 

the guarding citation (2507205), on the north conveyor coal 

carrying belt after observing that the bottom side of the 

belt had not been guarded to preclude someone from reaching 

up and into the idler pinch points. The belt was 42 inches 

wide and was approximately 4 to 5 feet above the roadway 

which passed under it. Supplies were stored under and near 

the belt, and it was an area where men and equipment regularly passed under it. He was concerned that some one such 

as a mechanic or supply person, or someone walking or riding 

under it could stand up and reach into the unguarded pinch 

point. 

Mr. Newlin considered the belt idlers to be unguarded 

pinch points, and he was also concerned that in the event the 

belt broke, the whipping action could result in someone being 

struck by the belt and injured. He considered the idlers and 

the belt itself to be moving machine or equipment parts which 

required to be guarded. The belt had been previously guarded 

by metal mesh material, but it had become deteriorated and 

·removed. The guard was replaced by welding steel bars to the 

frame of the belt at the point where the roadway passed under 

it. 

On cross-examination, Mr. Newlin confirmed that he was 

not aware of anyone being injured at the unguarded belt location, and he also confirmed that inspectors regularly passed 

under the belt location in the past but did not cite it for 

any inadequate guarding. He considered the violation to be 11 S&S" because the unguarded belt exposed miners to a hazard, 

751 
and he believed that the condition could reasonably likely 

result in serious injuries. He did not know how long the 

belt had been installed at the cited location. He confirmed 

that belt idlers located at the underside of the belt were 

not required to be guarded along the entire belt line, unless 

the belt crossed over a roadway or travelway where men and 

equipment would be present. He identified photographic 

exhibit R-1 as a photograph of the belt location in question, 

and confirmed that the photograph shows the guarding which 

was installed to achieve abatement. He believed that miners 

congregated at the location in question, and he stated that 

there was a mine phone nearby, but that it was not in the 

area of the unguarded belt. 

David Furgerson, mine safety manager, testified that the 

belt was initially installed approximately 13 to 14 months 

prior to the citation and that many MSHA inspectors had 

passed under it without citing it. Mr. Furgerson did not 

believe that anyone passing under the belt could contact. the 

idlers, but conceded that if they stood up while in a piece 

of equipment they could contact it. He saw no evidence of 

any prior guards, and did not believe that anyone would be 

injured if the belt broke. 

Section foreman James M. Hibbs testified that he is 

familiar with the unguarded belt in question, and he stated 

that for the 3 years he has been employed at the mine he has 

never known the belt to be guarded. 

Inspector Newlin confirmed that he issued a citation for 

coal accumulations (2507206) on the Number 5, 6, and 7 return 

entries. He described the accumulations as "grey and black 

in color," ranging in depths from 0 to 8 inches, 20 feet 

wide, along the crosscuts and entries. He believed that the 

accumulations resulted because of a failure to properly clean 

up while the mining cycle advanced, and he indicated that the 

accumulations were the result of mining as the faces were 

advanced. The entries in question were in neutral belt 

return entries where no active mining activities were taking 

place. 

Mr. Newlin stated that the accumulations presented a 

hazard in that they could have contributed to the enhancement 

of an explosion. In the event of any ignition of explosion 

at the race, the accumulations would have contributed to the 

severity of the explosion. He saw no evidence of any equipment passing through the areas in question, and confirmed 

that no immediate ignition sources were present. He confirmed 

that the closest mining taking place was approximately two 

752 
crosscuts, or 100 feet inby the location of the accumulations, 

and that the face area was approximately 180 feet away. 

On cross-examination, Mr. Newlin stated that he had 

intended to take a dust survey, but after observing the accumulations and issuing the citation, he did not take such a 

survey. He detected a negligible amount of methane present 

in the cited locations, and while the area was not adequately 

rock-dusted, he confirmed that he issued no citation for lack 

of rock dust. He stated that the coal accumulations were 

behind the section brattice line, and that no ignition sources 

were present behind the brattice line. He believed that equipment could have traveled the area, and confirmed that the 

brattices had been previously constructed. 

Safety manager David Furgerson, confirmed that he traveled with Mr. Newlin during his inspection and he confirmed 

the existence of the cited coal accumulations. He produced a 

copy of the preshift examiner's report for January 30, 1985, 

and noted that no violations or hazardous conditions were 

noted (exhibit R-3). 

Inspector Newlin confirmed that he issued the permissibility violation (2507208), for the loader used to load coal 

in the number 3 unit after finding a loose packing gland and 

loose wire which had been cut on the machine. The wire was 

for one of the headlights, and while it was disconnected, the 

end was not insulated where it had been cut. The loader was 

in operation loading coal, and he detected .2 methane present, 

but this caused him no particular concern. Mr. Newlin stated 

that the loader operator told him that "there was power to the 

wire." Mr. Newlin stated that the loose energized wire could 

come in contact with the frame of the loader and cause a spark. 

The loader operator advised him that the light had come off 

the machine, but that the face boss was not aware of the 

condition. 

Mr. Newlin stated that he cited two separate conditionsi 

the loose uninsulated wire, and a loose packing gland. He 

identified a similar packing gland produced by the respondent 

for demonstration purposes, and he confirmed that it was 

loose by turning it with his fingers and finding that it was 

not "finger tight." The purpose of the packing gland is to 

keep the wires inside the machine protected from arcs or 

sparks. Mr. Newlin confirmed that he issued a second citation on that same loader (No. 2507209) that same day because 

the methane monitor sensor head was clogged with dirt and 

oil. 

753 
On cross-examination, Mr. Newlin could not state where 

the loader was precisely operating when he cited it. He confirmed that he made no independent determination that the 

wire was energized or that it had power. He simply relied on 

what the loader operator told him, but admitted that his 

notes did not reflect any statement by the operator that the 

wire was energized. Mr. Newlin confirmed that he did not 

check the loader light fuses to determine if they had blown 

out, and he stated that he would not have issued the citation 

if there was no power to the light wire in question. The 

wire appeared to have been cut, and the exposed end.had not 

been insulated. Mr. Newlin also confirmed that he did not 

check the loader electrical junction box and did not check 

the wire with an OHM meter. 

Safety manager David Furgerson testified that the wire 

could have been cut when it came into contact with a rib. He 

stated that the machine operator would not know whether there 

was power to the wire after it was cut. He recalled no conversations with Mr. Newlin or anyone else about the cited 

condition, and he did not know the identity of the loader 

operator. 

James Crowell, respondent's maintenance director, testified that the loader has two sets of lights, and that they 

operate under two separate electrical circuits. He stated 

that the loader can operate with one light, and that in the 

event a wire or cable is cut, the fuse would blow and interrupt the power to the light. He confirmed that he did not 

examine the loader in question, and conceded that a fuse may 

not always blow if the light wire or cable is cut. 

Inspector Newlin confirmed that he cited the loader used 

on the number 3 unit after finding that the methane monitor 

sensor head was gobbed with oil and dirt (2507209). He 

explained that the purpose of the sensor head is to detect 

the presence of methane. If methane is detected, the sensor 

sends a signal to the methane monitor which registers the 

amount on a signal device in the operator's cab. In his 

opinion, the gobbed sensor head would prevent the proper 

signal, but he conceded that he did not test the sensor head 

with a predetermined mixture of methane to be absolutely sure 

that it was not functioning properly because there was not 

enough methane present to make comparisons, and he had no 

predetermined mixtures with him at the time he observed the 

condition. However, based on his visual observation of the 

gobbing condition, he did not believe that the sensor head 

was functional. 

754 
On cross-examination, Mr. Newlin confirmed that the 

methane monitor test button was functional and operating 

properly. He confirmed his prior observations of the gobbed 

condition of the sensor head, and confirmed that the accumulated oil and dirt was cleaned out with a screwdriver after 

the sensor cap was removed. He also confirmed that the 

gobbed condition was readily observable, that there was sufficient air ventilation on the unit, and that it was adequately 

rock dusted. He also confirmed that there were no dangerous 

methane accumulations present. 

Safety manager David Furgerson testified that lt was his 

belief that the methane monitor sensor head was working properly even though it was gobbed with dirt and oil. He stated 

that the specific gravity of methane is .5545, and that it 

will permeate oil and dirt because it is porous material. He 

confirmed that the maintenance department cleaned out the 

sensor head, but that it was not tested with a known mixture 

of methane. It was his view that simply because the sensor 

head was dirty did not indicate that it was inoperable. He 

simply did not believed that the oil and dirt was "packed in 

enough" to prevent the sensor head from sending a signal to 

the methane monitor. 

KENT 85-141 

Section 104(a) "S&S" Citation No. 2508624, April 11, 

1985, 30 C.F.R. § 75.807: 

The high voltage cable installed along 

the north west track entry was not placed so 

as to afford protection against damage from 

mobile equipment in several places. Also the 

cable was not guarded in at least fifteen 

places where miners were required to be under 

it. Supplies and tool boxes were stored under 

the cable. 

Section 104(a) "S&S" Citation No. 2508625·, April 11, 

1985, 30 c. F. R. § 75 .130 6: "The explosives magazine on the 

No. 4 unit, I.D. No. 004 was not maintained in good condition 

because the doors would not close, the magazine had been 

struck by a piece of machinery." 

Section 104(a) "S&S" Citation No. 2508627, April 11, 

1985, 30 C.F.R. § 75.400: "Accumulations of loose coal and 

coal dust, 2 to 6 inches deep and averaging 8 foot wide was 

present along the ribs of the No. 4 unit belt beginning at 

the tailpiece and extending outby 150 feet." 

755 
Section 104(a) "S&S" Citation No. 2507611, April 12, 

1985, 30 C.F.R. § 75.400: "Accumulation of float coal dust 

and coal dust was observed over previous rock dusted surf aces 

in the 3-A belt conveyor entry starting at the header and 

extending 5 crosscuts inby (approximately 250 feet) ra~ging 

in depth from 0 to 5 inches." 

Section 104(a) "S&S" Citation No. 2507618, April 23, 

1985, 30 C.F.R. § 75.807: "The 7200 (volts) high voltage 

cable strung across the No. 3 entry used as the haulage road 

did not have a guard on it. The entry was approximately 

4 feet high. Miners were required to travel under this 

cable." 

MSHA Inspector James E. Franks testified as to his background and experience. He confirmed that he inspected the 

mine on April 11, 1985, and issued Citation No. 2508624, 

after observing several locations, and at least 15 additional 

locations along the track entry in question, where a high 

voltage cable had not been hung or guarded to prevent damage 

from equipment or from miners coming in contact with it. He 

stated that supplies were stored under the cable at the locations in question, and in several places the cable was hung 

so low that he believed it could be damaged by equipment which 

was required to pass under it while storing and retrieving the 

supplies. Mr. Franks stated that section 75.807, requires 

cable protection to protect the cable from equipment damage, 

and to also protect miners from coming in contact with it. He 

confirmed that he issued the citation to prevent cable damage 

from mobile equipment at several places, and to prevent miners 

from contacting the cable when they passed under it at the 

locations where the supplies were stored. He explained that 

any cable located at points where men do not regularly pass 

under it is required to be guarded by hanging it out of the 

way of equipment or behind timbers, and that at places across 

roadway and travelways, it is required to be guarded or covered to preclude miner contact as well as equi_pment damage. 

Mr. Franks identified a piece of PCV hard plastic pipe 

produced for demonstration purposes at the hearing as the 

type of guarding which is acceptable to MSHA. The pipe material is cut along one side so as to facilitate it being taped 

or otherw~se secured around the cable for protection. He 

stated that the PCV pipe is similar to the guarding used by 

the respondent. 

Mr. Franks testified that in at least five or six locations the cable was lying along the side of the track on the 

756 
mine floor and he was concerned that scoops and battery 

motors using the track entry would get into the cable and 

cause damage. Some of these locations were in areas where 

the track was narrow, and the operators would be on the 

"off-side," thereby increasing the possibility that a piece 

of equipment would damage the cable. Most of the other 15 

locations were at the end of the track where the respondent 

stored blocks, boards, steel ties, and roof bolts, and he 

believed that men were required to pass under the cable to 

move the supplies in and out, and the chances were great that 

someone would come in contact with the unprotected cable. 

Mr. Franks conceded that the cable in question is inherently shielded and that it was provided with a ground check 

monitoring system. A properly functioning system will deenergize the cable if it is cut or shorted out, but he believed 

that such a system may not always be in proper working order. 

He also believed that it was possible that someone merely 

touching the cable would not suffer any harm, but on the· other 

hand, if the conditions were right, it could cause fatal injuries. He confirmed that the cable at the equipment supply 

locations was hung but not protected, and at the other locations it was simply lying on the mine floor. 

On cross-examination, Mr. Franks stated that the section 

in question was operating on a 20-hour a day production schedule, and that the supplies which were stored under the cited 

cable locations were needed and used during these production 

periods. He confirmed that as the mining cycle advances, the 

supplies would be moved up. However, he pointed out that the 

track entry had been driven approximately 1,200 feet and that 

the track had been in place for about a year. He believed 

the supplies in question had been stored at the cited locations for approximately.3 weeks, and that men were regularly 

required to pass under the unprotected cable to retrieve and 

move the supplies. He observed miners under the cable, and 

also observed a motor unloading supplies under the cable. He 

confirmed that he did not know the type of cable used by the 

respondent and that he detected no damage to the cable at any 

of the cited locations. 

Mr. Franks dicussed the supply and storage system used 

at the mine, and he explained MSHA's guidelines for guarding 

high voltage cables. He confirmed that the type of plastic 

PCV pipe used by the respondent to guard its cables is acceptable as adequate guarding material for high voltage cables. 

James Crowell, respondent's maintenance director, testified that he has 15 years of experience in electronics and 

757 
electricity and has taught and conducted training courses in 

these areas. He produced sections of cables for demonstration 

purposes, and he explained that one of the cables is a standard black permissible 8,000 volt power feeder cable which is 

acceptable by MSHA for use by the respondent in its mines. 

However, he explained that the respondent does not use this 

type of cable, but instead uses a "hypalon" cable approximately two times the diameter of the standard cable, and that 

it has an insulated jacket and three electrical conductors 

which are independently braided and protected by insulation. 

The cable has two insulated ground wires and one insulated 

ground check wire, and he described it as "the best· available 

cable on the market." He stated that in the unlikely event 

that the cable were run over and a massive break or cut 

occurred to the insulated high voltage conductor, the cable 

would deenergize and the power would cut off. He is unaware 

of any incidents in which the cable has failed to function 

properly. 

On cross-examination, Mr. Crowell confirmed that he did 

not inspect the cable which was cited by Inspector Franks, 

and he stated that the cable ground monitoring system is 

required to be tested and checked monthly. He believed that 

under normal mine operating conditions the cable in question 

is inherently safe, and that it was not reasonably likely 

that someone would be injured by contacting such a cable. 

Inspector Franks confirmed that he issued Citation No. 

2508625 on April 11, 1985, after observing that the doors of 

a mobile explosives magazine would not shut tight to afford 

protection to the explosives stored inside. The doors 

appeared to have bee.n struck by another piece of equipment 

and he observed an indention in the doors. The doors were 

warped and they could not be shut tight to the latches provided to secure the doors. He believed that the magazine had 

to be moved and advanced as the mining cycle advanced, and he 

was concerned that another piece of equipment could run into 

it while it was being moved. With the doors opened and 

unsecured, he believed that such a collision would detonate 

the explosives stored inside the magazine. 

Mr. Franks stated that the magazine, in its parked position at the time of the inspection, was not in the line of 

fire of any shots that may have been fired. However, he 

believed that it was possible for a piece of shot coal or 

rock to fly into the area where the doors were not secured if 

the magazine were moved to an area where shots were being 

fired, and that the explosives could possibly be detonated. 

If this occurred, 14 people on the section would be exposed 

758 
to the resulting explosion hazard. 

prior reported nationwide incidents 

dents, but confirmed that none have 

dent's mines. 

Mr. Franks discussed 

of powder magazine accioccurred at the responMr. Franks could not state how long the condition of the 

doors had existed. Apart from the warped doors, he confirmed 

that the magazine was otherwise properly constructed of metal 

with adequate insulation inside. He did not know the type of 

powder stored inside the magazine, and made no determintion 

whether or not any detonator caps were also stored in the 

magazine with the powder. If they were, he speculated that 

they would be stored and isolated from the powder by a metal 

compartment. 

On cross-examination, Mr. Franks identified two photographs of a mobile explosives magazine taken by the respondent, and he confirmed that it was similar to the one he 

cited. The magazine is mounted on rubber tired wheels ahd he 

explained that when it is moved it moves along a track with 

the wheels lowered. When it is parked, the wheels are raised 

to the position shown in the photographs. He identified the 

doors on the side of the magazine depicted in the photographs 

as similar to the ones he cited, and he confirmed that the 

overall metal construction and configuration of the magazine 

was similar to the one cited. 

Mr. Franks stated that under normal operating conditions, 

the powder and detonators are stored separately inside the 

magazine and they are separated by a 4 inch metal or steel 

plate, and that apart from the doors, the cited magazine was 

of substantial construction and was otherwise in compliance 

with the requirements of section 75.1306. 

In response to a suggestion by the respondent's representative that the respondent complied with the requirements of 

section 75.1304, because it always kept its explosives or 

detonators in properly constructed closed containers, 

Mr. Franks stated that section 75.1304 does not apply to the 

facts on which he based his citation.. He explained that section 75.1304, is intended to apply where explosives and detonators are "hand carried" by the shooter to the shot location 

after he has taken them out of the magazine. He explained 

further that the cited mobile magazine is not 11 carried" by 

miners, but is moved or pulled about the mine on a track by 

means of another piece of equipment and a cable or other 

coupling device. He emphasized the fact that he cited the 

violation because the damaged and warped doors rendered the 

magazine less than "of substantial construction" as required 

759 
by cited section 75.1306. Further, the warped doors exposed 

the metal interior of the magazine and did not afford protection from roof falls as required by the standard. 

Mr. Franks stated that he considered the violation to be 

significant and substantial because the magazine would be 

moved about the mine and there was a reasonable likelihood 

that it would be struck by other equipment travelling about 

the unit, with resulting injuries of a serious nature. 

James Hibbs, respondent's safety manager, confirmed that 

the doors of the explosives magazined cited by Mr. Franks 

were damaged. He stated that one of the doors was "badly 

damaged" and that the other one was "not quite as bad." He 

confirmed that it was impossible to securely close or latch 

the doors. He confirmed that when the magazine is moved, the 

wheels are down, and that in this position, it is impossible 

to move the magazine with the doors opened because they would 

strike the wheels. 

On cross-examination, Mr. Hibbs stated that he had no 

knowledge as to how the cited magazine was moved out of the 

mine to achieve abatement. He confirmed that the respondent 

uses a water based gel explosive powder manufactured by 

Dupont, and it is known as "Tovex." He confirmed that all 

explosives used in the mine are permissible, and that in. 

order to have an explosion, a detonator device must be used 

in conjunction with the powder. He did not believe that 

powder, by itself, will explode by being struck by equipment 

or rocks. 

Inspector Franks confirmed that he issued Citation No. 

2508627, on April 11, 1985, after observing accumulations of 

loose coal and coal dust along the ribs of the No. 4 unit 

belt .line for a distance of approximately 150 feet. He 

described the conditions he observed, and he stated that 

active mining on the unit was taking place two to three crosscuts inby the areas where he observed the accumulations. 

Mr. Franks speculated that the accumulations had existed 

for 4 to 6 days, and he surmized that they either rolled off 

shuttle cars which had traveled the area or had been left 

there as the unit advanced. He observed some of the coal 

accumulations along two of the bottom belt rollers which were 

turning in the coal, and a power cable was on the coal. He 

confirmed that waterlines and fire warning devices were 

installed along the belt line. Although his visual observations led him to conclude that the area in question was not 

760 
adequately rock-dusted, he conceded that he issued no citation for lack of adequate rock dusting. 

Mr. Franks stated that he considered the violation to be 

"significant and substantial" because coal accumulations turning in belt rollers could cause a fire, and the presence of 

the cable which he observed constituted a possible ignition 

source. 

On cross-examination, Mr. Franks confirmed that the 

normal mining procedure in the mine is to advance one break a 

day during production, and that the respondent's normal practice is to "scoop the entry" before installing the belt line. 

He conceded that the accumulations could have existed for 

less than 4 to 6 days. 

MSHA Inspector Dennis Dati confirmed that he issued Citation No. 2507611 on April 12, 1985, after observing accumulations of float coal and coal dust across the No. 3-A belt 

conveyor entry for approximately five crosscuts, or a distance 

of 250 feet. He stated that the accumulations varied in 

depth, and that in some areas he could see the rock dust under 

the accumulations. He confirmed that the belt was moving, but 

observed none of the accumulations turning in the belt rollers. 

An electrical power box which provided power for the belt, as 

well as timbers and the belt itself, were in the area of the 

accumulations. He could not determine how long the accumulations had existed prior to his inspection, and he discussed 

the conditions with respondent's safety manager David 

Furgerson, but he made no comments. 

On cross-examination, Mr. Dati stated that float coal 

dust and coal dust is explosive, and "if it goes off" it is 

"extremely hazardous." He did not return to the mine until 

April 15, because he had other business to attend to, but 

when he returned he found the conditions abated and the area 

had been cleaned up and rock-dusted. He confirmed that he 

did not sample the accumulations for incombustible content, 

but based on his observations, he believed that any sample 

would have indicated 65 percent incombustility. He stated 

that the float coal dust was scattered throughout the cited 

area and was present on the belt and box. He could not 

recall whether the areas were wet, but he conceded that under 

normal operating conditions the belt heads would be wet. He 

also conceded that the cited area was adequately rock-dusted. 

Respondent's safety manager David Furgerson testified 

that he was with Inspector Dati during his inspection, and he 

confirmed the existence of the cited accumulations. He 

761 
stated that the float coal dust had accumulated on the rock 

dusted surfaces. He stated that the entire area in question 

was damp and that the top was leaking. He explained that 

most of the area is cribbed because of a bad top condition 

and that it was difficult to travel through the crosscuts 

with equipment. Under the circumstances, rock dust must be 

taken in on the belt and the area had to be hand dusted. The 

cited areas looked white to him, and he believed the cited 

accumulations had existed for possibly one prior shift or at 

most 2 days. 

Inspector Dati confirmed that he issued Citation 

No. 2507618, on April 23, 1985, after observing an unprotected 

high voltage cable hung across the No. 3 entry haulage road. 

He stated that he was with respondent's safety manager James 

Hibbs in a golf cart driving towards the face area, and that 

they passed under the cable. The cable was not guarded in the 

area where it crossed the roadway, and he believed that 8 to 

10 men would regularly be required to travel under the cable. 

On cross-examination, Mr. Dati stated that the haulage 

road in question was the main haulage road used by scoops, 

jeeps, and men on foot. The cable was hung on J-hooks but 

was not guarded by the pcv plastic pipe material normally 

used by the respondent for this purpose. He observed haulage 

equipment travelling the roadway, and he confirmed that it 

was possible that the guarding had been knocked off. He 

observed no damage to the cable, and confirmed that he saw 

the guard lying by the side of the crosscut. The condition 

was abated within an hour or so. 

Safety manager· James Hibbs confirmed that he was with 

Inspector Dati when he issued the citation. He stated that 

he could see the cable from a distance as they approached it 

in the golf cart, and since a curtain was hung across the 

road, he could not see that the cable guard was off. He 

believed the guard had recently been knocked off, and he 

observed that the tape used for installing the. guard to the 

cable was still present on the cable. He stated that the 

unit was driving to the left off the main entry, and that the 

day in question was the first production morning on the unit. 

He had no reason to believe that it was necessary for anyone 

to go under the cable before the unit was advanced. 

On cross-examination, Mr. Hibbs conceded that men and 

equipment regularly used the haul road in question, and would 

pass under the cable. He believed that the cable had not 

been unguarded for more than 8 hours, and he did not know how 

many men were on the unit. 

762 
The parties agreed to incorporate by reference the prior 

testimony of maintenance director James Crowell with respect 

to the type of cable used by the respondent in the mine, and 

the fact that it is provided with a ground check monitoring 

system. 

KENT 85-142 

Section 104(a) "S&S" Citation No. 2507619, April 26, 

1985, 30 C.F.R. § 75.807: "The 7200 high voltage cable 

strung across the crosscut at spad No. 12+80 between No. 3 

and No. 2 entrys' (sic) were Csic) there was evidence of 

miners travelling under it did not have a guard on it." 

MSHA Inspector Dennis Dati testified as to his background 

and experience and he confirmed that he issued the citation in 

question. He confirmed that Mr. James Hibbs, respondent's 

safety representative, accompanied him during his inspec.tion. 

Mr. Dati stated that he and Mr. Hibbs were travelling the 

entry roadway in a golf cart and when they reached the crosscut at spad 12+80, Mr. Dati observed that the high voltage 

cable which was hung across the crosscut was not provided with 

a guard. Cables hung at such locations are normally guarded 

by a plastic "water-pipe" type shielding which is taped over 

the cable portion which crosses the crosscut. 

Mr. Dati stated that he observed no one walking or driving under the cable, but he did observe "all kinds" of tire 

tracks under the cable and this led him to believe that equipment had passed under it. However, he observed no foot 

prints, and the tire tracks were over the rockdusted crosscut 

roadway. Mr. Dati estimated that the cable was hung up 

approximately 4-1/2 to 5 off the floor, and he stated that he 

is 5 feet 8 inches tall and could not stand up in the area. 

Mr. Dati stated that the hazard presented was the possibility of equipment running into the cable and damaging it. 

He could not identify the types of equipment which may have 

made the tracks, but he assumed they were made by scoops, 

track buggies, jeeps, or golf carts. The cable had an outer 

protective insulated jacket, but it was not otherwise protected against damage. He did not believe that a person contacting the cable could be injured, and his only concern was 

over possible damage to the cable through equipment contact. 

On cross-examination, Mr. Dati reiterated that the only 

evidence he had to support his conclusion that men or equipment regularly passed under the cable were the tracks he 

763 
observed on the rockdusted roadway. He did not check the 

tracks to determine the types of equipment that may have made 

them, nor could he determine when the cable was hung across 

the crosscut or whether the tracks were there before the cable 

was advanced and hung across the crosscut. He confirmed that 

there were other means of access to the places where mining 

was taking place. Referring to exhibit R-6, a sketch of the 

area, Mr. Dati placed the cable location in question as approximately five crosscuts outby the face, and he agreed that the 

power center was advanced approximately three crosscuts as the 

mining cycle advanced. The cable was hung along the right 

side the roadway for four additional crosscuts outby the 

location where it was not guarded. These additional locations 

were timbered, and since the cable was behind the timbers it 

was not required to be guarded at those locations. 

Mr. Dati confirmed that the unguarded cable was equipped 

with a ground check monitoring system which is intended to 

cut off the power in the event the cable is damaged. 

In response to further questions, Mr. Dati stated that 

he observed no damage to the cable, and observed no knicks, 

abrasions, or other evidence of cable damage. He also confirmed that he did not interview any of the equipment operators who may have passed under the cable, did not ascertain 

the types of equipment operating on the section, and he did 

not know the heights or other working parameters of the equipment. He believed that the only person exposed to any hazard 

would be the individual who passed under the cable. In the 

event of cable damage, that person would be exposed to a possible hazard from any cable damage. 

Mr. Dati stated that Mr. Hibbs offered no explanation 

for the condition in question and simply agreed that the 

cable needed to be guarded. A guard was installed within 

20 minutes, and Mr. Dati terminated the citation. 

Mr. Dati ident ied a copy of an MSHA report of investigation concerning a fatality which occurred at another mine 

because of a defective low voltage cable monitoring device 

and he conceded that the citation in issue in this case deals 

with a high voltage cable which was not damaged. 

Section foreman James Hibbs confirmed that he accompanied 

Inspector Dati during his inspection, agreed that the cable 

was not guarded with any additional guarding other than its 

own protective insulated cable jacket, and agreed that it was 

hung across the crosscut at the spad 12+80 location. He saw 

no equipment or miners passing under the cable and he agreed 

764 
that there were equipment tracks under the cable. He believed 

that it was possible that the cable was hung at the location 

after the tracks were made in the roadway, and he was not 

aware of any injuries sus.tained by any employees because of 

damage to any of the high voltage cables. 

Mr. Hibbs stated that all of the mine high voltage 

cables are hung on insulated hooks and that in areas where 

men or equipment regularly pass under the cables they are 

protected and guarded by a hard plastic type guarding device 

which is taped over the cable at those locations. 

