MA.Y 1991 

CO:MMISSION DECISIONS' 

05-07-91 

05-22-91 

05-23-91 

05-23-91 

05-29-91 

Arch of Kentucky, Inc. 

Mettiki Coal Corporation 

Florence Mining Company 

James D. McMillen 

Lloyd Logging, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-01-91 

05-03-91 

05-03-91 

05-08-91 

05-08-91 

05-06-91 

05-09-91 

05-09-91 

05-09-91 

05-09-91 

05-13-91 

05-20-91 

05-20-91 

05-24-91 

05-24-91 

05-28-91 

05-28-91 

05-28-91 

05-29-91 

Southern Ohio Coal Company 

Consolidation Coal Company 

Thomas J. Mcintosh v. Flaget Fuels, Inc. 

Pyro Mining Company 

Sec. Labor for William R. Brockman v. 

Calmat Company 

Robert Ziegler, employed by' ·Alamosa Mining 

Peabody Coal Company 

Randy Coal Company 

Blackfoot Coal Company, Inc. 

Sec. Labor for Douglas B. Tuttle v. 

A & M Trucking Company 

Peabody Coal Company 

Sec. Labor for Thomas Proudfoot v. 

Mohigan Mining Company 

Eagle Nest, Incorporated 

Consolidation Coal Company 

Consolidation Coal Company 

Morea Services, Incorporated 

Local 2874, UMWA v. BethEnergy Mines, Inc. 

Bradley S. Craig v. Arch of Illinois, Inc. 

Thomas J. Mcintosh v. Flaget Fuels, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-03-91 LJ 1 S Coal Corporation 

KENT 89-161-R 

YORK 89-19-R 

PENN 91-347-R 

WEVA 90-200-M 

WEST 91-14-M 

WEVA 90-287-R 

W"EVA 90-296-R 

KENT 90-113-D 

KENT 91-49 

WEST 91-21-DM 

WEVA 90-201 

KENT 90-194 

PENN 90-80 

VA 90-44 

WEVA 91-621-D 

LAKE 91-11 

WEVA 91-126-D 

WEVA 91-293-R 

WEVA 90-305 

WEVA 91-18 

PENN 90-248 

PENN 88-232-C 

LAKE 91-38-D 

KENT 90-113-D 

KENT 90-356 

Pg. 753 

Pg. 760 

Pg. 775 

Pg. 778 

Pg. 781 

Pg. 783 

Pg. 789 

Pg. 792 

Pg. 807 

Pg. 810 

Pg. 812 

Pg. 818 

Pg. 827 

Pg. 828 

Pg. 830 

Pg. 835 

Pg. 842 

Pg. 843 

Pg. 848 

Pg. 854 

858 

Pg. 860 

Pg. 861 

Pg. 868 

Pg. 873 

MAY 1991 

Review was granted in the following cases during the month_of May: 

Secretary of Labor, MSHA v. Beech Fork Processing, Inc., Docket No. KENT 90-398. 

(Judge Broderick, April 3, 1991) 

Island Creek Coal Company v. Secretary of Labor, MSHA and UMWA, Docket No. 

VA 91-47-R, etc. (Judge Koutras, April 3, 1991) 

Secretary of Labor, MSHA v. Pigeon Branch Coal Company, Docket No. WEVA 90-266. 

(Default Decision of Chief Judge Merlin on January 24, 1991) 

Secretary of Labor, MSHA v. Cyprus Plateau Mining Corporation, Docket No. 

WEST 91-44, etc. (Judge Morris, April 15, 1991) 

Secretary of Labor, MSHA v. James D. McMillen, Docket No. WEVA 90-200. (Default 

Decision of Chief Judge Merlin on October 19, 1990) 

Secretary of Labor, MSHA v. Lloyd Logging, Inc., Docket No. WEST 91-14-M. 

(Default Decision of Chief Judge Merlin on April 3, 1991) 

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

Rochester & Pittsburgh Coal Company v. Secretary of Labor, MSHA, Docket No. 

PENN 88-284-R, etc. (Judge Maurer, April 1, 1991) 

Ricky Hays v. Leeco, Inc., Docket No. KENT 90-59-D. (Judge Koutras, April 19, 1991) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

7, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

Docket Nos. KENT 89-161-R 

KENT 89-163-R 

KENT 90-39 

ARCH OF KENTUCKY, INC. 

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

, ... DECISION 

BY THE COMMISSION: 

In this consolidated contest and civil penalty proceeding under the 

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

("Mine Act"), the issues are whether Commission Administrative Law Judge 

william Fauver erred in finding that Arch of Kentucky ("Arch") violated two 

mandatory underground coal mine safety standards: 30 C.F.R. § 75.1725(c), 

requiring that repairs on machinery not be performed until the power is off, 

except where machinery motion is needed to make adjustments 1 and 30 C.F.R. 

§ 75.1722(c), mandating that guards be in place when operating maehinery, 

except when testing the machinery. 2 12 FMSHRC 536 (March 1990)(ALJ). The 

Commission granted Arch's petition for discretionary review. For the 

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

1 

2 

30 C.F.R. § 75.1725(c) provides: 

(c) Repairs or maintenance shall not be 

performed on machinery until the power is off and 

the machinery is blocked against motion, except 

where machinery motion is necessary to make 

adjustments. 

30 C.F.R. § 75.1722(c) provides: 

(c) Except when testing the machinery, guards 

shall be securely in place while machinery is being 

operated. 

753 
This case arises out of a fatal accident that occurred on April 18, 

1989, at Arch's High Splint No. 2 Mine in Harlan County, Kentucky. The 

accident occurred when a tram chain on a continuous miner broke, throwing a 

connecting link approximately 12 feet through the air. The chain link hit 

David Funk, the maintenance foreman, in the throat and severed an artery, 

resulting in his death. An investigation of that accident gave rise to the 

two citations at issue in this proceeding. 

At the time of the accident, the continuous mining machine was being 

repaired under the direction of Mr. Funk. He and his crew of five miners 

were attempting to repair the right side planetary gear box on the 

continuous miner. In order to remove the gear box, the planetary (pinion) 

shaft, which extends through the gear box had to be removed. 

The planetary shaft extends through a planetary sprocket which turns 

the chain that propels the continuous miner. When the machine is in 

operation, the tram chain is normally covered by a guard but, at the time of 

the accident, the guard was open in order to provide access to the shaft and 

sprocket. 

To allow repairs, the contiRuous miner was taken out of production, 

deenergized, jacked up, and properly blocked. The crew was unable to remove 

the planetary gear box, however, because the splines 3 of the planetary 

shaft were stuck on the planetary sprocket. An attempt to remove the shaft 

was first made by inserting a roof bolt into the end of the shaft and 

hitting the roof bolt with a sledge hammer to knock out the shaft. This 

procedure was unsuccessful. Funk then decided to try to shear the splines 

off the shaft by rotating the shaft back and forth using the tram motor with 

the sprockets and tram chain attached. He instructed the crew to stand away 

from the continuous miner, for what apparently he believed to be a safe 

distance. Funk himself stood approximately 12 feet away from the chain. In 

order to permit observation of the shaft, the guard was not put back in 

place. 

Funk told the continuous miner operator to tram the motor back and 

forth (i.e., in forward and reverse). After approximately 15 or 20 times, 

the tram chain broke. A connecting link from the chain was thrown, hitting 

Funk's neck and severing his neck artery, causing death. 

Following an investigation of the accident, the Mine Safety and Health 

Administration ("MSHA") issued citations to Arch charging violation of 

sections 75.1725(c) and 75.1722(c). The first citation alleged that repair 

work was performed on the continuous miner while the power was on, when the 

right tram motor was run in forward and reverse to strip the teeth off of 

the pinion shaft. The second citation alleged that the continuous miner was 

operated without a guard thereby exposing moving parts, the tram chain and 

3 A spline is a groove or rib on a shaft. Bureau of Mines, 

Department of the Interior, A Dictionary of Mining. Mineral and Related 

Terms 1056 (1968). 

754 

U.S. 
sprockets. 

Before the judge, Arch argued that it did not violate section 

75.1725(c) because the regulation allows machinery motion when such motion 

is necessary to make adjustments to the machinery. Similarly, Arch argued 

that the guarding provision at section 75.1722(c) contains an exception to 

the guarding requirement when there is a need to observe and test the 

effectiveness of adjustments. Arch further argued that to deny the 

applicability of either of the above exceptions would deprive it of adequate 

notice of the meaning of the exceptions and thus would be violative of due 

process protections and would defeat the rulemaking requirements of the Mine 

Act. The Secretary argued that neither the adjustments nor the testing 

exception applied. She contended that Funk used an unsafe method in trying 

to strip the planetary shaft and that this procedure had nothing to do with 

"making adjustments" or "testing" equipment. 

Judge Fauver sustained the violations alleged in the citations. 

12 FMSHRC at 539. Specifically, the judge stated: 

The facts indicate that Mr. Funk tried to take a 

shortcut "which proved,,to .be completely unsafe" 

(Stipulation,-~ 13). He chose a dangerous practice 

that is not sanctioned either as making machine 

"adjustments" or as "testing" machinery within the 

meaning of§ 75.1725(c) or§ 75.1722(c). A 

continuous miner is not designed to shear the 

splines from the planetary shaft by using the torque 

of the tram motors. Attempting to use it for such 

purpose did not qualify as an "adjustment" or 

"testing" exception to the cited safety standards. 

Id. The judge also found that Funk was "highly negligent in endangering 

himself and his crew by using an unsafe and highly dangerous practice." Id. 

On review, Arch argues that the judge erred in finding a violation of 

section 75.1725(c), on grounds that the "adjustments" exception in the 

regulation is applicable to the facts of this case. Arch argues that Funk 

was using machinery motion to adjust the shaft. 

Arch also argues that the judge erred in finding a violation of 

section 75.1722(c), because the "testing" exception in the regulation is 

applicable. Arch argues that its efforts to dislodge the shaft from the 

planetary gear was a matter of testing to see if the shaft could be 

dislodged in this fashion and that Funk felt it was necessary to observe the 

action of machine power on the shaft. Arch additionally argues that section 

75.1722(c) is inapplicable because the hazard here (a part unexpectedly 

breaking from, and flying out of, equipment) is not the hazard that the 

regulation was designed to prevent, i.e., persons getting so close that they 

may contact moving machinery. 

Arch further argues that the judge erred in deciding that the 

"adjustments" and "testing" exceptions were inapplicable on the basis of an 

755 
after-the-fact determination that the procedure "proved to be completely 

unsafe." Arch finally argues that to deny the applicability of the 

"adjustments" and "testing" exceptions would violate its right to due 

process and defeat the rulemaking requirements of the Mine Act. Arch thus 

takes the position that it did not have advance notice of any prohibited 

conduct. 

I. 

We first examine whether the "adjustment" exception in section 

75.1725(c) applies to the facts of this case. We hold that the procedure 

being used by Arch was not an "adjustment" under section 75.1725(c). 

Accordingly, we find that the judge properly determined that Arch violated 

the regulation. 

We agree with the judge that Funk's attempted use of the torque of the 

tram motor to shear the splines of the planetary shaft did not qualify as an 

"adjustment" under the regulation. "Adjustment" is defined as "a means 

by which things are adjusted one to another." Webster's Third New 

International Dictionary (Unabridged) at 27 (1986) ("Webster's"). Arch was 

not engaged in the activity of adjusting parts to one another. We agree 

with the Secretary that yunk was 'attempting to destroy the planetary shaft 

by stripping its splines and removing it altogether from the continuous 

miner. Even Arch does not dispute that a continuous miner is not designed 

to shear the splines from the planetary shaft by using the torque of the 

tram motor. Arch's argument that Funk's procedure was "mak[ing] 

adjustments" under section 75.1725(c) must be rejected. 

The purpose of section 75.1725(c) is to "prevent, to the greatest 

extent possible, accidents in the use of [mechanical] equipment." See 38 

Fed. Reg. 4976, 4977 (February 23, 1973). A safety standard should be 

construed to effectuate its purpose. See,~. Homestake Mining Co., 

4 FMSHRC 146, 147-49 (Feoruary 1982). The manifest intent of the regulation 

is to restrict repair of machinery while the power is on. Although the 

power may be on "where machinery motion is necessary to make adjustments," 

Arch's attempted application of the exception to the facts of this case does 

not comport with the fundamental protective goals of the standard or of the 

Mine Act itself. Indeed, there is substantial evidence in the record to 

support the judge's finding that the procedure being used was unsafe. See 

MSHA's Accident Report at 5. 4 We therefore agree with the Secretary's 

reasonable interpretation and application of the "adjustments" exception. 

We next address whether the safety standard, including the adjustment 

exception, provided Arch with fair notice of the conduct required. It is 

well settled that to afford fair notice, a mandatory safety standard cannot 

be "so incomplete, vague, indefinite or uncertain that [persons] of common 

4 The parties agreed that MSHA's Accident Report correctly stated the 

facts of the case. Stip. 5. The Accident Report states that the accident 

occurred because maintenance was being performed on the continuous miner in 

an unsafe manner. Accident Report at 5. 

756 
intelligence must necessarily guess at its meaning and differ as to its 

application." Ideal Cement Company, 12 FMSHRC 2409, 2416 (November 1990), 

citing Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (December 1982) 

(citations omitted). This Commission has held: 

[I]n interpreting and applying broadly worded 

standards, the appropriate test is not whether the 

operator had explicit prior notice of a specific 

prohibition or requirement, but whether a reasonably 

prudent person familiar with the mining industry and 

the protective purposes of the standard would have 

recognized the specific prohibition or requirement 

of the standard. 

Ideal Cement Company, 12 FMSHRC at 2416. See also Alabama By-Products 

Corp., 4 FMSHRC at 2129, citing Voegele Co .. Inc. v. OSHRC, 625 F.2d 1075 

(3rd Cir. 1980). 5 Applying this test to the facts of this case, we 

conclude that the reasonably prudent person familiar with the mining 

industry would have recognized that the contemplated procedure was 

prohibited by section 75.1725(c). Thus, we see no due process problems 

stemming from Arch's asserted lack,,of notice. See Alabama By-Products 

Corp. , 4 FMSHRC at 2129. - . 

II. 

We next address whether the "testing" exc~ption in section 75.1722(c) 

applies to the facts of this case. We hold that the procedure being used by 

Arch was not "testing" as contemplated by the standard. Accordingly, we 

find that the judge properly determined that Arch violated section 

75.1722(c). 

We agree with the judge that Mr. Funk's attempts to shear the splines 

from the planetary shaft.did not qualify as testing under section 

75.1722(c). Webster's defines "test" (in its verb form) as "to examine for 

... physical defect." Webster's at 2362. Arch was not examining the 

continuous miner for physical defects or attempting to determine if the 

continuous miner or its components were functioning safely. Funk knew that 

the planetary gear box was malfunctioning and in need of repair, and that, 

in order to repair it, the gear box had to be removed. He had determined 

that the shaft had to be removed in order to remove the gear box and that 

the splines of the planetary shaft were stuck on the planetary sprocket. 

Arch's characterization of its tramming of the motor back and forth in an 

effort to shear the splines and dislodge the shaft as a "test" of whether 

5 Cf. Ryder Truck Lines. Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 

1974); Cape & Vineyard Division of the New Bedford Gas and Edison Electric 

Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975); American Airlines 

v. Secreta:r:y of Labor, 578 F.2d 38, 41 (2nd Cir. 1978) (adopting similar 

reasonably prudent person test under the Occupational Safety and Health Act 

of 1970, 29 U.S.C. § 651 et .§.gg_.). 