On cross-examination, Mr. Hibbs testified that the unit 

was engaged in retreat mining and that mining was taking 

place in the rooms to the right of the haulageway where the 

cable was hung. He marked exhibit R-6 to show where the 

rooms were located and he explained what was taking place and 

how the cable in question was routed to the power center. He 

placed the location of the power center in an area to the 

right of the roadway as shown on exhibit R-6, and he confirmed 

that a guard was installed within 20 minutes in order to abate 

the violation. 

KENT 85-167 

Section 104(d)(l) Order No. 2507503, March 21, 1985, 

30 C.F.R. S 75.313: "The methane monitor on the No. 2 unit 

loader had been bridged out in the power box. Coal was being 

loaded in the No. 2 heading." 

MSHA Inspector George Newlin confirmed that he conducted 

an inspection at the mine on March 21, 1985, and issued the 

citation after finding that the loading machine methane monitor was inoperative. He tested the monitor by activating the 

test button, and when it did not deenergize the machine an 

electrical mechanic was called to the scene. He discovered 

that the monitor had been "bridged out" and that a wire was 

disconnected. He reconnected the wire and this rendered the 

monitor operable. 

Mr. Newlin stated that during an inspection the day 

before the citation was issued he observed the same loader 

with the same inoperative methane monitor. The machine was 

idle, but the power was on. The maintenance foreman did some 

troubleshooting and after removing some cover bolts, found 

that the monitor had been "bridged out." He repaired it and 

rendered it operable. Mr. Newlin stated that he did not 

issue a citation that day because the machine was idle and he 

was told that the monitor was scheduled for maintenance that 

765 
day. When he returned on March 21, and found the same condition, he was told by the machine operator that the monitor 

had been bridged out for 3 days. Under these circumstances, 

he decided to issue a section 104(d){l) order, and so informed 

Douglas Whitledge, the mine foreman who was. with him on his 

inspection. 

Mr. Newlin stated that at the time he cited the loader 

on March 21, it was loading coal and the regular production 

crew was working. He believed that a methane explosion can 

occur at any time underground and that a serviceable monitor 

is critical in order to deenergize the loader when explosive 

levels of methane are detected. 

On cross-examination, Mr. Newlin confirmed that the violation was abated within 22 minutes after the monitor bridge 

was removed. At that time, the monitor was "partially working," and he was told that a new one was on its way underground to replace questionable one. Although the old one 

was not completely operable, he permitted the loader to be 

used, but only after instructing the operator to use a methane 

spotter for periodic methane checks. He confirmed that methane monitors which have mechanical problems "may be repaired 

one minute and then go out the next. 11 

Mr. Newlin confirmed that he found no unusual amount of 

methane present during his inspections and issued no additional citations for any hazardous ign ion sources. He 

corrected his prior testimony and stated that he did issue a 

104(a) citation on March 20, because of the inoperable methane monitor in question. He stated that he did not know who 

bridged the monitor or why it was done. He explained that 

such monitors often experience mechanical problems and speculated that it may have been bridged out to prevent the machine 

from deenergizing while it was in operation and loading coal. 

He reiterated that he permitted the machine to be used with a 

partially repaired monitor because he knew a new replacement 

was on its way and would be installed, and that a spotter 

would be used. However, he did not remain on the scene until 

the new monitor was actually installed. 

Douglas Whitledge, mine foreman, confirmed that he was 

with Inspector Newlin when he cited the methane monitor in 

question, and confirmed that it had bridged out and was 

inoperative. He also confirmed that he made his methane 

checks and that Mr. Newlin permitted e partially repaired 

monitor to be used on March 21, until the new one was 

installed. He confirmed that Mr. Newlin did not state that 

it could be used while it was bridged out, and he had no 

766 
knowledge as to when Mr. Newlin was first made aware of the 

fact that it had been bridged out. 

David Furgerson, mine safety manager, stated that he was 

with Inspector Newlin on March 20, when the methane monitor 

condition was first discovered. He stated that the third 

shift was performing routine maintenance and discovered that 

the monitor in question had been bridged out. The monitor 

was repaired at that time, but he had no personal knowledge 

as to the extent of the repairs or what was done to render it 

serviceable. 

James Crowell, maintenance director, testified that methane monitors regularly break down for various mechanical reasons and he produced a maintenance and order form indicating 

that a new monitor was ordered for the one which was defective 

(exhibit R-3). 

KENT 85-180 

Section 104(a) "S&S" Citation No. 2507175, March 11, 

1985, 30 C.F.R. § 75.1300: "Care was not taken to be sure 

that all personal (sic) was (sic) clear of a shot that---wa8 

f ired in the crosscut between No. 3 and No. 4 entry on No. 1 

unit." 

The citation was modified on March 28, 1985, as follows: 

Citation No. 2507175 is hereby modified 

to change the Part/Section from 75.1300 to 

75.1303 and to include in the body of the citation that permissible explosives were not being 

used in a permissible manor (sic) in that care 

was not taken to ascertain that all persons 

were in the clear, and the loader operator was 

not removed from the adjoining working place 

(No. 3 entry) where there was a danger of shot 

blowing through. 

Section 104(a) "S&S" Citation No. 2507176, March 11, 

1985, 30 C.F.R. § 75.1300: "An unintentional unconfined shot 

was fired in the crosscut between No. 3 and No. 4 entry on 

No. 1 unit ID 001." 

MSHA Inspector Ronald Oglesby testified as to his background and experience, and he confirmed that he and another 

inspector conducted an investigation of an explosion which 

occurred at the mine at approximately 1:00 a.m., on March 11, 

767 
1985. He identified exhibit P-6 as the report of i~vestigation, and he confirmed that the two citations in question 

were issued as a result of his investigation of the incident. 

He identified exhibit P-7 as a sketch of the area where the 

incident occurred and he explained the cutting, drilling, and 

shot procedures which were taking place. He also identified 

exhibit P-8 as a diagram of the mine section given to him by 

someone in the respondent's safety department. Mr. Oglesby 

described the "explosion" as a "large blow out" from the side 

of a crosscut at a location where a drill hole had been shot 

through. As a result of his investigation, including the 

examination of the drill hole, he concluded that an· unconfined 

shot had taken place. 

Mr. Oglesby confirmed that he issued Citation 

No. 2507175, because the shooter failed to take care and 

insure that all miners in the blast area were clear of the 

shot and removed from the area. He stated that he placed the 

location of loader operator Marvin Ferguson, who was injured 

by the blast, by speaking with the shooter and other witnesses 

during his investigation. He also spoke with Mr. Ferguson on 

March 27, while he was in the hospital recuperating from burns 

he received by the blast, and Mr. Ferguson told him that he 

was temporarily operating a loader in the number 3 entry while 

awaiting the arrival of the regular loader operator. 

Mr. Ferguson confirmed that the shooter, James Bealmear, told 

him that he was preparing to fire a shot and asked if he was 

clear. Mr. Ferguson stated that he told Mr. Bealmear that he 

was in the clear, and then proceeded to squat down with his 

hands over his ears when the shot went off. After the shot, 

Mr. Ferguson shouted to Mr. Bealmear, but Mr. Bealmear could 

not get to him, and the face boss came to Mr. Ferguson's 

rescue. 

Mr. Oglesby referred to the sketch and testified that 

after Mr. Bealmear loaded the shot hole, he returned to the 

location shown on the sketch and fired off the shot. 

Mr. Oglesby confirmed that he issued Citation No. 2507176 

after determining that the shot in question was an unconfined 

shot. He defined an "unconfined shot" as one which is fired 

without at least 18 inches of overburden material around it. 

He did not know the type of explosive used by the shooter, nor 

could he determine whether any stemming was used. The appearance of the blown-out area indicated to him that the shot was 

not confined, and he stated that had it been properly confined 

it would not have blown out. He identified exhibit P-10 as 

the results of a state investigation of the incident. 

768 
On cross-examination, Mr. Oglesby stated that the area 

being mined was a continuous mining unit, and that coal is 

not normally mined by using blasting agents of shooting and 

drilling. He confirmed that it is not uncommon for coal to 

be shot down between the crosscuts in order to even them up, 

and that the existence of such uneven crosscuts is not 

uncommon. He also confirmed that it is not illegal to make 

"pop shots" by shooting one drill hole at a time. 

Mr. Oglesby testified as to the distinctions between a 

confined and unconfined shot, and he stated that he could not 

recall seeing through to the number 4 entry from the number 3 

entry. He identified exhibit P-10 as a statement made by 

Mr. Ferguson on June 3, 1985, and confirmed that his accident 

investigation report stated that Mr. Ferguson was not in the 

direct line of fire of the shot. He also confirmed that he 

issued no citations for the lack of proper shot stemming or 

for the use of non-permissible shot powder. 

In response to further questions, Mr. Oglesby stated 

that he observed that the coal behind the shot had been fractured, and he further explained why he believed the shot was 

unconfined and how the fractured coal indicated to him that 

the shot could not be contained. He confirmed that 

Mr. Ferguson's injuries were not the direct result of being 

struck by the shot material, but that he suffered burns as 

the result of dust or methane being ignited by the shot. He 

also confirmed that had Mr. Ferguson been removed completely 

out of the entry and area where he was working at the time of 

the shot, the citations would not have been issued. 

James s. Bealmear testified that he worked for over 

11 years for the Island Creek Coal Company, and has worked 

for the respondent for the past 2 years. He stated that he 

is a certified mine foreman by the State of Kentucky, and 

that this certification qualifies him as a shot firer. He 

confirmed that he fired the shot in question between the 

number 3 and 4 entries, and he stated that he loaded the drill 

hole properly with two stemming devices and powder. After 

loading the powder he pulled the. charge back with a wire 

device to insure that it had not fallen through the drill hole 

on the other side. He then stemmed the hole and had he had 

any doubts that the charge had dropped or fallen through the 

hole, he would have checked it. He confirmed that all of the 

other drill holes were shot through except for the one which 

blew out. 

Mr. Bealmear stated that after loading the shot he 

ordered a cutter man who was working the number 5 entry to 

769 
come out of the entry, and he then proceeded to the number 3 

entry where he observed Mr. Ferguson. He flagged Mr. Ferguson 

and warned him that he was going to fire a shot. Mr. Ferguson 

responded that "he was o.k.", and after again giving the 

required verbal signals, Mr. Bealmear fired off the shot from 

his position shown on the sketch. 

On cross-examination, Mr. Bealmear reiterated that after 

warning Mr. Ferguson about the impending shot, Mr. Ferguson 

told him to "go ahead, I'm o.k.". Mr. Bealmear explained 

that the area marked "C" on the sketch was solid coal, and 

that the "A" area had been shot. Since the drill h6les in 

the area which had been shot were collapsed, he could not load 

the shot from that side. He confirmed that he was familiar 

with the permissibility shot firing regulatory requirements 

and procedures, and indicated that the shot itself blew out 

and not the coal. He confirmed that he did not know the depth 

of the coal at the point where the hole was loaded, and that 

he had no reason to believe that the shot would blow out .• 

Although the face boss was aware that he was shooting, he did 

not speak to the face boss before firing off the shot because 

the boss is not expected to be in the area at all times. 

Mr. Bealmear stated that he averages approximately 40 

shots a day, and based on his experience as a shooter he did 

not believe that there was a danger of the shot in question 

blowing out at the time he set it off. He stated that the 

drill hole had been shot half-way through on one side, and 

that he loaded it from the other side to complete the shot. 

Marvin H. Ferguson testified that he has 11 years of mining experience and that he is currently employed by the Island 

Creek Coal Company. He confirmed that he was previously 

employed by the respondent as a mechanic, and that on the morning of the accident he was temporarily asked to operate a 

loader in the absence of the regular loader operator. He 

stated that he had loaded out two or three cars of coal, but 

stopped loading because additional cars had stopped coming to 

the area. ae confirmed that he had parked his-loader and was 

not loading at the time of the ignition in question. 

Mr. Ferguson stated that he was aware of the fact that 

Mr. Bealmear was going to fire a shot because he observed him 

at the No. 3 entry and Mr. Bealmear warned him that he was 

going to fire a shot. Mr. Ferguson stated that he told 

Mr. Bealmear that he "was o.k.," and that after the initial 

warning he proceeded to walk out of the entry and stopped by 

the right side of the rib where he stooped down to await the 

shot. He marked the spot where he was located when the shot 

770 
went off by an "X" on the sketch used at the hearing, and he 

confirmed that Mr. Bealmear called out to him three times 

with a warning prior to firing the shot. 

On cross-examination, Mr. Ferguson stated that he does 

not know Inspector Oglesby and could not remember speaking 

with him in the hospital. He recalled speaking with someone 

about the incident, and he explained that he was being 

treated for burns, had undergone skin grafts, and was medicated during the 3 weeks that he spent in the hospital and 

could not remember who the individual was. Mr. Ferguson 

stated further that Mr. Bealmear had previously fired shots 

in the mine and that on every occasion that he could recall 

Mr. Bealmear always called out three warnings before firing a 

shot. Mr. Ferguson also confirmed that during his employment 

with the respondent he was always retrained annually in his 

job tasks. 

Docket No. KENT 85-159 

Section 104(a) "S&S" Citation No. 2507418, issued on 

March 18, 1985, cites a violation of 30 C.F.R. § 75.1403-S(g), 

and the cited condition or practice states as follows: "A 

clear travelway was not provided on the 3A belt for 50 feet 

starting 6 crosscuts inby the 3A header." 

The citation was modified on March 20, 1985, as follows: 

Citation No. 2507418 issued for a clear 

travelway on the 3A belt for a distance of 

50 feet, starting 6 crosscuts inby the 3A 

header is modified to not require a travelway 

in this area. This is due to adverse roof 

conditions. This area has had a rock fall, 

cribs have been installed and the top is too 

bad to remove the cribs. However, the following stipulations will be followed: Stop and 

start switches shall be installed both inby 

and outby the area; signs both inby and outby 

the area; the belt will be stopped before 

being examined; if any violations of Part 30 

C.F.R. are observed, the belt will remain down 

until corrections are made. 

Section 104 (a) "S&S" Cita"'.:ion No. 2507612, issued on 

April 16, 1985, cites a violation of 30 C.F.R. § 400, and the 

cited condition or practice is stated as follows: "Accumulations of float coal dust and coal dust was observed over previous rockdusted surf aces in the No. 4 unit belt conveyor 

771 
entry CI.D. 004-0) starting at the header and extending 6 

crosscuts inby {approximately 300 feet) ranging in depth from 

O to 6 inches." 

Inspector George Newlin confirmed that he issued Citation No. 2507418 pursuant to section 75.1403-5(g) after 

observing that a clear travelway was not provided on the 3-A 

belt for 150 feet starting six crosscuts inby the 3-A header. 

The area had been "cribbed out," and there was no way for the 

belt walker to examine the belt or to do any cleaning or maintenance work on the belt because there was no 24-inch clearance on either side of the belt. Once a citation is issued 

for such a condition, his supervisor has to go to the mine to 

examine the area and inform the operator as to what is 

required for compliance CTr. 742-743). 

Mr. Newlin stated that in issuing the citation, he relied 

on a previously issued safeguard notice of February 26, 1985 

(exhibit P-22). The previous safeguard was issued for another 

location where there was no 24-inch clearance on the beltline. 

Inspector Newlin explained the effect of a previously 

issued safeguard notice as follows (Tr. 779-781): 

A. Under these conditions in that area. But 

what I was wanting to say is, if I find another 

condition at this same mine, without a travelway, even if they have gone by these rules, in 

another area, I would still issue a citation. 

JUDGE KOUTRAS: Why would you do that? 

A. Because these areas are something that was 

set out; I mean, these stipulations was set 

out for this location. And the next location, 

whoever the man was that was making this judgment might make a different judgment for that 

location. This doesn't give them a -- My. 

original Safeguard tells them they've got ·to 

have 24 inches throughout the mine. 

JUDGE KOUTRAS: You mean to tell me that when 

the· initial Safeguard Notice is issued because 

a mine operator didn't maintain 24 inches 

because of rib clearances, you give them 24, 

and you give them the alternative means of 

complying, the start and stop switches--

A. At that one time. 

772 
JUDGE KOUTRAS: --at that one time, from that 

point on the next time the mine operator comes 

upon a condition where he has to build cribs, 

that would reduce his travelway along the belt 

line, do you mean to tell me that he's not 

authorized to go ahead and put stop and start 

switches in? 

A. No, sir. 

JUDGE KOUTRAS: To comply with the previous 

Safeguard Notice? 

A. No, sir. 

JUDGE KOUTRAS: But he has to have authorization from MSHA to do that before he does it? 

A. As far as a Safeguard Notice. 

Inspector Franks was called by MSHA to further clarify 

the safeguard procedure, and he explained it as follows (Tr. 

782-784): 

A. If you go to a mine, and you find the conveyor belt where they don't have the 24-inch 

clearance, you issue a Safeguard, providing 

there's never been a Safeguard issued. We 

issue a Safeguard requiring them to provide 

the clearance. 

The company will submit a letter or something 

to the district manager. The district manager, 

he's doing it, so I assume he has this authority to delegate it to somebody lower down, like 

a supervisor. 

Then this supervisor will go to this mine; and 

he'll look at it. And the operator says, 

"Boy, I've got bad top. Here, I've got water 

comin' in here. I just can't provide the 

travelway." 

Somebody has to make a decision, either an 

inspector or supervisor looking at, too, it 

nobody is pulling his leg, in other words. 

And he'll decide, okay, you can not provide 

the clear travelway. But I'm going to make 

773 
some requirements that you are going to have 

to do in addition to. So he'll modify the 

original Safeguard to this area only. 

Now, I'll go back out there after everyone's 

left, and I go on another conveyor. They's 

already been a Safeguard issued in this mine, 

and I find another condition, they don't provide the 24 inches of clearance. I issue a 

citation because there can't be but one Safeguard on that particular belt. I refer back 

to that Safeguard. 

JUDGE KOUTRAS: Why would you issue the 

citation? 

THE WITNESS: Because that's the instructions. 

JUDGE KOUTRAS: Because there wasn't any clearance on either side? 

A. Yes. I refer back to that Safeguard, and 

I write this citation. I don't have the 

authority to tell him, "Y.ou can go ahead and 

violate the law." So I issue a citation. The 

operator screams bloody murder. "I can not 

provide the clearance." So we'll go through 

the same procedure again. He'll write a 

letter to him. Somebody in higher authority 

will come out and look at it to make the 

determination. 

On cross-examination, Mr. Newlin confirmed that he issued 

the citation for lack of a 24-inch clearance on the cited belt 

line caused by the installation of roof cribs which were put 

in because of the roof conditions. He confirmed that the belt 

in question was not a primary or secondary escapeway, and that 

prior to the installation of the cribs there was no problem 

with the belt. He confirmed that he had previously inspected 

the belt a week before on either March 14, or 15, but denied 

that he required the respondent to crib out the belt for a 

distance of 60 feet on both sides from rib to rib. He stated 

that "maybe I asked them to timber up the belt," and confirmed 

that when he came back on March 18, he issued the citation, 

and also issued another one for loose coal accumulations from 

the end of the fall to the header CTr. 795-799). 

Safety manager David Furgerson confirmed that the citation was issued because the timber and cribs on the beltline 

774 
eliminated the required 24-inch belt clearance. He confirmed 

that the cited condition was not present prior to the installation of the cribs. He explained that once the respondent 

determines that an entry is not "run on site like they 

should," the cribs are taken down, and the belt is put back 

in. Once this is done, if the roof conditions are adverse, 

additional cribbing and timbers are installed, and the respondent must then apply for a waiver CTr. 800). 

Mr. Furgerson stated that the area in question had 

already been cribbed, and that when Mr. Newlin first observed 

it he suggested that additional timbers be installed because 

the area where the belt walkers were expected to travel "was 

busted up. 11 The additional timbering was done on either 

March 16 or 17, and when Mr. Newlin returned on March 18, he 

issued the citation for lack of clearance on the belt. 

Mr. Furgerson explained further as follows (Tr. 801-802): 

* * * And I asked him about the citation, 

which I really didn't have any trouble with 

him writing because if he hadn't a wrote the 

citation, then we would apply for a waiver and 

another MSHA representative would have come 

down and written the citation. We was going 

to get the citation one way or the other. 

Once we set the additional timbers in there, 

whether a regular inspector finds it or 

whether we find it and ask for a waiver, which 

we have to do by law, we're going to get the 

citation one way or the other. So I didn't 

have no big problem with him that day with him 

writin' it. 

Mr. Furgerson explained that in situations where the 

respondent cannot maintain 24-inch clearances on its belt 

lines because of the installation of cribs due to adverse 

roof conditions, it submits a letter to MSHA's district office 

for a "waiver," and the request is normally ac.companied with a 

mine map designating the affected area. The district office 

will send one of its representatives to the mine to examine 

the area in question. The representative will issue a citation and will then advise the respondent as to what is 

required in lieu of the 24-inch required belt clearances. 

MSHA may take a day or two, or possibly a week to act on the 

request, and in the meantime the belt is continually used to 

run coal (Tr. 804). 

In the instant case, Mr. Furgerson stated that no violation existed until the respondent installed the additional 

775 
timbering. The timbers reduced the belt travelway, and this 

prompted the issuance of the citation by Mr. Newlin (Tr. 806). 

Mr. Furgerson later stated that he was not sure that 

Mr. Newlin's request to install additional roof support timbers was for the location that he cited in this case (Tr. 

818). MSHA's counsel made a proffer that if Mr. Newlin were 

recalled, he would confirm that his prior request for roof 

support was not for the same location he cited, and respondent's representative accepted this fact and stated "I have 

no problem with that" (Tr. 819). 

Inspector Dati testified that he conducted an inspection 

on April 16, 1985, and issued Citation No. 2507612, after 

finding accumulations of float coal dust and coal dust over 

previously rock dusted surfaces along the No. 4 unit belt 

conveyor entry along 6 crosscuts for approximately 300 feet. 

He confirmed that the accumulations ranged in depth from 0 to 

6 inches. He saw no belt rollers turning in coal accumulations, and he considered the belt headers to be possibl~ ignition sources. 

On cross-examination, Mr. Dati stated that in certain 

places he observed rock dust under the accumulations, and he 

believed that the incombustible content of the rock dusted 

accumulations was in compliance with the applicable standard. 

He did not make any methane tests, and he saw no problems 

with the belt headers which were wet. He did not know how 

long the accumulations had existed prior to his inspection, 

saw no one working to clean up the accumulations, and had no 

indication as to when the area was to be cleaned. He believed 

the violation was significant and substantial because he saw 

no evidence of any attempts to clean up the accumulations, and 

if the conditions were left unattended he believed that it was 

reasonably likely that an ignition would occur. He confirmed 

that he had no knowledge of any prior injuries or accidents in 

the mine which may have resulted from similar coal 

accumulations. 

Findings and Conclusions 

Docket No. KENT 85-105 - Fact of Violation 

Citation No. 2507205 

I conclude and find that the petitioner has established 

by a preponderance of the credible evidence that the north 

conveyor belt was not guarded on the bottom side where a 

supply road passed under it. Section 75.1722 requires that 

all exposed moving machine parts and belt conveyor drives, 

776 
heads, and tail pulleys which may be contacted by persons be 

guarded to prevent persons from contacting the unguarded parts 

or reaching behind the guard and becoming caught between the 

belt and pulley. 

In this case, the inspector was concerned that someone 

could contact the belt idler pinch points by reachng in or 

contacting the unguarded belt where men and equipment regularly passed under it. He was also concerned that someone 

could be injured in the event the belt broke and "whipped 

out" and struck someone. The evidence established that supplies were stored near the unguarded belt location where men 

and equipment regularly passed under it, and the location had 

been previously guarded by a metal mesh guard which had deteriorated. Respondent's safety manager conceded that someone 

standing up in a piece of equipment while passing under the 

unguarded belt could contact the exposed pinch points. Under 

the circumstances, I find that a violation has been established and the citation IS AFFIRMED. 

Citation No. 2507206 

The testimony of the inspector establishes the existence 

of loose coal and coal dust in the three cited entries and 

crosscuts, and the respondent's safety manager, who was with 

the inspector when the violation was noted and the citation 

issued, confirmed the existence of the accumulations in question. I conclude and find that a violation of section 75.400, 

has been established, and the citation IS AFFIRMED. 

Citation No. 2507208 

The testimony of the inspector establishes that the packing gland for the cited loader motor was loose and that a 

service wire for one of the headlights was cut and not insulated. Section 75.503, requires that all electrical face 

equipment be maintained in permissible condition. The loose 

packing gland and uninsulated cut wire rendered the loader 

nonpermissible, and not in compliance with the ·requirements 

of the cited standard. Respondent's safety manager did not 

dispute the cited conditions, and while its maintenance director testified as to matters concerning the gravity of the 

violation, he did not examine the loader and had no personal 

knowledge as to the actual condition of the cited loader in 

question. I find that the petitioner has established a violation of section 75.503, and the citation IS AFFIRMED. 

777 
Citation No. 2507209 

The evidence established that the methane monitor on the 

cited loader was gobbed with oil and dirt. The citation 

charges that because of this condition the monitor would not 

work. The only evidence adduced by the petitioner to establish as a fact that the monitor would not work is the visual 

observation of the inspector. The inspector did not test the 

monitor and he testified that the methane monitor test button 

located in the cab of the machine was functioning and operating properly. 

Section 75.313 requires that the monitor be kept operative and properly maintained and frequently tested. I cannot 

conclude that simply because the cited monitor was gobbed 

with dirt and oil that it was ipso facto inoperative. The 

petitioner has the burden of establishing that the cited monitor was inoperative and the inspector conceded that a properly 

administered test would have established this fact. However, 

he failed to conduct such a test, and I conclude and find that 

the inspector's visual observations are insufficient to establish a violation in this case. Further, the respondent is not 

charged with a failure to frequently test the monitor to determine whether it was operative and no evidence was presented to 

establish that the inspector reviewed any records to determine 

when the device was last tested or whether or not such tests 

indicated that the monitor was inoperative. The citation IS 

VACATED. 

Docket No. KENT 85-141 - Fact of Violation 

Citation No. 2508624 

The testimony of the inspector establishes that the cited 

high voltage cable was not guarded at the locations in question. The evidence also establishes that supplies were stored 

under the cable at the cited locations and that in several 

locations the cable was hung so low as to place it in a position of being damaged by equipment which was r.equired to pass 

under it. Further, the unrebutted testimony of the inspector 

establishes that men and equipment regularly passed under the 

cable while storing and retrieving the supplies and that the 

unguarded cable could readily be contacted by these individuals. The inspector also indicated that the cable was lying 

on the mine floor at several locations. 

Section 75.807 requires that all underground high voltage 

cables be guarded where men regularly work or pass under them. 

778 
In this case, the evidence establishes that the cable in question was not guarded with the type of guarding material normally used by the respondent for this purpose. Under the 

circumstances, the citation IS AFFIRMED. 

Citation No. 2508625 

In his defense of Citation No. 2508625, for failure to 

maintain the explosives magazine in good condition, respondent's representative suggested that Inspector Franks should 

have cited mandatory section 75.1304, which requires that 

explosives or detonators which are carried by persons anywhere 

in the mine be in containers which are maintained in good condition and kept closed. Respondent asserted that since the 

citation charges that the doors of the cited explosives magazine were not closed due to the warped condition of the doors, 

and since the magazine was not kept in "good condition" 

because of the damage to the doors, Mr. Franks should have 

cited section 75.1304, rather than 75.1306. Respondent also 

argued that a miner could "carry" the magazine in question by 

pulling it with a scoop (Tr. 658-661). 

The respondent's assertion that Inspector Franks should 

have cited section 75.1304, is rejected. I conclude that this 

section is intended to apply in cases where explosives or detonators are hand carried in bags or containers suitable for 

this purpose by the shooter to the location where he is to 

fire a shot. The cited section 75.1306, requires that explosive magazines be of substantial construction with no metal 

exposed on the inside. The evidence in this case clearly 

establishes that the cited magazine was damaged and that the 

doors were warped and could not close. Respondent's safety 

manager Hibbs confirmed that this was the case. Because of 

this condition, the doors could not close, and the interior 

metal construction of the magazine was exposed. Under the 

circumstances, I conclude and find that the magazine was not 

of substantial construction and that the cited conditions 

constitute a violation of section 75.1306. Aqcordingly, the 

citation IS AFFIRMED. 

Citation No. 2508627 

The testimony of the inspector establishes the existence 

of accumulations of loose coal and coal dust along the ribs 

of the number four unit belt as stated in the citation and 

the respondent offered no testimony or evidence to rebut this 

fact. Accordingly, I conclude and find that the petitioner 

has established a violation of section 75.400 by a preponderance of the credible evidence, and the citation IS AFFIRMED. 

779 
Citation No. 2507611 

The testimony of the inspector establishes the existence 

of accumulations of coal dust and float dust along the number 

3-A belt conveyor entry as described by the inspector in his 

citation, and the respondent's safety manager confirmed the 

existence of these accumulations. Accordingly, I conclude 

and find that the petitioner has established a violation of 

section 75.400 by a preponderance of the credible evidence, 

and the citation IS AFFIRMED. 

Citation No. 2507618 

The testimony of the inspector establishes that the high 

voltage cable hung across the number three entry haulage road 

was not protected as required by section 75.807. The respondent's safety manager Hibbs conceded that the cable was not 

guarded, but believed that no one had any reason to travel 

under the cable. However, in this case, the evidence establishes that the inspector and Mr. Hibbs passed under the cable 

while in a golf cart, and the inspector observed equipment 

traveling the haulage road and he believed that since it was 

the main haulageway men and equipment would regularly pass 

under the cable. In addition, the evidence also establishes 

that the cable guard was apparently knocked off by a piece of 

equipment and the inspector observed it on the mine floor 

nearby the location in question. Under the circumstances, I 

conclude and find that the petitioner has established a violation by a preponderance of the evidence, and the citation IS 

AFFIRMED. 

Docket No. KENT 85-142 - Fact of Violation 

Citation No. 2507619 

In this case the respondent is charged with a violation 

of section 75.807, for an alleged failure to guard a high 

voltage cable hung across a crosscut between the number 2 and 

3 entries. The cited standard requires that such a cable be 

guarded where men regularly pass under it. 

Respondent's argument is that there is no evidence as to 

when the cable was hung at the location where the inspector 

found it, and that Inspector Dati had no knowledge as to 

where mining was taking place or where the power center was 

located. Respondent's representative asserted that the testimony of Mr. Hibbs supports a strong reference that the equipment tire tracks observed by Inspector Dati were made prior 

780 
to the time the cable was advanced to spad 12-80, and that it 

is not unusual for tire tracks to be present at crosscuts 

throughout the mine at any given time. 

The only evidence to support the citation is the testimony of Inspector Dati that he saw tire tracks under the 

cable. Mr. Dati conceded that there were other means of 

access and travelways to the area where mining was being conducted on the unit, and he candidly admitted that he had no 

way of determining whether or not the tire tracks were made 

prior to or after the installation of the cable in question 

(Tr. 354). 

Mr. Dati referred to his notes made at the time of the 

inspection, but they contained no information as to the location of the power center, and he candidly conceded that he 

could not remember in which entry the power unit was located, 

nor could he remember where the brattice line was installed 

or where the unit was operating (Tr. 356). He also could not 

remember how long it took to develop the crosscuts, and he 

conceded that if the unit were operating "straight ahead," 

the equipment would not have to pass under the cable (Tr. 

356). Mr. Dati did not know how much time had passed prior 

to the advancing of the cable to the location where he 

observed it, and he confirmed that it was probably more than 

one shift. He also confirmed that equipment could have 

passed through other crosscuts, that the cited location was 

just one of many ways for the unit to advance (Tr. 359), and 

that he spoke with none of the equipment operators to determine whether they may have passed under the cable (Tr. 365). 

Mr. Dati confirmed that he observed no cable damage, 

abrasions, or scuff marks indicating that the cable had ever 

been struck by equipment passing under it, and he confirmed 

that the cable was equippped with an operative ground check 

monitoring device (Tr. 371, 386). 

Section 75.807, requires that high voltage cables be 

covered, buried, or placed so as to afford protection against 

damage, and guarded where men regularly work or pass under 

them. In support of the citation, MSHA's counsel argued that 

Mr. Dati's observations of the tire tracks passing under the 

cable is sufficient to establish that men regularly passed or 

worked under the cable. Counsel also asserted that the evidence establishes that the cable was not guarded against 

damage, and that the essence of the citation issued by Inspector Dati was the prevention of both physical damage to the 

cable and injury to miners who may have come in contact with 

it. 

781 
In the case of Secretary of Labor v. Keystone Coal 

Mining Corporation, decided by Chief Merlin on December 28, 

1979, 1 FMSHRC 2154, 1 MSHC 2301 C 1979), Judge··Merlin vacated 

a citation for an alleged violation of section 75.807, based 

on his finding that the evidence established that a storage 

area to which miners were going had been moved 200 feet inby 

an unguarded cable before the issuance of the citation. Judge 

Merlin rejected the inspector's assertion that he cited the 

travelway areas where the cable was hung because he believed 

men regularly worked on passed under the cable while traveling 

the crosscuts to get supplies from the storage area~ Judge 

Merlin accepted the testimony of the operator's safety inspector that the crosscuts were no longer supply areas because 

mining had advanced 200 feet beyond the cited areas, and he 

concluded that the evidence did not establish that men regularly worked or passed under the cable in question. 

In the instant case, it seems clear to me that Inspector 

Dati issued the citation because he believed that miners were 

travelling under the unguarded cable. However, I conclude 

and find that there is no credible testimony or evidence to 

establish that men regularly worked or passed under the cable. 

Apart from his observations of the tire tracks, after viewing 

Inspector Dati on the stand, and upon careful examination of 

his testimony, I am convinced that he had no idea where mining was taking place, where the power center was located, or 

in which direction the unit was being driven. In short, I 

cannot conclude that there is any credible evidence to 

support an inference that men or equipment passed under the 

cable after it was advanced and installed at the location 

where it was found by the inspector. 

The evidence establishes that there were other means of 

travel to the area.where men and equipment would go to reach 

the area where mining was being conducted, and the testimony 

of Mr. Hibbs, although somewhat confusing, convinces me that 

the direction of mining and the location of t~e power center 

were such as to support a conclusion that the ~ire tracks 

observed by Mr. Dati were made before the cable in question 

was advanced and installed. Under the circumstances, I conclude and find that MSHA has failed to establish by any credible evidence that men regularly worked or passed under the 

cable in question, and that it was required to be guarded. 

MSHA's contention that the cable was not otherwise protected against damage is rejected. The standard requires 

guarding only in instances where men regularly work or pass 

under it. If they do not, the cable must be covered, buried, 

782 
or placed so as to afford protection against damage. On the 

facts of this case, there is no evidence that the cable was 

damaged or even scuffed or marked, and there is no evidence 

that it was in any area where it would likely be damaged. 

The evidence establishes that the cable was hung up approximately 4-1/2 to 5 feet off the floor, and was properly insulated. Under the circumstances, I conclude and find that the 

cable was placed so as to afford it protection against damage, 

and that it was in compliance with the requirements of section 

75.807. In view of the foregoing findings and conclusions, 

the citation IS VACATED. 

Docket No. KENT 85-167 - Fact of Violation 

Citation No. 2507619 

The testimony of the inspector establishes that the methane monitor for the cited loader in question was bridged out 

and had a disconnected wire which rendered it inoperative, 

and the respondent's mine foreman Whitledge and safety manager Furgerson confirmed this fact. Further, the inspector 

confirmed that when he activated the methane monitor test 

button on the machine, it would not deenergize the machine. 

Mandatory safety standard 75.313 requires that methane 

monitors which are installed on loading machines are to be 

kept in an operative condition and properly maintained. They 

are also required to be tested as prescribed by MSHA. On the 

facts of this case, it is clear to me that the cited methane 

monitor was not maintained on an operative condition as 

required by section 75.313. I conclude and find that the 

petitioner has established a violation by a preponderance of 

the credible testimony, and the citation IS AFFIRMED. 

MSHAvs request to reopen the record in Docket No. 

KENT 85-167, for additional testimony by the inspector was 

denied (Tr. 820). 

Docket No. KENT 85-180 

Citation No. 2507175 

The respondent is charged with a violation of section 

75.1303 for failure to insure that loader operator Marvin 

Ferguson was not in the clear when the shot was fired by 

shooter Bealmear. Section 75.1303 requires that all explosives and blasting devices be used in a permissible manner. 

In issuing the citation, Inspector Oglesby made reference to 

the explosives permissibility requirements of 30 C.F.R. 

783 
§ 15.24, Section 5(b)(l6), which states as follows: "Ample 

warning shall be given before shots are fired, and care shall 

be taken to ascertain that all persons are in the clear. Men 

shall be removed from adjoining working places when there is 

a danger of a shot blowing through." 

The evidence establishes that at the time the shot was 

fired, Mr. Ferguson was still in the adjacent working place 

but was not in the direct path of the shot which blew out. 

The evidence also establishes that Mr. Ferguson received 

ample verbal warnings from Mr. Bealmear, was aware. that a 

shot was to be fired, and was doing no work at the time the 

shot was detonated. However, it is clear that Mr. Bealmear 

did not remove Mr. Ferguson from his working place before 

firing the shot. 

Mr. Bealmear apparently believed that Mr. Ferguson was 

safe, and he obviously relied on Mr. Ferguson's judgment 

rather than his own since Mr. Ferguson indicated that he· was 

out of danger. Mr. Bealmear stated that after warning 

Mr. Ferguson he proceeded to the number 5 entry and "got the 

cutter man out." He then proceeded to the number 3 entry and 

again warned Mr. Ferguson before firing the shot (Tr. 134). 

He later stated that he simply warned the cutter man and that 

he came out of the entry voluntarily and that he saw him come 

out of the entry. Mr. Bealmear stated that he did not know 

whether he would have refused to shoot if the cutter man had 

not come out of the entry, and he confirmed that he did not 

believe the shot would come through (Tr. 150-151). 

I fail to understand why Mr. Bealmear did not order 

Mr. Ferguson out of the entry or wait to see that he was completely out before firing the shot. Mr. Ferguson indicated 

that when he was initially warned he proceeded on his way out 

of the entry, but stopped short at the rib after the second 

warning and stooped against the rib. Under the circumstances, 

I conclude and find that Mr. Bealmear failed to exercise care 

in ascertaining that Mr. Ferguson was completely out of the 

entry where he had been working before he fired the shot. I 

find that a violation has been established, and the citation 

IS AFFIRMED. 

Citation No. 2507176 

Inspector Oglesby issued the citation charging a violation of section 75.1300, because he believed that the shot 

fired by Mr. Bealmear was an "unconfined" shot. Section 

75.1300 prohibits the firing of such shots underground. 

Mr. Oglesby defined an "unconfined shot" as one which is fired 

784 
without at least 18 inches of overburden material around it. 

Blasting permissibility standard section 15.24, Section 

5(b)(6) provides that "all blasting charges in coal shall have 

a burden of at least 18 inches in all directions if the height 

of the coal permits." Mr. Oglesby concluded that the shot was 

unconfined by the appearance of the shot hole after it had 

been fired and the fact that the shot blew out (Tr. 79). He 

testified that he did not know the type of explosive used by 

Mr. Bealmear and could not determine whether the shot had been 

stemmed. However, he confirmed that no citations were issued 

for lack of proper stemming or nonpermissible explo~ives. 

Inspector Oglesby further explained that an unconfined 

shot is one which has no material around the shot placed in 

the borehole to confine it. He indicated that stemming is 

placed around the loaded powder charge to keep it from blowing back out of the hole, and if the charge is not stemmed 

the borehole "would be just like a muzzle of a gun and the 

flame would shoot out the hole" (Tr. 60). 

MSHA's counsel took the position that if a blowout 

occurs, one can conclude that the shot was not confined, and 

if a blowout does not occur, one may conclude that the shot 

was confined (Tr. 61). In this regard I take note of the 

definition of a "blown-out shot 11 found in the Dictionary of 

Mining, Mineral, and Related Terms, U.S. Department of the 

Interior, 1968, at pg. 1004. Such a shot is defined as "a 

shot which merely throws out the stemming without loosening 

much of the coal." In this case, the evidence establishes 

that the shot itself blew out and apparently ignited coal 

dust or methane which caused the explosion resulting injuries 

to Mr. Ferguson, and that none of the coal surrounding the 

shot hole was disturbed or blown out. 

Inspector Oblesby's conclusion that there was insufficient overburden less than 18 inches around the shot hole was 

based on his assumption that sufficient overburden would have 

prevented the blow-out (Tr. 68). He also considered the fact 

that the top coal appeared to be cracked and loose and that 

the surrounding coal immediately behind the shot on the 

number 3 entry side was broken and fractured (Tr. 68, 74). 

Mr. Oglesby further explained his perception of an unconfined 

shot as follows (Tr. 82-84): 

Q. What is the difference between a blowout 

and an unconfined shot? 

A. An unconfined shot, to me, is the one that 

doesn•t have any burden around it, 18 inches. 

785 
A blowed-out shot is one that makes a hole 

that they didn't put stemming in where it 

blows out. 

Q. When MSHA talks about shooting unconfined 

shots and adobe shots, what is the primary 

purpose of their meaning of that law? 

A. What is the reason for the law? 

Q. No. What is their meaning behind what an 

unconfined shot is or an adobe shot is? 

A. It's to keep people from shooting unconfined shots with concussion of the shot 

itself. 

Q. Is there any difference between shooting a 

lump of coal that has a drill hole in it and 

laying a piece of powder on top of a rockfall 

and shooting that? 

A. Sure. 

Q. What's the difference? 

A. You have an unconfined shot where you are 

putting the powder on top of the rock. If you 

drilled the piece of coal, put your powder in 

it, put a stemming device in it, that's 

confined. 

When asked about his interview with Mr. Bealmear during 

the course of his investigation, Mr. Oglesby responded as 

follows (Tr. 94)~ 

JUDGE KOUTRAS: Did he explain to you how he 

loaded the shot? 

A. No. 

JUDGE KOUTRAS: He didn't? 

A. No, just saying there was one stick of 

powder in it. 

JUDGE KOUTRAS: You didn't ask him about how 

he loaded it? 

786 
A. He told us how he loaded it, how he put 

the one stick in. 

JUDGE KOUTRAS: Did he use stemming? Did he 

go 18 inches? 

A. I don't remember. I don't remember that 

part of it. 

JUDGE KOUTRAS: was it confined? 

A. I don't remember that, no, sir. 

Mr. Bealmear testified that he loaded the shot hole in 

question with one stick of powder, tamped the hole, and 

pulled back on the wire to insure that the powder did not 

drop through the hole. He confirmed that he stemmed the hole 

by inserting "water dummies" behind the powder (Tr. 132-133). 

He confirmed that he had spoken with certain state inspectors 

when the Kentucky State Department of Mines investigated the 

incident. When asked about a statement attributed to him in 

the state report that he "felt the powder push through but 

that he pulled in back in place" {exhibit P-10, pg. 5), 

Mr. Bealmear explained that the powder did not fall through 

the hole and that he simply pulled back on the wire to make 

sure the powder was still sliding in the hole (Tr. 172-173, 

176). 

Mr. Bealmear stated that the drill hole which he loaded 

had been previously drilled and shot from the other side but 

did not go all the way through. He did not know the depth of 

the hole and he conceded that after pulling the wire to 

insure that the powder was sliding in the hole, he did not 

push the powder all the way back to the end of the loose hole 

(Tr. 176-178). He also conceded that he knew the coal would 

shoot through but did not know that it would ignite (Tr. 

178). 

Ref erring to a sketch of the scene of the ·detonation, 

(exhibit R-1), Mr. Bealmear conceded that his prior shot from 

the number 3 entry could possibly have weakened or fractured 

the coal in that area. He confirmed that the back of the 

hole which he loaded from the number 4 entry side would be 

the area which he had previously shot (Tr. 166). Given these 

circumstances, he expected that the coal would blow through 

but never expected an ignition to occur because he did not 

believe that coal blowing through the hole could ignite methane or coal dust (Tr. 167). 

787 
After careful consideration of all of the testimony and 

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

supports a conclusion that the shot or blow out in question 

was an unconfined shot in violation of section 75.1300. The 

evidence establishes that the coal strata behind the shot and 

at the end of the hole which had been loaded had been fractured and loosened by a prior shot, and had failed to confine 

the shot in question. The evidence also leads me to conclude 

that by failing to push the powder charge all the way to the 

end of the previously drilled and shot hole, and then stemming it completely, Mr. Bealmear had no way of knowing the 

distance between the charge and the end of the weakened or 

loosened hole, and that this contributed to the apparent lack 

of total confinement of the charge which was detonated. The 

citation IS AFFIRMED. 

Docket No. KENT 85-159 - Fact of Violation 

Citation No. 2507418 

The respondent in this case is charged with a violation 

of the safeguard provisions of section 75.1403-5(g), for failure to provide a clear travelway along a conveyor belt for a 

distance of 50 feet. In issuing the citation, Inspector 

Newlin relied upon a previously issued safeguard notice 

(2507409) on February 26, 1985, in conjunction with MSHA 

supervisory inspector George Siria (exhibit P-22). The previous notice was issued because "A clear travelway was not 

maintained on the 3-C belt for 150 feet starting 450 feet 

inby the 3-C header," in violation of section 75.1403-5(g), 

which provides as follows: 

A clear travelway at least 24 inches wide 

should be provided on both sides of all belt 

conveyors installed after March 30, 1970. 

Where roof supports are installed within 

24 inches of a belt conveyor, a clear travelway at least 24 inches wide should be provided 

on the side of such support farthest from the 

conveyor. 

After Mr. Newlin issued his section 104(a) citation of 

March 18, 1985, on the number 3-A belt, Mr. Siria modified it 

on March 20, 1985, and imposed the same "stipulations" for 

that belt as he had done for the number 3-C belt. Inspector 

Dati terminated the citation on April 12, 1985, after noting 

that "The operator installed start and stop switches on both 

inby and outby of the area and also posted signs." 

788 
Mr. Newlin explained that after he issued the safeguard 

notice on February 26, 1985, Mr. Siria visited the mine for 

the purpose of determining what was required to achieve compliance. After Mr. Siria issued his safeguard requirements 

for the 3-C belt, they became applicable to any future belt 

conditions of the same type found in the mine. Since he 

found similar conditions on the 3-A belt on March 18, 1985, 

Mr. Newlin issued section 104(a) Citation No. 2507418, because 

the belt was not provided with the required travelway 

clearances. 

Mr. Newlin's citation was terminated by MSHA Inspector 

Dennis Dati on April 12, 1985, and his termination notice 

reflects that it was terminated after "The operator installed 

start and stop switches both inby and outby of the area and 

also posted signs." 

MSHA's position is that a safeguard notice applies to 

any underground location in the mine. However, any modification made to the safeguard notice would only apply to the 

particular location for which it was issued and not to other 

mine areas (Tr. 767-768). In the instant case, MSHA's 

counsel asserted that although the previously modified safeguard notice of February 26, 1985, eliminated the requirement 

for a clear travelway at the location for which that safeguard 

was issued, it did not authorize the respondent to unilaterally not provide clear travelways at other belt locations 

which were required to be examined, traveled or maintained 

(Tr. 747-750). 

MSHA's counsel asserted that the citation issued by 

Inspector Newlin in this case was issued because of the failure by the respondent to provide clear travelways of at least 

24 inches along the cited beltline as required by section 

75.1403-S(g). Once the citation issued, supervisory inspector Siria modified the citation for that particular location 

by imposing stipulations requiring stop and start switches, 

signs, and a requirement that the belt be stopped before 

being examined. Once these stipulations were in place, the 

safeguard, as modified by Mr. Siria, became a requirement for 

that location, but the respondent was still required to maintain clear travelways at other locations in compliance with 

section 75.1403-S(g) (Tr. 747-753). 

Inspector Newlin explained that by requiring the respondent to adhere to the stipulations for providing a means of 

access to the beltline at locations which have been cribbed 

out because of adverse roof conditions, MSHA is in effect 

providing the belt examiner with a "walkway," i·.§.·, the belt 

789 
itself, as a means of exam1n1ng the belt. Once this is done, 

compliance with section 75.1403-5Cg) is achieved (Tr. 756). 

MSHA's counsel conceded the fact that by cribbing out 

the beltline where an adverse roof condition exists, the 

respondent solved one problem, but created another, by exposing itself to a citation for not having clear travelways as 

required by section 75.1403-S(g) (Tr. 757). Counsel asserted 

that the safeguard provisions present unique situations in 

that once MSHA is made aware of a problem, it may impose a 

safeguard to address that problem. In the instant case, 

counsel pointed out that rather than requiring the respondent 

to tear out the beltline and move it to another entry where 

the roof conditions were better and did not require cribbing, 

it imposed certain safeguard stipulations for that particular 

location. However, the requirements for clear travelways at 

other locations still remained in effect (Tr. 757-760). 

MSHA's counsel asserted that each incident of roof cribbing which results in the effective elimination of the travelway must be individually addressed, and the mine operator may 

not simply go ahead and install stop and start switches and 

claim that it is in compliance. MSHA must first examine the 

conditions before authorizing the implementation of alternative means of compliance, and the operator may not unilaterally take these additional steps (Tr. 760-761). Even if the 

respondent in this case had installed the stop and start 

switches at the place which was cited, it would still be in 

violation of the clear travelway requirement of section 

75.1403-S(g), because it would not have had MSHA's approval 

to modify the clear travelway safeguard requirements for that 

location (Tr. 762-764; 766-7fi7). 

MSHA's counsel further explained the safeguard procedures 

as follows (Tr. 790-791): 

MR. GROOMS: The only analogy I can think of 

is a form of abatement, your Honor. It's a 

form of abatement that's peculiar to the issuance of Safeguards. Issuance of Safeguards is 

a peculiar thing in itself. It's the Secretary making a judgment about what the law is 

going to be in a particular mine. 

* * * * * * * 

MR. GROOMS: It seems to me the analogy to 

abatement may be right in the sense that in a 

790 
statutory standard they may have some alternatives to abatement. You may danger off the 

area rather than repair the roof. You may 

seal off the mine. In this case you may do a 

different thing by the procedures that have 

been established that you don't provide a 

clear way for that one spot in the mine. 

Respondent's representative confirmed the procedures for 

notifyng MSHA with respect to obtaining a waiver of the 

requirements for maintaining belt walkway clearances as 

required by section 75.1403-5(9), and he explained that as a 

practical matter if the roof conditions are bad the respondent installs the cribs immediately in order to support the 

roof and MSHA is later notified. He agreed that even if the 

inspector in this case advised the respondent to install 

cribs for roof support, such a request was not unreasonable 

(Tr. 818). 

The evidence adduced in this case establishes that the 

cited belt conveyor travelway in question was not provided 

with the clearances required by the cited safeguard standard. 

The evidence also establishes that the respondent had adequate 

notice as to the requirements of the previously issued safeguard and that it was aware of the procedures followed by MSHA 

for issuing such safeguards at the mine. Under the circumstances, I conclude and find that the petitioner has established a violation by a preponderance of the evidence, and the 

citation IS AFFIRMED. 

Citation No. 2507612 

The testimony of the inspector establishes the existence 

of float coal dust and coal dust along the belt conveyor on 

the number 4 unit. The accumulations were extensive and the 

inspector saw no evidence of any clean-up efforts by the 

respondent. The respondent offered no testimony in defense 

of the violation. I conclude and find that th_e evidence 

adduced by the petitioner supports a violation-of section 

75.400, and the citation IS AFFIRMED. 

History of Prior Violations 

Exhibit P-2 is an MSHA computer print-out summar1z1ng 

the respondent's compliance record for the period April 26, 

1983 through April 25, 1985. That record reflects that the 

respondent paid civil penalty assessments totaling $92,243 

for 893 violations. Three-hundred and thirty-one of the citations are paid $20 "single penalty-non S&S" citations. 

791 
Thirty-eight are paid assessments for violations of the guarding requirements of section 75.1722(a), Cb) or (c); 173 for 

violations of 75.400 (coal accumulations); 72 for violations 

of 75.503 (permissibility); 14 for violations of 75.807 {cable 

guards}; 6 for violations of 75.1306 (explosive storage); 14 

for violations of 75.313 (methane monitors); and one violation 

for the safeguard requirements of 75.1403-S(g}. No prior paid 

violations of the blasting requirements of 75.1300 or 75.1303 

are noted. 

Exhibit P-1 is a computer print-out covering the respondent's history of prior violations for the period January 29, 

1983 through January 28, 1985. Some of the information is 

included in exhibit P-2. I have considered all of the information pertaining to the respondent's history of prior violations, and this is reflected in the penalty assessments made 

by me for the violations which have been affirmed. 

Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business 

The parties have stipulated as to the scope of the 

respondent's mining operations and agreed that the payment of 

civil penalties will not adversely affect the respondent's 

ability to continue in business. I conclude that the respondent is a large mine operator and that the payment of the 

assessed penalties in these proceedings will not affect its 

ability to continue in business. 

Good Faith Abatement 

The parties stipulated that all of the conditions and 

practices cited as violations in these proceedings were 

abated in good faith by the respondent. I agree, and I conclude that the respondent exercised good faith in abating the 

cited violations. 

Negligence 

I conclude and find that all of the violations which 

have been affirmed in these proceedings resulted from the 

respondent's failure to exercise reasonable care to insure 

compliance with the requirements of the cited mandatory standards. I further conclude and find that the respondent knew 

or should have known about the cited conditions and that its 

failure to insure against such conditions constitutes ordinary negligence. With regard to Citation No. 2507176, 

(Docket No. KENT 85-180), concerning the unconfined shot, the 

inspector indicated that in view of the fact that the shot 

792 
was unintentional, the degree of negligence was considered as 

low (Tr. 94-95). I agree, and adopt this as my conclusion 

with respect to this violation. 

Gravity 

I conclude and find that all of the citations which have 

been affirmed in these proceedings were serious. The 

unguarded belt was in an area where miners congregated and 

where a roadway passed under the belt and it presented a 

hazard in that someone could have inadvertently come in contact with the unguarded belt pinch points. 

The loose coal and float coal dust accumulations violations presented a fire and explosion hazard. None of the 

cited accumulations had been cleaned up and the inspectors 

observed no indication as to any cleanup efforts by the 

respondent. Although one citation (2507206) concerned accumulations in a neutral return where active mining was not taking place, the remaining three citations (2508627, 2507611, 

2507612) concerned rather extensive accumulations of loose 

coal and coal dust, some of which was in contact and turning 

in belt rollers, and ignition sources such as a cable and 

belt headers were present. Although the evidence indicated 

that one location was wet and that other locations were properly rockdusted, the fact remains that all of the cited accumulations presented a fire hazard. In the event of a fire or 

ignition, the accumulations presented a real potential for 

fueling a fire or contributing to its severity. 

The unguarded high voltage cable violations were at locations where men or equipment passed under them, and presented 

a hazard in that miners could contact the cables and equipment could have damaged the cable. In one instance, the evidence indicated that one of the cable guards had apparently 

been knocked off by a piece of equipment. In another, the 

cable was lying on the floor at several locations. Although 

the respondent established that its high voltage cables are 

protected by short circuit monitoring devices and are of a 

high quality, the fact remains that the failure to guard the 

cable exposed it to potential damage or contact by miners. 

The purpose of the guard is to prevent these occurrences, and 

in the event of cable failure or an inoperative monitoring 

device, miners would be exposed to a hazard. 

The permissibility violation concerning the L23 loader 

presented a potential shock hazard to anyone contacting the 

uninsulated and cut headlight wire, and the loose packing 

gland presented a hazard in that it did not serve the purpose 

793 
of securing the cable which passed through it. Although the 

inspector did not determine whether the wire was "hot," it 

may have been, and the operator had no way of knowing it when 

the machine was in operation. The permissibility violation 

concerning the methane monitor which had been bridged out 

rendered the monitor inoperative, and when tested, it would 

not deenergize the machine. In the event methane were encountered while the machine was in operation, the failure to 

deenergize it would present a possible explosion or ignition 

hazard. 

The explosive magazine violation presented a hazard in 

that the failure of the doors to close tight rendered the 

magazine less than a secure storage area and exposed the 

explosives to possible damage. 

The unconfined shot violations resulted in an explosion 

when the shot apparently ignited coal dust or methane and 

injured two miners. Both miners suffered burns, and one· of 

them was hospitalized with serious burn injuries. The failure to remove that miner from his working place resulted in 

injury to that miner, as well as the shooter. 

The safeguard violation concerning an inadequate clearance along a beltway presented a hazard in that the belt 

walker was precluded from making his normal inspection of the 

belt. The obstruction caused by the installation of roof 

cribs prevented the examination of the belt for a distance of 

50 feet, and any hazardous conditions which may have been 

present would go undetected. 

Significant and Substantial Violations 

A "significant and substantial" violation is described 

in section 104Cd)(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. § 814Cd)(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 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "signif icant and substantial" as follows: 

794 
In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of Labor must prove: 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. 

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)(l), 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. 