757 
this procedure would work does not comport with the meaning of the word 

"test" as used in the standard. Therefore Arch's argument that Funk was 

"testing" must be rejected. 

The purpose of section 75.1722(c) is to prevent accidents in the use 

of equipment. See 38 Fed. Reg., supra, at 4977. The clear language of the 

regulation manifests an intent to require guards to be in place while 

machinery is being operated. Although a guard may be open when "testing," 

Arch's attempt to fit the procedure being used here into that exception does 

not comport with the fundamental protective ends of the standard. We 

therefore agree with the Secretary's reasonable interpretation and 

application of the "testing" exception. 

We next address Arch's argument that guarding standards are designed 

to prevent the hazard that can result when a miner gets so close to exposed 

moving machine parts that he may contact a moving part. Arch argues that 

there is no requirement designed to prevent injury resulting from a part 

flying out of the machine. We reject Arch's argument. 

Section 75.1722(a) states that "[g]ears; sprockets; chains; ... 

shafts; ... and similar exposed m9ying machine parts which may be contacted 

by persons. and which may cause injury to persons shall be guarded." 

(emphasis added.) Arch argues that this highlighted language limits 

application of section 75.1722(c) to situations where "persons get so close 

that they may contact moving machinery." Brief at 10. Arch thus contends 

that there was no violation of section 75.1722(c) because in this case there 

was no miner-initiated contact with moving machinery parts. We disagree. 

Since there were chains, sprockets and other moving parts that could 

be contacted by persons and cause injury, the machine parts involved here 

required a guard pursuant to section 75.1722(a). Because a guard was 

required by subsection (a), that guard was required by subsection (c) to be 

in place whenever the machine was in operation except when the machine was 

being tested. The fact that the injury was not caused by a miner initiating 

contact with the moving part is irrelevant. 

Finally, we reject Arch's argument that the safety standard did not 

provide Arch with fair nQtice of the conduct required. The reasonably 

prudent person familiar with the mining industry and the protective purpose 

of the standard would have recognized the requirement of the standard. 

Thus, we conclude that Arch has not been deprived of due process under the 

Mine Act. 

758 
III. 

Accordingly, the judge's decision is affirmed. 

eL-~C,~c--c,/,~-£ , Richard V. Backley, Acting cba:irIIla!l -. ~ 

Arlene Holen, Commissioner 

L. Clair Nelson, Commissioner 

Distribution 

.::1ichael T. Heenan, Esq. 

Fillial'l K. Dornan, Esq. 

Smith, Heenan & Althen 

1110 Vermont Avenue, N. W., Suite 400 

Washington, D.C. 20005 

Colleen A. Geraghty, Esq. 

Eva L. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge William Fauver 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

759 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

22, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

Docket Nos. YORK 89-19-R 

YORK 89-20-R 

YORK 89-42 

METTIKI COAL CORPORATION 

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

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding arises under 

the Federal Mine Safety & Health Act of 1977, 30 U.S.C. § 810 et seq. (1988) 

(the "Mine Act" or "Act"). It involves the validity of a withdrawal order 

and two citations issued by the Secretary of Labor to Mettiki Coal 

Corporation ("Mettiki") based on the improper functioning of the lockout 

device on the No. 34 circuit breaker ("breaker"), controlling the power to 

the motor for the raw coal silo conveyor belt ("No. 34 belt") of the Mettiki 

General Preparation Plant. The withdrawal order and citations were issued 

during an inspection by the Mine Safety and Health Administration ("MSHA") 

following MSHA's receipt of a complaint alleging that the No. 34 breaker 

could be turned on even if it were locked out. 

Administrative Law Judge William Fauver affirmed both citations. He 

concluded that the violations were serious and were the result of a high 

degree of negligence, but that they were not of a significant and 

substantial nature. Mettiki Coal Co., 12 FMSHRC 722 (April 1990)(ALJ). He 

modified the imminent danger withdrawal order issued under section 107(a) 1 

1 Section 107(a) of the Mine Act provides, in pertinent part: 

If, upon any inspection or investtgation of a 

coal or other mine which is subject to this [Act], 

an authorized representative of the Secretary finds 

that an imminent exists, such representative 

shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an 

order requiring the operator of such mine to cause 

all persons, except those referred to in section 

760 l 
of the Mine Act to a failure. to abate withdrawal order issued. under section 

104(b) 2 of the Act. For the reasons set forth below, we reverse the 

judge's conclusion that Mettiki violated sectionl04(b). We affirm the 

violations alleged in the citations, but reverse the judge's conclusion that 

the violations were the result of Mettiki's gross negligence. 

I. 

Factual and Procedural Background 

Mettiki operates a coal preparation plant in Garrett County, Maryland. 

The No. 34 breaker, which controls the power to the motor for the No. 34 

belt, is located in a building adjacent to the raw coal silo. This breaker 

is on the motor control panel and is clearly marked. The handle for the 

breaker's switch is rectangular with a point at one end and is turned in a 

circular motion to one of three designated settings·: on, off, or reset. The 

settings are clearly marked with white lettering on a red background. The 

handle turns within a metal collar or retaining ring, which completely 

encircles the handle and setting designations. This collar has a notch cut 

in it opposite the "off" designation. Thus, when the breaker is in the off 

[104(c)], to be withdrawn from, and to be prohibited 

from entering, such area until an authorized representative of the Secretary determines that such 

imminent danger and the conditions or practices 

which caused such imminent danger no longer exist. 

30 U.S.C. § 817(a). 

2 Section 104(b) provides: 

If, upon any follow-up inspection of a coal or 

other mine, an authorized representative of the 

Secretary finds (1) that a violation described in a 

citation issued pursuant to subsection (a) of this 

section has not been totally abated within the 

period of time as originally fixed therein or as 

subsequently extended, and (2) that the period of 

time for the abatement should not be further 

extended, he shall determine the extent of the area 

affected by the violation and shall promptly issue 

an order requiring the operator of such mine or his 

agent to immediately cause all persons, except those 

persons referred to in subsection (c) of thi9 

section, to be withdrawn from, and to be prohibited 

from entering, such area until an authori~ed 

representative of the Secretary determines that such 

violation has been abated. 

30 u.s.c. § 814(b). 

761 
position, the blunt end of the handle is located at this notch. A slide bar 

is recessed inside the handle at the blunt end. When the switch is in the 

off position, this slide bar can be partially pulled out of the handle and 

through the notch. If this procedure is followed, the switch cannot be 

turned from the off position. The slide bar has a slot in the middle to 

enable a padlock to be attached, preventing anyone without a key from 

turning on the power. 

About three years before the contested order and citations were 

issued, a new breaker for the No. 34 belt was installed at the same location 

in the existing panel. Apparently the breaker was physically smaller than 

the previous breaker. As a consequence, the switch handle did not protrude 

out of the motor control panel sufficiently to allow the slide bar to clear 

the notch in the collar. At that time, part of the slide bar was cut away 

with a hack saw so that the slide bar could be pulled through the notch and 

the switch could be locked out. 

On November 29, 1988, MSHA received a complaint that the 

No. 34 breaker could be turned on while locked out. MSHA Inspector Kerry 

George was sent to investigate. At the time of the inspection, the 

preparation plant and surface bel~-?, including the.No. 34 belt, were idle 

for scheduled maintenanc&. Two miners were making mechanical repairs on the 

speed reducer, a type of gear box, for the No. 34 belt. When Inspector 

George arrived at the control panel, the No. 34 breaker was tagged out and 

locked out. Clarence "Ted" Bowman, the surface electrician, was asked to 

try to turn the breaker on with the lock in place. After the men working on 

the speed reducer were no longer at the belt, Bowman attempted to turn on 

the breaker. He could not do so on his first try. He then pushed the slide 

bar into the switch handle about one quarter of an inch with the lock still 

in place. As a result, the slide bar apparently could clear the notch in 

the collar and he was able to turn on the No. 34 breaker without removing 

the lock. Turning on the breaker did not restore power to the belt. 

Inspector George issued an imminent danger withdrawal order alleging 

that the "main breaker for the belt drive at the raw coal silo had been 

modified to the point that when the breaker was locked out the lock could be 

bypassed." Gov. Exh. 4. The order was issued at 8:50 a.m. on November 30, 

1988 and the condition was abated at 9:50 a.m. on that same day when "a new 

switch was installed eliminating the hazard." Id. 

Inspector George issued citation No. 3110339 which charged a violation 

of 30 C.F.R. 77.507 3 for the condition described in the imminent danger 

order ("lockout citation"). Gov. Exh. 3. Inspector George also issued 

3 Section 77.507, entitled "Electric equipment; switches" provides: 

All electric equipment shall be provided with 

switches or other controls that are safely designed, 

constructed, and installed. 

762 
Citation No. 3110340 which charged a violation of 30 C.F.R. 77.502 4 for 

not properly conducting monthly electrical examinations of the No. 34 

breaker ("electrical examination citation"). Gov. Exh. 2. The citations 

were abated within an hour. The parties agree that both citations were 

abated in good faith. 

In his decision, the judge concluded that "the defective lock out 

device did not create an imminent danger." 12 FMSHRC at 727. The judge 

modified the section 107(a) imminent danger order to a section 104(b) 

failure to abate order. The judge concluded that the "inspector could have 

issued a § 104(b) order withdrawing the breaker from service until the 

defective lock out device was corrected" because of Mettiki's failure to 

remove the breaker from service once the defective condition was known by 

the electrical examiner. The judge further concluded that such a 

withdrawal order is "implied" because the electrical examination standard 

cited requires that potentially dangerous equipment ·be removed from service 

with the result that "no abatement time need be allowed in a citation for 

this type violation." 

The judge sustained the lockout citation. He concluded that the No. 

34 breaker is a switch, as that term is used in the standard, that the 

lockout device is an integral part.of the switch and that, in violation of 

the standard, the switch was not safely installed. 12 FMSHRC 724. He 

determined that Mettiki's failure to replace the lockout device constituted 

gross negligence since the electrical examiner knew that the switch was 

defective. Although he determined that the violation was not of a 

significant and substantial nature ("S&S"), he concluded that the violation 

was serious for the purpose of determining the civil penalty. 12 FMSHRC 

727, 728-29. 

The judge also sustained the electrical examination citation which 

charged a violation of section 77.502. The judge found that the electrical 

examiner knew that the lockout device was defective and knew that the 

breaker could be turned on while padlocked. 12 FMSHRC 725. He determined 

that the examiner's "attitude and failure to report the lock out defect and 

remove the breaker from service demonstrates gross negligence" and that this 

negligence was imputable to Mettiki. 12 FMSHRC 725-26. The judge held that 

the violation was not S&S bu~ that it was serious. 12 FMSHRC 727-28. 

4 Section 77.502 entitled "Electric equipment; examination, testing 

and maintenance" provides: 

Electric equipment shall be frequently examined, tested, 

and properly maintained by a qualified person to assure 

safe operating conditions. When a potentially dangerous 

condition is found on electric equipment, such equipment 

shall be removed from service until such condition is 

corrected. A record of such examinations shall be kept. 

763 
II. 

Disposition of Issues 

A. Section 104(b) Withdrawal order 

As stated above, the judge determined that the conditions found by 

Inspector George did not constitute an imminent danger, but he modified the 

order of withdrawal to a section 104(b) order. The judge erred in so 

modifying the withdrawal order in this case. 

First, the judge d{d not have the authority to modify the imminent 

danger order to a section 104(b) order. Inspector George did not charge 

Mettiki with a violation of section 104(b) of the Mine Act. That section 

provides, in part: 

If ... an authorized representative of the 

Secretary finds . . . that a violation described in a 

citation issued pursuant to subsection (a) has not 

been totally abated within the period of time as 

originally fixed therein or as subsequently extended 

... he shall determine ~he extent of the area 

affected by tne violation and shall promptly issue 

an order requiring the operator of such mine or his 

agent to immediately cause all persons ... to be 

withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the 

Secretary determines that such violation has been 

abated. 

30 U.S.C. § 814(b). It was the judge who made the specified findings and 

who, through modifications of the imminent danger order issued by Inspector 

George, in essence issued the section 104(b) order. Commission 

administrative law judges are not authorized representatives of the 

Secretary and do not have the legal authority to charge an operator with 

violations of section 104 of the Mine Act. 

Sections 104(h) and lOS(d) of the Mine Act authorize the Commission to 

modify an order issued under section 104, and section 107(e) authorizes the 

Commission to modify an order issued under section 107(a). The Commission 

has concluded that this authority "is conferred in broad terms" and that it 

"extends under appropriate circumstances, to modification of 104(d)(l) 

withdrawal orders to 104(d)(l) citations." Consolidation Coal Co., 

/.i. FMSHRC 1791, 1794 (October 1982). In that case, the 104(d) (1) order 

contained the requisite special findings (unwarrantable failure and 

significant and substantial findings), but the underlying 104(d)(l) citation 

had been previously modified to a section 104(a) citation. The Commission 

held that the judge had the authority to modify the 104(d)(l) order to a 

104(d)(l) citation so long as fair notice was provided and the operator was 

not unfairly prejudiced. 4 FMSHRC at 1795. The Commission emphasized, 

however, that the necessary special findings were contained in the order as 

issued so that "the judge was not adding new findings to 'create' a 

764 
104(d)(l) citation." 4 FMSHRC at 1796. Thus, allegations contained in an 

order of withdrawal, such as the fact of violation or special findings, 

survive the vacation of the order. As a consequence, modification of an 

order is the appropriate means of assuring that such allegations do survive. 

4 FMSHRC at 1794 n. 9; Southern Ohio Coal Co., 10 FMSHRC 138, 143-44 

(February 1988). 

In this case, modification is not appropriate because the judge added 

new findings to "create" a 104(b) order. The findings necessary to 

establish an imminent danger are quite different from the findings to 

establish a 104(b) order. As discussed below, the allegations contained in 

Inspector George's order that survived the judge's determination that no 

imminent danger existed do not support a violation of section 104(b). Thus, 

the judge's modification was beyond the authority conferred on him under 

sections 104(h), 105(d), and 107(e) of the Mine Act. 

The modification was also improper for a second, independent reason. 

The facts in this case do not support the issuance of a section 104(b) 

order. Before a 104(b) order can be issued, an inspector must find that the 

violation described in the underlying citation "has not been totally abated 

within the period of time originally fixed therein or as subsequently 

extended." Inspector Geor_.ge did no't set a time for abatement for the 

citations, the citations were abated within one hour of their issuance, and 

the parties stipulated that the citations were abated in good faith. 

Exhs. G-2, G-3; Tr. 5. 

In addition, the Commission has held that in order to establish a 

prima case that a section 104(b) order is valid, the Secretary must 

prove that "the violation described in the underlying section 104(a) 

citation existed at the time the section 104(b) withdrawal order was 

issued." Mid-Continent Resources. Inc., 11 FMSHRC 505, 509 (April 1989). 

Here, the citations were quickly abated so that neither the Secretary nor 

the judge could have made these findings. 

The judge concludes that no abatement time was required in a citation 

for this type of violation. But even assuming that the inspector could have 

issued a 104(b) order, he did not and the facts do not demonstrate that such 

an order can be implied. Moreover, it is not disputed that the violations 

were abated within an hour and that Mettiki "demonstrated good faith ... in 

attempting to achieve rapid compliance after notification of [the] 

violation." 30 U.S.C. § 820(i). 

For the reasons set forth above, the judge's modification of the 

withdrawal order issued by Inspector George is reversed and the order of 

withdrawal is vacated. 