St'eel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

Incorporating by reference my gravity findings, and 

applying the principles of a "significant and substantial" 

violation as articulated by the Commission in the af orementioned decisions, I conclude and find that with two exceptions, (Citation No. 2507206-coal accumulations and Citation 

No. 2508625-improperly maintained explosive magazine), the 

remaining violations were all significant and .substantial, 

and the findings by the inspectors in this regard ARE 

AFFIRMED. 

I conclude and find that in terms of continued normal 

mining operations, the evidence presented supports a conclusion that there was a reasonable likelihood that the cited 

conditions could contribute to the hazards resulting from the 

violative conditions in question. These hazards are noted in 

my gravity findings, i.e., contact with unguarded pinch 

points, possible fire-or explosion resulting from accumulations of loose coal and coal dust, high voltage cable contact 

795 
by miners or damage to cables by equipment because of lack of 

proper guards, shock hazard through contact with uninsulated 

loader wire, inoperative methane miner on loader, injuries 

resulting from the unconfined shot and failure to remove a 

miner from his working place resulting in his injuries, and 

the failure to provide adequate belt clearance for examination of the belt for possible hazardous conditions. In each 

of these instances, had the events noted occurred, I believe 

it is reasonable to conclude that the injuries produced could 

be of a reasonably serious nature. 

With regard to Citation No. 2507206, the cited coal 

accumulations were found in a neutral belt entry where no 

active mining was taking place. The active faces had advanced 

beyond the area where the accumulations were located, and the 

inspector saw no evidence of any equipment passing through the 

area, and he confirmed that no immediate ignition sources were 

present. The inspector found negligible amounts of methane, 

and issued no citations for lack of adequate rock dusting. He 

also confirmed that the closest mining taking place was two 

crosscuts (100 feet) away, and that the face area was approximately 180 feet from the area where the accumulations were 

present. Given these circumstances, I cannot conclude that 

MSHA has presented any credible evidence to support a conclusion that there was a reasonable likelihood that an accident 

or injury would occur. While I have concluded that the accumulations violation was serious, I cannot conclude that it was 

significant and substantial, and the inspector's finding IS 

VACATED. 

With regard to Citation No. 2508625, the inspector 

believed that the improperly maintained explosives magazine 

violation was significant and substantial in that it was reasonably likely that it would be struck by a piece of equipment if it were to be moved about the unit. On the facts of 

this case, I find this hardly unlikely. The magazine was 

positioned on a track, and the photograph exhibits of a comparable magazine reflect that it is of steel construction and 

mounted on wheels and protected by a steel superstructure 

which surrounds the vehicle. The respondent's unrebutted 

testimony is that when the magazine is moved, the wheels are 

in a down position, and that in this position, it is impossible to move the magazine with the doors opened because they 

would s~rike the wheels. 

The inspector agreed that in its parked position, the 

magazine posed no hazard. Although he alluded to a possibility of a piece of coal finding its way into the opened doors 

and detonating the explosives which were stored inside, there 
is absolutely no evidence of any actual or planned blasting 

taking place in the area where the vehicle was parked, nor is 

there any evidence that the magazine was parked in a location 

which may have posed a hazard from a roof fall or other 

similar incident. Under the circumstances, although I have 

concluded that the violation was serious, I cannot conclude 

that the petitioner has established that it was significant 

and substantial. The inspector's finding in this regard IS 

VACATED. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, the following civil penalties are assessed by me for 

the violations which have been affirmed. 

Docket No. KENT 85-105 

Citation No. Date 

2507205 1/29/85 

2507206 1/30/85 

2507208 1/31/85 

Docket No. KENT 85-141 

Citation No. Date 

2508624 4/11/85 

2508625 4/11/85 

2508627 4/11/85 

2507611 4/12/85 

2507618 4/13/85 

Docket No. KENT 85-167 

Citation No. Date 

2507503 3/21/85 

Docket No. KENT 85-180 

Citation No. Date 

2507175 3/11/85 

2507176 3/11/85 

30 C.F.R. Section 

30 

75.1722 

75.400 

75.503 

C.F.R. 

75.807 

75.1306 

75.400 

75. 4 0 0 

75.807 

Section 

30 C.F.R. Section 

75.313 

30 C.F.R. Section 

75.1303 

75.1300 

797 

Assessment 

$ 125 

$ 150 

$ 135 

Assessment 

$ 125 

$ 150 

$ 200 

$ 200 

$ 150 

Assessment 

$ 750 

Assessment 

$1,000 

$ 600 
Docket No. KENT 85-159 

Citation No. 

2507418 

2507612 

Date 

3/18/85 

4/16/85 

30 C.F.R. Section 

75.1403-5(g) 

75.400 

ORDER 

Assessment 

$ 100 

$ 200 

The respondent IS ORDERED to pay the civil penalties in 

the amounts shown above within thirty (30) days of the date 

of these decisions. Payment is to be made to MSHA, and upon 

receipt of same, these proceedings are dismissed. 

Citation No. 2507209 (Docket No. KENT 85-105), and Citation No. 2507619 (Docket No. KENT 85-142), ARE VACATED. 

/'4/!l-~k e,A\. Koulfrs~ istrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Mr. Bruce Hill, Safety Manager, Pyro Mining Company, P.O. 

Box 267, Sturgis, KY 42459 (Certified Mail) 

/f b 

798 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 7, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

J & c COAL CORPORATION, a/k/a 

J C Corporation, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 85-40 

A.C. No. 40-02268-03527 

Docket No. SE 85-46 

A.C. No. 40-02268-03528 

Pee Wee No. 1 

Campbell County, TN 

Appearances: Charles F. Merz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN, for· 

Petitioner; 

Mr. Stuart P. Bradley, Teasurer, J C Corporation, 

Jacksboro, TN, for Respondent 

Before: Judge Fauver 

The Secretary of Labor brought these actions for civil 

penalties under section lOS(d) of the Federal Mine Safety 

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

considered the hearing evidence and the record as a whole, 

I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following: 

FINDINGS OF FACT 

1. At the time the citations and orders were issued, 

Respondent was known as J C Corporation. Effective 

January 31, 1985, the legal name was changed to J & C Coal 

Corporation, reflecting the corporate name as registered 

with the Tennessee Secretary of State: In accordance with 

the parties' stipulation, the Respondent's name in the 

caption of this case is AMENDED to be "J & C Coal Corporation, 

a/k/a JC Corporation." 

2. At all pertinent times, Respondent has operated an 

underground coal mine in Campbell County, Tennessee, known 

as Pee Wee No. 1 Mine, producing coal for sale or use in or 

substantially affecting interstate commerce. 

799 
3. During the 24 months preceeding November, 1984, 51 

citations were issued at this mine on 68 inspection days for 

an average of .75 citations per inspection day. 

4. On September 19, 1984, Federal Inspector James B. 

Payne conducted an inspection of the Pee Wee No. 1 Mine 

pursuant to§ 103(a) of the Act. In the course of his 

inspection he observed violations of the approved roof 

control plan and violations involving exposed high voltage 

components of the electrical system, for which he issued 

Citation No. 2470944 and Order No. 2470946. He accurately 

determined, under§ 104(d) (1) of the Act, that the violations 

could significantly and substantially contribute to the 

cause of an injury and that they were due to an unwarrantable 

failure of the operator to comply with mandatory health and 

safety standards. 

5. On September 24, 1984, Inspector Payne again inspected 

the mine and observed that the power center supplying electrical 

power to the No. 3 belt drive had been located in a return 

air conduit and because of an S & S violation, he issued 

Order No. 2470951 under§ 104(d) (1) of the Act. 

6. On November 14, 1984, Inspector Payne conducted 

another inspection of the mine pursuant to§ 103(a) the 

Act and observed conditions constituting violations of 

mandatory safety standards for which he issued Citation Nos. 

2472496, 2472497, 2472498, 2472499 and 2472500 under§ 104(d) (1) 

of the Act. 

7. On November 18, 1984, Inspector Payne again inspected 

the mine in accordance with§ 103(a) of the Act and observed 

that the ventilation control plan was not being followed and 

issued Citation No. 2475981 under§ 104(d) (1) of the Act. 

8. On November 19, 1984, Inspector Payne inspected the 

mine pursuant to§ 103(a) of the Act and observed that fire 

sensors were not located close enough to the No. 3. belt 

conveyor to be·effective. Citation Nos. 2475962 and 2475963 

were issued in accordance with the provisions of§ 104(d) (1) 

of the Act. 

800 
9. Respondent does not dispute the observations of the 

inspector as reflected in the above citations and orders nor 

does it contest the inspector's findings as to the gravity 

of the respective conditions. The factual allegations of 

such citations and orders are incorporated herein as findings 

of fact. 

10. The Secretary stipulates that the conditions 

giving rise to the citations and orders were promptly and in 

good faith abated. 

11. At the time the citations and orders were issued, 

Respondent was controlled exclusively by Charles Bowlin, 

President of the Corporation. On February 1, 1985, all 

stock in the Respondent corporation was purchased from Mr. 

Bowlin by D.M.C. Energy, Inc., wholly terminating all interests 

of Mr. Bowlin in the Respondent corporation. Thereafter, 

management and direction of mining operations were performed 

by Charles M. Asbury and Stuart Bradley. By the terms of 

the purchase agreement D.M.C. Energy, Inc., assumed all 

financial liabilities of the corporation. 

12. At the time D.M.C. Energy, Inc., obtained the 

stock of J & C Coal Corporation, it was then operating an 

underground mine at Lickfork, Tennessee, which mine is 

currently registered with MSHA reflecting D.M.C. Energy, 

Inc., as the operator, mine identification No. 40-01799. 

13. Upon obtaining control of the J & C Coal Corporation, 

D.M.C. Energy, Inc., ordered the subject mine temporarily closed and 

requested MSHA to conduct a complete inspection of the mine 

for the purpose of identifying all conditions which whould 

give rise to a citation if observed in the normal course of 

a mine inspection. Such an inspection was conducted and 

D.M.C. Energy, Inc., expended substantial funds to correct 

all potentially violative conditions and to replace existing 

mining equipment. 

14. The mine reopened about March 1, 1985. In the 12 

months following reopening of the mine MSHA inspectors 

issued 23 citations to the operator on 16 inspection days. 

801 
DISCUSSION WITH FURTHER FINDINGS 

Respondent concedes all of the violations charged 

herein, the inspector's allegations as to negligence and 

gravity, and the reasonableness of the amounts of civil 

penalties originally proposed by the Secretary. Its defense 

is a request or claim for elimination or mitigation of the 

civil penalties on the grounds of new management, new stock 

ownership, large expenditures of the new owner to bring the 

mine into compliance with the Act, and non-involvement by 

the new owner and management with the violations found in 

1984. 

I find that the safety expenditures and changes by the 

new management are commendable, especially when compared to 

the safety record of Respondent under the prior management 

in 1984. However, the new measures were needed because 

Respondent under the prior management had failed to comply 

with numerous mandatory safety standards of the Act and 

regulations promulgated under the Act. The safety record 

after the 1984 violations is not a basis for eliminating or 

reducing civil penalties for such violations. However, 

considering the financial needs of Respondent, six months 

will be allowed to pay the civil penalties assessed herein. 

In permitting this schedule for payment, I note that 

Respondent acknowledges ·its financial ability to pay Mrs. 

Bowlin under the stock-sale agreement, and that civil penalties 

due MSHA for the 1984 violations are a pro rata offset of 

Respondent's indebtedness under such sale agreement. 

Respondent is a medium-sized coal business. At the 

time of the violation it was a small operator. Its number 

of miners and coal production have substantially increased 

sipce the present management took over operations. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Respondent violated the sections of the Act or 30 

C.F.R. as charged in the following citations and orders, for 

which Respondent is ASSESSED the civil penalties shown: 

802 
Citation or Order 

2470944 

2470946 

2470951 

2472496 

2472497 

2472498 

2472499 

2472500 

2475961 

2475962 

Total 

ORDER 

Civil Penalt;y: 

$1,000 

850 

850 

20 

20 

20 

74 

20 

168 

20 

$3,042 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

above civil penalties in the total amount of $3,042 in six 

equal monthly payments of $507, beginning on June 1, 1986, 

and becoming due on the first day of each successive month 

thereafter until the total of $3,042 is paid. 

Distribution: 

/ ) '/ d . ~)­ {,,.(_/~~ ..... ;-;.-; I e-L-u v e--c ... William Fauver 

Administrative Law Judge 

Charles F. Merz, Esq., Office of the Solicitor, U.S. Department 

of Labor 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Mr. Stuart P. Bradley, Treasurer, J C Coal Corporation, P.O. 

Box 174, Jacksboro, TN 37757 (Certified Mail) 

Mr. Charles M. Asbury, President, J C Coal Corporation, 

P.O. Box 174, Jacksboro, TN 37757 (Certified Mail) 

kg 

803 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 May 7 / 19 8 6 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

ON BEHALF OF 

MARK ADAMS, ET AL, 

Complainants 

v. 

EMERY MINING CORPORATION, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 80-489-D(B) 

Deseret Mine 

DECISION 

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

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

for Complainants; 

Thomas c. Means, Esq., Crowell & Moring, Washington, 

D. c. I 

for Respondent. 

Before: Judge Morris 

This case arises under the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801 et seq., and it involves the interpretation of sections 115 ancr-10S(c} of the Act. 

After a hearing before the undersigned the Secretary was granted 

leave to amend his complaint to add additional complainants. The 

undersigned severed the amended complaint and designated all subsequent matters relating to the amended petition as "Secretary of 

Labor, Mine Safety and Health Administration on Behalf of Mark Adams, 

et al, Complainants, v. Emery Mining Corporation, Respondent, Docket 

No.WEST 80-489-D(B}." In the interim Docket No. WEST 80-489-D(A} 

was appealed to the Commission. 

After considering the issues, the Commission ruled that Emery 

violated section lOS(c) of the Act when, after hiring the complainants as new miners, it nevertheless refused to compensate them 

for 32 hours of training. The miners had to obtain such training 

because of respondent's hiring practices, 5 FMSHRC 1391 (1983). 

Subsequently, respondent appealed the Commission decision to 

the United States Court of Appeals for the Tenth Circuit where it 

was docketed as case number 83-2017. In addition, the parties 

stipulated that the instant case would be determined by the ruling 

of the appellate court. In view of the stipulation of the parties, 

the undersigned stayed further proceedings in the captioned case 

pending a ruling from the appellate court. 

804 
On January 31, 1986, the Court issued its decision. The 

Court held that the Commission and its administrative law judge 

erred when they found that Emery violated the Act by refusing to 

pay its newly hired employees for back wages, tuition and related 

expenses they had incurred in receiving 32 hours of training before 

being employed by respondent. Specifically, the Court ruled that 

none of the complainants were "miners" under the Act or employed 

by respondent at the time they took their training. Further, it 

was the view of the Court that the statute was clear on its face. 

In sum, the Court declined to enforce the Corrunission order. 

Respondent thereafter filed a motion for summary judgment on 

the captioned case. The motion is within the stipulation of the 

parties. 

Thereafter the undersigned dissolved the stay of the instant 

proceedings. The Secretary, in his response to the motion for 

sununary judgment, concurs that Emery's motion should be granted. 

On the basis of the decision of the United States Court of 

Appeals for the Tenth Circuit in Docket No. 83-2017, the pleadings 

and the stipulation of the parties, I enter the following: 

ORDER 

1. Respondent's motion for sununary judgment is granted. 

2. The discrimination complaint is dismissed. 

Law Judge 

Distribution: 

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

Labor, 1585 Federal Buildin~, 1961 Stout Street, Denver, Colorado 

80294 (Certified Mail) 

Thomas c. Means, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

N.W., Washington, D.C. 20036 (Certified Mail) 

/ot 

805 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

ODELL MAGGARD, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

May 8, 1986 

. . 

. . DISCRIMINATION PROCEEDING 

Docket No. KENT 86-1-D 

MSHA case No. BARB CD 85-48 

CHANEY CREEK COAL CORPORATION,: 

Respondent : 

SECRETARY OF LAB.OR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

ODELL MAGGARD, 

complainant 

v. 

DOLLAR BRANCH COAL 

CORPORATJON, 

and 

. . 

. . 

. . 

. . 

. . 

. 

. 

CHANEY CREEK COAL CORPORATION,: 

Respondents 

No. 3 Mine 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-51-D 

MSHA Case No. BARB CD 85-48 

No. 3 Mine 

DECISION 

Appearances: Tony Oppegard, Esq., Appalachian Research and 

Defense Fund of Kentucky, Inc., Hazard, 

Kentucky, for Odell Maggard; 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, 

Tennessee, for the Secretary of Labor; 

Thomas Wo Miller, Esq., and Julie Goodman, 

Esq., Miller, Griffin & Marks, P.S.C., 

Lexington, Kentucky, for Respondents 

Before: Judge Melick 

Background 

On June 11, 1985, Odell Maggard filed a complaint with 

the Department of Labor, Federal Mine Safety and Health Administration CMSHA) alleging that on January 10, 1985, he had 

been discharged in violation of section 105(c)Cl) of the 

806 
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, 

et. ~, the 11 Act."~/ On the same date the Secretary of 

Labor commenced his investigation pursuant to section 

105Cc)(2) of the Act.2/ Subsequently, after the expiration 

of the 90-day notification period following the receipt of 

that complaint provided under section 105(c)(3) of the Act, 

the Secretary advised Mr. Maggard by letter that the investigation of his complaint had not been completed and that it 

had not yet been determined whether or not a violation of 

section 105(c) had occurred.~/ That letter reads in part as 

follows: "[b]y the terms of the Act and the Federal Mine 

Safety and Health Review Commission's procedural rules, you 

have a right to file your own complaint with the Commission 

because the Secretary has not completed his consideration 

within 90 days." 

1/ Section 105(c)(l) provides in part as follows: 

"No person shall discharge • • • or cause to be discharged ••• or otherwise interfere with the exercise of the 

statutory rights of any miner, .•• in any ••• mine subject to this Act because such miner, ••• has filed or made 

a complaint under or related to this Act, including a complaint notifying the operator or the operator's agent, ••• 

of an alleged danger or safety or health violation in any 

mine ••• or because of the exercise by such miner, ••• on 

behalf of himself or others of any statutory right afforded 

by this Act." 

~/ Section 105(c)(2) reads in part as follows: 

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

interfered with, or otherwise discriminated against by any 

person· in violation of this subsection may, within 60 days 

after such violation occurs, file a complaint with the 

Secretary alleging such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy of the complaint to the respondent and shall cause such investigation 

to be made as he deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt of the 

complaint •. 0 0 • 

11 

~/ Section 105(c)(3) of the Act provides in part as follows: 

"Within 90 days of the receipt of a complaint filed 

under paragraph (2), the Secretary shall notify, in writing, 

the miner, applicant for employment, or representative of 

miners of his determination whether a violation has occurred. 

If the Secretary, upon investigation, determines that the 

provisions of this subsection have not been violated, the 

complainant shall have the right, within 30 days of notice of 

the Secretary's determination, to file an action in his own 

behalf before the Commission, charging discrimination or 

interference in violation of paragraph (l)." 

807 
Thereafter, on October 1, 1985, Mr. Maggard filed his 

own complaint with this Commission pursuant to section 

105(c)(3) and commission Rule 40(b), 29 C.F.R. § 2700.40(b).4/ 

on December 14, 1985, Maggard was informed by MSHA of the -

secretary's determination that a violation of section 105(c) 

had occurred. The Secretary thereafter on December 26, 1985, 

filed his own complaint with this Commission on behalf of Mr. 

Maggard against Dollar Branch Coal Corporation under section 

105(c)(2) of the Act.~/ 

In his complaint the Secretary states that Maggard's 

complaint filed October 1, 1985, under section 105(c)(3), had 

been filed before the Secretary "had an opportunity to determine whether or not a violation of the Federal Mine Safety 

and Health Act of 1977 had occurred" and maintains for that 

reason that Maggard's complaint should now be dismissed. 

Motion to Dismiss 

In his motion to dismiss the Secretary argues that he 

need not comply with the requirements of the Act that he make 

a determination as to whether or not discrimination has 

occurred within 90 days of his receipt of a complaint. He 

further argues that should the aggrieved individual file his 

own complaint under section 105(c)(3) after the statutory 

90-day period, that case will become null and void as lacking 

a jurisdictional basis if the Secretary later decides to file 

a complaint of his own under section 105(c)(2). 

While the Secretary has no standing to interpose a 

motion to dismiss in Maggard's section 105(c)(3) case, the 

Secretary's motion nevertheless raises a threshold jurisdictional question. Indeed the Act itself does not provide 

expres·s guidance as to the procedures to be fallowed by an 

individual complainant under section 105(c) in the event the 

Secretary does not make his decision (as to whether a violation of the Act has occurred} within the 90-day time frame 

set forth under section 105(c){3). 

4/ Commission Rule 40(b) reads as follows: 

"A complaint of discharge, discrimination or interference under section 105(c) of the Act, may be filed by the 

complaining min~r, representative of miners, or applicant for 

employment if the Secretary determines that no violation has 

occurred, or if the Secretary fails to make a determination 

within 90 days after the miner complained to the Secretary." 

~/ The Secretary amended his complaint without objection at 

the commencement of hearings on January 15, 1986, to propose 

a civil penalty and to include Chaney Creek Coal corporation 

as a party Respondent. 

808 
It is clear however that Congress intended that the 

miner have the right to file a complaint on his own upon the 

failure of the Secretary to act within the prescribed 90-day 

period. Indeed in recognition of this Congressional intent 

this Commission promulgated its Rule 40Cb) under which the 

aggrieved miner is specifically provided the right to file 

his own complaint under these circumstances. This administrative interpretation is entitled to great weight. 

Chevron, U.S.A., Inc. v. National Resources Defense Council, 

104 S.Ct. 2778 (1984); Manufacturers Ass'n v. National 

Resources Defense Council, 105 s. Ct. 1102 Cl985); Federal 

Election Commission v. Democratic Senatorial Campaign 

Committee, 102 s.ct. 38 (1981) and zenith Radio Corp v. 

United States, 98 S.Ct. 2441 (1978). Such a construction is, 

moreover, consistent with the liberal construction to be 

accorded safety legislation. Whirlpool Corp. v. Marshall, 

100 s. Ct. 883 (1980). More specifically this construction 

is essential to accomplish the objective of the statute and 

to avoid unjust and oppressive consequences to aggrieved 

miners where the Secretary fails to act within the prescribed 

time. Caminetti v. United States, 37 S. Ct. 192 Cl917). 

Administrative notice may be taken of a recent case in which 

the Secretary delayed almost 4 years before deciding not to 

represent a miner on his 105(c) complaint. (Dan Thompson v. 

Cypress Thompson Creek, MSHA Case No. 82-27). The miner is 

seriously prejudiced by such delay as witnesses move, 

memories fade and documents are lost or destroyed, and may 

suffer unwarranted economic hardship. Such a result is 

clearly contrary to the objectives of the Act. 

Under the circumstances it is clear that this judge 

has jurisdiction to entertain Mr. Maggard's case (under 

section 105Cc)(3) and commission Rule 40(b)) as well as the 

Secretary's case brought on behalf of Mr. Maggard under 

section 105Cc)(2) of the Act. The Secretary's Motion to 

Dismiss is denied. 

The Merits 

In order to establish a prima facie violation of section 105(c)(l) of the Act, it must be proven by a preponderance of the evidence that Mr. Maggard engaged in an 

activity protected by that section and that his discharge was 

motivated in any part by that protected activity. Secretary 

ex rel. David Pasula v. Consolidation Coal Coal Company, 2 

FMSHRC 2786 (1980), rev'd on other grounds sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 {3rd Cir. 

1981). See also Boitch v. FMSHRC, 719 F.2d 194 (6th Cir. 

1983) and NLRB v. Transportation Management Corp., 462 U.S. 

393 {1983), affirming burden of proof allocations similar to 

those in the Fasula case. 

809 
Complainant's Case 

Until the day before his departure on January 10, 1985, 

Odell Maggard had been working for the Dollar Branch Coal 

Company as the off-side shuttle car driver on the 3 p.m. to 

11 p.m. shift. In this capacity he was transporting coal 

from the continuous miner to the feeder. As he entered the 

mine on January 10, 1985, he learned from Howard "Champ" 

Muncy, the second shift boss, that he was being switched from 

shuttle car operator to miner-helper. In this latter 

capacity he was expected to prevent the 440 volt power cable 

attached to the continuous miner from being run over by the 

miner as it backed up. 

According to Maggard the power cable was not in good 

condition. He counted 8 temporary splices covered with tape 

and observed that 1 or 2 were lying in water "smoking." 

Shortly after they began cutting coal as Maggard was handling 

the cable 2 to 3 feet from a "bad splice" he was shocked. 

Maggard told Champ and miner operator Howard "P. J." Holland 

that the cable 11 bit" him. In response Champ merely patted 

him on the back and told him to "try to make it. 11 

Later that evening as Maggard was again pulling the 

cable he was knocked "flat on [his] face" from electrical 

shock. Maggard was unable to use his arms to get up and they 

were numb for 20 minutes. Maggard says that he reported this 

incident to Champ and asked if he would fix the cable. Champ 

refused explaining that the miner had already been down on 

the shift. Champ also refused to fill out an accident report 

because Maggard had "only been juiced." Maggard then asked 

Champ for alternate work and when that request was rejected 

he refused to continue pulling the cable. He considered it 

to be ·.n life threatening." He was then told to "pull the 

cable or else." Rather than continue, Maggard chose to leave 

the mine. 

One of Maggard's coworker's Ronald "Spider" Talbert, 

testified that around the time of Maggard's discharge he had 

been relieving the regular miner-helper during lunch hours on 

a regular basis. He had also worked several full shifts 

pulling the cable when the regular miner-helper failed to 

show up. Talbert also observed that the miner cable was not 

then in good condition. The insulation was broken in several 

places with "naked wires" exposed. He was reluctant to pull 

the cable because he was regularly "juiced" by it at least 

twice a shift. Talbert recalled that Maggard told him that 

he was quitting because the cable had "juiced" him. 

Another miner, Roscoe Nantz, also had occasion to pull 

the miner cable during January 1985. He too observed that 

the cable insulation had been cut off and taped in several 

locations. He saw "naked wires" and observed that the cable 

810 
would smoke where it contacted the water. He had been 

shocked "quite a lot." It hurt and numbed his body. He 

reported these conditions to Champ but Champ told him to 

"keep running it" and nothing was done to correct the problem. 

Gerry Michael Coots was a roof bolter operator at the 

mine until December 27, 1984. He observed that the trailing 

cable on the roof bolter was also then "not in that good a 

shape." The splices were "raggedy" and the tape had been 

torn off exposing "bare wires." He had seen this cable smoke 

where it was lying in the water and had been "juiced" while 

handling the cable. 

MSHA Inspector Sylus Adams, inspected the subject mine 

on October 15 and 16, 1984 and on January 10 and 28, 1985. 

On the latter occasion he cited a violation for a temporary 

splice on the trailing cable within 25 feet of the miner. 

According to Adams the trailing cable carried 480 volts and a 

person could be shocked holding a wet cable even 3 to 4 feet 

from a bad splice. On his earlier inspections he did not 

have occasion to check the trailing cable. 

Essie "P. J." Holland was the continuous miner operator 

on the evening Maggard was discharged. He observed that his 

trailing cable, the one Maggard was pulling, was not in good 

condition that evening. Bare copper wires were exposed and 

"sticking out" and the cable was smoking where the floor was 

wet. Maggard was only 10 feet away when Holland saw him get 

"juiced" and knocked into a water hole. Holland stopped the 

miner to see if Maggard was alright. Champ Muncy was also 

present and Maggard told both Holland and Muncy that he had 

been "juiced." According to Holland, Maggard told Champ that 

the cable "needed fixing" but Champ responded only that "we've 

been down too long and we can't fix it now." Holland also 

overheard Champ turn down Maggard's request for alternate 

work. Maggard then left the section and about 5 minutes 

later Hobert Turner came to help with the cable. Holland 

himself had been shocked while handling the cable only 2 

weeks before. He too had told Champ about being shocked and 

Champ complained that the company would not give him anything 

to fix it with. 

MSHA electrical supervisor Henry Standafer testified 

that even a pin hole in a trailing cable in a wet atmosphere 

could result in fatal electrical shock up to 15 feet away. 

Such a shock could also result in irregular heart beat, 

slurred speach and pain in the limbs. According to Standafer 

smoke from a cable splice indicates that the splice was not 

properly made and that it is hotter than the rest of the 

cable. 

811 
Respondents' Case 

As previously noted Champ Muncy was shift boss on Odell 

Maggard's last day. Muncy testifed that he met with the mine 

superintendent before that date concerning among other things 

shifting Maggard from shuttle car operator to miner-helper 

and replacing him with Bryant on the shuttle car. According 

to Muncy, Maggard was "slow on the car and not hauling as 

much coal as the others. 11 After Bryant operated the shuttle 

car production seemed to increase. Muncy conceded however 

that he never checked the production records to verify 

whether production had in fact improved after Bryant took 

over. According to Muncy when Maggard was told of the job 

switch he "didn't like it" and said he was "going to quit." 

Muncy asserts that Maggard did not complain about being 

shocked by the trailing cable and claims that he was not 

aware of any problems with the cable. According to Muncy 

there was then only one permanent splice within 25 feet of 

the miner and no temporary splices in any part of the cable. 

According to Muncy a newly rebuilt miner with a new 

trailing cable had been brought into the mine 1-1/2 months 

earlier. The cable was attached to the miner and had no 

splices in it. It was the same cable in place on January 10, 

and at that time it had only 2 permanent splices. Muncy also 

maintains that there was no water at the face area at the 

time Maggard 11 quit" although the coal was damp around the 

continuous miner from the continuous miners spray. 

Wayne Howard was working on the second shift on 

January 10, 1985 as a bolting machine operator. According to 

Howard there was no part of the face area that had an inch of 

water in it. It was only "a little bit damp." According to 

Howard the subject trailing cable was in good condition on 

January 10, and indeed was the same cable still being used at 

the time of the hearing (in January 1986). He had an opportunity to examine the trailing cable from 50 to 200 feet from 

the miner since he had to hang the cable. He was not shocked 

and saw no bad splices. In fact he claims he had never seen 

a bad splice on the cable. Howard denied stating to Odell 

Maggard on the previous Tuesday that he did not know about 

the condit1on of the cable. 

On January 9, 1985, Charles Bryant had been working as 

a miner-helper. on January 10, he took over Odell Maggard's 

job as shuttle car driver. He had been pulling the miner 

cable as miner-helper for the 6 months preceding this transfer. According to Bryant the cable was "new11 and he could 

not recall ever having been shocked while handling it. He 

later testified that he could not "recall" getting shocked 

within 10 to 50 feet of the continuous miner on the 9th of 

January. He had been wearing protective gloves and gave the 

gloves to Maggard on January 10, after he was switched to the 

812 
miner. According to Bryant, Odell told him on his last day 

that he "quit," that he "wasn't going to pull no miner cable't 

and that he was not "going to work that hard." Bryant denied 

that Maggard ever told him that he had been shocked. Bryant 

acknowledged however that only a few days before the hearing 

he told Maggard's attorney that he could not remember the 

condition of the cable very well. 

Caleb Napier was the outside loader man on the second 

shift on January 10, and saw Odell come out of the mine late 

in the shift. According to Napier, Maggard said "he quit" 

because they took him off the car. Hobert Turner was setting 

timber on January 10, 1985, but when Maggard left he took 

over the job of pulling the cable. Maggard reportedly told 

Turner that he did not like being switched to miner-helper so 

he quit. Turner claims that on the ride home later that 

evening Odell again said that he quit because of the change 

in jobs. Turner states that he pulled the cable until the 

end of the shift and did not get shocked. Turner saw no 

temporary splices and noted that the cable was "very good" 

and that "it looked fairly new." He saw no exposed wires in 

the 30 feet of cable that he worked with that night. 

Chaney Creek superintendent Darryl Napier, a certified 

electrician, claims that based on the testimony of the 

Respondents' witnesses it was impossible for Odell Maggard to 

have been shocked as alleged. Napier was involved in the 

decision to transfer Odell Maggard from shuttle car operator 

because he was "slow" and did not fill up the car. He 

thought Maggard was a "lazy" shuttle car operator. Napier 

conceded however that he had previously told an MSHA investigator that Maggard was a "good" shuttle car driver. He 

explained at hearing that he meant Maggard was a good driver 

only between picking up loads of coal. 

Rebuttal Evidence 

In rebuttal, Holland testified that Charles Bryant had 

been his regular miner-helper and indeed had complained to 

him as well as to "Champ" (Muncy) about being shocked on 

occasions prior to January 10, 1985. Hobart Turner also 

complained to Holland about the cable "juicing" him after 

Odell Maggard had left the mine. 

Jerry Maggard (Odell Maggard's cousin) was working the 

second shift on January 10, 1985, as the right side shuttle 

car driver. Although he testified that he could not then 

remember the events occuring a year ago, he conceded meeting 

the night before with government attorney, W. F. Taylor at 

which time he said that he saw Odell throw the cable down and 

jump. In addition, Jerry Maggard then told Taylor that Odell 

813 
said that he was leaving because he was juiced, that the 

cable would "just eat you up" and that every one on the 

section knew that the cable was "in real bad shape. 11 Jerry 

Maggard told Taylor that he would like to come in and testify 

for Odell but he could not "cut off his head." 

Odell Maggard was recalled as a witness and testified 

that at the meeting on January 10, 1986, Jerry Maggard told 

him that he saw (Odell> get shocked but that he (Jerry> could 

not testify for him because they did him a favor giving him a 

lay-off so that he could become eligible for unemployment 

compensation. Odell also denied saying anything about 

quitting because he had been taken off the shuttle car. 

Odell Maggard also stated that Wayne Howard had told him only 

a few days bef or~ these hearings that he could not remember 

the condition of the cable. 

w. F. Taylor, an attorney with the U.S. Department of 

Labor, also testified in rebuttal. Taylor had spoken with 

Jerry Maggard the previous evening in the presence of Odell 

Maggard and his attorney. Taylor related his conversation 

with Jerry as follows: 

"As I presented my credentials to Mr. Jerry 

Maggard, I told him I needed to speak with him 

about the discharge of Mr. Odell Maggard at the 

Chaney Creek mine, the White Oak mine. Mr. Jerry 

Maggard stated to me at that point that he 

couldn't help my any. Without any other questions being asked, he then told me that he 

remembered seeing Odell Maggard getting shocked. 

I asked him what he was doing at the time that he 

observed • • • Odell Maggard getting shocked, and 

·he said that he was driving the right side 

shuttle car and that he was near the area where 

Odell Maggard was pulling the trailing cable. I 

asked Jerry Maggard how he could determine that 

Odell Maggard had been shocked. He stated to me 

that he could see him as he was • • • picking up 

and pulling on the trailing cable, that he threw 

it down and he threw his arms back and he jumped, 

and [Jerry] took that to indicate that [Odell] 

had received a shock. Mr. Jerry Maggard also 

told me that a few minutes later Mr. Odell 

Maggard approached him and asked him for the keys 

to his Scout and that Odell Maggard at that point 

told him he was leaving • • • He asked him why 

he was leaving, and [Odell] stated that he was 

leaving because he had been juiced by the cable." 

814 
"I asked him if he had • • • ever handled the 

trailing cable and he stated that he had, and I 

asked him if he had received shocks, and he told 

me that he had, that the trailing cable would 

just eat you up." 

Jerry Maggard also told Taylor that he would "like to 

come in and testify" for Odell, but that he "couldn't cut off 

his own head to do it," that "he knew the condition of the 

cable" and that "everyone on the section knew that the cable 

was in ••. real bad shape." 

Evaluation of the Evidence 

Witness credibility is critical to resolution of this 

case. In this regard, I find the Complainant and his supporting witnesses to be the more credible and accordingly I 

find that he has proven that his discharge was based solely 

on his refusal to work because of a reasonable and good faith 

belief that to continue working would have been hazardous. 

See Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982); Robinette 

v. United Castle Coal Co., 3 FMSHRC 803 (1981). 

Significantly the Complainant's testimony that he was 

thrown to the mine floor by an electrical shock from the continuous miner's trailing cable was fully corroborated by P.J. 

Holland, the continuous miner operator, who witnessed the 

event. In addition, the Complainant's testimony that he was 

also shocked by this cable prior to the severe shock which 

precipitated his work refusal was confirmed by the out-ofcourt statement of Jerry Maggard. 

Four other miners, namely P.J. Holland, Ronald Tolbert, 

Roscoe. Nantz, and Jerry Maggard also attested to the dangerous condition of this cable in that they had all been 

shocked by the same cable at or near the time of the Complainant 1 s discharge. Respondents attempted to discredit Tolbert 

and Nantz through the testimony of Charles Bryant, who stated 

that he had never been replaced as the miner-helper prior to 

January 10th. Bryant's testimony, in this regard was however 

directly contradicted by the miner operator Holland, and even 

by foreman Muncy, another of the Respondent's witnesses. 

Muncy and Holland both testified that Bryant was replaced as 

the miner-helper nearly every day during the lunch break. 

Bryant's testimony is therefore without credibility in itself. 

Finally, I find no reason or motivation for these laid-off 

miners not to testify truthfully that they had been shocked 

by the trailing cable. 

The testimony concerning the condition of the trailing 

cable and electrical shock suffered by those handling it is 

also indirectly corroborated by the MSHA electrical expert 

Henry Standafer. Standafer stated without contradiction that 

a miner could suffer electrical shock while handling a wet 

815 
trailing cable having only a "pinhole" or defective insulation or splices. Respondent's own witnesses acknowledged 

that the area around the miner was damp from water sprays. 

Within the framework of this evidence I find that Odell 

Maggard did indeed suf serious electrical shock while 

handling the trailing cable as alleged. 

The conversation between Maggard and Muncy at the time 

of Maggard's work refusal on January 10th is also in dispute. 

Maggard states that he told Muncy he had been shocked, that 

he asked Muncy to fill out an accident report and to repair 

the cable, and then asked to be assigned to other work when 

Muncy refused to stop production to repair the cable. 

Maggard denied mentioning to Muncy the fact that he had been 

taken off the shuttle car. Muncy, on the other hand, claimed 

that Maggard did not tell him he had been shocked, and did 

not ask that an accident report be completed. Rather, Muncy 

claimed that Maggard was simply mad because he had been 

reassigned as the miner-helper. 

I find Maggard's version of this conversation the more 

credible. The only other witness to this conversation was 

P.J. Holland, the miner operator, and Holland's testimony 

supports Maggard. Holland heard Maggard ask Muncy to repair 

the cable and Muncy's refusal because the section had been 

"down too long." Holland also heard Maggard ask Muncy if he 

had "anything else for him to do." The testimony of both 

Maggard and Holland that Muncy said the section had been 

"down too long" is also consistent with the circumstances 

surrounding Maggard's work refusal. Since the mine had not 

been running coal for the first 3 hours of the shift it may 

reasonably be inf erred that Muncy would have been particularly resistant to any further delays in production at that 

time.·. 

In addition, it is not realistic to believe that Maggard 

would leave a good paying job if Muncy had told him, as Muncy 

claims, that he would only have to pull the miner cable for a 

couple of days until he was reassigned to another position. 

This is particularly true since the job switch involved no 

cut in pay. Maggard had also previously been removed from 

his shuttle car for 2 hours on January 9th, but did not then 

quit his jo~. 

Maggard was no stranger to the miner-helper position 

since he had pulled the trailing cable about 15 times as a 

substitute prior to January 10th. Thus when Maggard was 

reassigned at the beginning of the shift on January 10th he 

knew what to expect. He nevertheless worked about half a 

shift prior to his work refusal. Hobert Turner, a witness 

for Respondent also testified that Maggard did not complain 

to Muncy when he was given the new job assignment at the 

816 
beginning of the shift on January 10th. It is therefore 

highly unlikely that Maggard would have quit his job in the 

middle of a shift but for some extraordinary reason such as 

unsafe working conditions. 

Other critical aspects of Respondent's case also lack 

credibility such as the testimony of current employees 

Charles Bryant and Hobert Turner. These employees pulled the 

continuous miner cable directly before and after Maggard's 

work refusal. Particularly noteworthy is Bryant's testimony 

about his alleged conversation with Maggard on January 10th 

and his allegations concerning the condition of the trailing 

cable. Contrary to his testimony at hearing Bryant had previously expressed a complete lack of knowledge about the case 

to an MSHA investigator, and had also stated that he could 

not remember the condition of the trailing cable on the day 

in question. Three of Bryant's former co-workers, Holland, 

Nantz and Coots also testified that they had heard Bryant 

complain about the condition of the trailing cable while he 

was the miner-helper. Under the circumstances I can give but 

little weight to Bryant's testimony. 

Wayne Howard's testimony about the condition of the 

trailing cable on January 10th is similarly discredited 

because of his statement to Maggard 2 days earlier that he 

could not remember the condition of the cable because it was 

"too far back" in time. The failure of Respondents to have 

identified these two witnesses until the day before the 

hearing and in violation of the prehearing order also 

suggests, under the circumstances, an attempt to protect them 

from pretrial scrutiny and anticipated inconsistent testimony. 

Hobert Turner, presently a foreman for Respondent Chaney 

Creek;. also described the trailing cable as being in good 

condition on January 10th. However, P.J. Holland, who worked 

with Turner that night, testified that Turner was also 

shocked by the cable after replacing Maggard as the miner 

helper. While Respondents argue that the same trailing cable 

handled by Maggard on January 10th was found by Inspector 

Adams on January 28th to be in good condition there was ample 

time during this 18-day interval for repair of the improper 

splices. In this regard the MSHA electrical inspector testified that a temporary splice can be converted into a permanent splice in only about an hour. Thus all of the "bad 

splices" present on January 10th could have been repaired by 

January 28th. 

Respondents also attack the Complainant's credibility 

based on his admission that he testified untruthfully at his 

deposition about his conversation with Jerry Maggard prior to 

leaving the mine on January 10th. Maggard did however 

correct this false testimony while still at the deposition, 

and he testified consistently with that corrected testimony 

817 
at the hearing. Maggard's explanation for this testimony 

that his cousion had asked him "to keep him out of it," is 

understandable considering the hostility and loss of memory 

exhibited by Jerry Maggard when called to testify in this 

matter. 

Under the circumstances I find that the Complainant has 

met his burden of proving that he was discharged by Chaney 

Creek Coal Corporation on January 10, 1985, in violation of 

section 105(c) of the Act. Accordingly Chaney Creek Coal 

Corporation and Dollar Branch Coal Corporation are directed 

to reinstate the Complainant, Odell Maggard, to his former or 

similar position (at the same rate of pay) held prior to his 

discharge on January 10, 1985. These cases will accordingly 

be set for further hearings on the amount of damages, costs 

and attorney's fees to be awarded the Complainant and a final 

decision will not be issued until these matters are 

determined. 

Civil Penalty 

The unlawful discharge found in this case was serious in 

that it would be expected to have had a chilling effect on 

the exercise of protected rights by those miners exposed to 

hazardous conditions. Respondent's foreman, Champ Muncy, was 

also negligent in denying the Complainant alternate work in 

the face of clearly hazardous conditions. In assessing a 

penalty herein I also have considered that the operators are 

small in size, and have no reported history of violations of 

section 105(c). Accordingly, I find that a civil penalty of 

$1,000 is appropriate. A corresponding order in this regard 

will be issued when the final decision is rendered in these 

proceedings. 

Distribution: 

Tony Oppegard, Esq., Appalachian Rese rch & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified 

Mail) 

Thomas W. Miller, Esq., Miller, Griffin & Marks, 700 Security 

Trust Building, Lexington, KY 40507 (Certified Mail) 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

rbg 

818 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 8, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RB J COAL COMPANY, INC., 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. VA 85-22 

A.C. No. 44-05594-03571 

No. 1 Mine 

Appearances: Craig w. Hukill, Esq., Office of the Solicitor, 

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

for Petitioner1 

Raymond Jackson, RBJ Coal Company, Inc., 

Mavisdale, Virginia, for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et. ~, the "Act," for two violations of 

regulatory standards. The general issues before me are 

whether RBJ Coal Company, Inc. CRBJ) violated the cited 

regulatory standards and, if so, whether those violations 

were 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 were "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 llO(i) of the Act. 

Citation No. 2281585 alleges a ~significant and substantial" viol~tion of the operator's roof control plan under the 

standard at 30 C.F.R. § 75.200 and charges as follows: 

On 002 section the 8 breaker timbers in the No. 6 

entry for the No. 5 pillar were "stretched" by 

being set on 2 or more sections of crib blocks or 

timber butts. There were other timbers visible in 

the pillar line that had been set in a similar 

fashion. The timbers were easily moved by hand. 

It is not disputed that the roof control plan requires 

that "posts shall be installed tight on solid footing and 

[that] not more than two wooden wedges shall be used to 

819 
install a post." During a spot inspection at the RBJ No. 1 

Mine on February 4, 1985, Inspector Larry Stanley of the 

Federal Mine Safety and Health Administration (MSHA) found 

all of the eight breaker timbers used in the No. 6 entry for 

the No. 5 pillar to be unstable and not on solid footing. 

The timbers used were estimated to be only 5 feet long under 

a roof that was from 6 feet to nearly 8 feet high. Various 

material was used to supplement their height. At least three 

of the timbers were supplemented with timber butts only 4 to 

6 inches in diameter and one of the timbers had footers made 

of 3 pieces of timber butts. Most of the eight timbers were 

also supplemented with more than two wedges and one with six 

wedges. 

RBJ president Raymond Jackson conceded that three of the 

posts were not set on solid footing. Two of these were set 

on timber butts and one was on gob. Although he never saw 

the timbers while they were in place, Jackson was told by his 

foreman, Steve Larson, that the remaining five timbers were 

on solid footing. Jackson did not dispute however that more 

than two wedges were used on more than half of the eight 

timbers cited. Under the circumstances the violation is 

proven as charged. 

According to Inspector Stanley the hazard presented by 

these "stretched" timbers was quite serious. Timbers properly 

placed and on solid footing provide a break-off point during 

retreat mining protecting the miners outby from falling roof. 

Without stable timbers Stanley believed that it would be 

likely for the roof in the gob area to continue breaking 

beyond the timbers thereby endangering the work crew. 

According to Stanley the continuous miner operator, his 

helper and the ram car operator would likely be working in 

the endangered area thereby being exposed to fatal injuries 

from a roof fall. 

Jackson maintained that there was no "immediate danger" 

presented by the "stretched" timbers because there were also 

roof bolts in the cited entry. I find more credible however 

the reasoned opinion of Inspector Stanley that during the 

retreat mining process the roof bolts would not prevent 

sections of roof from falling. According to Stanley the 

pillars on which the "beam" created by the roof bolts depend 

for support are removed during retreat mining and therefore 

the entire "beam" would be expected to fall. Thus while no 

"immediate hazard" may have existed there was nevertheless a 

serious and "significant and substantial" hazard. See 

Secretary v. Mathies Coal Company, 6 FMSHRC 1 (1984-)-.- I also 

find that the violation was caused by the negligence of the 

mine operator. Jackson himself acknowledged that his foreman 

should have known that support timbers cannot be set on 

timber butts or gob and the use of an excessive number of 

wedges was in clear violation of the roof control plan. 

820 
Order No. 2281586 also alleges a "significant and substantial" violation of the roof control plan under the 

standard at 30 C.F.R. § 75-200. The order charges as follow: 

The approved roof control plan for 002 section, 

full pillar recovery, was not being followed in 

that the No. 5 pillar had been "slabbed" from the 

No. 6 entry, cutting left with approximately 3 

lifts or runs taken. Only one timber, set on crib 

blocks, had been set for the second lift. 

It is not diputed that the applicable roof control plan 

requires that the righthand wing of a pillar that has been 

split during retreat mining must be mined from the split and 

not from the entry to the right of that pillar. (See Government Exhibit Nos. 7 and 3 page 23). It is further undisputed 

that on February 4, 1985, the continuous miner was cutting 

into the righthand wing of the cited pillar from the entry to 

the right. 

According to Inspector Stanley this was a particularly 

unsafe procedure because the controls of the continuous miner 

require its operator to be seated on the right side of the 

machine. Thus if he is cutting the right wing from the left 

side he is in the immediate proximity to the unstable and 

unsafe gob line. Stanley also observed that timbers had not 

yet been placed in the split and the roof was breaking up. 

Indeed some of the roof had already fallen including sections 

up to a foot thick. Stanley opined that under the circumstances a roof fall was highly likely in the cited area and 

such a fall would likely result in disabling or fatal 

injuries to the continous miner operator, his helper and/or 

the ram car operator. Under the circumstances the violation 

was serious and "significant and substantial." Mathies, 

supra. 

Jackson conceded that the roof conditions in the 

vicinity of the alleged violation were not good because of 

the number of "slips" present. Indeed a continous miner had 

just recently been covered by a roof fall. Jackson acknowledged moreover that the mine foreman on the preceding evening 

shift had made the conscious decision to change the procedures set forth in the roof control plan because they had 

encountered dangerous roof conditions. If conditions were so 

dangerous however the pillar could have been abandoned or an 

approved modification to the roof control plan obtained. 

Indeed the evidence shows that an approved modification was 

obtained shortly after the order was issued. Under the circumstances however it is clear that the violation herein was 

intentional and, of course, thereby caused by the negligence 

of the mine operator. 

821 
In assessing the penalties for these violations I have 

also considered that the mine operator is small in size and 

that the violations herein were abated in a good faith and 

timely manner. I also note however, that the operator had 

been cited 35 times for violations of the standard at issue 

herein over the the 2 year period preceding the issuance of 

the citation and order at bar. This record evidences a 

serious lack of concern for roof control. Under the circumstances I find penalties of $500 and $800, respectively, for 

Citation No. 2281585 and Order No. 2281586 to be appropriate. 

Order 

RBJ Coal Company, Inc., is hereby directed to pay civil 

penalties of $1,300 within 30 days of the date f this 

decision. 

Disbribution: 

Gary M 

Admini 

I 

Craig W. Hukill, Esq., U.S. Department o 

the Solicitor, 4015 Wilson Blvd., Arling 

(Certified Mail) 

Labor, 

n, VA 

ff ice of 

22203 

Raymond Jackson, President, RBJ Coal Company, Inc., Box 16, 

Mavisdale, VA 24527 (Certified Mail) 

rbg 

822 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 12, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

PINE BLUFF SAND & GRAVEL 

COMPANY, 

Respondent 

Docket No. CENT 85-149-M 

A.C. No. 03-00506-05502 

Sandhog Dredge 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), 

seeking a c 1 penalty assessment in the amount of $2,000, for 

an alleged violation of mandatory safety standard 30 C.F.R. 

§ 56.15-5. The respondent contested the alleged violation and 

the case was docketed for a hearing on the merits. However, 

the parties have now filed a motion pursuant to Commission 

Rule 30, 29 C.F.R. § 2700.30, seeking approval of a proposed 

settlement of the case. The settlement requires the respondent 

to pay a civil penalty assessment of $1,000 for the violation 

in question. 

Discussion 

The section 104(a) citation issued in this case was in 

connection with a fatality which occurred when a foreman climbed 

to the top of a dredge pilot house to measure a pipe and lost 

his footing and fell 22 feet to his death. The foreman did not 

have a safety belt or line, and the cited section 56.15-5, 

requires that such safety devices be worn where there is a 

danger of falling. 

823 
In support of the settlement proposal, the respondent has 

submitted an affidavit asserting that the accident victim was 

an experienced supervisor and shop foreman with 10 years of 

experience in the boat and barge building and maintenance 

business before coming to work for the respondent in 1984. 

Respondent states that the foreman had a very good prior safety 

and training background, attended weekly safety meetings, and 

helped to orientate new employees with a company safety manual 

entitled "Barge Construction Safety Code." 

The respondent further states that while in its employ, 

the foreman attended monthly safety meetings, and as a supervisor with several years of experience in safety training, 

should have known when it was appropriate to wear a safety belt 

and safety line. The respondent takes issue with MSHA's 

special assessment and narrative statement that "safety belts 

and lines were not available on the dredge nor at the shore 

property." The respondent's affidavit reflects that a safety 

belt and safety line were hung on a wall in plain view in a 

room next to the off that the foreman had occupied for 

several months in the shop. The respondent has submitted a 

photo_graph to support its contention that the safety belt and 

line were stored only a few feet from the foreman's office. 

The respondent maintains that it has an excellent safety 

record, and it has submitted copies of some of its safety rules 

and minutes of its safety meetings. The respondent also points 

out that two dredge inspections conducted by MSHA in September, 

1983, and on August 30, 1984, a few months before the accident, 

resulted in no violations being found. 

The petitioner confirms that at the time of the assessment 

the respondent had no previous assessed violations during the 

preceding 24 months, and the information in the record reflects 

that the respondent is a small sand and gravel operator with an 

annual production of 9,324 tons. I take note of the fact that 

at the time the citation was issued, the inspector believed 

that the respondent's negligence was "moderate." However, this 

finding was later modified to lect "low negligence.'' 

Conclusion 

After careful review and consideration of the pleadings, 

arguments and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlement IS APPROVED. 

824 
ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $1,000, for the violation in question, and payment 

is to be made to MSHA within thirty (30) days of the date 

this decision and order. Upon receipt of payment, this case 

is dismissed. 

Distribution: 

~{; N~ /". Koutr~"""l.A­ C!l.~· Admini strati ve Law Judge 

Max A. Wernick, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(certified Mail) 

John D. Davis, Esq., Ramsay, Cox, Lile, Bridgforth, Gilbert, 

Harrelson & Starling, 11th Floor1Simmons First National 

Building, P.O. Box 8509, Pine Bluff, AR 71611-8509 

(Certified Mail} 

/fb 

825 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 13, 1986 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 86-48 

A.C. No. 01-01247-03692 

Docket No. SE 86-55 

A.c. No. 01-01247-03698 

CONTEST PROCEEDINGS 

Docket No. SE 86-13-R 

Order No. 2605577; 10/29/85 

Docket No. SE 86-14-R 

Order No. 2605598; 10/29/85 

Docket No. SE 86-16-R 

Order No. 2605676; 11/7/85 

Docket No. SE 86-17-R 

: Order No. 2605679; 11/14/85 

No. 4 Mine 

DECISION 

Appearances: Harold D. Rice, Esq., and R. Stanley Morrow, 

Esq., Jim Walter Resources, Inc., Birmingham, 

Alabama for Contestant; 

George D. Palmer, Esq., and William Lawson, 

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

of Labor, Birmingham, Alabama, for Respondent. 

Before: Judge Melick 

These consolidated cases are before me under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 8.01 et ~, the "Act," to challenge the issuance by 

the Secretary of Labor of six citations and withdrawal orders 

to Jim Walter Resources, Inc., (Jim Walter) and for review of 

civil penalties proposed by the Secretary, for the violations 

alleged therein. At hearing the parties proposed to settle 

all but two of the withdrawal orders. The contested orders, 

Order Nos. 2605598 and 2605676 issued under section 104(d)(2) 

826 
of the Act, were thereafter the subject of evidentiary 

hearings.~/ 

Jim Walter acknowledges the violations cited in these 

orders and that the requisite underlying section 104(d)(l) 

orders were pending before any clean inspection had been 

completed. The validity of the orders and the issues before 

me are thus limited to whether the violations were caused by 

an "unwarrantable failure" of the operator to comply with the 

cited standard and the amount of civil penalty to be assessed 

in accordance with section llO(i) of the Act. See footnote 1 

supra. 

Order No. 2605598 charges a violation of the standard at 

30 C.F.R. § 75.316 and states as follows: 

"The current approved Ventilation System and 

Methane and Dust Control Plan was not being 

complied with in the cross-cut to the right of 

survey station 6498 located in the No. 2 entry on 

the No. 13 section in that only 10,920 cubic feet 

of air per minute was measured at the inby end of 

the line curtain. The approved plan required 

18,000 cubic feet of air per minute while coal is 

being cut mined or loaded. Coal was being cut in 

the face of the entry." 

1/ Section 104(d)(2) provides as follows: 

" a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to paragraph (1), 

a withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar 

to those that resulted in the issuance of the withdrawal 

order under paragraph (1) until such time as an inspection of 

such mine discloses no similar violations. Following an 

inspection of such mine which discloses no similar violations, the provisions of paragrpah Cl) shall again be applicable to that mine." 

Section 104(d)(l) provides as follows: 

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

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act." 

827 
It is not disputed that MSHA Inspector Ona Jones was in 

the cited area during the course of his inspection on 

October 23, and 24, 1985 and on both occasions had informed 

representatives of management that there was insufficient air 

to mine coal at the faces of the No. 1 and 2 entries. These 

mine officials told Jones that they would "get it fixed." 

Jones returned to the section on October 29, when he 

learned that coal was being mined. Upon his arrival he saw 

the continuous miner backing out of the face. It had "gassed 

out" after encountering an excess of 1% methane. A methane 

check with a methanometer on an extended probe showed 5.1% 

methane on the off curtain side and 1.7% on the other side. 