B. Lockout Citation 

As a preliminary matter, it is important to recognize that Mettiki was 

not required to have the No. 34 breaker locked out at the time of Inspector 

·George's inspection. The Secretary's surface electrical standards, Subpart 

F-J of Part 77 of 30 G.F.R. (sections .500-77.906), contain only one 

765 
standard requiring the use of lockout devices. Section 77.501 provides in 

pertinent part that "[d]isconnecting devices shall be locked out and 

suitably tagged" by persons performing "electrical work ... on electric 

distribution circuits or equipment." 

Electrical work was not in progress at the time of MSHA's inspection. 

Two miners were making non-electrical repairs to the speed reducer 5 for 

the No. 34 belt at the time of the inspection. Mechanical repairs are 

covered by section 77.404(c), which provides, in pertinent part, that 

"[r]epairs or maintenance shall not be performed on machinery until the 

power is off and the machinery is blocked against motion." A lock out of 

the equipment or circuit is not required. Thus, when mechanical repairs are 

being made to mechanical equipment and there is no danger of contacting 

exposed energized electrical parts, MSHA requires only that the power be 

turned off and the machinery be blocked against motion. 

We now turn to our analysis of the safety standard cited by the 

inspector. Section 77.507 provides that "[a]ll electric equipment shall be 

provided with switches or other controls that are safely designed, 

constructed, and installed." This regulation is exactly the same as the 

interim mandatory standard enacted by Congress in section 305(0) of the Mine 

Act. 30 U.S.C. § 865(0).- The legislative history of the interim mandatory 

standard states: 

This section requires that electric equipment 

be provided with switches or other safe control[s] 

so that the equipment can be safely started, 

stopped, and operated without danger of shock, fire, 

or faulty operation. 

S. Rep. No. 411, 9lst Cong., 1st Sess. 68, reprinted in Senate Subcommittee 

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

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

1969, at 194 (1975) ("Coal Act Legis. Hist."). 

In the Program Policy Manual ("Manual"), the Secretary states: 

The intent of this section [77.507] is to require 

that all control devices be fully enclosed to 

prevent exposure of bare wires and energized parts. 

Improvised starting methods such as plug and 

receptable devices, trolley taps and trolley wire 

"stingers" that are used to start or stop electric 

5 A speed reducer is a "train of gears, totally enclosed for mine 

work, placed between a motor and the machinery which it will drive, to 

reduce the speed with which power is transmitted." Bureau of Mines, U.S. 

Department of Interior, Dictionary of Mining. Mineral and Related Terms, 

1052 (1968). A speed reducer is not electric equipment, thus the use of the 

word "power" in this definition refers to mechanical power. 

766 
motors are examples of noncompliance with this 

provision. 

Manual, Volume V, Part 77, p. 176. 6 

The judge concluded that Mettiki violated the safety standard because 

the "lock out device on the No. 34 breaker was not safely installed in that 

it did not prevent turning the breaker on when it was padlocked." 12 FMSHRC 

at 724. He stated that this condition presented a safety hazard in 

violation of section 77.507. 

The citation was not issued by the inspector or affirmed by the judge 

on the basis that the breaker was not locked out, but rather because the 

lockout device did not work. Mettiki argues that the lockout device is not 

a "switch or other control" because the cited slide bar was a mechanical 

device with no electrical function. As a consequence, it maintains that 

section 77.507 did not apply to the malfunctioning slide bar lockout device. 

The judge did not hold that the slide bar is a switch but that the 

lockout device "is an integral part of the switch, essential to control the 

switch when locking out is requir~g. by a safety regulation." 12 FMSHRC 724. 

The Secretary's interpret;ation of the term "switch" to include safety 

components that do not directly control the flow of electricity advances the 

goals of the Mine Act and is not inconsistent with its plain language. We 

give weight to the Secretary's interpretation of the standard in this case 

because it is reasonable, consistent with the purposes of the Mine Act and 

is supported by substantial evidence. 7 We conclude that the term switch 

includes the slide bar lockout device. 

The next issue is whether Mettiki violated the cited standard. 

Mettiki argues that this safety standard is designed to protect miners from 

the hazards associated with an electrically defective switch. It points to 

the Senate Report, which states that the standard requires that equipment be 

provided with switches "so that the equipment can be safely started, 

6 The title page of the Manual states that the "MSHA Program Policy 

Manual is a compilation of the Agency's policies on the implementation and 

enforcement of the Federal Min~ Safety and Health Act of 1977 and Title 30 

Code of Federal Regulations and supporting programs." The D.C. Circuit has 

stated that while the Manual may not be binding on the agency, "[w]e 

consider the MSHA Manual to be an accurate guide to current MSHA policies 

and practices." Coal Employment Project v. Dole, 889 F.2d 1127, 1130 n.5 

(D.C. Cir. 1989). 

7 The legislative history of the Mine Act provides that "the 

Secretary's interpretation of the law and regulations shall be given weight 

by both the Commission and the courts." S. Rep. No. 181, 95th Cong., 1st 

Sess. 49 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal 

Mine Safety and Health Act of 1977, at 637 (1978). 

767 
stopped, and operated without danger of shock, fire, or faulty operation." 

Coal Act Le~is. Hist. at 194. It maintains that it is undisputed that the 

switch could be turned on and off safely without presenting any danger of 

shock, fire or faulty operations. It further argues that since the 

Secretary's regulations do not require that a breaker be equipped with a 

lockout device and the failure to have such a device would not violate 

section 77.507, then having a modified lockout device cannot be deemed to 

violate the safety standard. Finally, it contends that the Secretary's 

Manual supports its interpretation because the Manual states that the 

"intent" of the standard·is to require that all switches be fully enclosed 

to prevent exposure of energized parts and to prevent the use of improvised 

starting methods. 

The Secretary argues that because the standard requires that switches 

be safely installed, the improper and unsafe installation of the No. 34 

breaker violated the standard. She contends that the No. 34 breaker was not 

"safely installed" in violation of section 77.507 because the modification 

that was made to the slide bar "negated the operation of the safety device." 

Sec. Br. 7. She states further that the Manual is only a guide for 

inspectors and does not discuss every hazard to which the standard applies. 

The word "install" means "to set up for use or service." Webster's 

Third International Dictionary (Unabrid~ed) at 1171 (1986). The No. 34 

breaker was installed by physically attaching it to the panel and connecting 

the electrical conductors. Part of the installation included, in this 

instance, modifying the lockout device. Mettiki states that it was safely 

installed because, as an electrical device, it worked as it was designed. 

The Secretary .maintains that it was not safely installed because the lockout 

device on the switch did not function as it was designed. 

Section 77.501 requires that electric equipment be locked out whenever 

electrical work is performed. Lockout devices are essential to comply with 

the standard. Thus, switches to be used to lock out electric equipment must 

be equipped with functioning lockout devices so that the required lockout 

can be undertaken. It is not unreasonable for MSHA to be concerned about 

defective lockout devices on electric circuits because miners' lives are at 

risk. It is also not unreasonable for the Secretary to interpret section 

77.507 to require that pertinent switches be installed with functioning 

lockout devices. 

Mettiki argues, however, that the standard is unenforceably vague as 

applied to the facts of this case, because it was not given fair warning of 

the conduct required. In instances of broadly worded standards, the 

Commission has determined that adequate notice is provided if the conduct at 

issue is measured against what a "reasonably prudent person, familiar with 

the mining industry and the protective purpose of the standard, would have 

provided in order to meet the protectioncintended by the standard." 

~' Canon Coal Co., 9 FMSHRC 667, 668 (April 1987); Quinland Coals. Inc., 

9 FMSHRC 1614, 1617-18 (September 1987). A standard cannot be "so 

incomplete, vague, indefinite or uncertain that [persons] of common 

intelligence must necessarily guess at its meaning and differ as to its 

application." Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (December 

768 
1982)(citation omitted). In interpreting and applying broadly worded 

standards, the appropriate test is not whether the operator had explicit 

prior notice of a specific prohibition or requirement, but whether a 

reasonably prudent person familiar with the mining industry and the 

protective purposes of the standard would have recognized the specific 

prohibition or requirement of the standard. Ideal Cement Company, 

12 FMSHRC 2409, 2416 (November 1990). 

Mine operators, including Mettiki, are on notice that electric 

circuits and equipment must be locked out whenever electrical work is 

performed. Operators are also on notice that electric equipment must be 

equipped with safely installed switches. In addition, operators should know 

that switches used to lock out circuits and equipment must be installed with 

lockout devices that function properly. A reasonably prudent person would 

have recognized that the standard required that the No. 34 breaker, a switch 

used by Mettiki to lock out the belt motor circuit, .be equipped with a 

functioning lockout device and that the improperly installed lockout device 

on the switch was in violation of section 77.507. 

Mettiki had designated the No. 34 breaker as the "disconnecting 

device" to be locked out when required by section 77.501. It is clear that 

the device was defective._ Consequently, a reasonably prudent person would 

be put on notice that the protective purpose of the standard required that 

the defective lockout device be replaced or repaired. 

We now turn to the question of whether the violation was caused by 

Mettiki's gross negligence. The judge reached the following conclusion with 

respect to Mettiki's negligence: 

The surface electrician, who was also the electrical 

examiner, was responsible for the safety of this 

equipment. He knew about the defect but did not 

repair it. His continued failure to replace the 

lock out device constituted gross negligence, in 

violation of§ 77.507. 

12 FMSHRC at 724. 

Bowman is the hourly employee who was assigned to conduct the monthly 

electrical inspections. He knew that the slide bar of the switch had been 

modified, but it is difficult to determine from the record when he first 

became aware that this modification could allow the lockout device to be 

bypassed. His testimony is ambiguous. There is evidence in the record to 

support a finding that, at the time the citation was issued, he did not know 

that the lockout device could be and there is evidence to support 

the made by the judge. 

The Commission is bound by the substantial evidence test when 

reviewing an administrative law judge's decision. 30 U.S.C. § 823(d)(2) 

(A)(ii)(I). Donald F. Denu v. Amax Coal Co., 12 FMSHRC 602, 610 (April 

1990). Substantial evidence means "such relevant evidence as a reasonable 

mind accept as adequate to support a conclusion. 11 Consolidation 

769 
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Nevertheless, "substantiality 

of evidence must take into account whatever in the record fairly detracts 

from its weight." Universal Camera v. NLRB, 340 U.S. 474, 488 (1951). 

We conclude that substantial evidence supports the judge's conclusion 

that Bowman knew the lockout device could be defeated. It appears from his 

testimony that while he knew the lockout device could be defeated, he did 

not believe that this defect created a safety hazard because turning on the 

breaker would not energize the system. The record establishes that "many 

independent actions would be required to cause injury due to the defective 

lock out device." 12 FMSHRC 726. The judge concluded that such independent 

actions would include 11 1) ignoring the warning tag and padlock; 2) turning 

the breaker on; 3) reactivating the emergency pull cord on No. 34 belt; 4) 

starting the two outby belts in order to start No. 34 belt; and 5) ignoring 

the sirens that would sound before a belt is started." 12 FMSHRC 727. In 

addition, Bowman stated that nobody would turn on a ·breaker with a lock and 

danger tag on it unless "they mean to do you some harm to start with." Tr. 

114, 125. Thus, the record indicates that Bowman knew that a miner could 

purposefully bypass the lockout device on the breaker, but that he did not 

report it because he did not think it would cause any safety problems. 

The Commission has not precisely defined what constitutes ordinary, 

high or gross negligence. Typical definitions of gross negligence include: 

"the intentional failure to perform a manifest duty in reckless disregard of 

the consequences;" "an act or omission respecting legal duty of an 

aggravated character as distinguished from a mere failure to exercise 

ordinary care;" "indifference to present legal duty and to utter 

forgetfulness of legal obligations;" and "a heedless and palpable violation 

of legal duty." Black's Law Dictionary (5th ed), 931-32 (1979). In Eastern 

Associated Coal Corp., 13 FMSHRC 178, 187 (February 1991), the Commission 

stated: 

"Highly negligent" conduct involves more than 

ordinary negligence and would appear, on its face, 

to suggest unwarrantable failure. Thus, if an 

operator has acted in a highly negligent manner with 

respect to a violation, that suggests an aggravated 

lack of care that is more than ordinary negligence. 

The facts in this case do not present highly negligent conduct or 

gross negligence. Mettiki modified the slide bar on the switch in order to 

enable the breaker to be locked out. It required the breaker to be locked 

out whenever work was being performed on the belt even though the Secretary 

only requires a lock out when electrical work is being performed. A number 

of independent steps are required to energize the No. 34 belt, including the 

resetting of the emergency pull cord at the belt. The modified lockout 

device functioned, in that a lock could be placed on the device to lock it 

out. The lockout device could be purposefully defeated, however, by 

jiggling the device while turning the switch. 

The electrical examiner knew that the device could be defeated, but 

770 
apparently he believed that nobody else knew it. He also knew that turning 

on the breaker would not energize the circuit because other miners are 

required to take independent actions at other locations to energize the 

system. 

The record does not indicate that any electrical work requiring the 

switch to be locked out was performed on the circuit during the period of 

time that the modified lockout device was in place. The Secretary did not 

attempt to prove that Mettiki relied upon the modified lockout device to 

comply with the lockout requirements of section 77.501. Thus, as far as the 

record before us discloses, the modified lockout device was used only in 

situations where there was no legal duty to lock out the circuit. Although 

the Secretary was not required to prove a violation of section 77.501 in 

order to establish a violation in this case, the fact that she did not show 

that Mettiki relied upon the defective lockout device to fulfill its 

obligations under the Mine Act is a factor to be considered when determining 

the degree of negligence. 

Moreover, the language of section 77.507, when read together with the 

Secretary's interpretation in the Manual, "made it difficult and confusing 

for a reasonable operator to know the true·· standard of care imposed by 

[section 77.507], and, hence, whether it was in a state of violation or 

compliance." King: Knob Coal Co., 6 FMSHRC 1417, 1422 (June 1981). The 

Manual states that the intent of the standard is to require that switches be 

enclosed "to prevent exposure of bare wires and energized parts." Manual, 

Volume V, Part 77, p. 176. Although Mettiki did not show actual reliance on 

the Manual, "confusion caused by the Manual interfered with [Mettiki's] 

ability to ascertain the true standard of care and therefore placed it in a 

position where it could have believed it was in compliance." King: Knob, 

6 FMSHRC at 1422. Thus, even though Bowman knew that the lockout device 

could be defeated, he could have reasonably believed that the defect was not 

out of compliance with the safety standard or the Mine Act. Penalizing 

Mettiki with a finding of gross negligence for confusion caused by MSHA 

would be "unfair and harsh." Id. 

We conclude that the violation of section 77.507 was caused by 

Mettiki's ordinary negligence. Mettiki was negligent in failing to test the 

lockout device at the time the new breaker was installed to determine if it 

functioned properly. In addition, Bowman was negligent in failing to report 

the defect to Mettiki and in faiiing to replace or repair the breaker after 

he discovered the defect. 

Based on the above considerations, we vacate the judge's gross 

negligence finding and remand the proceeding to the judge to assess an 

appropriate penalty. 

G. Electrical Examination Citation 

Mettiki did not properly seek review of the judge's holding that it 

violated the requirements of section 77.502. Citation No. 3110340 alleges 

that the monthly electrical examinations were not being conducted properly 

because the examiner did not report that the lockout device could be 

171 
bypassed. The judge upheld the citation. 