The miner operator told Jones that they had also "gassed out" 

earlier that shift but they had hung a wing curtain and 

cleared the methane. The shift had begun at 11:00 p.m. on 

the 28th and it was then 1:41 a.m. 

Section foreman Steve Goldman told Jones that he 

measured 18,000 cfm (cubic feet per minute) when he brought 

the miner into the face. It is stipulated that 18,000 cfm 

was the minimum air volume required by the ventilation plan 

at the inby end of the line curtain while coal is being cut, 

mined or loaded. 

Inspector Jones' determination of "unwarrantable 

failure" was based upon the amount of work he thought would 

have to be done to bring the ventilation up to the 18,000 cfm 

requirement. It is not disputed that the gap in the line 

curtain along the roof line (4 to 5 feet long and up to 1 

foot high) found when the order was issued had existed since 

October 23rd. This is the same condition Jones reported to 

management on October 23rd and October 24th. Air was leaking 

through that gap and across the top of the line curtain in 3 

or 4 areas where the curtain had slackened up to 4 inches 

from the roof. In one area the line curtain was hanging 8 to 

12 inches from the roof along a horizontal distance of 

approximately 3 feet. 

In addition, the "run-through-drop" Ca 20 foot-wide 

passageway through the line curtain) was just hanging 

"side-by-side." This also had to be sealed with line 

curtain to prevent excessive air leakage in the abatement 

process: Finally, Jones found an area of air leakage located 

12 feet inby the jack in which the curtain had bowed into the 

rib. Additional jacks had to be inserted to prevent this 

bowing effect and this correction alone increased the ventilation to 14,805 cfm. Once the line curtain was pulled to the 

roof and the run-through-drop was sealed the ventilation 

improved to 19,902 cfm. It was Jones' opinion that the 

section foreman should at least have seen the bow in the line 

curtain which in itself seriously restricted the air flow. 

828 
In Ziegler Coal Company, 7 IBMA 280 (1977) the Interior 

Board of Mine Operations Appeals interpreted the term 

"unwarrantable failure" as follows: 

"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 operator involved has failed to abate 

the conditions or practices constituting such violation, conditions or practices the operator new or 

should have known existed or which it failured to 

abate because of lack of due diligence, or because 

of indifferance or lack of reasonable care." 

The Commission has concurred with the Board's definition 

to the extent that an unwarrantable failure to comply may be 

proven by a showing that the violative condition or practice 

was not corrected or remedied, prior to the issuance of a 

citation or order, because of indifference, willful intent, 

or serious lack of reasonable care. United States Steel 

Corporation v. Secretary of Labor, 6 FMSHRC 1423 at 1437 

(1984). 

Within this framework I must agree with the "unwarrantable failure" determination by Inspector Jones. Jones had 

clearly warned Jim Walter's management some 5 days before the 

instant violation of serious defects in its ventilation of 

the cited section. Indeed one of the defects causing leakage 

of ventilation on the date of the violation had on two prior 

occasions, been pointed out to Jim Walter management by 

Jones. 

In addition, on the same shift in which the violation 

herein was cited, and only a short time before, the section 

had "gassed out". In other words the methane level had then 

exceeded 1% and the continuous miner was removed from the 

face and shut down. This problem should have triggered a 

complete corrective response by the section foreman including 

an air reading. This was particularly important because the 

section foreman acknowleged that he had obtained only the 

bare minimum 18,000 cfm of ventilation at the commencement of 

his shift and should therefore have been on notice that the 

slightest impediment to the ventilation system would have 

caused the section to fall below that minimum. Thus when the 

line curtain developed a bow into the rib the section foreman 

should have taken immediate action to assure proper ventilation. Under the circumstances the violative condition was 

not corrected or remedied prior to the issuance of the order 

at bar because of indifference, willful intent, or serious 

lack of reasonable care. The violation was therefore caused 

by the "unwarrantable failure" of the operator to comply with 

the law. For the same reasons I find that the mine operator 

was negligent. 

829 
The violation also presented a serious hazard. It is 

undisputed that if the ventilation remained insuff icent, 

methane could rapidly build-up to explosive levels in the 

face area and ignition sources such as the bits on the continuous miner could generate sparks thereby causing an 

ignition or an explosion. The hazard was particular grave 

under the circumstances because of the large amounts of 

methane liberated at this mine i.e, 30 million cubic feet in 

each 24 hour period. Indeed, according to MSHA supervisory 

mining engineer, William Meadows, the No. 4 Mine was in the 

top 5% in total face liberation of methane of all mines in 

the country. Under the circumstances serious injuries were 

reasonably likely to occur. The violation was accordingly 

"significant and substantial". Secretary v. Mathies Coal 

Co., 6 FMSHRC 1 (1984). 

Order No. 2605676 also alleges a violation of the mine 

ventilation plan under the standard at 30 C.F.R. § 75.316. 

The order charges as follows: 

"The current approved Ventilation Methane and Dust 

Control Plan was not being complied with on the No. 

8 section (008-0) in that only 25,600 cubic feet of 

air per minute was measured in the last open crosscut on the right side. The plan requires air in 

the last open cross-cut be maintained at a minimum 

of 30,000 cfm on each coal producing split." 

MSHA inspector Judy McCormick was inspecting the No. 8 

section of the No. 4 Mine in the early morning hours of 

November 7, 1985, when she noticed a temporary stopping in 

bad repair. It appeared that they were "losing air" through 

the stopping. She found only 25,600 cfm of air in the last 

open cross-cut on the right side where 30,000 cfm was 

required. McCormick also found 2 slits in the line curtain 

18 inches high and 1 foot apart which were allowing air to 

escape. She also noted that the curtain was neither flush 

against the rib nor attached properly at the roof. 

At the time McCormick issued her order, coal was not 

being produced and little methane was present. She observed 

however that if mining had resumed in the faces or if coal 

was loaded there could have been a problem. She also noted 

that equipment and miners were available to resume operations 

in those entries at any time. With insufficent ventilation 

McCormick opined that methane could build up and, should 

equipment subsequently enter the section, ignitions could 

occur leading to fire or explosions. 

McCormick alleged that the violation was caused by 

"unwarrantable failure" because she believed the foreman 

should have seen that the temporary stopping was not adequate 

830 
to prevent air leakage. The stopping was in the track entry 

where the foreman passes. McCormick conceded however that 

the preshift report for the cited section showed a volume of 

37,520 cfm and that she could not determine how much air was 

leaking through the temporary stopping. She also acknowleded 

that significant variations in air readings taken at the same 

time and location are not unusual. 

Within this framework of evidence I do not find "unwarrantable failure." The undisputed evidence shows that before 

the commencement of the shift at issue, some 2-1/2 hours 

before this violation, the air volume was 7,520 cfm greater 

than required. It appears moreover that that reading was 

taken at a time· when the temporary stopping was in the same 

condition as found by Inspector McCormick. In the absence of 

any obvious and significant changes in the ventilation system 

the section foreman could reasonably have expected that the 

air volume would continue to be above the minimum even 2-1/2 

hours later. It cannot therefore be concluded that the 

foreman should have known of the violative condition before 

the issuance of the order at bar. For the same reasons I 

find the operator chargeable with but little negligence. 

I do find however that this violative condition did 

present a serious and "significant and substantial" hazard. 

Mathies, supra. It is undisputed that low air volumes may 

lead to less ventilation at face areas which, in turn, would 

permit the accumulation of methane to explosive levels. 

Under the circumstances it would be reasonable to expect that 

mining would have continued in the cited areas thereby 

bringing ignition sources within close proximity to the 

methane. Ignition sources such as the ripper heads of the 

continuous miner striking rock could lead to methane ignitions· and/or explosions and accordingly serious burn injuries 

and/or fatalities from fire or explosions. Accordingly, 

Order No. 260567~ is modified to a citation under section 

104(a) of the Act and the "significant and substantial" 

findings relating thereto are affirmed.' In assessing civil 

penalties in these proceedings I have also considered that 

the operator is medium in size and has a moderate history of 

violations~ I also note that all of th~ violative conditions 

were abated in a timely manner. 

ORDER 

Order No. 2605598 is affirmed as a section 104(d)(2) 

order with "significant and substantial" findings. Order No. 

2605676 is modified to a citation under section 104(a) of the 

Act and the "significant and substantial" findings associated 

therewith are affirmed. Civil penalties of $350 {Civil 

Penalty Docket No. SE 86-55) and $175 (Civil Penalty Docket 

No. SE 86-48) are hereby assessed for these orders, respectively ctnd must be paid within 30 days of the date of this 

831 
decision. The associated Contest Proceedings, Docket Nos. SE 

86-14-R and SE 86-16-R, are dismissed. 

SETTLEMENT PROPOSAL 

The Secretary has also moved for approval of a settlement agreement as to the citations and orders remaining under 

Civil Penalty, Docket No. SE 86-48. A reduction in penalties 

from $2,100 to $1,400 was proposed. I have considered the 

representations and documentation submitted and I conclude 

that the proffered settlement is appropriate under the 

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

ORDER 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that in addition to the amounts 

previously noted Respondent pay the proposed penalties of 

$1,400 within 30 days of this order. The associated Contest 

Proceedings Docket Nos. SE 86-13-R and SE 86 17-R are 

dismissed. 

Gary Me 

Administ 

Distribution: / 

Harold D. Rice, Esq., and R. Stanleyl orrow, Esq., Jim 

Resources, Inc. P.O. Box C-79, Birmingham, AL 35283 

(Certified Mail) 

Walter 

H. Gerald Reynolds, Esq., Jim Walter Corporation, 1500 North 

Dale Mabry Highway, Tampa, FL 33607 (Certified Mail> 

George D. Palmer, Esq., Office of the Solicitor, U.S. Department of Labor, 2015 Second Avenue, North, Suite 201, 

Birmingham, AL 35203 (Certified Mail) 

rbg 

832 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION ( MSHA) , 

Petitioner 

v. 

TRIPLE B CORPORATION, 

Respondent 

May 14, 1986 

. . 

: 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 86-56 

A.C. No. 15-10516-03508 

No. 1 Surface Mine 

Appearances: Theresa Ball, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee 

for Petitioner; 

Gary A. Branham, Triple B. Corporation, 

Prestonsburg, Kentucky for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 197/, 30 

U.S.C. § 801 et. ~, the "Act," charging the Triple B 

Corporation (Triple B) with five violations of regulatory 

standards. The issues before me are whether Triple B has 

conunitted the violations as alleged and if so whether those 

violations were of such nature as could have significantly 

and substantially contributed to the cause and effect of a 

coal or other mine safety or health hazard, i.e., whether the 

violations were "significant and substantial". If violations 

are found it will also be necessary to determine the 

appropriate civil penalty to be assessed in accordance with 

the criteria set forth in section llO{i) of the Act. 

Citation No. 2302122 alleges "significant and substantial" violations of the standard at 30 C.F.R. § 77.1605(b) 

and charges as follows: 

The DM 800 Mack Grease, Oil and Fuel Truck is not 

equipped with an adequate braking system. Upon 

testing of the braking system the foot brakes are 

weak and the truck is not equipped with a parking 

brake 

The cited standard requires that "mobile equipment ••• 

be equipped with adequate brakes, and all trucks .•• also 

be equipped with parking brakes." 

833 
Inspector Andrew Reed, Jr. of the Federal Mine Safety 

and Health Administration CMSHA), was performing an inspection of the Triple B surface mine on October 30, 1985, when 

he found the cited Mack truck with no parking brake. The 

essential shoe and drum were missing. Reed acknowledged that 

the truck also had a dump brake but that system would be 

effective as a parking brake for only 5 to 10 minutes. It is 

not disputed that this truck would be parked whi servicing 

other vehi s and, without a parking brake, could roll into 

pedestrians causing fatal injuries. Under the circumstances 

I find that the violation was serious and "significant and 

substantial". Secretary v. Mathies Coal Company, 6 FMSHRC 1 

(1984). 

The operator was also negligent in not having the 

required parking brake. Since the shoe and drum had been 

missing and the brake was not functioning at all, it is the 

type of violation that should have been easily discovered 

during the course of the required inspections of the vehicle 

whether those inspections were performed by supervisory personnel, by the truck driver, or by some other employee. Even 

if the inspections were performed by the truck driver or 

other nonsupervisory personnel the fact that this obvious 

defect was not reported and corrected shows negligent 

training and/or supervision. 

The citation alleges a second violation of the same 

standard for defects in the primary braking system.l/ 

According to Inspector Reed the brakes were weak and the 

stopping time was delayed. Triple B president Gary Branham, 

admitted the violation but denied that it was 11 signif icant 

and substantial." There is no evidence as to the length of 

any alleged delay or how far the brakes deviated from the 

accepted norm. In light of the admission I find that the 

violation is proven as charged but in the absence of more 

specific evidence I cannot determine whether the violation 

was "significant and substantial". 

In addition because of the lack of specific evidence 

concerning the alleged "delay" in the functoning of the 

primary braking system I can not determine whether the violation was one which should have been known to either management or the truck driver and therefore I am unable to attribute any negligence to the operator. Consistent with these 

findings I note that the violation was easily abated by a 

simple adjustment to the braking system. 

~/ The mine operator did not object to the multiple charging 

in one citation. 

834 
Citaticn No. 2302123 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 77.1606(c) and 

charges as follows: 

An equipment defect affecting safety is present on 

the DM 800 Mack Grease, Oil and Fuel Truck which 

has not been corrected prior to the truck's use. 

The steering wheel has excessive play and the right 

side tie rod end is worn out. 

The cited standard requires that equipment defects 

affecting safety shall be corrected before the equipment is 

used. 

According to the undisputed testimony of Inspector Reed 

there was "excessive play in the steering" which made 

handling of the vehicle difficult and likely that the driver 

would lose control. Under the circumstances an accident was 

reasonably likely resulting in disabling or fatal injuries 

to the driver. The violation was caused by a defective tie 

rod on the right side. While the evidence is again sparse I 

find it to be sufficient to support Inspector Reed's conclusions that the admitted violation was indeed "significant 

and substantial" and serious. Mathies, supra. 

I also find that the defective tie rod and the excessive 

play in the steering were defects of such a nature as should 

have been discovered and corrected during the course of 

pre-shift inspections of the vehicle and during its use early 

on the shift. The failure to have reported and/or corrected 

this condition again demonstrates operator negligence in 

employee training and supervision. 

Citation No. 2302124 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 77.410 and 

charges as follows: 

The reverse alarm is inoperative on the DM 800 Mack 

Grease, Oil and Fuel Truck. 

The cited standard requires that 11mobile equipment such 

as trucks • . • shall be equipped wi'th an adequate automatic 

warning device which shall give an audible alarm when such 

equipment is put in reverse." 

According to Inspector Reea the cited vehicle would be 

operated in reverse in the vicinity of pedestrian traffic 

thereby presenting a serious and "significant and substantial" hazard of disabling or fatal injuries to such personnel. 

The truck driver himself is able to hear whether or not the 

alarm is functioning and therefore clearly should have known 

835 
of the violation. The mine operator is again chargeable with 

negligent training and supervision for the failure of its 

employees to report and/or correct this condition. 

Citation No. 2302125 alleges another "significant and 

substantial" violation of the standard at 30 C.F.R. § 

77.1605(b) and charges as follows: 

The International 350 Rock Haulage Truck is not 

equipped with an adequate braking system upon 

testing. The parking brake is found to be 

inoperative. 

It is not disputed that with·the subject parking brake 

engaged there was not even a delay or restriction of movement 

with the truck on a "slight" grade. According to Inspector 

Reed the truck could therefore "roll off during the course of 

the day when they park for dinner, park for servicing or park 

at the end of the day" and cause "crushing injuries" to 

pedestrians in its path. The violation was accordingly 

serious and "significant and substantial." Mathies, supra. 

Since the parking brake was not functioning at all it was 

clearly due to operator negligence in the training and/or 

supervision of its employees in failing to have such a 

condition reported and/or corrected. 

Citation No. 2302126 also alleges "significant and 

substantial" violations of the standard at 30 C.F.R. § 

77.1606Cc) and charges as follows: 

Equipment defects affecting safety are present on 

the International 350 Rock Haulage Truck which have 

not been corrected prior to use of the truck. In 

that Cl) three of the rear view mirrors (two 

provided on each side of the truck) are cracked and 

cause a broken and/or distorted view of rearward 

visibility. (2) The pins and/or bushings in the 

stationary ends of both steering jacks are badly 

worn and cause excessive play in the steering 

system and difficult handling. 

Again the violations are not disputed but only the 

"significant and substantial" findings and the amount of 

penalty related thereto. According to Inspector Reed the 

condition of the rear view mirrors was reasonably likely to 

cause the truck to back into pedestrians or back over the 

highwall thereby causing disabling or fatal injuries. This 

evidence is undisputed and I find it sufficient to support 

the "significant and substantial" findings and a determination that the violation was serious. 

It is undisputed that the worn-out pins and bushings and 

the broken bushing caused excessive play in the steering 

836 
thereby causing extremely difficult handling and control of 

the truck. Reed observed the truck in operation and noted 

that the driver was having difficulty keeping it on the road. 

Reed opined without contradiction that the condition was 

therefore reasonably likely to cause the truck to strike 

other vehicles or leave the road thereby causing serious 

disabling and/or fatal injuries. The violation was accordingly "significant and substantial" and serious. Mathies, 

supra. 

Reed observed that the cited conditions would have 

developed over several weeks or months and accordingly should 

have been discovered during the company's inspection process. 

The inspection process, a management responsiblity, was 

therefore deficient showing a negligent lack of supervision 

and/or training. The violation was accordingly the result of 

operator negligence. 

In determining the amount of penalties I am assessing in 

this case I have given great weight to the fact that the mine 

operator is relatively small in size, has only a minor 

history of reported violations, and abated the violative 

condition in a timely manner. Within this framework the 

following penalties are deemed appropriate: 

Citation No. 2302122 

Citation No. 2302123 

Citation No. 2302124 

Citation No. 2302125 

Citation No. 2302126 

Total 

ORDER 

The Triple B Corporation is hereby 

penalties of $250 within 30 days of the 

Distribution: 

Theresa Ball, Esq., Office of the S 

of Labor, 280 U.S. Courthouse, 801 

TN 37203 (Certified Mail) 

$ 50 

$ 50 

$ 50 

$ 50 

$ 50 

$250 

to pay civil 

this decision. 

u .. Department 

Nashville, 

Gary A. Branham, President, Triple B. Corporation, PO Box 

428, Prestonsburg, KY 41653 (Certified Mail) 

rbg 

837 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 14, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

FLORIDA CRUSHED STONE 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 85-135-M 

A.C. No. 08-00024-05512 

Brooksville Gay Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), 

seeking civil penalty assessments in the amount of $6,257, for 

five alleged violations of certain mandatory safety standards 

found in Part 56, Title 30, Code of Federal Regulations. 

The respondent filed a timely answer and contest, and the 

case was scheduled for hearing in Tampa, Florida, on May 13, 

1986. However, the parties filed a motion pursuant to 

Commission Rule 30, 29 C.F.R. § 2700.30, seeking approval of a 

settlement of the case. The citations, initial assessments, and 

the proposed settlement amounts are as follows: 

30 C.F.R. 

Citation No. Date Section Assessment Settlement 

2384726 3/27/85 56.3003 $6,000 $3,000 

2384728 3/27/85 56.3005 $ 126 $ 126 

2384729 3/27/85 56.18028(b) $ 20 $ 20 

2384875 7/23/85 56.20003(a) $ 20 $ 20 

2384876 7/23/85 56.12032 $ 91 $ 91 

838 
Discussion 

The respondent has agreed to pay the full amount of the 

proposed civil penalty assessments for four of the citations 

in question. With respect to Citation No. 2384726, the record 

reflects that it was issued when a section of a pit wall 

collapsed, partially covering a power shovel and resulting in 

the death of the shovel operator. The inspector who issued the 

citation alleged that the height of the pit bench was 60 feet, 

and he believed that this height was excessive for the equipment being used. The cited safety standard provides in pertinent part that "the width and height of benches shall be 

governed by the type of equipment to be used and the operation 

to be performed." 

With regard to the respondent's negligence for the citation 

in question, the respondent represents that (1) it had regular 

inspections of the highwall; (2) these inspections were designed, 

inter alia, to uncover potential hazards such as that wh~ch lead 

to the failure of the wall and to ensure that the width and 

heights of any benches was appropriate for the equipment being 

used and the operation being performed; (3) the wall had been 

inspected four times during the 9-hour period preceding the 

accident including one inspection only 2 hours prior to the 

accident; and (4) there were no rockslides or falling rocks 

noted in the 24-hours prior to the accident. MSHA has no information contrary to these representations. 

Respondent represents that the defect in the highwall leading to the wall's failure was not reasonably discoverable by 

inspection by qualified persons. MSHA is aware of no condition 

which was visible prior to the accident which would have indicated the existence of the condition which lead to the wall's 

failure. Further, the respondent represents that, at the time 

of the accident, the power shovel loading rock at the base of 

the wall was backed away from the pit wall approximately 20 feet, 

and the shovel cab was not rotated. MSHA has no information 

contrary to these representations. 

The parties agree that respondent is chargeable with only 

a low degree of negligence with respect to Citation No. 2384876 

in that the cited condition was the result of the accidental 

failure to reinstall a single cover over an electrical switch, 

contrary to the otherwise uniform procedures of the respondent. 

As to the gravity of the violations alleged in Citation 

Nos. 2384726, 2384728 and 2384876, the parties agree that if 

an injury were to result from the conditions, such injury would 

likely be serious or fatal and would likely affect one person. 

839 
The parties agree that Citation Nos. 2384729 and 2384875 

were properly classified as "single penalty" citations in that 

they were not reasonably likely to result in a reasonably 

serious injury, and the respondent demonstrated little 

negligence. 

The parties agree that the respondent is a medium to large 

mine operator subject to the Act, and that the civil penalties 

in quest~on will not affect its ability to continue in business. 

They also agree that the respondent demonstrated good faith by 

terminating all of the alleged violations within the times 

prescribed, and that during the period March, 1983 through 

July, 1985, the respondent was assessed for eight violations 

excluding timely paid single penalty assessments. The parties 

also agree that approval of the proposed settlement is in the 

public interest and will further the intent and purpose of the 

Act. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the settlement amounts shown above in satisfaction of the citations in 

question within thirty (30) days of the date of this decision 

and order, and upon receipt of payment by the petitioner, this 

proceeding is DISMISSED. 

/~~e ~./AfL ;£. Koutras 

cf/~ Administrative Law Judge 

Distribution: 

Larry A. Auerbach, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 339, 1371 Peachtree Street, N.E., Atlanta, GA 

30367 (Certif~ed Mail) 

William B. deMeza, Esq., Holland & Knight, Post Office Box 1669, 

Bradenton, FL 33506 (Certified Mail) 

/fb 

840 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 15, 1986 

JAMES G. EADES, 

Complainant 

DISCRIMINATION PROCEEDING . . v. . . Docket No. YORK 85-11-DM 

MSHA Case No. MD 85-30 

ARUNDEL SAND & GRAVEL CO., 

Respondent 

ORDER OF DISMISSAL 

Appearances: James G. Eades, Aberdeen, Maryland, Pro se; 

Randal J. Schultz, Arundel Sand & Gravel Co., 

Baltimore, Maryland, for Respondent. 

Before: Judge Melick 

At hearings on May 6, 1986, the Co 

withdraw his Complaint herein. Under t~ 

this case the request was granted 

Commission Rule 11, 29 C.F.R. § 27 

' I 

Distribution: 

lainant requested to 

circumstances of 

conf ir 

' 

Judge 

Mr. James G. Eades, 1232 s. Philadelphia Boulevard, Aberdeen, 

MD 21204 (Certified Mail) 

Mr. Randal J. Schultz, Director of Personnel, Arundel Sand & 

Gravel Co., 110 West Road, Baltimore, MD 21204 (Certified 

Mail) 

rbg 

841 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

S-S-S INCORPORATED, 

Respondent 

May 19, 1986 

. . 

. 

. 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 86-35-M 

A.C. No. 23-00192-05502 

S-S-S Quarry & Mill (Pike) 

Appearances: Eliehue c. Brunson, Esq., Office of the 

Solicitor, U.S. Department of Labor, Kansas 

City, Missouri for Petitioner; 

John M. Mcilroy, Sr., Esq., Mcilroy and Millan, 

Bowling Green, Missouri for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.Co § 801 et. ~, the "Act," charging one regulatory 

violation against S-S-S Incorporated (S-S-S), in connection 

with the death of miner· Brad Hobbs on July 30, 1985. 

The issues before me are whether s-s-s has committed the 

violation as alleged and if so whether that violation was of 

such a nature as could have significantly and substantially 

contributed to the cause and effect of a coal or other mine 

safety or health hazard, i.e., whether the violation was 

"significant and substantial." If a violation is found it 

will also be necessary to determine the appropriate civil 

penalty to be assessed in accordance with the criteria set 

forth in section llO(i) of the Act. 

The one citation at issue,' No. 2392700, alleges a 

"significant and substantial" violation of the standard at 30 

C.F.R. § 56.16009 and charges as fgllows: 

l" 

On 7/30/85 a fatal accident occured when a laborer 

was struck by a falling suspended load. He was 

struck by the load as he had put himself in an 

842 
exposed position directly under the elevated load. 

The suspended load in this case was a roll of 42" 

conveyor belt. 

The cited standard states that "persons shall stay clear 

of suspended loads." 

The events leading to the death of employee Brad Hobbs 

are not in dispute. Hobbs had just been released from 

military service and had been working for s-s-s as a laborer 

for only 3 weeks when the accident occurred. Quarry manager 

and S-S-S president Gerald Smith told senior employee Steve 

Luebreicht to take Hobbs and another employee Robert Osborne 

and show them how to replace a worn conveyor belt. Neither 

Hobbs nor Osborne had done this before. Smith also told 

crane operator William Swarnes of the plans to change the 

belt and that Steve Luebreicht would tell him when he was 

needed with the crane. Smith did not directly supervise the 

'elt change and was not present when the accident occurred. 

Steve Luebreicht acknowledged that for purposes of 

changing the belt he was the "team leader." When Luebreicht 

arrived at the conveyor Hobbs and Osborne, along with the new 

belt and a pipe, were already there. They ran the pipe 

through the center of the rolled belt, passed a chain through 

the clevis attached to the crane cable and wrapped the chain 

around each end of the pipe. The crane operator raised the 

new belt into position as Luebreicht guided him with arm 

signals, then locked the roll in position and left the scene. 

The rolled belt was binding against the chain and was 

difficult to unravel. Luebreicht had twice before rigged 

belts for replacement but those belts were smaller and the 

chain did not bind on the belt as it did now. The three men 

continued tugging at the end of the belt hanging above them 

to thread it into the conveyor. Hobbs was standing on the 

conveyor when the belt suddenly fell striking all three and 

killing Hobbs. 

Osborne testified that in replacing the belt he was 

taking directions from the more experienced Luebreicht. 

According to Osborne it was d ficult to pull the belt and 

they found it necessary to go beneath the roll in order to 

rig it properly. Suddenly Osborne felt a slack in the belt, 

looked up and saw the belt roll falling. Osborne acknowledged that he had never been trained and had no experience in 

changing conveyor belts. However he had once been told by 

Wayne Smith (President Gerry Smith's father) not to go 

beneath any load. He nevertheless went under the belt on 

this occasion because he thought it was necessary. 

843 
Howard Lucas an MSHA supervisory mine inspector testified that the use of a chain in the described manner and 

particularly a chain not fastened at either end of the pipe. 

nor at the clevis, was contrary to accepted safe industry 

practice. Because the chain was not tened at either end 

of the pi nor at the clevis the roll could easily shift 

position, the chain slip off and the roll 11. Lu~as 

observed that the manner in which the roll was jammed against 

the chain made it necessary for all three of miners to 

pull on it. He also observed that in order for all three to 

obtain the best grip on the belt it was necessary for one of 

the men to stand on the conveyor beneath the suspended roll 

where Hobbs was standing. 