In its petition for discretionary review, Mettiki seeks review of that 

portion of the'judge's decision "modifying the operator's negligence from 

moderate to high with respect to§ 104(a) Citation No. 3110340." PDR at 

pg. 1. The petition does not elsewhere seek review of the judge's 

determination that Mettiki violated section 77.502. Review by the 

Commission is limited to issues raised by the petition for discretionary 

review, 30 U.S.C. § 823(d)(2)(A)(iii), or directed for review by the 

Commission on its own motion, 30 U.S.C. § 823(d)(2)(B). Consequently, this 

issue is not before the Commission. Odell Maggard v. Chaney Creek Coal 

Co., 9 FMSHRC 1314, 1315 n.2 (August 1987). 

With respect to Mettiki's negligence, the judge held that "Mr. 

Bowman's attitude and failure to report the lock out defect and remove the 

breaker from service demonstrates gross negligence, in violation of 

§ 77.502." 12 FMSHRC at 725. The judge's finding of negligence is based on 

his finding that Bowman knew about the defect and his belief that Bowman's 

actual knowledge established gross negligence. For the reasons· discussed 

with respect to the lockout citation, the judge's conclusion that the 

violation was caused by Mettiki's gross negligence is reversed. Given the 

fact that Bowman could have reasonably believed that the modification made 

to the lockout device did not violate section 77.507, his failure to report 

the defect does not constitute gross negligence. King Knob, 6 FMSHRC at 

1422. Fe conclude that Bowman's failure to report the defect and remove it 

from service was thus the result of his ordinary negligence. 

The judge further held that Bowman's negligence could be imputed to 

Mettiki, because he was Mettiki's "designated person to conduct electrical 

examinations of surface electrical equipment." 12 FMSHRC at 726. Mettiki 

argues that the judge erred as a matter of law. For the reasons set forth 

in Rochester & Pittsburgh Coal Co., 13 FMSHRC 189 (February 1991), the 

judge's conclusion that Bowman's negligence is imputable to Mettiki is 

affirmed. Consequently, we vacate the judge's gross negligence finding and 

remand the proceeding to the judge to assess an appropriate penalty. 

(D) Civil Penalty. 

Mettiki asserts that the judge did not properly consider the six 

statutory criteria set forth in section llO(i) when he assessed the civil 

penalties. Specifically, it alleges that he ignored the fact that the 

parties stipulated that both violations were abated in good faith and that 

he erroneously determined that the violations were the result of its gross 

negligence. 

The judge did not discuss the good faith criterion of section llO(i) 

in assessing the civil penalties. 30 U.S.C. § 820(i). In modifying the 

imminent danger order to a failure to abate order, the judge apparently 

determined that the violations were not abated in good faith. The parties 

stipulated that the violations were abated in good faith. Tr. 5; Sec. Br. 

to Judge at 2. The evidence supports the stipulation. 

772 
Section llO(i) requires the Commission to consider all six criteria 

set forth in that section "iri assessing civil monetary penalties." 30 

U.S.C. § 820(i). See, Pyro Mining Co. v. FMSliRC, 3 BNA MSHC 2057, 2059, 785 

F.2d 310 (Table) (6th Cir. 1986); Sellersburg Stone Co. y. FMSHRC, 736 F.2d 

1147, 1152-53 (7th Cir. 1984). The judge erred in failing to consider and 

enter findings with respect to the good faith criterion. We conclude that 

Mettiki abated both violations in good faith. We remand this proceeding to 

the judge to assess appropriate civil penalties. 

III. 

Conclusion 

For the foregoing reasons, we reverse the judge's conclusion that 

Mettiki violated section 104(b) of the Mine Act and we vacate the order of 

withdrawal. We affirm the judge's determination that Mettiki violated 

section 77.507, but we reverse his gross negligence finding. We also 

reverse the judge's finding that Mettiki's violation of section 77.502 was 

the result of its gross negligence. We hold that both violations were the 

result of Mettiki's ordinary negligence and that Mettiki abated these 

violations in good faith. Accordingly, we remand this proceeding for 

reconsideration of appropriate civil penalties. 

J yce A. Doyle, Commissi 

Arlene Holen, Commissioner 

L. Clair Nelson, Commissioner 

773 
Distribution 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Colleen A. Geraghty, E~q. 

Office of the Solicitor 

U~S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge William Fauver 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

774 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

FLORENCE MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

HELVETIA COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

KEYSTONE COAL MINING 

CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

ROCHESTER AND PITTSBURGH 

COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

CYPRUS EMPIRE CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 23, 1991 

775 

Docket Nos. PENN 91-347-R 

through 

PENN 91-432-R 

Docket Nos. PENN 91-226-R 

through 

PENN 91-346-R 

Docket Nos. PENN 91-451-R 

through 

PENN 91-626-R 

PENN 91-644-R 

through 

PENN. 91-701-R 

Docket Nos. PENN 91-627-R 

through 

PENN 91-638-R 

Docket No. WEST 91-327-R 
and 

TWENTYMILE COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

CYPRUS SHOSHONE COAL CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

CYPRUS-PLATEAU MINING 

CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

ORDER 

Docket Nos. WEST 91-328-R 

through 

WEST 91-334-R 

Docket No. WEST 91-335-R 

Docket Nos. WEST 91-336-R 

through 

WEST 91-346-R 

On }fay 9, 1991, counsel for the Secretary of Labor filed with the 

Commission a Petition for Interlocutory Review in the above matters. See 29 

C.F.R. § 2700.74. The Secretary has subsequently filed a Motion to Dismiss 

her Petition. As grounds for approval of voluntary dismissal, the Secretary 

indicates that the Commission Administrative Law Judge to whom these matters 

have recently been assigned has issued an Order Staying Discovery that 

essentially grants the Secretary the relief" sought in her Petition. S. Mot. 

at 2. Upon consideration of the Secretary's request to withdraw her Petition, 

it is granted and this interlocutory proceeding on review is dismissed. 

For the Commission: 
Distribution 

Carl C. Charneski, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard, Suite 400 

Arlington, Virginia 22203 

R. Henry Moore, Esq. 

Buchanan Ingersoll, P.C. 

USX Tower, 57th Floor 

600 Grant Street 

Pittsburgh, Pennsylvania 15219 

Robert Stropp, Esq. 

United Mines workers of America 

900 15th Street, N.w. 

Washington, D.C. 20005 

Administrative Law Judge James A. Broderick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

777 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

JAMES D. McMILLEN, 

Employed by Shillelagh 

Mining Company 

WASHINGTON, D.C. 20006 

May 23, 1991 

Docket No. wEVA 90-200-M 

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

This civil penalty proceeding arises under the Federal Mine Safety and 

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

case involves the Secretary of Labor's allegations, pursuant to section llO(c) 

of the Mine Act, 30 U.S.C. § 820(c), that James D. McMillen, as an agent of 

the corporate mine operator, Shillelagh Mining Company ("Shillelagh"), 

knowingly authorized or carried out nine violations of mandatory standards at 

the Shillelagh mine. On October 19, 1990, Commission Chief Administrative Law 

Judge Paul Merlin entered an Order of Default against Mr. McMillen for failure 

to answer the Secretary's Petition for Assessment of Civil Penalty and the 

judge's Order to Show Cause. The judge assessed the civil penalty of $6,000 

proposed by the Secretary. The Commission has received a letter from 

McMillen's counsel requesting reopening of this matter. For the reasons that 

follow, we vacate the default order and remand this case for further 

proceedings. 

On May 30 and June 1, 1989, the Department of Labor's Mine Safety and 

Health Act ("MSHA") issued one citation and eight withdrawal orders to 

Shillelagh, pursuant to section 104(d) of the Act, 30 U.S.C. § 814(d), for 

nine alleged violations of mandatory standards at its mine, one involving a 

fatal roof fall accident. On April 30, 1990, MSHA issued McMillen a 

notification of a proposed civil penalty of $6,000 for the nine violations, 

that, as Shillelagh's agent, he had personally authorized or carried 

out the violations. McMillen filed a "Blue Card" request for a hearing. 

However, he did not file an answer to the Secretary's subsequent civil penalty 

petition, nor did he respond to the judge's August 3, 1990 Order to Show 

Cause. 

On May 6, 1991, some six months after the judge's default order, the 

Commission received from McMillen's counsel a letter seeking the reopening of 

this matter. Counsel requests that the Commission treat the letter as a 

petition for discretionary review. The letter indicates a number of serious 

personal problems that allegedly led to McMillen's failure to file timely 

responsive pleadings in this matter and requests relief from default. 

778 
The judge's jurisdiction in this matter terminated when his default 

order was issued on October 19, 1990. 29 C.F.R. § 2700.65(c). McMillen did 

not file a timely petition for discretionary review of the judge's decision 

within the 30-day period prescribed by the Mine Act. 30 U.S.C. § 823(d)(2) 

(A)(i); see also 29 C.F.R. § 2700.70(a). Nor did the Commission direct review 

on its own motion within this 30-day period. 30 U.S.C. § 823(d)(2)(B). Thus, 

under the Act, the judge's decision became a final decision of the Commission 

40 days after its issuance. 30 U.S.C. § 823(d)(l). Under these circumstances, we deem McMillen's submission to be a request for relief from a final 

Commission order, incorporating a late-filed petition for discretionary 

review. See, e.g., Transit Mixed Concrete Co., 13 FMSHRC 175, 176 (February 

1991). We conclude that the record supports the reopening of this matter, and 

we proceed to consider McMillen's request for substantive relief. 

Relief from a final Commission judgment on the basis of mistake, 

inadvertence, surprise, or excusable neglect is available to a party under 

Fed. R. Civ. P. 60(b)(l) & (6). 29 C.F.R. § 2700.l(b) (Federal Rules of Civil 

Procedure apply, "so far as practicable" and "as appropriate," in absence of 

applicable Commission rules). In appropriate circumstances, a party's 

personal problems may form the basis for relief under Rule 60(b). Here, it is 

asserted that McMillen's serious personal problems adversely affected his 

ability to comply with filing responsibilities in this matter. It appears 

that for a period of time in this matter McMillen also may have proceeded 

without benefit of counsel. The filing delay is serious but we are mindful of 

the consideration that this is a section llO(c) proceeding involving the 

proposed assessment of civil penalties against McMillen personally. 

We conclude that McMillen may have set forth a colorable excuse for his 

failure to respond in a timely manner to the Secretary's civil penalty 

petition and the judge's Order to Show Cause. We are unable to evaluate the 

ultimate merits of McMillen's assertions on the basis of the present record, 

but will permit McMillen to present his position to the judge, who shall 

determine whether final relief from the default order is warranted. See. 

~. A.H. Smith Stone Co., 11 FMSHRC 2146, 2147 (November 1989). 

779 
Accordingly, 

default order, and 

order. 

we grant the Petition for Discretionary Review, vacate the 

remand this matter for proceedings consistent with this 

/} _/(1' 

g~~~/U;f"t('//>tl!~ _ Richard V. Backley, Acting Chairman ~ 

Distribution 

J. Randolph Query, Esq. 

5130 HacCorkle Avenue, S.E. 

Charleston, West Virginia 25304 

J. Smith, 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Holen, Commissioner 

'~ /) J .· I I . 

v~·J_,0~ 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul ~1erlin 

Federal Mine Safety and Health Review Commission 

1730 K Street ~w. 6th Floor 

Washington, D.C. 20006 

780 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

SECRETARY OF lABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LLOYD LOGGING, INC. 

WASHINGTON, D.C. 20006 

May 29, 1991 

Docket No. WEST 91-14-M 

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

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 3, 

1991, Commission Chief Administrative Law Judge Paul Merlin issued an Order 

of Default finding respondent Lloyd Logging, Inc. ("Lloyd") in default for 

failure to answer the Secretary of Labor's civil penalty proposal and the 

judge's order to show cause. The judge assessed Lloyd the civil penalty of 

$1,411 proposed by the Secretary. For the reasons explained below, we 

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

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

Administration ("MSHA") issued Lloyd 14 citations alleging violations of 

various regulations. Upon preliminary notification by MSHA of the 

civil penalties proposed for these alleged violations, Lloyd filed a "Blue 

Card" request for a hearing before this independent Commission. On November 

15, 1990, counsel for the Secretary filed a proposal for penalty assessment. 

When no answer to the penalty proposal was filed, Judge Merlin issued an 

order to show cause on January 17, 1991. No response was received. On 

April 3, 1991, the judge issued an order finding Lloyd in default for 

failure to answer the Secretary's civil penalty proposal and his show cause 

order. 

By letter to Judge Merlin, filed April 18, 1991, Lloyd states that it 

understood the case to have been settled in December 1990. Lloyd attaches a 

letter from the Secretary, dated November 27, 1990, which proposed 

settlement of the case for a total of $837 in penalties, striking one 

citation, and indicating a willingness on the part of the Secretary to 

prepare the necessary documents for submission to the judge to request 

settlement approval. Lloyd also attaches a letter dated December 7, 1990, 

indicating its acceptance of the proposal and requesting the Secretary to 

proceed with the necessary documents. On May 13, 1991, the Secretary filed 

781 
with Judge Merlin a letter stating that a misunderstanding had occurred when 

the parties reached settlement. The Secretary states her belief that Lloyd 

had concluded that the Secretary would take care of any necessary filings 

for settlement approval. The Secretary requests that Lloyd be given an 

opportunity to proceed in this case and that the order of default be 

vacated. 

The judge's jurisdiction in this proceeding terminated when his 

default order was issued on April 3, 1991. 29 C.F.R. § 2700.65(c). Due to 

clerical inadvertence, the Commission did not act on Lloyd's April 18 papers 

within the required statutory period for considering requests for discretionary review and the judge's decision became a final decision of the 

Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l). We conclude 

that the record supports reopening of this matter, and we proceed to 

consider the parties' requests for substantive relief. 

Relief from a final Commission judgment or order on the basis of 

inadvertence, mistake, surprise or excusable neglect is available to a party 

under Fed. R. Civ. P. 60(b)(l) & (6). 29 G.F.R. § 2700.l(b)(Federal Rules 

of Civil Procedure apply, "so far as practicable" and "as appropriate," in 

absence of applicable Commission n(Les). ~. Danny Johnson v. Lamar 

. Mining Co. , 10 FMSHRG 506,- 508 (April 1988) . Lloyd and the Secretary agree 

that the parties reached settlement of this matter prior to issuance of the 

·judge's default order, and that Lloyd's default resulted from his belief 

that the Secretary was to file the necessary settlement approval papers. We 

conclude that this matter should be remanded to the judge, in order to 

afford the parties the opportunity to present their settlement to him for 

his review. See, ~, Transit Mixed Concrete Company, 13 FMSHRC 175 

(February 1991). 

For the foregoing reasons, we vacate the judge's default order and 

remand this matter to the judge for appropriate proceedings.· 

/J ,/_/A 

~~/~~ Richard V. Backley, Acting Chairmak 

~x_,L/ /l. tS~ //~ 

L. Clair Nelson, Commissioner 

782 
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 11991 

SOUTHERN OHIO COAL COMPANY, CONTEST PROCEEDING 

contestant 

v. Docket No. WEVA 90-287-R 

Order No. 3111174; 7/10/90 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH Martinka No. 1 Mine 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Appearances: Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB & 

CRITCHFIELD, Morgantown, West Virginia, for the 

contestant; 

Before: 

Glenn M. Loos, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a Notice of Contest filed by the 

contestant pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977, challenging the legality of section 104(b) 

Order No. 3111174, issued by an MSHA inspector at the captioned 

mine on July 10, 1990. A hearing was held Morgantown, 

West Virginia, on March 21, 1991, and the parties appeared and 

participated fully there. They were also afforded an opportunity 

to posthearing briefs. 

Issue 

The principal issue case is whether or not the 

contested order was properly issued and whether.or not the 

acted reasonably in not extending the abatement time. 

Applicable statutory and Regulatory Provisions 

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

30 U.S.C. 801 et seq. 

783 
2. Section 104(b) of the Act, 30 u.s.c. § 814(b). 

3. Commission Rule, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties -stipulated to the following (Exhibits AIJ-1 and 

AIJ-2): 

1. Southern Ohio Coal Company is owner and 

operator of the Martinka Mine which is the subject of 

this proceeding. 

2. Operations of the Martinka Mine are subject to 

the Mine, Safety and Health Act .of 1977, as amended, 

30 U.S.C. § 801 seg. 

3. The Administrative Law Judge has jurisdiction 

to hear and decide this case. 

4. The Federal Mine Safety and Health Inspector 

Charlie Thomas was acting in his official capacity when 

he issued Citation Number 3306619 and its 

modifications. 

5. A true copy of Citation Number 3306619 and its 

modifications were served upon the Mine Operator or its 

agent as required by the Act. 

6. Federal Mine Safety and Health Inspector Frank 

Bowers was acting in his official capacity when he 

issued Order Number 3111174 to Martinka Mine on 

July 10, 1990. 

7o A true copy of Order Number 3111174 was served 

upon the Mine Operator and/or its agent as required by 

the Act. 

8. The parties are in agreement that the issue to 

be established at the hearing is if a safety and/or 

health hazard was present due to the condition of the 

steel spool(s)/drum(s) on the Bucyrus-Erie dragline, 

Model Number 30-B, Serial Number H.D. 125739, owned by 

Bunner Construction Company and leased to Southern Ohio 

Coal Company-Martinka Mine. In light of said decision 

regarding said issue, if the Section 104(b}, Order 

Number 3111174 was properly or improperly issued by 

MSHA Inspector Frank Bowers to Southern Ohio Coal 

Company-Martinka Mine on July 10, 1990. 

784 
Discussion 

On June 11, 1990, MSHA Inspector Charles Thomas issued a 

section 104(a) "S&S" Citation No. 3306619, charging the 

contestant with an alleged violation of mandatory safety standard 

30 C.F.R. § 77.404. The cited condition or practice is described 

as follows: 

on the surface the Bucyrus Erie dragline has two 

(2) cable (wire rope) spools cut into with a cutting 

torch. The wire rope for the left spool has a mashed 

place with severed wires and a cable strand of wire 

partially cut into. The machine was removed from 

service by Richard Haught, surface supt. 

Inspector Thomas fixed the abatement time as a:oo a.m., 

June 13, 1990. However, on June 15, 1990, he extended the 

abatement time to a:oo a.m., June 18, 1990, and the justification 

for this extension states as follows: 

A new wire rope has-·been installed on the left 

spool of the Bucyrus Erie dragline. There is a 

question as to whether the cable (wire rope) spools 

needs to be changed out at this time. Therefore, 

additional time is granted to investigate this matter. 

On June 19, 1990, Inspector Thomas modified the citation and 

extended the abatement time to 8:00 a.m., June 28, 1990. 

Although the inspector makes reference to "Citation No. 3306620, 

issued 6/1/90," he was in fact modifying Citation No. 3306619. 

The modification notice reflects that the abatement time was 

extended so that the contestant could correct the following 

conditions which were observed by the inspector and included in 

the modified notice~ 

The steel rope that operates 

broken wires at 2 locations. 

pitted and has flat places. 

5/8 inch rope and a 3/4 inch 

the gantry has 

The Rope is 

The gantry is a 

sheave. 

The graved (sic) drums were so badly worn 

that the cable would not spool properly. 

Load line drum and bucket drum. 

Bolts were being used in lieu of pins to 

secure the bucket. One of the bucket 

clevis (sic) pin is backed out and one 

badly worn for the bucket line. 

Wedges are not used where wire roncs are 

terminated on the bucket. Dump cable on 

bucket has 3 severed strands of wire. 

785 
Sheave wheel for bucket trip has the center 

bushing missing and securing pin badly worn. 

Cat tram chains have numerous keep (sic) 

missing on both sides. 

On June 29, 1990, Inspector Thomas extended the abatement 

time to 8:00 a.m., July 9, 1990, for the following reasons: "The 

operator has parts on order to repair the Bucyrus Erie dragline, 

and should be on mine site the next few days, and repairs 

completed within a week once the parts are received." 

On July 10, 1990, MSHA Inspector Frank D. Bowers, issued a 

section 104(b) Withdrawal Order No. 3111174, citing a violation 

of mandatory safety standard 30 C.F.R. § 77.404, and ordering the 

withdrawal of the dragline in question. The inspector made 

reference to, and relied on, the previously issued section 104(a) 

Citation No. 3306619, issued on June 11, 1990, and his order 

states as follows: "Bunner Construction who owns and leases the 

Bucyrus Erie dragline to the Martinka #1 Mine will repair all the 

conditions found defective on the dragline except for the wire 

spool drums." 

As part of its contest, the contestant took the position 

that the condition of the dragline wire spool drums did not 

result in the dragline being in an unsafe condition. The 

contestant noted that although the inspector cited a violation of 

section 77.404, it presumed that he intended to cite a violation 

of section 77.404(a}, which provides as follows: "Mobile and 

stationary machinery and equipment shall be maintained in safe 

operating condition and machinery or equipment in unsafe 

condition shall be removed from service immediately." 

In its answer, respondent MSHA took the position that the 

order was properly issued and that it nrepresents a violation of 

a mandatory safety standard.n 

MSHA Inspectors Thomas and Bowers were unavailable for the 

hearing. Mr. Thomas was in the hospital, and Mr. Bowers was 

attending a training session out of town. MSHA presented the 

testimony of Inspector Edwin w. Fetty, who accompanied Inspector 

Thomas during his inspections of June 18-20, and 29, 1990, in 

support of its case. The contestant presented the testimony of 

the mine accident prevention officer Paul S. Zanussi, and expert 

witness Frank Greb in support of its case. 

With regard to the initial June 11, 1990, Citation 

No. 3306619, issued by Inspector Thomas, the evidence adduced at 

the hearing reflects that the two cited dragline cable spools 

were not "cut into with a cutting torch." The evidence 

establishes that the drum was cut into two separate pieces by the 

manufacturer, and then re-assembled according to the appropriate 

specifications. Inspector Fetty agreed that the separation and 

786 
reassembly of the drum did not render it unsafe, and there is no 

evidence to tne contrary. Accordingly, the only alleged 

violative condition with respect to the June 11, 1990, citation 

is that stated in the second sentence with respect to the 

condition of the wire rope. 

With regard to the modified citation issued by Mr. Thomas on 

June 19, 1990, the evidence establishes that at the time the 

disputed section 104(b) order of July 10, 1990, was issued by 

Inspector Bowers, all of the enumerated cited conditions, except 

for the alleged condition of the drum, were corrected by the 

contestant. 

Subsequent to the hearing, and after the close of the record 

in this matter, the parties initiated a conference with me and 

advised me that they reached a mutually agreeable settlement of 

this matter, and they filed a joint motion seeking approval of 

their proposed settlement disposition of the case. With regard 

to the settlement, the parties agree that the contested section 

104(b) order should be vacated, and the contestant has agreed to 

withdraw its contest. The parties further agree that the 

modified citation issu€d by Inspector Thomas on June 19, 1990, 

will be further modified to delete the following alleged 

condition:" The grooved drums were so badly worn that the cable 

would not spool properly. Load line drum and bucket drum." The 

contestant agrees to accept the modified citation and to pay a 

civil penalty assessment of $375, in satisfaction of the 

citation. Although a formal civil penalty proceeding has yet to 

be initiated and finalized, and jurisdiction has not vested in 

the Commission, the parties wish to memorialize their mutual 

understanding and agreement with respect to the civil penalty 

proceeding. 

Conclusion 

After careful review and consideration of the pleadings, the 

testimony and evidence adduced at the hearing, and the motion 

filed by the part with respect to the proposed settlement 

disposition of this matter, I conclude and find that it is 

reasonable and in the public interest. Accordingly, the motion 

IS GRANTED, and the settlement IS APPROVED. 

ORDER 

IT IS ORDERED that: 

1. The modified section 104(a) citation 

No. 3306619, issued by Inspector Charles Thomas on 

June 19, 1990, is further modified in accordance with 

the agreement reached by the parties to delete any 

reference to the alleged violative condition of the 

cited dragline drums. 

787 
2. Southern Ohio Coal Company will accept 

responsibility and liability for the aforementioned 

section 104{a) modified citation, as further modified 

pursuant to the agreement of the parties. 

3. Section 104(b) Order No. 3111174, issued by 

Inspector Frank D. Bowers on July 10, 1990, IS VACATED. 

4. The contestant's motion to withdraw its 

contest IS GRANTED, and this matter IS DISMISSED. 

Judge 

Distribution: 

Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB & CRITCHFIELD, 

Suite 4, 5000 Hampton Center~_ Morgantown, WV 26505 

(Certified Mail) 

Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of 

Labor, Ballston Towers #3, 4015 Wilson Boulevard, Suite 516, 

Arlington, VA 22203 (Certified Mail) 

/fb 

788 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE tAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 31991 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

CONTEST PROCEEDING 

Docket No. WEVA 90-296-R 

Order No. 3314669; 8/1/90 

Blacksville No. 1 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-48 

A.C. No. 46-01867-03a65 

Blacksville No. 1 Mine 

Appearances: Page H. Jackson, Esq., Office of the Solicitor, 

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

for the Secretary of Labor (Secretary); 

Walter J. Scheller, Esq., Pittsburgh, Pennsylvania, for Consolidation Coal Company (Consol) 

Before~ Judge Broderick 

STATEMENT OF THE CASE 

Consol filed a notice of contest challenging a withdrawal 

order issued under section 104(b) of the Mine Act on July 31, 

1990, for failure to abate a citation issued under section 104(a) 

on the same day. The Secretary seeks a civil penalty for the 

violation alleged in the citation. The civil penalty docket 

includes three other citations for which penalties are sought. 

Prior to the commencement of the hearing in this case, the 

Secretary moved on the record for approval of a settlement 

concerning the three violations: Citation 3314062 alleges a 

violation of 30 C.F.R. § 75.1003(c) because of inadequate 

guarding of a trolley wire. It was assessed at $355. The 

parties propose that the significant and substantial finding.be 

deleted, and that the penalty be reduced to $213; Consol's portal 

buses have a covered, insulated top, and it is unlikely that the 

failure to guard the trolley wire would result in injury. 

789 
Citation 3314064 charges a violation of 30 C.F.R. § 75.202(a). 

It was assessed at $720, and Consol agrees to full payment. 

Citation 3314072 alleges a .violation of 30 C.F.R. § 75.1003(c). 

It was assessed at $265. The parties propose that the 

significant and substantial finding be deleted and that the 

penalty be reduced to $159. 

Pursuant to notice, the cases were consolidated and called 

for hearing in Morgantown, West Virginia, on April 18, 1991. 

Raymond Ash and Joseph Migaiolo testified on behalf of the 

Secretary. John Weber, Wen H. Su, Willis Fansler, and John 

Morrison testified on behalf of Consol. The record was kept open 

for possible rebuttal evidence by the Secretary. 

On April 23, 1991, the Secretary filed a motion to approve a 

settlement with respect to the remaining violation and the 

contest proceeding. Consol agrees to pay in full the proposed 

penalty of $828, and the Secretary agrees to a vacation of the 

section 104(b) withdrawal order. I have considered the motion in 

the context of the testimony at the hearing, and in the light of 

the purposes of the Mine Act,,and conclude that it should be 

approved. 

Accordingly, IT IS ORDERED: 

1. The Notice of Contest in Docket No. WEVA 90-296-R is 

GRANTED and order of withdrawal 3314669 issued July 31, 1990, is 

VACATED. 

2. Within 30 days of the date of this decision, Consol 

shall pay to the Secretary of Labor, the following civil 

penalties: 

CITATION 

3314062 

3314064 

3314072 

3314665 

AMOUNT 

$ 213 

720 

159 

828 

TOTAL $1920 

~ ~ .~ 

11fuir.,;..s- _/J/._1, z;oc:k ·/;.c,,,·;t, 

/ ~ames A. Broderick t • - • Adm1n1strat1ve Law Judge 

/90 
Distribution: 

Walter J. Scheller, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Page H. Jackson, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

slk 

791 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 31991 

THOMAS J. MCINTOSH, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. KENT 90-113-D 

MSHA Case No. BARB CD 90-06 

FLAGET FUELS, INC., 

Appearances: 

Before: 

Respondent No. 1 Surface Mine 

DECISION 

Tony Oppegard, Esq., Appalachian Research & 

Defense-Fund of Kentucky, Inc., Lexington, 

Kentucky, for the Complainant. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of discrimination filed 

by the complainant against the respondent pursuant to section 

l05(c) (3) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(c) (3). The complainant filed his initial complaint with the Mine Safety and Health Administration (MSHA), and 

after completion of an investigation of the complaint, MSHA 

advised the complainant by letter dated January 26, 1990, and 

received by the complainant on February 1, 1990, that the information received during the investigation did not establish any 

violation of section 105(c) of the Act. Thereafter, the complainant filed a complaint with the Commission. 

The respondent filed a timely answer denying any discriminatory discharge, and after denial of its motion to dismiss on the 

ground that the complaint was untimely filed, the case was 

docketed for hearing in Hazard, Kentucky, on August 20, 1990. 

The respondent 1 s subsequent motion for a continuance was granted, 

and the case was redocketed for hearing on November 27, 1990. 

The respondent's counsel withdrew from the case, and the scheduled hearing was again continued on motion by the complainant, 

and the case was subsequently heard in Hazard, Kentucky, on 

March 14, 1991. The complainant appeared, but the respondent did 

not, and the hearing proceeded in its absence. The postal 

792 
service certified mailing receipts reflect that the respondent 

has received all notices and amended notices of hearing issued in 

this matter, bu~ it has filed no explanation for its failure to 

appear at the hearing or to otherwise defend the complaint. 

The complainant alleges that he was discharged by the 

respondent from his employment as a bulldozer operator on or 

about December 8, 1989, because of his refusal to operate a 

bulldozer he reasonably and in good faith believed to be unsafe 

and because he had voiced safety complaints about said bulldozer 

to the respondent's vice-president. 

Issues 

The issues in this case include the following: (1) whether 

the complainant was engaged in protected activity when he complained about the bulldozer in question and refused to operate it 

because he believed it was unsafe; (2) whether his work.refusal 

was reasonable; and (3) whether he timely communicated his safety 

complaints to mine management or to the respondent. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301 seq. 

2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c) (1), (2) and 

( 3) • 

3. Commission Rules, 29 C.F.R. § 2700.1, 

Complainant's Testimony and Evidence 

Thomas J. Mcintosh, the complainant in this case, testified 

that he had worked for the respondent for 1 year and 4 months 

before he was discharged on December 8 1 1989, for "for refusing 

to run an unsafe dozer. 11 At the time of his discharge he was 

working at the respondent's Kentec stripping operation which is 

located in Perry County, and he was employed as a bulldozer 

operator doing reclamation work at the site. He worked the day 

shift from 7:00 a.m. to 5:00 p.m., and he explained the work that 

he was performing with the Caterpillar DSL bulldozer (Tr. 13-16). 

Mr. Mcintosh confirmed that he worked at the Kentec location 

for 5 months prior to his discharge and that he operated the 

bulldozer the entire time. Mr. Mcintosh stated that when he was 

initially assigned the bulldozer he learned that it had a bad oil 

leak and he needed to check the transmission oil level closely 

because the machine "would fly out of gear with you" (Tr. 17). 