Within this framework of evidence it is clear that the 

violation did occur as alleged and was "significant and 

substantial'' and serious. Secretary v. Mathies Coal Company, 

6 FMSHRC 1 (1984). The violation was also the result of 

operator negligence. Although S-S-S president Gerry Smith 

testified that he had showed Hobbs only a week before the 

fatal accident how to stay out from under a suspended load at 

another location on the mine site and two other s-s-s 

employees had on one occasion overheard Wayne Smith tell 

Hobbs not to stand beneath a raised loader bucket, it is 

clear that the fatal accident herein was the result of 

negligent supervision and inadequate training. Neither Hobbs 

nor Osborne had ever had any training or experience with the 

assigned task. Moreover the group 1 and only experienced employee present, Steve Luebreicht, not only failed to 

warn these two miners about going beneath the suspended belt 

but indeed gave implicit acceptance to the violation by 

placing himself beneath the suspended belt roll in their 

presence. Thus while Luebreicht may not have given direct 

orders to Hobbs and Osborne to place themselves beneath the 

suspended belt rollr he was nevertheless negligent by 

omission" The negligent supervision by Luebreicht is also 

chargeable to the operator since he was the task leader and 

agent designated by President Smith. The inadequate training 

of Hobbs and Osborne to safely perform the assigned task also 

warrants an independent finding of operator negligence. 

In assessi~g a penalty for the violation herein I have 

so considered that the operator was of moderate size and 

that the violation was approprately abated. There is no 

evidence of any history of violations at the subject mine. I 

have also considered that the operator has already paid a 

civil penalty of $5,000 for the improper rigging the belt 

roll -- the proximate cause of the fatal accident. Thus 

although the instant citation charges a separate violation I 

am considering the incident as a whole for purposes of an 

appropriate civil penalty. 

844 
ORDER 

S-S-S Incorporated is hereby directed to 

penalty of $1,000 within 30 days o the date 

Distribution: 

ay a civil 

this decision. 

Eliehue C. Brunson, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 2106, 911 Walnut Street, Kansas 

City, MO 641U6 (Certified Mail) 

John M. Mcilroy, Sr., Esq., Mcilroy and Millan, 220 West 

Church Street, Bowling Green, MO 63334 (Certified Mail) 

rbg 

845 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE MAY 231986 

FALLS CHURCH, VIRGINIA 22041 

ALLSTATE ERECTORS, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

CONTEST PROCEEDINGS 

Docket No. CENT 86-50-RM 

Citation No. 2661028; 

1/21/86 

Docket No. CENT 86-51-RM 

Order No. 2661030; 

1/22/86 

DECISION 

Appearances: L. G. Clinton, Jr., Esq., L.G. Clinton Jr. and 

Associates, Houston, Texas, for Contestant·. 

Max Wernick, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for 

Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Contestant Allstate Erectors, Inc. (Allstate} challenges 

the validity of a citation issued January 21, 1986 7 charging a 

violation of 30 C.F~R. § 56.15-3r and a subsequent withdrawal 

order isued January 22i 1986 for failure to abate the condition 

alleged in the citation. Pursuant to notice, the case was 

heard in Dallasr Texas, on March lOv 1986. Jimmy L. Jonesv a 

Federal mine inspector testified pn behalf of Respondent the 

Secretary of Labor (Secretary). Bernard 0. Harold and Frank 

Clayton Wamble tetif ied on behalf. of Allstate. Both parties 

have filed post hearing briefs. Based on the entire record, 

and considering the contentions of the parties, I make the 

following decision. 

FINDINGS OF FACT 

Allstate was an independent contractor performing work on 

January 21 and 22, 1986 in the Dallas Quarry and Plant for 

General Portland, Inc. Kt the plant, limestone is quarried, 

crushed and milled into cement. Allstate was fabricating a 

handrail which was to be installed on a work platform 

constructed above a kiln in the plant. At about 3:15 p.m. on 

January 21, two employees of Allstate were working on the 

846 
handrail, one welding a flange to the handrail, the other 

grinding with a hand-held grinder. The rail contained vertical 

sections 4 to 5 feet long and horizontal sections 12 to 15 feet 

long. The entire assembly weighed over 50 pounds. The flange 

being welded to the rail weighed about 12 pounds, and the 

grinder weighed about 12 pounds. The work was being performed 

on a flat concrete surface. 

At about 3:15 p.m. on January 21, 1986, Federal Mine 

Inspector Jimmy L. Jones issued Citation No. 2661028, alleging 

a violation of 30 C.F.R. § 56.15-3 because "a welder was 

observed fabricating sections of handrail while wearing leather 

work shoes without steel toes. Another employee was working in 

the area using a hand held surface grinder." 

Allstate admits that the employee in question was not 

wearing shoes with steel toes, but there is a dispute as to the 

kind of shoes he was wearing. Allstate contends that he was 

wearing "sturdy work shoes, 11 and submitted a photograph 

(contestant's Ex. 1) of the welder's lower legs with boots 

above the ankle. The photograph was taken at some time between 

January 21 and March 10, 1986. The inspector testified that 

the photograph did not show the boots worn by the welder on 

January 21. He stated that the top of the boots worn by the 

welder were soft and that he could see the outline of the toes 

through the leather. The welder was not called as a witness, 

nor was the person who took the photograph. I accept the 

testimony of the inspector, and find as· a fact that the welder 

was wearing soft-toed leather shoes on January 21, 1986. 

The citation established a termination time of 7:00 a.m., 

January 22, 1986. The inspector told the foreman Bill Harold 

that the employees were exposed to hazards to the toes and 

would have to have steel-toed shoes when they reported to work 

the following day. The inspector.returned to the plant on 

January 22, and at about 9: 00 a .m·~ observed the same Allstate 

welder working on a section of pipe, welding a flange to the 

end of the pipe. The pipe was 10 to ·12 inches in diameter, and 

approximately 20 feet long; it was mounted on rollers on top of 

work horses so that it could be rolled while the welding was 

being done. The welder was wearing ~he same shoes as on the 

previous day. The Allstate foreman told the inspector that he 

had discussed the matter with his supervisor, and was told that 

steel toed shoes were not required. The inspector issued 

withdrawal order 2661030 at 9:00 a.m., January 22, 1986 

requiring Allstate to have its employees provided with steel 

toed shoes. The order stated that "employee was not provided 

with suitable footwear in that he was wearing soft toed leather 

shoes. The foreman was instructed that the employees had to 

wear steel toed shoes." The employees were withdrawn and steel 

847 
toed shoes were provided, and the citation and order were 

terminated at 10:00 a.m., January 22, 1986. 

REGULATORY PROVISION 

ISSUES 

30 C.F.R. § 56.15-3 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. 

1. Does the evidence establish the existence on 

January 21, 1986 of a hazard in the area of the plant involved 

herein which could cause an injury to the feet? 

2. If so, were the employees in question wearing 

suitable protective footwear? 

3. If a violation was established on January 21, 1986, 

was it abated within the time fixed in the citation? 

CONCLUSIONS OF LAW 

I. JURISDICTION 

Allstate was at all times pertinent to this case an 

independent contractor performing services at a mine, and was 

therefore an operator subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 (the Act). I have 

jurisdiction over the parties and subject matter of this 

proceeding. 

II. EXISTENCE OF HAZARD TO.THE FEET 

On January 21, 1986, Allstate's employees were working 

with a section of handrail, weighing over 50 pounds. A flange 

weighing about 12 pounds was being welded to the rail. A hand 

held grinder weighing about 12 pounds was being used to grind 

slag from welded areas of the rail. The rail was to be moved 

to the kiln location. It is thus apparent that the rail, the 

flange, and the grinder could have been dropped or otherwise 

come in car.tact with the employee's feet, causing injury. In 

addition, the same employees had been working on the kiln 

handling sections of plate steel, and doing other work 

involving heavy pipe. I conclude that the evidence establishes 

that Allstate's employees were working in an area of the mine 

where a hazard existed which could cause an injury to their 

feet. 

848 
III. SUITABLE PROTECTIVE FOOTWEAR 

I have found as a fact that the miner in question was 

wearing soft toed leather boots and that the outline of his 

toes could be seen through the top of the boot. It is very 

clear, and I conclude, that the boots were not suitable 

protective footwear. Therefore, a violation of 30 C.F.R. 

§ 56.15-3 was established on January 21, 1986. The citation 

charges that the miner was wearing leather work shoes without 

steel toes. The standard does not specifically require steel 

toed footwear, but only suitable protective footwear, and it is 

certainly conceivable that there are kinds of suitable 

protective footwear which do not have steel toes. 

Nevertheless, the evidence shows a clear violation of the 

standard, and the overly specific wording of the citation does 

not affect its validity. The citation was properly issued and 

should be affirmed. 

IV. ABATEMENT 

Allstate was given approximately 15 hours (until 7 a.m. 

the following day) to abate the violation. The reasonableness 

of the time for abatement was not challenged. At about 9:00 

a.m. on January 22, 1986, the inspector found the same employee 

"not provided with suitable footwear in that he was wearing 

soft toed leather shoes ••• " the evidence establishes that in 

fact he was wearing the same shoes he wore on the previous day. 

Because the violation was not abated, an order of withdrawal 

was issued under section 104(b) of the Act. The order 

contained the language quoted above and added "the foreman was 

instructed that the employees had to wear steel toed shoes." 

As I indicated previously, the standard does not require steel 

toed shoes. However, the employee in qustion was not wearing 

suitable protective footwear, and.therefore the violation was 

not abated. The order was properly issued and should be 

affirmed. See Secretary v. Middle Kentucky Construction Co., 

Inc., 2 FMSHRC 1137 (ALJ 1980}. 

ORDE~ 

Based on the above findings of fact and conclusions of 

law, IT IS ORDERED: 

1. That the notice of contest filed contesting citation 

2661028 issued January 21, 1986 is DENIED. 

2. Citation 2661028 issued January 21, 1986 is AFFIRMED. 

849 
3. The notice of contest filed contesting withdrawal 

order 2661030 issued January 22, 1986 is DENIED. 

4. Withdrawal order 2661030 issued January 22, 1986 is 

AFFIRMED. 

Distribution: 

j

d/vvL£-s /~f3"odtA.7,ek James A. Broderick 

Administrative Law Judge 

L. G. Clinton, Jr., Esq., L. G. Clinton, Jr. and Associates, 

5300 Memorial, Suite 470, Houston, TX 77007 (Certified Mail) 

Max Wernick, Esq., U.S. Department of Labor, Office of the 

Solicitor, 555 Griffin Square Bldg., Dallas, TX 75202 

(Certified Mail) 

slk 

850 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 30, 1986 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

FOUR H COAL COMPANY, INC., 

Respondent 

. . 

. . 

DECISION 

CIVIL PENTALTY PRO~EEDINGS 

Docket No. KENT 85-205 

A. C. No. 15-03120-03520 

Mine No. IE68, Orkney 

Appearances: Carole M. Fernandez, Esq., Office of the 

Solicitor, U. S. Department of Labor, Nashville, 

Tennessee, for Petitioner; 

Mr. J. Byron Hamilton, Operator, McDowell, 

Kentucky, for Respondent 

Before: Judge Kennedy 

These matters came on for a decision after hearing in 

Hazard, Kentucky, on May 21, 1986. At that time, the parties 

proposed settlement of the two violations charged by payment of 

the following penalties: 

CITATION/ORDER 

2467260 

2467346 

AMOUNT 

$ 50.00 

500.00 

$550.00 

Based on an independent evaluati,on and de novo review of 

the circumstances, as proffered in the parties' prehearing 

submissions and in the evidence adduced at the hearing, the 

trial judge found the settlement proposed was in accord with 

the purposes and policy of the Act. 

851 
Accordingly, it is ORDERED that the settlement be, and 

hereby is, APPROVED. It is FURTHER ORDERED that the operator 

pay the amount of the settlement agreed upon, $550, within 60 

days from the date of issuance o this order and that subject 

to payment the captioned matter e DISMISSED. 

Distribution: 

Carole M. Fernandez, Esq., Office of the Solicitor, u. S. 

Department of Labor, 280 U. S. Courthouse, 801 Broadway, 

Nashville, TN 37203 CCertifjed Mail) 

Mr. J. Byron Hamilton, Secy~Treasurer, Four H Coal Company, 

Inc., P. o. Box 290, McDowell, KY 41647 (Certified Mail) 

dcp 

852 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 30, 1986 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STONEY FORK COAL COMPANY 

Respondent 

. 

. 

. . 

:· 

. . 

. . 

. . 

DECISION 

CIVIL PENTALTY PROCEEDINGS 

Docket No. KENT 85-214 

A. C. No. 15-09655-03516 

Docket No. KENT 85-217 

A. C. No. 15-09655-03517 

Stoney No. 1 Mine 

Appearances: Carole M. Fernandez, Esq., Office of the 

Solicitor, u. s. Department of Labor, Nashville, 

Tennessee, for Petitioner; 

Mr. Rodney L. Partin, Operator, Cumberland, 

Kentucky, for Respondent 

Before: Judge Kennedy 

These matters came on for a decision after hearing in 

Hazard, Kentucky, on May 20, 1986. At that time, the parties 

proposed settlement of the eight violations charged by payment 

of the following penalties: 

CITATION 

2196110 

2196112 

2196114 

2196143 

2196144 

2196122 

2196141 

2195771 

AMOUNT 

$ 90.00 

35.00 

75.00 

20.00 

20.00 

50.00 

20.00 

20.00 

$330.00 

Based on an independent evaluation and de novo review of 

the circumstances, as proffered in the parties' prehearing 

submissions and in the evidence adduced at the hearing, the 

trial judge found the settlement proposed was in accord with 

the purposes and policy of the Act. 

853 
Accordingly, it is ORDERED that the settlement be, and 

hereby is, APPROVED. It is FURTHER ORDERED that the operator 

pay the amount of the settlement agreed upon, $330, on or 

before Tuesday, June 10, 1986, an hat subject to payment the 

captioned matters be DISMISSED. 

Judge 

Distribution: 

Carole M. Fernandez, Esq., Office of the Solicitor, u. S. 

Department of Labor, 280 U, S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail} 

Mr. Rodney L. Partin, Stoney Fork Coal Company, P. o. Box 520, 

Cumberland, KY 40823 (Certified Mail} 

dcp 

854 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION ,, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 30, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DOROTHY MAE COAL CO., INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 85-14 

A. C. No. 44-01904-03535 

Docket No. VA 85-25 

A. C. No. 44-01904-03540 

No. 16 Mine 

DEFAULT DECISION 

Before: Judge Maurer 

On May 12, 1986, a show cause order was issued in the 

subject proceedings giving respondent until ten {10) days · 

thereafter to provide some explanation as to why it should 

not be defaulted failing to comply with my April 9, 

1986, order compelling answers to the petitioner's interrogatories. 

Petitioner's interrogatories, which I find to be reasonable in number and in nature, were served upon the respondent on February 28, 1986. On March 28, 1986, petitioner moved for an order to compel answers. On April 9, 1986, 

I issued an order compelling answers to those interrogatories, 

which order directed respondent to serve responses "immediately" upon the petitioner. On April 22, 1986, petitioner 

still had no answers to his interrogatories and thus filed 

the instant motion for a default judgment. 

Respondent, for its part, has failed to either 

the answers to the interrogatories, -an explanation for not 

filing those answers, or a response to the petitioner's 

motion for default judgment and_ is accordingly deemed to 

have wa~ved its right to a hearing.· The propo civil 

penalties shall be made the final order of the 

Commission. 

WHEREFORE IT IS ORDERED that respondent pay the Secretary's proposed civil penalties in the amount of $7,260 

within 30 days of this decision. 

R& ~!!fa PMAMr 

Administrative Law Judge 

855 
Distribution: 

Mary K. Spencer, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

James Harman, Operator, Dorothy Mae Coal Co., Inc., P. O. 

Box 467, Keen Mountain, VA 24624 (Certified Mail) 

856 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 30, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

Dock~t No. PENN 85-273 

A. C. No. 36-00926-03594 

v. Homer City Mine 

HELEN MINING COMPANY, 

Respondent. 

Appearances: 

Before: 

DECISION 

James E. Culp, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

Ronald B. ·Johnson, Esq., Recht & Johnson, 

Wheeling, West Virginia, for.Respondent. 

Judge Maurer 

Statement of the Case 

This case is before me upon a petition for assessment of 

civil penalties under section lOS(d) of the Federal Mine Safety 

and Health Act bf 1977, 30 u.s.c. section 801, et seq., the 

"Act,".iμ which the Secretary charges the HelenMinrrlg Company with two violations of the mandatory standard at 30 

C.F.R. § "7S.308. The general issues before me are whether 

the company-.has violated the regulatory standarq as alleged· 

in the petition and, if so, the appropriate civil pe~alty to 

be assessed· for the violation(s). ·Although counsel for the 

respondent, by his Answer, seemed to be seeking a ruling on 

whether these orders were valid or not, I note that neither 

has been contested. ·Moreover, in a civil penalty case, the 

validity of the order is not considered to be an issue. 

Pontiki Coal Corp., 1 FMSHRC 1476 (1979). 

The hearing was held as rescheduled on February 6, 1986, 

at Pittsburgh, Pennsylvania. Documentary evidence and oral 

testimony was received from both parties. Additionally, the 

parties have both filed post-hearing proposed findings and 

conclusions~ and the arguments presented therein have been 

considered by me in the course of this decision. 

857 
The Mandatory Standard 

Section 7~.308 of the mandatory standard, 30 C.F.R. 

§ 75.308, provides as follows: 

If at any time the air at any working place, 

when tested at a point not less than 12 inches 

from the roof, face, or rib, contains 1.0 volume 

per centum or more of methane, changes o-r adjustments shall be"made at once in the ventilation 

in such mine so that such air shall contain less 

than 1.0 volume per centum of methane.· While such 

changes or adjustments are underway and until they 

have been achieved, power to electric ·face equipment ·located ±n such place shall be cut off, no 

other-work shall be permitted in such place, and 

due precautions shall be carried out under the 

direction of the operator or his agent so as not 

to endanger other areas of the mine. If at any 

time ·such air cpntains 1.5 volume per centumor 

more of methane, all persons, except those referred 

to in section l04(d) of the Act, shall be withdrawn 

from the area of the mine ·endangered thereby to a 

safe area, and all electric power shall be cut off 

from the endangered area of the mine, until the air 

in such working place shall contain le·ss than 1. 0 

volume per centum of methane. 

The Cited Conditions or Practices 

Section 104 (d) (2) Order No.· 2407973 cites a violation of 

30 C.F.R. ~ 75.308 for the following alleged condition or 

practice: 

Suitable precautions were not taken by the section foreman Ste~e Kasperik i~ muddy run right 

side 06.9-0 section. An accumulation of'. methane 

in excess of 1% was discovered in.the· crosscut 

five to four entry. Air being used to ventilate 

this .face traveled downwind to the crosscut six 

to five entry where the 1206 Jeffrey miner was 

energized and be~ng .used to load coal. Methane 

reading at the face of this crosscut 6 to 5 did 

not exceed .4% methane. 

Section 104 (d) (2) Order No. 24079·74 likewise cites a 

violation of 30 C.F.R. § 75.308 and states: 

The ventilating air at the face of crosscut five 

to 4 entry contained in excess of 1.5% methane. 

The section foreman was Steve Kasperik. Multiple 

858 
methane examinations were made at·the face with 

three separate and approved methane detectors 

indidating methane in excess of L 5%. ·The power 

was not deenergized to the muddy run sections 

right and left side· 001-0 and 069::-:-0. Information supplied by the .persons of the muddy run 

right side crew indicate the foreman was aware 

the condition existed and did rtot deenergize the 

sections power. Methane examinations had been 

made by at least two men of the crew and als.o 

the foreman. A Fletcher twi'n boom bolter was 

present at the face. Power was deenergized 

only to the bolter. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations, which were accepted (Tr.· 5-6): 

1. The Homer City Mine is owned by the respondent, 

Helen Mining Company. 

2. The Homer City Mine is subject to the jurisdiction 

of the Federal Mine Safety and Hea1th Act of 1977. 

3. The undersigned administrative law judge has jurisdiction over these proceedings. 

4. The subject orders, terminations, modifications, 

and notices were properly served.by duly authorized representatives of the Secretary df Labor, on an agent of the 

respon.dent at. the dates, times, and places stated therein, 

and may be a.dmi tted into· evidence for purposes of establishing their issuance and not for the truthfulnes~ or 

relevance of any statement therein •. 

5. The alleged violations were abated in a timely 

fashion. 

6. Respondent's annuai ,production is two million, 

nine hundred ~nd seventy-four thousand, nine hundred and 

four {2,974,~04) production tons annually: The· subject mine 

has one million, forty-six thousand, three hundred and 

twenty-eight '(l,046,328) annual production tons. 

7. Respondent had ~wenty-four assessed violations in 

the two-month ·period prior to the issuance of the orders 

herein in which it operated the Homer City Mine. 

859 
Discussion and Analysis 

Ronald Rhoades is a miner employed by the He.len Mining 

Comp<;tny. He testified that on February 25, 1985, he was 

assigned to work as a roof bolter in number five entry of the 

Muddy Run Right Side at the Homer City Mine •. Ed Hank.:i,.nson,· 

who also testified in this proceeding, was assigned to be his 

helper on.that shift. Opon their arrival at the roof-bolting 

machine, located at "A" on GX-6, Rhoades took a methane check 

with a CSA.digital type detector, and got a -reading of between 1. 7 and L 9 percent methane. · He immediately cut the 

power off at the -roof-l;>olting machine, sent someone back to 

turn tne power off at the power center, sent for the foreman, 

and began.to make corrections in the line.brattice to get 

rid of the methane.·. Mr. Hankinson, in the meantime, was 

taking other·readings, both with the same detector Rhoades 

had used as well as.the detector off a continuous miner 

located in tile.crosscut, six to five. He also obtained 

methane-levei readings of 1.7 to 1.9 percent with both 

detectors. 

The foreman for the entire Muddy Run area on that 

shi , both the Left and Right Sides, was Mr. Steve Kasperik, 

who likewise testified in this·proceeding. He arrived in 

the area approximately twenty minutes to a half hour later •. 

Upon his arrival he.took a methane reading. What that reading was is in serious contention in this case. The Secretary contends. that it di~closed a methane level of nearly 

2 percent. .The respondent's position is that it was 1. 3%. 

The importance of the· issue being that a reading of 1.5 percent or greatei brings the last sentence of section 75.308 

into effect. 

The resolution of this factual issue turns on the credibility of the miner witnesses and that of the for~man, Mr. 

Kasperik, aswell .. as the totality of the circumstances 

surrounding the incident on the date fn question. Rhoades 

and Hankinson stified that they had obtained several 

readings qt' 1.7 to 1. 9 percent methane levels in number five 

entry and had so informed Kasperik.· - Rhoades so stified 

that Kasperik himself took a methane reading· in number five 

entry and stated that "you guys got upwards of 2 percent'' or 

words to that feet. Significantly, Mr. Kasperik does not 

deny making this statement, even though he later maintained 

that the reading was 1.3%. Further, a comparison of the 

subsequent actions of Rhoades and 'Kasperik lends credence to· 

Rhoades. Rhoades expeditiously "went public." He contacted 

MSHA the following day in an fort to.have what he considered to a serious mine safety concern addressed by someone in offibialdom. KasPerik, on the other hand, did not 

record a methane reading in the pre-shi and·on-shi 

examination book, but rather entered the word "none" under 

860 
hazardous conditions. He admits this was a mistake, but he 

"forgot" to put it ih th~ book. He made the appropriate 

entry the next day. 

Additionally, according to the testimony of Inspectors 

Collingsworth. and Burkey, Mr. Kasperik was very reticent 

during the meeting held oh February 26, 1985, concerning-the 

incident of the previous day. They both testified that they 

repeatedly questioned him about what his initial methanelevel reading had been before he finally stated it had been 

1.3 percent. Also, they both testified that he had no 

explanatidn for his failure to make the required entry in 

the mine records. 

For &ll ·of the above reasons, I find as a fact that 

'there was a methane level of 1.7 to 1.9 percent present in· 

number five entry as testified to .by Rhoades and Hankinson 

and that Kasperik as a representative and agent of the 

respondent was aware of it.at the time that it existed. 

Mr,. Kasperik took per:nonal charge supervising the 

dissipation of the methane accumulation. He determined that 

the methane was coming from· a "bleeder"· in the upper left 

corner·of the cross-cut in a difficult spot to ventilate. 

He order_ed the canvas tightened up and .rearranged in working 

place number five on RX-1 to' better ventilate that corner. 

He took several methane-level readings-downstream of the 

"bleeder," extend.ing over to and beyond working place number 

six on RX--·l ·in the adjacent entry. The methane-level readings he obfained in these areas were generally .3%. It 

should be noted here that tne operator of the continuous 

mining machine in entry number six also took methane-level 

readings .downstream of working place number five, including 

working place number six. His readings did not ex.ceed • 4% 

in any of those locations. In general, Mr. Kasperik was 

following a written company policy (RX-2) for action to be 

taken when a methane level is detected in the range of 1 to 

1. 5 percent. 

That written company policy (RX-2) also contains instructions concerning what to do if a 1.5% methane level 

is detected. As ·r have .found as a fact that the methane 

level was in excess of 1. 5% that is the portion of Respondent's Exhibit No .. 2 that is more relevant to this case • 

. That portion of the policy mandates,~inter alia, that 

machinery·in that working place be de-energized, that power 

to the section be de-energized and that all men not involved in eliminating gas should be withdrawn ·from the 

face area. Under the state.of facts as I have found them 

to be, Mr. ·Kasperik's actions were inco"nsistent with company 

policy as well as with the requirements of the mandatory 

standard. 

861 
It is undisputed and I find as a fact that.no power to 

Muddy Run Right or Left. Side was ever de-energized except 

that to the roof-bolting machine in number five entry during the entire incident at .issue. 

I further find as a fact that while-the methane level 

was in excess of i.5% in number five entry, Kasperik ordered 

the continuous miner operator and his helper as·well as a 

shuttle car operator to perform clean-up operations in 

number six entry of Muddy Run Right Side. Rhoades testified 

that he irome·diately objected. · He stated at Tr. 15: 

I que~tioned him at that time, whether what he 

was doing, what he suggested they do was right. 

He said, yes, he. said, the problem we have here 

affect~ this area, this place, this working place 

right here. I ·said, well we got, you know, we 

got better than a percent and a half, ·two percent 

of. gas almost.- He said,· the·problem that you have 

here is within, or in this entry and this working 

place.·· He says, those guys can go over there, get 

that place cleaned up and get that miner moved. 

It is- also undisputed that this mine's ventilation 

system moves.the air from number five entry through number 

six entry of Muddy Run Right Side. •rhe inspectors who 

testified at ·'the hearing consistently stated that. the only 

way to get rid of the methane accumulation in number five 

entry was to improve ventilation, which was being done under 

the direction -of fo.reman· Kasperik. However, they testified 

that you· have.to i;:ake precautions when you move an accumulation in excess of 1.5 percent methane so as not to pass 

that body .of gas over any potential ignition sources, and 

any operation of energized mining equ:lpment may obviously 

create potential ignition sources. · 

Further, the regulations require that you withdraw all 

persons and cut off all power from the endangered area of 

the mine, until the air "at any working place" contains less 

than 1 percent methane. "It is not contended that this was 

done and in fact it was not done. 

Respondent's first line of defense in this case is 

that there never was a stable reading in excess of 1.5% 

that management was aware of at. the time it existed. As 

noted above; I have rejected that argument and found the 

facts to·be dtherwise. Next, respondent notes that Kasperik 

prudently decided not to mine any coal with the continuous 

mining machin(j:! in working place number six as a precaution 

and the only activity that ~ook place in either number five 

862 
or number six.entry other than the readings and making corrections to the ventilation system was that the continuous 

mining machi:r:ie was u::fo<?._ to pick up loose coal laying on the 

bottom in.working place number six. Only enough loose coal 

to fill one shutt car half.-way was picked up. Further, 

respondent notes that even- this activity was not carried out 

until it had been ascertained that the methane-levels at 

working place rn.il.mber five had not moved beyond that point 

and the methane2...level was only .3 to .4% downstream and into 

working place number si~. I find this to be credible evi--

dence, unrebutted·by the Secretary. However, it falls short 

of compliance with 30 C.F .. R. § 75.308. 

The last sentence of that section of the mandatory 

standard states_that "[i]f at any time such air (the air 

at any wo.rking place) contains L 5 volume per centum 'or· more 

of methane, all persons, except those referred to in section 

104 (d) of the Act (i.e. , those involved in eliminating· the·· 

hazard) , shall be withdrawn from the area of the mine enda.ngered thereby to a safe area, and all electric power shall 

be cut off ·.~rom the endangered area of the mine, until the 

air in such working place (i.e., working place number· five 

on RX-1) shall contain less than 1.0 volume per centum of 

methane." [Emphasis and parentheticals added]. 