He explained the operation of the transmission, and he stated 
that when the machine was operated on a steep grade, the transmission oil would either go to the rear or the front and the 

transmission "starts sucking air and it will fly out of neutral" 

(Tr. 18). When this occurred, he had no control over the machine 

because the loss of oil pressure results in "freewheeling," and 

if he were in first gear going up a slope and the transmission 

slips out of gear, the machine "just automatically goes backward 

with you" and "could very easily jar you off of it" because it 

was an open-cab dozer (Tr. 20). Since the oil pressure brakes 

work in tandem with the transmission, "you can mash them as hard 

as you want to and it won't slow down until you get off of the 

slope or level out" (Tr. 21). 

Mr. Mcintosh stated that he experienced a problem with the 

bulldozer flying out of gear during the entire 5 months he was at 

the Kentec site, and since there were other employees always 

working around him, he believed that the condition of the bulldozer posed a danger to himself and other employees (Tr. 21). He 

confirmed that he complained about the condition of the dozer 

four times to his foreman Randall Smith, and asked him to repair 

it. Mr. smith would tell him tha.t he "would get to it as soon as 

he could," but that the problem was never repaired. However, he 

and the mechanic Lewis Baker attempted to find the oil leaks, and 

repaired one or two of them, but the major leak was never 

repaired and he had to overfill the transmission oil while 

working on a steep grade (Tr. 23). 

Mr. Mcintosh stated that the last day he worked at the site 

was on December 1, 1989, when he was operating the dozer doing 

reclaiming work. He was pushing a load of dirt up a deep slope 

and when he was approximately 20 feet from the top of the slope, 

the machine "hung up in gear on me and sat there and just jumped 

right straight up and down and dug two big trenches there" (Tr. 

24)" He tried to put the gear shift in neutral by hitting it 

with his foot because the transmission was stuck in forward gear, 

and it went into reverse and he nwent about 175 or 180 feet, 

flyingv• in a backward direction down the slope and was not in 

control of the machine (Tr. 25). After the machine leveled out 

at the bottom of the slope he was able to stop it with both feet 

on the brake pedals (Tr. 26). 

Mr. Mcintosh stated that the incident scared him and after 

telling Mr. Baker what had happened they began working on the 

problem for approximately an hour and a half. In order to get 

the shifting lever out of neutral they had to bend it and cut a 

piece out of the shifting housing. This temporary.repair was 

done so that he cold finish his work that day, and until the 

machine could be fixed properly. He confirmed that Mr. Baker 

found the problem, and that four bushings were needed to hold the 

gear shifting lever straight so that it would not wobble. After 

continuing to work on a smaller slope area, the transmission 

started sticking and hanging in gear again, and he could not stop 

794 
the machine again as it proceeded down the slope, and he again 

believed that he and everyone around him were in danger (Tr. 

30-32). He confirmed that the machine weighs 32 tons, and is 26 

or 27 feet long with a blade 18 feet wide and 5 feet high. There 

were generally four or five people working near him sowing seeds 

and doing other work. However, these people were not behind his 

machine because he warned them to stay out from behind him 

because he did not know when the machine would fly out of gear 

(Tr. 34-35). 

Mr. Mcintosh stated that after regaining control of the 

dozer after the second incident on December 1, at the Kentec 

site, he trammed it to the level service area and parked it and 

shut it down because it was unsafe. Mr. Baker had left the site 

earlier to go to another job, and there were no other mechanics 

at the site. After he parked the machine, production superintendent Tim Fugate and reclamation engineer Glen Blevins arrived, 

and he told Mr. Fugate about the problem with the dozer. 

Mr. Fugate told him to "use your judgment. You know the machine, 

what is safe and what is not" and told him to get together with 

the mechanic to find out the p~oblem and that he (Fugate) would 

order any parts that were needed to repair the machine. 

Mr. Mcintosh told Mr. Fugate that Mr. Baker already knew about 

the machine gear problem, but that he would tell him to buy the 

parts. Mr. Mcintosh subsequently told one of the laborers who 

was going to the other site where Mr. Baker was working about 

what Mr. Fugate had told him (Tr. 38). 

Mr. Mcintosh stated that his next scheduled day of work was 

Monday, December 4, 1989. He called in and spoke with "parts 

man" Fitz Steele, and asked him whether the dozer had been 

repaired. Mr. Steele informed him that parts were on order but 

that the machine had not been repaired. Mr. Mcintosh did not 

work that day, and called in again on Tuesday, December 5, and 

was again informed by Mr. Steele that the dozer had not been 

repaired. Mr. Mcintosh did not work that day either, and he 

confirmed that he received no pay for both days because he is 

only paid when he works. He confirmed that he would have gone to 

work if the dozer had been repaired (Tr. 38-39). 

Mr. Mcintosh stated that he next reported for work on 

Wednesday, December 6, and he arrived 5 or 10 minutes before 

7:00 a.m., to find out if the dozer had been repaired. He spoke 

to his foreman Randall Smith and explained his prior problems and 

incidents with the machine. Mr. Smith asked him if he was going 

to operate the dozer that day and Mr. Mcintosh informed Mr. Smith 

that he would run it when it was repaired. Mr. Smith explained 

to him that Mr. Baker would be at another job all day and that 

there were no other mechanics at the Kentec site. Mr. Mcintosh 

then left the site and went home, and he confirmed that he would 

have worked if the dozer had been repaired. 

795 
Mr. Mcintosh stated that he next reported for work on 

Thursday morning, December 7, and spoke with Mr. Smith again. 

Mr. Smith confirmed that the dozer had not been repaired, and 

Mr. Mcintosh again informed him that he would run it when it was 

repaired. Mr. Smith then told Mr. Mcintosh that "he wasn't going 

to pay me to sit in my truck while someone else done my job" (Tr. 

43). Mr. Mcintosh confirmed that he did not know whether anyone 

else operated the dozer during the days it was out of repair and 

he did not stay at the site to find out (Tr. 43-43) 

Mr. Mcintosh stated that after speaking with Mr. Smith on 

December 7, he left the site and went to the respondent's office 

in Hazard and spoke with company vice-president Glen Phillips. 

He confirmed that he told Mr. Phillips about the problems with 

the dozer and the prior incidents with the machine on the slopes. 

Mr. Mcintosh confirmed that this was the first time he spoke with 

Mr. Phillips and that Mr. Phillips told him that he was not aware 

of the problem with the dozer but would check into it (Tr. 

46-47). 

Mr. Mcintosh stated tha~ .. he next reported for work on 

Friday, December 8, and since there was an ice storm that day, he 

and foreman Smith were the only ones at work because they had 

four-wheel drive vehicles. Mr. Smith pulled his vehicle next to 

Mr. Mcintosh's and stated "You went and talked to Glen Phillips, 

haven't you?" Mr. Mcintosh confirmed to Mr. Smith that he had 

spoken with Mr. Phillips. Mr. Mcintosh stated that Mr. Smith's 

"face turned real red and he got mad there," and when he asked 

Mr. Smith whether he was going to repair the dozer, Mr. Smith 

replied "no, and furthermore, you no longer have a job here" (Tr. 

47). Mr. Mcintosh then left the site and again went to Hazard to 

speak with Mr. Phillips. Mr. Phillips acknowledged that he knew 

that Mr. Mcintosh had been fired by Mr. Smith, but informed him 

that he had to back up his foreman, and since he was told that he 

(Mcintosh) was a good worker, he (Phillips) would give him a good 

recommendation (Tr. 48). 

Mr. Mcintosh stated that prior to his discharge by 

Mr. Smith, he had never had any disciplinary problems with the 

respondent, and had never been disciplined or warned about his 

job performance. He confirmed that he got along fine with 

Mr. Smith and the rest of the foremen, always did his work 

assignments, and never refused to perform any assignment prior to 

December 1, when he parked the dozer (Tr. 48). Mr. Mcintosh 

confirmed that Mr. Smith alone fired him, and that Mr. Phillips 

simply told him that he would have to back Mr. Smith up and he 

said nothing to him about what Mr. Smith may have told him about 

why he fired him (Tr. 49-50). Mr. Mcintosh also confirmed that 

during his conversations with Mr. Smith during December 6 through 

8, Mr. smith never told him that he would repair the dozer or 

that the machine had been checked out and was safe to operate 

(Tr. 50). Mr. Mcintosh further confirmed that the only reason 

796 
for his refusal to operate the dozer was the fact that it was 

flying out of gear and sticking in gear (Tr. 51}. 

Mr. Mcintosh confirmed that he earned $8 an hour straight 

time, and time-and-a-half, or $12 an hour, for overtime which he 

earned on occasions. He stated that it took him about a month to 

find another job, made a diligent effort to find work after his 

discharge, and he identified several coal companies where he 

tried to find work. He wor~ed for Vires Coal Company, but left 

after he was called back to Arch Minerals where he worked from 

August until October 26, 1990, when he was laid off again (Tr. 

52-53). Mr. Mcintosh confirmed that he had no reason to believe 

that Mr. Phillips did not give him a good work recommendation, 

and that he (Mcintosh) did not tell other potential employers 

that he had been fired, and Mr. Phillips did nothing to prevent 

him from getting work. Mr. Mcintosh confirmed that he was out of 

work for a month or so subsequent to his discharge, and has been 

out of work and drawing unemployment since October 26, 1990 (Tr. 

55). He confirmed that the respondent's operation was non-union, 

and that he had no medical insurance, leave, or other benefits, 

other than his pay check (Tr._58)~ 

Mr. Mcintosh confirmed that he had trouble with the dozer 

during the 5-month period prior to his discharge, and that the 

conditions worsened during the week before he was fired. He also 

confirmed that he had not refused to operate the dozer earlier 

because "they probably would have fired me. And I had to keep on 

working. I have got a family to support" (Tr. 58). He did not 

know if Mr. Smith would have fired him if he had not spoken to 

Mr. Phillips (Tr. 59). He confirmed that Mr. Smith never said 

anything to.him about calling in on Monday and Tuesday, 

December 4, and 5, rather than reporting for work (Tr. 60). 

Mr. Mcintosh believed that one of the reasons Mr. Smith fired him 

was because he complained to Mr. Phill about the dozerr and 

his conclusion s regard is based on the fact that Mr. Smith •~turned as red ed beet 1 °

0 and 11 got real mad and real 

nervous and jerking around10 when he confirmed that he had 

spoken to Mr. Phillips (Tr. 61). Mr. Mcintosh confirmed that 

other than his complaints to mine management, he did not report 

the dozer condition to any MSHA or state inspectors (Tr. 61). 

Lewis Baker f ied that he was employed by the 

respondent as a mechanic for 2 years unt approximately June, 

1990, when he was laid off. He worked at the respondent 1 s 

Brown's Fork and Kentec sites, and worked with Mr. Mcintosh at 

the Kentec job doing reclamation work. He confirmed that 

Mr. Mcintosh was having problems with the dozer that he was 

operating and told him that it was "hanging in gear. 11 Mr. Baker 

further confirmed that the gear shifter bushings on top of the 

transmission were worn out and that he had to adjust the linkage 

and bend the shifter because it was sticking when the gears were 

worked. He stated that part of the shifting housing of the 
dashboard had to be cut out to allow the shifter to go forward 

into neutral gear. The dozer operator has to be able to put the 

machine in neutral, and if he cannot 11 it will go over a cliff 

with you. You can back over a highwall or anything with it" (Tr. 

67) . 

Mr. Baker stated that prior to the time that he and 

Mr. Mcintosh worked on repairing the dozer, it had been leaking 

oil for over a month and that "when it leaks down so low and get 

on a slope or anything, your transmission won't pick it up. Your 

pump won't pump. It goes just like it is out of gear and you 

ain't got no brakes" {Tr. 68). He confirmed that the repairs 

that he and Mr. Mcintosh made to the dozer were temporary repairs 

and that he needed bushings to take the slack out of the transmission linkage so that it could be adjusted. He confirmed that 

the required bushings were ordered by Fitz Steel {Tr. 70). 

Mr. Baker stated that the day that he and Mr. Mcintosh 

repaired the dozer at the Kentec site was his last day of work at 

that location because he was called to the Brown's Fort site to 

do mechanic work after people, .. were laid off there. He returned 

to the Kentec site for one day a month later after Mr. Mcintosh 

was fired to pull the transmission out of the dozer that 

Mr. Mcintosh had problems with and it was sent to Western Branch 

Diesel to be rebuilt. Mr. Baker confirmed that he never received 

or installed the bushings which had been ordered for the dozer in 

question (Tr. 71-72). 

Mr. Baker confirmed his "hearsay" understanding that 

Mr. Mcintosh was fired for refusing to operate the dozer because 

it was hanging in gear, and that Mr. Smith informed him that he 

fired Mr. Mcintosh for refusing to run the dozer, and that 

Mr. Mcintosh had told him that it was unsafe to run. Mr. Baker 

believed that the dozer was unsafe to run and he stated that he 

would not have operated it in the condition that it was in (Tr. 

7 5) Q 

Fitz Steele, a witness subpoenaed but not called to testify 

by the complainant, was called as a witness by the presiding 

judge. Mr. Steele stated that he was formerly employed by the 

respondent at the Brown's Fork site, and that he did not work 

with Mr. Mcintosh at the Kentec site. Mr. Steele stated that he 

was the 11 parts man" responsible for taking equipment orders from 

the mechanics who worked at both sites and ordering the parts. 

He "guessed" that he had ordered parts for the dozer operated by 

Mr. Mcintosh at the Kentec site in December, 1989, and he confirmed that he gave a copy of an order for parts .to t~e MSHA 

investigator who investigated Mr. Mcintosh's complaint (Tr. 

77-79, exhibit C-A}. 

Mr. Steele confirmed that there was only one 08 dozer at the 

Kentec site, and he believed that the "Roller A" part shown on 
the order invoice dated December 11, 1989, was for that dozer. 

Mr. Steele could not specifically remember whether or not 

Mr. Mcintosh ever complained to him about the dozer, but he 

recalled "something about a linkage, something like I had ordered 

because it was something that goes on top of the transmission, 

about shifting, something like that" (Tr. 80). Mr. Steele also 

stated that while he was not sure, Mr. Mcintosh "come over and 

said that he had told Randall that Randall needed to get the 

parts but now, I hadn't heard about it" (Tr. 80). 

Mr. Steele stated that when he previously worked at the 

Kentec site sometime in 1988 or 1989, he saw the dozer in question every day and commented "I hated that dozer. I hated all of 

their equipment, to tell you the truth" (Tr. 81). He confirmed 

that he had never operated the dozer, but could tell its condition by looking at it. 

Complainant's Arguments 

The complainant's counsel waived the filing of any posthearing brief and was allowed an'opportunity to make an oral closing 

argument at the conclusion of the hearing (Tr. 85-87). Counsel 

argued that the uncontradicted evidence in this case establishes 

that the complainant had a problem with the bulldozer flying out 

of gear for several months prior to December 1, 1989, when it 

began sticking in gear and creating a safety hazard because of 

the inability of the complainant to control the machine. As a 

result of this problem, the complainant slid backwards down two 

slopes. Although the mechanic (Lewis Baker), made some temporary 

repairs on December 1, the problem reoccurred later in the day, 

and it became necessary for the complainant to park the machine. 

Complainant's counsel pointed out that December 1, was the 

last day that the complainant worked, and that the testimony of 

the mechanic establishes that no repairs were made to the bulldozer during the week preceding the complainant's discharge on 

December 8, 1989. counsel concludes that the complainant had a 

reasonable, good faith belief for parking the dozer on 

December 1, and that the belief remained reasonable and in good 

faith during the following week because the complainant was never 

told that any repairs had been done, nor did he assume that any 

repairs had been made to the machine. As further evidence of the 

complainant's good faith and reasonableness, counsel cites the 

fact that the complainant travelled 25 miles to Hazard to complain to company vice-president Phillips that the dozer had not 

been repaired and that he wanted it repaired, and that 

Mr. Phillips advised him that he would look into the problem. 

Counsel asserted that when the complainant reported for work 

on December 8, the first thing that was brought up by foreman 

Smith in an angry tone of voice was the fact that the complainant 

had spoken with vice-president Phillips. Counsel concludes that 

799 
Mr. Smith was upset that the complainant had gone over his head 

and that this was part of the reason why he discharged the 

complainant that day. Counsel points out that at no time during 

December 6, through 8, did Mr. Smith ever indicate that the dozer 

was safe to operate, that any repairs had been made, or that it 

was in any different condition other than what the complainant 

had left it a week earlier. Counsel argued that it is clear from 

the case law that when a miner makes a good faith, reasonable 

safety complaint, the mine operator has a corresponding duty to 

address the complaint. In the instant case, counsel concludes 

that the respondent failed to address the complainant's safety 

complaint and that foreman Smith discharged the complainant for 

his work refusal and for complaining to Mr. Phillips, and that 

this action was in violation of section 105(c) of the Act. 

Findings and Conclusions 

In order to establish a prima f acie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish {l) that he 

engaged in protected activity-and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Carp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 {D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut the 

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) o The ultimate burden of 

persuasion does not shift from the complainant. Robinette, 

supra. See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

cir, (April 20, 1984) (specifically-approving the Commission's 

Pasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

800 
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. Mine services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in 

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

1965) : 

It would indeed be the unusual case in which the 

link between the discharge and the (protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of ,.the miner's protected activities; 

hostility towards the-miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June 

1982), the Commission stated as follows: 

As we emphasized in Pasula, and recently 

re-emphasized in Chacon, the operator must prove that 

it would have disciplined the miner anyway for the 

unprotected activity alone. Ordinarily, an operator 

can attempt to demonstrate this by showing, for 

example, past discipline consistent with that meted to 

the alleged discriminatee, the miner's unsatisfactory 

past work record, prior warnings to the miner, or 

personnel rules or practices forbidding the conduct in 

question. Our function is not to pass on the wisdom or 

fairness of such a.sserted business justifications, but 

rather only to determine whether they are credibl~ and, 

if so, whether they would have motivated the particular 

operator as claimed. 

Mr. Mcintosh's Protected Activity 

It is clear that Mr. Mcintosh .had a right to make safety 

complaints about any equipment which he believed presented a 

safety hazard, and that under the Act, these complaints are 

protected activities which may not be the motivation by mine 

management' for any adverse personnel action against him; 

Secretary of Labor ex rel. Pasula v. Consolidation Coal Co., 

801 
2 FMSHRC 2786 (October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981), 

and Secretary of Labor ex rel. Robinette v. United Castle Coal 

Co., 3 FMSHRC 803 (April 1981). Safety complaints to mine 

management or to a section foreman constitutes protected activity, Baker v. Interior Board of Mine Operations Appeals, 595 F.2d 

746 (D.C. Cir. 1978); Chacon, supra. The miner's safety complaints must be made with reasonable promptness and in good 

faith, and be communicated to mine management, MSHA ex rel. 

Michael J. Dunmire and James Estle v. Northern Coal Company, 

4 FMSHRC 126 (February 1982); Miller v. FMSHRC, 687 F.2d 194, 

195-96 (7th Cir. 1982); v. Mine Services Co., 6 FMSHRC 

1391 (June 1984). 

A miner has the right under section 105(c) of the Act to 

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

continued work involves a hazardous condition. Pasula, 

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

Secretary v. Metric Constructors, Inc., 6 FMSHRC 226, 229-30 

(February 1984); aff'd nom. Brock v. Metric Constructors 

Inc., 766 F.2d 469, 472-73 (l·lth Cir. 1985). However, where 

reasonably possible, -a miner refusing work ordinarily must 

communicate or attempt to communicate to some representative of 

the operator his belief that hazardous conditions exists. In a 

number of safety related "work refusal" cases, it has been 

consistently held that a miner has a duty and obligation to 

communicate his safety concerns to mine management in order to 

afford the operator with a reasonable opportunity to address 

them. See: Secretary ex rel. Paul Sedgmer et al. v. 

Consolidation Coal Company, 8 FMSHRC 303 (March 1986); Simpson v. 

Kenta Energy, Inc. & Roy Dan Jackson, 8 FMSHRC 1034, 1038-40 

(July 1986); Secretary on behalf of Dunmire & Estle v. Northern 

Coal Co., 9 FMSHRC 992 (June 1987); Miller v. FMSHRC, 687 F.2d 

194, 195-97 (7th Cir. 1982) (approving Dunmire & Estle communication requirement); v. Mine Services Co., 6 FMSHRC 1391 

(June 1984); v. Red Flame Coal Company, Inc., 

11 FMSHRC 12 (January 1989), review dismissed Per curiam by 

agreement of the parties, July 12, 1989, U.S. Court of Appeals 

for the District of Columbia Circuit, No. 89-1097). 

In Gilbert v. , 12 FMSHRC 177 

(February 1990), v. FMSHRC, 866 F.2d 1433 

(D.C. Cir. 1989), Sandy Fork Mining Co., 

9 FMSHRC 1327 (1987), it was held that a violation of section 

105(c) is established when a miner has a reasonable, good faith 

belief that certain work conditions are hazardous, communicates 

that belief to mine management, and management does not address 

his safety concerns in a manner sufficient to reasonably quell 

his fears. 

As indicated earlier, the respondent received the notice of 

the hearing by certified mail, but failed to appear at the 

802 
hearing to defend the complaint, and no one purporting to represent the respondent appeared at the hearing. Although three 

individuals who identified themselves as employees of the respondent appeared at the hearing (Tim Fugate, Glen Blevins, and 

Randall Smith), it was not clear who instructed them to appear, 

and none of these individuals purported to represent the respondent in this matter. Further, they entered no appearances in any 

representative capacity for the respondent, and they were not 

called to testify in this matter. In view of the respondent's 

failure to appear, or to otherwise inform me that it did not 

intend to appear, the hearing proceeded in its absence, and the 

complainant put on its case. Under the circumstances, I conclude 

and find that the respondent has waived its right to be heard 

further in this matter and I have rendered my decision on the 

basis of the testimony and evidence adduced by the complainant in 

support of his case. 

The credible testimony of the complainant Mcintosh, corroborated by mechanic Baker, establishes that the bulldozer operated 

by Mr. Mcintosh on December 1, 1989, had a mechanical problem and 

was in need of repair_ in order to render it safe to operate. The 

evidence clearly establishes that the transmission and gear 

system problems attested to by Mr. Mcintosh resulted in the 

machine moving unexpectedly backwards and out of control while 

Mr. Mcintosh was operating the machine on a slope. Mr. Mcintosh 

and Mr. Baker made some temporary repairs to the machine so that 

Mr. Mcintosh could complete his work. However, after putting the 

machine back into operation, the problem reoccurred, and the 

machine again moved backwards down the slope and out of control. 

Mr. Mcintosh then concluded that the machine was unsafe to 

operate and that to continue to operate it under the condition 

that it was in would place him and other employees who were 

working near the machine at risk. Mr. Mcintosh then stopped 

workp trammed the machine to a level area, and shut it down and 

parked it" Under all of these circumstances, I conclude and find 

that Mr" Mcintosh had a reasonable good faith belief that to 

continue to operate the bulldozer under the condition that it was 

in on December 1, 1989, ("flying out of gear" and the transmission "sticking and hanging in gear") would expose him and other 

miners working around him to dangerous safety hazards and 

injuries if he (Mcintosh) were propelled out of the machine or if 

the machine struck anyone while it was out of control" 

The credible testimony of Mr. Mcintosh further establishes 

that on Monday, December 4, 1989, his next scheduled work day, 

and again on Tuesday, December 5, 1989, Mr. Mcintosh telephoned 

the mine to inquire as to whether or not the bulldozer in question had been repaired. After he was informed that parts were on 

order, but that the dozer had not been repaired, Mr. Mcintosh did 

not report for work on either day. Had the doz~r been repaired, 

Mr. Mcintosh would have reported for work. However, since he was 

informed that it had not been repaired, I find that it was not 

803 
unreasonable for Mr. Mcintosh to conclude that the machine was in 

the same unsafe condition as it was when he shut it down and 

parked it the previous Friday, December 1, 1989. Under the 

circumstances, I conclude and find that Mr. Mcintosh's refusal to 

report for work on these 2 days to operate the dozer was reasonable, and that his decision in this regard was prompted by his 

safety concerns and a reasonable good faith belief that to 

operate the dozer before repairs were made would place him at 

risk and expose him to possible injury. 

The credible testimony of Mr. Mcintosh further establishes 

that he reported for work on Wednesday, and Thursday, December 6, 

and 7, 1989, and spoke with his foreman Randall Smith. 

Mr. Mcintosh explained his prior problems with the dozer to 

Mr. Smith, and after learning that the dozer had not been 

repaired, Mr. Mcintosh informed Mr. Smith that he would not 

operate the machine until it was repaired, and Mr. Mcintosh did 

not work either day, but he was ready to work if the machine had 

been repaired. Under the circumstances, I conclude and find that 

Mr. Mcintosh's continued refusal to operate the dozer in question 

until it was repaired_ and rendered safe was reasonable and that 

his decision in this regard was based on a reasonable good faith 

belief that to operate the machine before it was repaired would 

place him at risk. I further conclude and find that 

Mr. Mcintosh's refusal to operate the dozer during the period 

December 4, through December 7, 1989, until it was repaired, and 

his decision to shut down and park the dozer on December 1, 1989, 

constituted protected work refusals pursuant to the Act. 

Mr. Mcintosh's credible and uncontroverted testimony further 

establishes that he timely communicated his safety complaint or 

safety concern with respect to the unsafe condition of the dozer 

question to mine management prior to his discharge by foreman 

Smith on Friday, December 8, 1989. Mr. Mcintoshgs initial 

complaints concerned a leaky transmission condition which 

resulted in a loss of oil and oil pressure, causing the transmission uuto fly out of gear, uo and which resulted in a 11 freewheeling1i of the machine. This was communicated to foreman Smith 

at least a month or more prior to December 1, 1989, and although 

Mr. Smith assured Mr. Mcintosh that the problem would be 

addressed, ·the machine was never repa Mr, Mcintosh g s subsequent complaints about the condition of the dozer were communicated to production superintendent and reclamation 

engineer Blevins on December 1, 1989, after Mr" Mcintosh shut 

down and parked the machine, and again on December 6, and 7, 

1989, when he went to the work site and informed foreman Smith 

about the condition of the dozer and advised him that he would 

not operate the machine until the repairs were made. 

Mr. Mcintosh's further safety complaint communication to mine 

management was made on December 7, 1989, when he visited the 

respondentgs office and informed vice-president Phillips about 

the condition of the dozer. 

804 
There is no evidence that Mr. Mcintosh was ever offered 

other work in lieu of operating the dozer in question, and his 

uncontroverted testimony establishes that he was always ready, 

willing, and able to work and operate the machine if it had been 

repaired. Further, Mr. Mcintosh's credible and uncontroverted 

testimony establishes that at no time during their conversations 

on December 6, through 8, 1989, did Mr. Smith ever indicate to 

Mr. Mcintosh that he would repair the dozer or that it had been 

checked out and found safe to operate. Although there is some 

evidence that the dozer gear bushings may have been ordered, 

mechanic Baker confirmed that the parts were never received or 

installed. Although Mr. Baker confirmed that he and Mr. Mcintosh 

had made some temporary repairs to the dozer on December 1, 1989, 

before the machine was shut down and parked, he confirmed that no 

permanent repairs were ever made to the machine and that the 

transmission was subsequently removed for rebuilding after 

Mr. Mcintosh was discharged. Mr. Baker also believed that the 

unrepaired dozer was unsafe to operate and he confirmed -that he 

would not have operated it in the condition that it was in. 

Under all of the aforesai:d circumstances, I conclude and 

find that Mr. Mcintosh1 s safety complaint and concern with 

respect to the hazardous condition of the dozer which he was 

expected to operate was timely communicated to mine management 

and that management had a reasonable opportunity to address his 

safety concerns and timely repair the dozer. I further conclude 

and find that Mr. Mcintosh's safety communications met the 

requirements enunciated by the Commission in Secretary on behalf 

of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (February 

1982), Secretary on behalf of John Cooley v. Ottawa Silica 

Company, 6 FMSHRC 516 (March 1984); and Gilbert v. sandy Fork 

Mining Company, supra. 

Based on the credible and uncontroverted testimony of 

Mro Mcintosh; I conclude and find that Mr. Smith discharged him 

on December 8 1 1989r in part because of his refusal or failure to 

operate the dozer in question. I further conclude and find that 

there is a strong unrebutted inference, based on Mr. Mcintosh's 

credible testimony concerning Mr. Smith's demeanor and agitated 

state at the time he discharged him, that Mr. Smith also decided 

to discharge Mr. Mcintosh because he had spoken to company 

vice-president Phillips and complained to him about the dozer. 

Inasmuch as Mr. Mcintosh had a protected right under the Act to 

refuse to operate the dozer under the circumstances which prevailed at the time of the discharge, and since he also had a 

further protected right to complain to Mr. Phillips about the 

unsafe condition of the dozer, I further conclude and find that 

Mr. Mcintosh's discharge was illegal and in violation of section 

105(c) of the Act. Accordingly, his discrimination complaint IS 

SUSTAINED. 

805 
ORDER 

1. Respondent IS ORDERED to reinstate Mr. Mcintosh to his 

former position with full backpay and benefits, with interest, at 

the same rate of pay, on the same shift, and with the same status 

and classification that he would now hold had he not been unlawfully discharged. 

2. Respondent IS ORDERED to expunge from Mr. Mcintosh's 

personnel file and/or any company records any reference to his 

discharge of December 8, 1989. 

3. Respondent IS ORDERED to reimburse Mr. Mcintosh for all 

reasonable expenses incurred by him in the institution and 

prosecution of his discrimination complaint, including reasonable 

attorney fees. 

At the close of the hearing in this matter on March 14, 

1991, the complainant was afforded an opportunity to file his 

request for relief and his counsel stated that he would file a 

statement of back pay and attorney fee petition within thirty 

(30) days (Tr. 93). - As of this date, no such filing has been 

forthcoming. Under the circumstances, I retain jurisdiction in 

this matter until the remedies due the complainant are finalized. 

Until these determinations are made, and pending a finalized 

dispositive order by the undersigned presiding judge, my decision 

in this matter is not final. Counsel for the complainant IS 

ORDERED to file his relief petition immediately upon receipt of 

this decision. 

~fcu~ Administrative Law Judge 

stribution~ 

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

KentucJ<y 7 Inc. ! 63 o Maxwel ton Court 1 Lexington, KY 4 0508 

(Certified Mail) 

:?laget 

{Certi 

/fb 

s Inc., 825 High Street; Hazard, KY 41701 

1) 

806 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

t1AY 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

PYRO MINING COMPANY, 

RestJondent 

81991 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-49 

A. C. No. 15-13920-03681 

Docket No. KENT 91-82 

A. C. No. 15-13920-03683 

Pyre No. 9 Wheatcroft 

Docket No. KENT 91-83 

A. C. No. 15-14492-03574 

Baker Mine 

Appearances: w. F. Taylor, Esq., Office of the Solicitor, u. s. 