The only issue left at this point in the analysis then 

is to define_ the endangered a~ea of the mine. On this point 

I accept as credible.the testimony of Inspectors Burkey arid 

Sparvieri that the endangered area of the mi-ne within the 

meaning of § 75.308 was the Muddy Run Right and Left Sides 

because even though the gas ·problem existed in number five 

entry of Muddy Run Right Side, Muddy Run Left Side is only 

separated by a ventilation curtain. 

Therefore, I conclude that ~espondent did violate 30 

C.F.R. § 75.308 by failing to de-energize the endangered 

area of the mine and withdraw the miners from same when 

the methane level in number five entry of Muddy Run Right 

Side was in excess of 1.5 percent~ Order No. 2407974 is 

affirmed. 

An appropriate civil penalty must also be assessed if 

a violatidn.is found and a determination rnust.b~ made as 

to whether that violation was "significant and substantial." 

See generally the Commission decisions in National Gypsum' 

Co., 3 FMSHRC 822 (1981) and Mathies Coal Co., 6 FMSHRC 1 

TI984) for the applied definition of 11 significant and 

substantial." 

I find that the respondent's failure to de-energize 

the Muddy Rury sections and withdraw the miners and indeed 

863 
to operate the continuous miner in number six entry of Muddy 

Run Right Side while the methane level was in excess of 1.5% 

in the adjacent entry subjected the exposed miners to an 

increased danger of methane ignition or explosion which 

could have resulted in fatal or permanently disabling injuries to them. Further, in this regard, I note that this 

mine is classifi.ed as a gassy mine, producing two and a half 

million cubic feet of methane in a twenty-four hour period. 

Accordingly, I find that the violation is "significant and 

substantial." I also find that there is a high degree of 

gravity associated with the violation, that is, the occurrence of the event against which the.cited standard is directed was "reasonably likely." 

Under the criteria enumerated in section llO(i) of 

the Act, I have considered the stipulations of the parties 

concerning the operator's violation history, ze the 

operator's business, and the fact that the violation was 

abated in a timely fashion. Further, I find that the 

respondent, through and by its management representative, 

Mr. Kasperik, had actual knowledge of the violation at the 

time it existed. Therefore, I find that the respondent is 

chargeable with a high degree of negligence. I have already stated my findings with regard to gravity, supra. 

Therefore, considering all of the statutory factors, I 

conclude that a penalty of $1,500 is appropriate. 

My decision with regard to Order No. 2407973 requires 

a short legal analysis and involves making a conclusion of 

law. The language of 30 C.F.R. § 75.308 requires certain 

action when the air at any working place contains 1.0% or 

more of methane. If at any time that air contains 1.5%-0r 

more of methane, all that is required for a 1.0% concentration is still required, plus additional action is now 

required. ~~ 

The action required to be taken for methane levels in 

excess of 1.5%, but which was not taken, and for which I 

have already found a violation of section 75.308 and affirmed Order No. 2407974, would include de-energizing the 

continuous miner in working place number six, which is the 

activity complained of in Order No. 2407973. Therefore, 

I concur with the respondent's argument that the violation 

written up in Order No. 2407973 is included within and is 

duplicative of the violation found to exist in Order No. 

2407974. Therefore, I find as a matter of law that Order 

No. 2407973 alleges a lesser included violation of the 

identical standard and is hereby vacated and dismissed. 

864 
ORDER 

Order No. 2407974 is AFFIRMED and the respondent is 

ORDERED to pay a civil penalty in the amount of $1,500 

within 30 days of the date of this decision. Order No. 

2407973 is VACATED and DISMISSED. 

Distribution: 

James E. Culp, Esq., Office of the So citor, U. s. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Ronald B. Johnson, Esq., Recht & Johnson, 3000 Boury Center, 

Wheeling, WV 26003 (Certified Mail) 

yh 865 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COlFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 May 3 Q / 19 8 6 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) / 

··Petitioner 

v. 

DELTA SAND AND GRAVEL 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. iVEST 85-139-M 

A.C. No. 05-00967-05504 

Docket No. WEST 85-145-M 

A.C. No. 05-00967-05505 

Docket No. WEST 85-155-M 

A.C. No. 05-00967-05506 

Docket No. WEST 86-64-M 

A.C. No. 05-00967-05507 

Delta Sand Pit No. 1 

DECISION 

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

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

for Petitioner; 

Jack Starner, President, Delta Sand and Gravel 

Company, Delta, Colorado, 

for Respondent. 

Before: Judge Carlson 

These four consolidated cases came regularly on for hearing 

at Grand Junction, Colorado on May 1, 1986. At the outset of 

the hearing the parties announced that they had reached a settlement that morning which, if approved, would resolve all matters 

in dispute. 

The terms of the proposed settlement are as follows: 

In docket number WEST 85-139-M, which embraces seven citations, the Secretary moves to amend the proposed penalty for 

citation number 2355215 from $36.00 to $20.00. He further moves 

to withdraw citations numbered 2355212 and 2355211 on grounds of 

insufficient evidence to prove the violations alleged. 

Respondent, conditioned upon the granting of the Secretary's 

motions, agrees to pay the originally proposed $20.00 penalties 

for citations numbered 2355214, 2355216, 2355218 and 2355283, as 

well as the amended $20.00 penalty for citation number 2355215. 

It also agrees to withdraw its notice of contest to the citations 

which are to be affirmed. 

866 
In docket number WEST 85-145-M, which consists of a 

single citation, number 2355282, respondent agrees to pay 

the $20.00 penalty originally proposed. It further moves 

to withdraw its notice of contest to the citation. 

Docket number WEST 85-155-M also consists of a single 

citation, number 2355284, together with an order, number 

2355285. The file indicates that the inspector issued the 

citation on May 22, 1985, under section 103{a) of the Act 

for respondent's failure to allow entry for purposes of 

inspection. Later that same morning the inspector sued 

withdrawal order number 2355285 for respondent's failure to 

abate the citation. The texts of the order declares that 

the order ''replaces" the citation. The Secretary's petition 

and the assessment sheet, however, refer to the citation 

only in proposing a penalty of $150.00. For consistency's 

sake, then, only the citation will be dealt with in the 

decision. 

The Secretary moves to amend the proposed penalty from 

$150.00 to $20.00. The Secretary urges this reduction on 

grounds that the inspection was in fact a follow-up. The 

wife of respondent's president refused to allow the inspector 

into the mine because her husband was not on the premises 

and he, not she, had been present at the original inspection. 

Respondent agrees to pay the amended $20.00 penalty, 

and moves to withdraw his notice of contest. 

Docket number WEST 86-64-M includes a single citation, 

number 2355213. The Secretary moves to amend the proposed 

citation from $36.00 to $20.00. In return, the respondent 

agrees to pay the amended amount and to withdraw its notice 

of contest. 

Based upon the representations of the parties at the 

hearing and the contents of the files, I conclude that the 

settlement agreement should be approved in all respects. 

Accordingly, it is ORDERED that citations numbered 2355215, 

2355214, 2355216, 2355218, 2355283; 2355282, 2355284 and 2355213 

are affirmed, whereas citations numbered 2355211 and 2355212 

are vacated. It is further ORDERED that respondent shall pay 

to the Secretary of Labor a total civil penalty of $160.00 

within 40 days of the date of this decision. 

ohn A. Carlson 

Administrative Law Judge 

867 
Distribution: 

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

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

Colorado 80294 (Certified Mail) 

Mr. Jack Starner, President, Delta Sand and Gravel Company, 

P.O. Box 103, Delta, Colorado 81416 (Certified Mail) 

/ot 

863 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVENUE. SUITE 400 

DENVER. COtORADO 80204 Ml\Y ~~ 01986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEAL'l'H 

ADMINIS'I'RA'I'ION (MSHA) I 

Petitioner 

v. 

FRANKLIN CONSOLIDATED 

MINES I INC. , 

Respondent 

DECISION 

Docket No. WEST 85-144-.M 

A.C. No. 05-00630-05519 

Franklin 73 Mine 

Appearances: Robert J. Lesnick, Esq., Office of the 

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

Colorado, 

for Petitioner; 

No appearance on behalf of Respondent. 

Before: Judge Carlson 

Pursuant to notice, a hearing on the mer in this 

civil penalty proceeding was convened on February 21, 1986, 

in Denver, Colorado at 10:45 a.m. No appearance was made by 

or on behalf of the respondent mine operator. At 10:55 a.m., 

counsel for the Secretary of Labor moved for an order of default affirming the citations and imposing the proposed 

penalties. The motion was taken under advisement and the 

hearing was adjourned (Tr. 4-5). 

On February 21, 1986, this judge ordered respondent to 

show cause why a default should not be entered. The operator, 

in response, indicated that its former mine superintendent, 

who had intended to represent the company "failed to remember 

the date. 11 Respondent entered the appearance of its corporate 

president and asked that a new hearing date be scheduled. 

The default was denied and a hearing was set for April 9, 

1986. Prior to that date, however, the parties notified this 

judge that a settlement agreement had been reached. They have 

now submitted a joint motion to approve a settlement agreement. 

The terms of the agreement provide that the respondent shall pay 

the $405.00 civil penalty originally proposed by the Secretary 

and shall withdraw its contest to such penalty. 

I conclude that the penalty should be approved in all 

respects. 

869 
Accordingly, the settlement agreement is ORDERED 

approved and the attendant motions are granted. Respondent 

is ORDERED to pay to the Secretary of Labor a civil penalty 

of $405.00 within 40 days of the date of this decision. 

Distribution: 

A. Carlson 

Administrative Law Judge 

Robert J. Lesnick, Esq. and Margaret A. Miller, Esq., 

Office of the Solicitor, U.S. Department of Labor, 1585 

Federal Building, 1961 Stout Street, Denver, Colorado 80294 

(Certified Mail) 

George Otten, President, Franklin Consolidated Mines, Inc., 

P.O. Box 508, Idaho Springs, Colorado 80452 (Certified Mail) 

/ot 

870 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

May 30, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAF.ETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LOUKONEN BROS. STONE CO., 

Respondent 

DECISION 

Docket No. WEST 85-167-M 

A.C. No. 05-00862-05501 

Docket No. WEST 85-168-M 

A.C. No. 05-00862-05502 

Loukonen Bros. Silica Quarry 

Appearances: Robert J. Lesnick, Esq., Office of the Solicitor, 

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

for Petitioner; 

Leonard Loukonen, Loukonen Brothers Stone, Company, 

Lyons, Colorado, 

pro se, for Respondent. 

Before: Judge Carlson 

This consolidated case, heard under the provisions of the 

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

seq. (the Act), arose out of inspections on July 11 and July-r2, 

1985, at respondent's silica pit near Lyons, Colorado. On those 

dates, Lyle Marti, a federal mine inspector issued 16 citations 

for alleged violations of various mandatory safety standards 

promulgated by the Secretary of Labor pursuant to the Act. The 

respondent, Loukonen Bros. Stone Co., contested the Secretary's 

petition for imposition of civil penalties. The case was heard 

in Denver, Colorado, with both parties presenting evidence. Both 

parties waived the filing of briefs or other post-hearing submissions. 

GENERAL BACKGROUNQ 

The undisputed evidence shows that respondent's mine is an 

open pit silica rock mining and processing operation. The rock 

is extracted by blasting and is then crushed on-site, after which 

it is sold to the cement industry. The enterprise is quite small. 

A partnership, its usual workforce is but three miners. These 

men alternate between mining the rock and running the crushing 

operation. Most of the citations in this consolidated proceeding 

were aimed at equipment used in the crushing activities. 

871 
The business of the mine tends to be seasonal with little 

work done in the winter months. The partnership had operated the 

site since 1969. 

Mr. Marti, the Secretary's inspector, in addition to 

carrying out the ordinary duties of a mine inspector, is 

certified as an electrical inspector. He testified concerning 

all the alleged violations. Mr. Leonard Loukonen, one of the 

partner's in respondent's enterprise, represented respondent. 

Mr. Loukonen testified only briefly. He limited his remarks 

almost exclusively to background information concerning the mine, 

and to a brief explanation concerning the alleged electrical 

violations. In this latter regard, he testified that mine 

management had relied upon the expertise of the manufacturers and 

contractors who originally supplied the electrical equipment and 

systems. 

Mr. Loukonen did not avail himself of his right to cross 

examine the inspector, the Secretary's sole witness. Neither did 

he present any testimony in an attempt to rebut the Secretary's 

evidence regarding the existence of the alleged violations. The 

respondent, that is to say, was content to remain silent concerning the alleged violations, while putting the Secretary to 

his proofs. 

JURISDICTION 

To show that respondent's business activities "affected 

commerce" within the meaning of the Act, the Secretary presented 

testimony that much of the mining equipment used by respondent 

was manufactured outside the State of Colorado. The testimony 

was unrebutted. I conclude that respondent's activities affected 

commerce. 

REVIEW AND DISCUSSION OF THE 

EVIDENCE RELATING TO ALLEGED VIOLATIONS 

Citation No. 2358724 

Inspector Marti, during his inspection of the Loukonen 

operation, observed that respondent was using a front-end loader 

to carry dy~amite. Workers had placed the dynamite in the metal 

bucket of the loader. The metal of which the bucket was 

constructed was not insulated by nonconductive materials. 

The inspector concluded that use of the bucket in this 

fashion violated the mandatory safety standard published at 30 

C.F.R. § 56.6047. That standard provides: 

Vehicles used to transport explosives, other than 

blasting agents, shall have substantially constructed 

872 
bodies, no sparking metal exposed in the cargo space, 

and shall be equipped with suitable sides and tail gates; 

explosives shall not be piled higher than the side or 

end enclosures. 

The undisputed evidence shows that the alleged violation 

occurred. 

citation No. 2358725 

The carrying of dynamite in respondent's loader also gave 

rise to another alleged violation. The inspector noted that the 

loader displayed no warning signs to signify that it was carrying 

explosives. He cited respondent for failure to comply with the 

mandatory safety standard published at 30 C.F.R. § 56.6043. That 

standard provides: 

Vehicles containing explosives or detonators shall be 

posted with proper warning signs. 

The undisputed evidence shows that the alleged violation 

occurred. 

Citation No. 2358726 

During his inspection the inspector saw uncovered nail heads 

in the interior of the explosives magazine at respondent's pit. 

A part of the construction of the magazine, the nails had not 

been countersunk, and had not been filled over with nonconductive 

material. He believed the exposed metal nails were violative of 

the mandatory safety standard published at 30 C.F.R. § 56.6020. 

That standard, as pertinent here, provides: 

Magazines shall be -

(f) made non-sparking materials on the inside, including floors .••• 

Inspector Marti maintained that the nail heads could conduct 

static electricity or a nearby discharge of lightning into the 

magazine enclosure. Approximately eight cases of dynamite were 

in the magazine at the time of the inspection. 

The undisputed evidence shows that the alleged violation 

occurred. 

Citation No. 2358727 

When Inspector Marti examined the primary crusher at 

respondent's pit, he observed what he believed were deficiencies 

in the wooden platform attached to the west side of the crusher. 

He cited these deficiencies as a violation of the mandatory 

safety standards published at 30 C.F.R. § 56.11027. That 

standard provides: 

873 
Scaffolds and working platforms shall be of substantial 

construction and provided with handrails and maintain 

in good condition. Floor boards shall be laid properly 

and the scaffolds and working platforms shall not be 

overloaded. Working platforms shall be provided with 

toeboards when necessary. 

Specifically, according to the inspector's testimony, the 

platform consisted of a single 2 x 8 inch wooden plank. The 

plank was approximately 6 feet above the ground. The violative 

condition, in the inspector's view, was that the handrails could 

not be effective to prevent falls because they were spaced out 

laterally from the edges of the planking six to eight inches. 

Thus, should a worker make a misstep, he could easily fall 

between the handrail and the edge of the plank (Tr. 40-41). 

I must conclude that the undisputed testimony established 

the violation. 

Citation No. 2358728 

On the opposite side of the same primary crusher the 

inspector saw another inadequate platform. This one was 6 to 8 

above the ground and gave workers access to the hopper bin 

for maintenance purposes. Inspector Marti testified that a part 

of the platform was constructed of metal screen; the remainder 

consisted of a deteriorating 2 x 8 inch wooden plank. The plank, 

the inspector maintained, was not of the "substantial construction" required for platforms by 30 C.F.R. § 56.11027. Also, 

the handrails were again so placed that a worker could easily 

fall through the space between the outside edge of the plank and 

the inside edge of the rail. The metal screen was also inadequate for a platform, according to the inspector, because it was 

too light and weako 

The uncontested evidence shows a violation of 30 C.F.R. 

§ 56.11027. 

Citation No. 2358729 

On the t side of respondent's secondary crusher the 

inspector noted that an electrical control panel located 8 feet 

above the ground was provided with no safe means of access. He 

testified that in the event of an emergency, a worker would have 

to climb up the frame of the machine to reach the disconnect 

switch or the other electrical components. He therefore cited 

respondent for violating the mandatory safety standard published 

at 30 C.F.R. § 56.11001. That standard provides: 

Safe means of access shall be provided and maintained 

to all working places. 

The uncontested evidence shows a violation of the standard. 

874 
Citation No. 2358730 

This citation, too, concerns an alleged falling hazard. The 

inspector testified that steps leading from the primary crusher 

engine workdeck to the primary crusher workdeck were not provided 

with handrails. He cited this condition as a violation of 30 

C.F.R. § 56.1102. That standard provides: 

Crossovers, elevated walkways, elevated ramps, and stairways shall be of substantial construction provided with 

handrails, and maintained in good condition. Where 

necessary, toeboards shall be provided. 

The steps in question varied from 6 to 8 feet above the 

ground. 

The uncontested evidence shows a violation of the cited 

standard. 

Citation No. 2358731 

Inspector Marti testified that the working deck and 

travelway around the primary crusher engine had unprotected 

openings large enough for a worker's foot to fall through. The 

holes, he stated, could cause sprains or broken bones. He 

believed that this condition violated the mandatory safety 

standard published at 30 C.F.R. § 56.11012. That standard 

provides: 

Openings above, below, or near travelways through which 

persons or materials may fall shall be protected by 

railings, barriers, or covers. Where it is impractical 

to install such protective devices, adequate warning 

signals shall be installed. 

The evidence shows that the standard was violated as 

alleged. 

Citation No. 2358732 

According to the inspector, the guard for a flywheel and its 

belt and chain drive on the east side of the primary crusher was 

of insubstantial construction and did not fully cover pinch 

points. Specifically, the guard had been broken loose and bent 

so that it no longer performed its proper function. The bottom 

of the flywheel in question was about 5 feet above the ground. 

In terms of the hazard presented, the inspector's chief concern 

was that a worker climbing a nearby ladder on the crusher frame 

could slip and catch a hand or arm in the incompletely guarded 

pinch-point. He cited the defective guard as a violation of the 

mandatory safety standard cited at 30 C.F.R. § 56.14007. That 

standard provides: 

875 
Guards shall be of substantial construction and properly 

maintained. 

The evidence establishes that respondent violated the cited 

standard. 

Citation No. 2358733 

Inspector Marti noted that the drive shaft furnishing power 

to the crus s was incompletely guarded. The large shaft, 

situated some 3 feet above the ground, was guarded on both sides 

and above, but not below. Marti testified that should the 

universal joint on the shaft break while the shaft was turning at 

high revolutions, the lack guarding on the far side could 

allow the shaft to drop and whip about violently. This whipping 

action, he maintained, could fragment the incomplete guard and 

hurl the fragments considerable distances. The inspector cited 

the lack of a guard completely surrounding the shaft as a 

violation of the mandatory safety standard published at 30 C.F.R. 

§ 56.14007. That standard proivdes: 

Guards shall be of substantial construction and properly 

maintained. 

The evidence establishes that respondent violated the cited 

standard as alleged. 

Citation No. 2358734 

Inspector Marti examined the generator and engine that 

supplied electrical power to the secondary crusher and conveyor 

at respondent's pit. In the course of his examination he found 

that the 480 volt system lacked a record of testing for a proper 

ground to earth. Grounding to earth is necessary, the inspector 

testified, to insure that the ses or circuit breakers in the 

control panels operate properly. Otherwise, should a motor short 

out, a worker touching a piece of equipment can become a conductor and suffer an electrical shock. The inspector testifi 

that Leonard Loukonen acknowledged to him that the fectiveness 

of the ground to earth had not been tested annually or otherwise. 

Marti ci the record keeping failure as a violation of the 

mandatory safety standard published at 30 C.F.R. § 56.12028. 

That stand~rd provides: 

Continuity and resistance of grounding systems shall 

be tested immediately after installation, repair, and 

modification; 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. 

876 
The evidence shows that the testing and recording standard 

was violated as alleged. 

Citation No. 2358735 

This citation also alleges a violation of an electrical 

standard. According to the inspector, there was no ground wire 

in the metal-enclosed electrical cable providing power to the 440 

volt motors serving the secondary crusher. He testified that a 

fourth wire was necessary to meet the requirements of the 

grounding standard published at 30 C.F.R. § 56.12025. That 

standard provides: 

All metal enclosing or encasing electrical circuits 

shall be grounded or provided with equivalent protection. 

This requirement does not apply to battery-operated 

equipment. 

"Equivalent protection," as used in the standard, can only 

mean a ground fault circuit interrupter within the system, the 

inspector testified. The system had no such device. 

The uncontested evidence shows that the respondent violated 

the cited standard. 

Citation No. 2358736 

This citation charges a violation of 30 C.F.R. § 56.12025, 

the same standard cited in the citation discussed immediately 

above. The inspector testified that eight metal electrical 

enclosure boxes mounted on the secondary crusher were not 

grounded, nor were they served by a ground fault circuit interrupter. 

The undisputed evidence establishes a violation. 

Citation No. 2358737 

Inspector Marti noted a guarding defect on respondent's 

secondary crusher. Specifically, he noted that at the end of the 

discharge belt the belt and pulley presented an unguarded 

pinch-point. Ordinarily, he testified, this pinch-point would be 

10 to 12 feet above ground level and would off er no hazard to 

workers. Because of a buildup of materials below the pinchpoint, however, the miners could conceivably be caught up in the 

pinch-point. The new ground level created by the pile of 

materials was but 5 feet below the belt and pulley. 

The inspector cited this condition as a violation of the 

mandatory safety standard published at 30 C.F.R. § 56.14001. 

That standard provides: 

877 
Gears; sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan 

inlets; and similar exposed moving machine parts which 

may cause injury to persons, shall be guarded. 

The evidence establishes the violation. 

Citation No. 2358738 

This citation alleges an electrical violation. According to 

the inspector, the metal cover plate intended to cover a splice 

box on the 440 volt generator set was missing. The box contains 

the terminals which connect the generator to the power cable. 

The inspector's chief concern was that rodents would enter the 

box (situated only 6 inches above the ground) and cause electrical shorts by gnawing away insulating materials. 

He therefore cited respondent for violating the mandatory 

safety standard published at 30 C.F.R. § 56.12032. That standard 

provides: 

Inspection and cover plates on electrical equipment and 

junction boxes shall be kept in place at all times except during testing or repairs. 

The evidence shows that the violation occurred. 

Citation No. 2358739 

This citation also concerns the lack of a cover plate in 

violation of 30 C.F.R. § 56.12032. Inspector Marti testified 

that the main disconnect box on the secondary crusher had two 

uncovered openings on its left side, allowing access to rodents, 

dirt and dust. Each of these could cause an electrical fault. 

The uncontested evidence establishes a violation of the 

cited standard. 

PENALTIES 

The Secretary proposes a $20.00 civil penalty for each violation. Section llOCi> of the Act requires the Commission, in 

penalty determinations, to consider the operator's size, its 

negligence, its good faith in seeking rapid compliance, its 

history of prior violations, the effect of monetary penalties on 

its ability to remain in business, and the gravity of the violations. 

Most of these statutory elements strongly favor the 

respondent. The pit operation was quite small. A maximum of 

three employees worked there, alternating between extraction and 

crushing duties. The evidence shows that respondent had no 

history of prior violations under the Act. The respondent's representative acknowledge that payment of the proposed penalties 

would not affect the partnership's ability to remain in business. 

878 
Concerning the gravity of the violations, the evidence was 

essentially the same for all the crushing equipment violations. 

In each instance, the possibility of employee injury was present. 

The locations of both the mechanical and electrical defects were 

such, however, that the likelihood of a worker's actually coming 

into contact with them was not great. Moreover, as the Secretary's inspector and counsel both noted, there was no employee 

exposure on the date of inspection since the crushing operation 

was shut down. Similarly, because most of the cited defects were 

in obscure locations the respondent's negligence was not high. 

In each instance I find it to have been in the low-to-moderate 

range. The severity and negligence involved in the explosives 

violations are judged to rank about equally with the crusher 

infractions. The consequences of an accidental detonation could 

be severe; the likelihood of such an event, however, was very 

low. 

On balance, I conclude that a modest penalty is in order for 

all violations. Based upon the record, an appropriate civil 

penalty for each violation is determined to be $20.00. 

CONCLUSIONS OF LAW 

Based upon the entire record herein, and in accordance with 

the factual determinations contained in the narrative portion of 

this decision, the following conclusions of law are made: 

(1) The Commission has the jurisdiction to decide this 

matter. 

(2) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.6047 as alleged in Citation No. 

2358724. 

(3) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.6043 as alleged in Citation No. 

2358725. 

(4) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.6020 as alleged in Citation No. 

2358726. 

( 5 ) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.11027 as alleged in Citation No. 

2358727. 

( 6) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.11027 as alleged in Citation No. 

2358728. 

( 7) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.11001 as alleged in Citation No. 

2358729. 

879 
(8) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.1102 as alleged in Citation No. 

2358730. 

(9) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.11012 as alleged in Citation No. 

2358731. 

(10) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.14007 as alleged in Citation No. 

2358732. 

Cll) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.14007 as alleged in Citation No. 

2358733. 

(12) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.12028 as alleged in Citation No. 

2358734. 

(13> The respondent violated the mandatory safety standard 

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

2358735. 

(14) The respondent violated the mandatory safety standard 

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

2358736. 

(15) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.14001 as alleged in Citation No. 

2358737. 

(16) The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.12032 as alleged in Citation No. 

2358738. 

(17> The respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.12032 as alleged in Citation No. 

2358739. 

(18) The reasonable and appropriate civil penalty of each of 

the violations affirmed above is $20.00. 

ORDER 

Accord~ngly, all citations in this consolidated matter are 

ORDERED affirmed; and respondent Loukonen Bros. Stone Company is 

ORDERED to pay to the Secretary of Labor a total civil penalty of 

$320.00 within 30 days of the date of this decision. 

/'lk~ 

,;~~- Carlson 

/ Administrative Law Judge ,~ 

880 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

{703) 756-6232 

May 29, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

AUSTIN POWER, INCORPORATED, 

Respondent 

AUSTIN POWER, INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 86-40 

A.C. No. 41-01192-03503 

Big Brown Strip 

CONTEST PROCEEDINGS 

Docket No. CENT 86-59-R 

Citation No. 2339411; 8/20/85 

ORDER 

Docket No. CENT 86-60-R 

Citation No. 2339412; 8/20/85 

Docket No. CENT 86-61-R 

Citation No. 2339413; 8/20/85 

Big Brown Strip 

By motion filed May 13, 1986, the Secretary seeks to amend 

Citation No. 2339413, to allege in. the alternative· either a 

violation of 30 C.F.R. § 77.205(e), or a violation of 30 C.F.R. 

§ 77.404(a}. Austin Power opposes the motion on the ground 

that the Secretary's attempt to modify the citation is untimely 

and will prejudice Austin Pow.er' s _trial preparation. 

Administrative pleadings may be liberally construed and 

easily amended, National Realty and Construction Company v. 

Occupational Safety and Health Review Commission 489 F.2d 1257 

(D.C. Cir. 1973), Secretary of Labor v. United States Steel 

Corporation, 6 FMSHRC 1908, 1916 (August 1984). Further, I am 

not convinced that Austin Power has been prejudiced by the 

proposed amendment. The factual basis for the issuance of the 

citation is the "condition or practice" stated by the inspector 

881 
on the face of the citation served on Austin Power, and MSHA 

has the burden of proof. Austin Power will have a full opportunity to cross-examine MSHA's witnesses at the hearing and is 

free to present its evidence to rebut the charges. 

Austin Power's opposition to the motion IS DENIED, and the 

Secretary's motion to amend the citation to charge alternative 

alleged violations IS GRANTED. 

Cffge 

~/~~~tfti/~~ T- KoutPaf'2A 

dministrative Law Judge 

Distribution: 

Robert Fitz, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Steven R. Mccown, Esq., Jenkens & Gilchrist, 2200 Interfirst 

One, Dallas, TX 75202 (Certified Mail) 

/fb 

882