Department of Labor, Nashville, Tennessee, for the 

Secretary of Labor (Secretary) ; 

Catherine Behrens, Esq., Sturgis, Kentucky, for 

Pyro Mining Company (Pyre). 

Before Judge Broderick 

Pursuant to notice, the above cases were called for hearing 

on the merits in Nashville, Tennessee, on April 30, 1991. The 

parties submitted on the record a motion to approve a settlement 

in all of the three dockets as follows: 

Docket No. KENT 91-49 

1. citation 3420624. Pyre agrees to withdraw its contest 

and pay the assessed penalty ($1500). 

2. Order 3420687. Pyro agrees to withdraw its contest and 

to pay the assessed penalty ($1500). 

3. Citation 3545776. The Secretary agrees to vacate the 

citation. 

4. Citation 3545901. Pyro agrees to withdraw its contest 

and pay the assessed penalty ($229). 

807 
5. Citation 3545832. This citation charges a violation of 

30 C.F.R. § 75.402 because of inadequate rock dust outby the 

feeder. It was designated a significant and substantial 

violation. The Secretary agrees to modify the citation to a 

nonsignificant and substantial violation and reduce the penalty 

from $213 to $20 on the ground that the area cited was 350 feet 

from the face and no ignition sources were present. 

6. Citation 3545902 charges a violation of 30 C.F.R. 

§ 75.512 because a scoop was on charge and the lids not secured. 

The Secretary agrees that the negligence should have been rated 

as low rather than moderate. Pyro agrees to pay the assessed 

penalty ($175). 

Docket No. KENT 91-82 

1. Citation 3545906 charges a violation of 30 C.F.R. 

§ 75.807 because of improper placement of a high voltage cable. 

It was designated as a significant and substantial violation. 

The Secretary agrees to modify the citation to a nonsignificant 

and substantial violation because the cable had no breaks and 

presented no likelihood of injury. Pyre agreed to pay the 

assessed penalty ($178). 

2. Citation 3545840. Pyro agrees to withdraw its contest 

and to pay the assessed penalty ($335). 

Docket No. KENT 91-83 

1. Citation 3421446. Pyro agrees to withdraw its contest 

and pay the assessed penalty ($178). 

2" Citation 3421445 charges a violation of 30 C.F.R. 

because of an inoperative water spray. It was 

as a significant and substantial violation. The 

agrees to modify the citation to a nonsignif icant and 

substantial violation because miners were not exposed in the 

cited area. Pyro agrees to pay the assessed penalty ($178). 

3. Citation 3421448. Pyro agrees to withdraw its contest 

and oav the assessed penalty ($178). 

4. Citation 354530. Pyro agrees to withdraw its contest 

pay the assessed penalty ($206) o 

I have considered the motion in the light of the criteria in 

Section llO(i) of the Act and conclude that it should be 

approved. 

808 
ORDER 

Accordingly, it is ORDERED: 

1. Citation 3545776 is VACATED. 

2. Citations 3545832, 3545906, 3421445 are MODIFIED to 

charge nonsignificant and substantial violations. 

3. Pyro shall within 30 days of the date of this Decision 

pay to the Secretary the following civil penalties: 

ORDER/CITATION 

3420624 

3420687 

3545901 

3545832 

3545902 

3545906 

3545840 

3421446 

3421445 

3421448 

354530 

Distribution~ 

30 C.F.R. 

75.1325(c) (1) 

75.400 

75.517 

75.402 

75.512 

75.807 

75~400 

75.1722(b) 

73.316 

75.316 

75.316 

TOTAL 

(/ ' - - . &<. , . ' ; . 1 de ' ' 

/tliit ik~ .AA:) I· z_, 'V ~(:/l 

AMOUNT 

$1500 

1500 

229 

20 

178 

178 

335 

178 

178 

178 

206 

$4680 

(/ James A. Broderick 

· Administrative Law Judge 

W. F. Taylor, Esq., Office of the Solicitor, U. s. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

Catherine Behrens, Esq., Pyre Mining Company, P. o. Box 289, 

Sturgis, KY 42459 (Certified Mail) 

Mr. Clifford D. Burden, Director of Safety & Training, Pyro 

Mining Company, P. o. Box 267, Li..:urgis, KY 42459 (Certified Mail) 

dcp 

809 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAY 81991 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEST 91-21-DM 

ON BEHALF OF 

WILLIAM R. BROCKMAN, 

Complainant MD 89-62 

v. 

CALMAT COMPANY, 

Respondent 

sun Valley Plant 

DECISION 

Appearances: Lisa A. Gray, Esq., Office of the Solicitor, 

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

for Complainant~ 

Anne Morrise Esq., Los Angeles, California, 

for Respondent. 

Before: Judge Lasher 

This matter came on for hearing on April 9, 1991, in Ontariou California. At commencement of hearing, the parties announced that a settlement had been reached resolving the litigation in questiono At this timeu counsel for the parties entered 

nto a prepared statement setting forth their agreement and the 

oases therefor and such statement was read into and made part of 

the recordo The accord reached by the parties appeared reasonable and consistent with the purposes of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801, et~, and such was 

approved on the rcord from the bencho That bench decision is 

nere firmedo In summaryu the Respondent concededu solely for 

the purposes this mine safety proceedingu that a violation of 

Section 105(c) the Mine Act occurred and agreed to pay a civil 

penalty therefor in the sum of $10000000 My approval of this 

settlement is here aff irmedu and the penalty stipulated is here 

assessedo 

ORDER 

Respondent, if it has not previously done so, shall pay to 

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

this decision the sum of $1000 as and for the civil penalty above 

assessed. 

810 
Upon payment of such penalty, this proceeding shall be 

deemed DISMISSED. 

Distribution: 

tj/JL.'tftr-e 4 ~<~ 1Z'" 

Michael A. Lasher, fr'. 

Administrative Law Judge 

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

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

Mail) 

William R. Brockman, 10260 Plainview #12, TUjunga, CA 91042 

(Certified Mail) 

Anne Morris, Esq., 3200 San Fernando Road, Los Angeles, CA 90065 

(Certified Mail) 

Mro Frank ouorsiu Corporate Safety Directoru PoO* Box 2950u 

Terminal Annexu Los Angelesu CA 90051 (Certified Mail) 

ek 

811 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 61991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROBERT ZIEGLER, EMPLOYED BY 

ALAMOSA MINING, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 90-201 

A.C. No. 46-07527-03515 A 

Sparky No. 2 Mine 

'DECISION 

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

U.S. Department of Labor, Arlington, Virginia 

for the Petitioner; 

Forrest H. Roles, Esq., Smith, Heenan and Althen, 

Charleston, West 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 llO(c) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. §et seq., 

the "Act. 111 The Secretary charges herein that Robert Ziegler, 

as an agent of a corporate mine operator, namely Alamosa Mining, 

Inc. 9 (Alamosa) knowingly authorized, ordered, or carried out a 

violation of the mandatory safety standard at 30 C.F.R. § 

75.JOJ(a), by the corporate operator as alleged in 

Order No. 3334178. 

1section llO(c) of the Act reads as follows: 

Whenever a corporate operator violates a mandatory heal th 

or safety standard or knowingly violates or fails or 

refuses to comply with any order issued under this Act or 

any order incorporated in a final decision issued under 

this Act, except an order incorporated in a· decision 

issued under subsection (1) or section 105(c), any 

director, officer, or agent of such corporation who 

knowingly authorized, ordered, or carried out such 

violation, failure, or refusal shall be subject to the 

same civil penalties, fines and imprisonment that may be 

imposed upon a person under subsection {a) and (d). 

812 
Order No. 3334178 reads in relevant part as follows: 

Management failed to enter (3) obvious violations 

on the main belt haulage system in the mine examiner's 

book kept on the surface on 08-21-89. The belt was 

examined by a certified fire boss representing mine 

management. These conditions was [sic] known or should 

have been known. (a proper preshift examination was not 

made) 

The cited standard, 30 C.F.R. § 75.303(a), reads as follows: 

Within 3 hours immediately preceding the beginning 

of any shift, and before any miner in such shift enters 

the active workings of a coal mine, certified persons 

designated by the operator of the mine shall examine 

such workings and any other underground area of the 

mine designated by the Secretary or his authorized 

representative. Each such examiner shall examine every 

working section in such work,i.ngs and shall make tests 

in each such working-section for accumulations of 

methane with means approved by the Secretary for 

detecting methane, and shall make tests for oxygen 

deficiency with a permissible flame safety lamp or 

other means approved by the Secretary; examine seals 

and doors to determine whether they are functioning 

properly; examine and test the roof, face, and rib 

conditions in such working section; examine active 

roadways, travelways, and belt conveyors on which men 

are carried, approaches to abandoned areas, and 

accessible falls in such section for hazards; test by 

means of an anemometer or other device approved by the 

Secretary to determine whether the air in each split is 

traveling in its proper course and in normal volume and 

velocity~ and examine for such other hazards and 

violations of the mandatory health or safety standards, 

as an authorized representative of the Secretary may 

from time to time require. Belt conveyors on which 

coals is carried shall be examined after each coalproducing shift has beguno Such mine examiner shall 

place his initials and the date and time at all places 

he examines. If such mine examiner finds a condition 

which constitutes a violation of a mandatory health or 

safety standard or any condition which is hazardous to 

persons who may enter or be in such area, he shall 

indicate such hazardous place by posting a "danger'' 

sign conspicuously at all points which persons entering 

such hazardous place would be required to pass, and 

shall notify the operator of the mine. No person, 

other than an authorized representative of the 

Secretary or a State mine inspector or persons 

authorized by the operatcr to enter such place for the 

813 
purpose of eliminating the hazardous condition therein, 

shall enter such place while such sign is so posted. 

Upon completing his examination, such mine examiner 

shall report the results of his examination to a 

person, designated by the operator to receive such 

reports at a designated station on the surface of the 

mine, before other persons enter the underground areas 

of such mine to work in such shift. Each such mine 

examiner shall also record the results of his 

examination with ink or indelible pencil in a book 

approved by the Secretary kept for such purpose in an 

area on the surface of the mine chosen by the operator 

to minimize the danger of destruction by fire or other 

hazard, and the record shall be open for inspection by 

interested persons. 

Ziegler argues in his post hearing brief that certain 

testimony of an MSHA inspector regarding the absence of entries 

in the mine examiner book (also known as the fire boss book) was 

inadmissible as contrary to the "Best Evidence Rule" as 

incorporated in Rule J.002, Federal Rules of Evidence. commission 

Rule 60(a), 29 C.F.R. § 2700.60(a), governs the admissibility of 

evidence in Commission proceedings however and that rule states 

that "[r]elevant evidence that is not unduly repetitious or 

cumulative is admissible". There is no dispute that the 

challenged testimony consisted of relevant evidence and that it 

was neither repetitious nor cumulative. Accordingly it was 

properly admitted at trial. It is noted moreover that Federal 

Rule 1002 is not in any event applicable to testimony that books, 

or records have been examined and found not to contain any 

reference to a designated matter. 11 Moore's Federal Practice § 

1002.01-.02. 

Ziegler also argues in his brief that the evidence does not 

support the charges that the corporate operator was named 

~iAlamosa Mining, Inc. uu as alleged in the Amended Petition. To 

the contrary however, the Legal Identity Report (Exhibit G-1), 

required to be filed by the mine operator, clearly shows the 

identity of the operator to be "Alamosa Mining, Inc." The proof 

therefore is clearly sufficient to support the allegations. 

The undisputed evidence of record also establishes the 

existence of the cited violation. Jerry Sumpter, an inspector 

for the Federal Mine Safety and Health Administration, testified 

without contradiction that he was inspecting the Sparky No. 2 

Mine on August 21, 1989, when he observed the existence of what 

he deemed to be "obvious" violations of mandatory standards that 

had not been reported before the shift at issue in the mine 

examiner's book for preshift examinations. 

More specifically Sumpter testified that he arrived at the 

subject mine at about 7:00 a.m. and, observed that the belt was 

814 
running but the miners had not yet proceeded underground. He 

examined the mine examiner's books between 7:00 and 8:00 a.m., 

and found that Ziegler, who was the mine superintendent, had 

countersigned the examiner's book for this oncoming shift but no 

conditions were.reported on the page corresponding to that 

particular date and shift. 

The miners proceeded underground at around 8:00 a.m. and 

Sumpter followed shortly thereafter. As Sumpter was travelling 

along the belt haulage line with Ziegler he observed "very black" 

coal spillage on the structure and along the side some 24 inches 

wide, 2 to 4 inches deep and extending for about 1,700 feet. He 

also observed coal dust lying on top of rock dust over a linear 

distance of 600 feet. 

Sumpter also found a violation of Alamosa's ventilation 

system and methane dust control plan under the mandatory 

standard at 30 C.F.R. § 75.316. In particular, Sumpter noted 

that at the tail piece the check curtain was torn down and lying 

on the tight side of the belt haulage allowing air coming up the 

belt haulage to be directed tpward the working faces where miners 

were then inby working. 

Finally Sumpter testified concerning the existence of what 

he deemed to be a violation of the standard at 30 C.F.R. § 

75.1100-2(b) in that a 200 foot section of waterline was not 

provided for the section tail piece along the belt haulage system 

and the water was turned off at the main water line valve. 

It is undisputed that the violative coal dust conditions had 

existed for a week and, that the box curtain had been down and 

that the water line had been absent since the last move of the 

tail piece. Sumpter testified that Ziegler admitted that he was 

aware that the water line was too short and that he did not have 

the manpower to move it. Sumpter examined the book entries 

through the preceding August 19, and found no reports of any of 

the three violative conditions. He also found that Zieglar had 

signed the books as mine examiner. Sumpter further noted that 

there were no initials, dates and times of preshift examinations 

found underground as required by the cited standard. In this 

regard Ziegler stated that he "must have forgotten11 to do this. 

According to Alamosa President Harry Cooke, Jr., Ziegler was 

superintendent of the subject mine around the period August 21, 

1989, and had complete responsibility for its operations. Ziegler 

also had the authority to keep necessary supplies and, if Cooke 

was not present, Ziegler had the authority to order necessary 

supplies. 

M:. Ziegler testified in defense that he had been a 

supervisor in various mining operations for about 25 years and 

during that time only one person suffered any lost-time injury 

815 
while working under his supervision. Ziegler also testified that 

his wife had recently died of cancer and that he owed 

approximately $8,000 in hospital bills as a result of his wife's 

illness. He testified that he owns his home, a 1979 car, a 1979 

truck and no other significant property. He also testified that 

he was not employed and had last worked in June 1990. Ziegler 

further testified that a "doctor's office" found that he had 

"black lung". 

The evidence in this case clearly supports the charges that 

the Respondent, Robert Ziegler, indeed was an agent of a 

corporate mine operator and that he knowingly carried out a 

violation a mandatory safety standard (i.e. the standard at 

30 C.F.R. § 75.303(a)) by signing the preshift examiner's book on 

August 21, 1989, while knowing of the existence of at least one 

violative condition required to have been reported (i.e. the 

insufficient water line) and by failing to report conditions that 

were so obvious that he should have known of their existence and 

should therefore have reported such other conditions, i.e. 

excessive coal dust and the downed curtain. 

The Commission dE?fined t:ne term "knowingly, 11 in Kenny 

Richardson v. Secretary of Labor, 3 FMSHRC 8 (1981), 689 F.2d 632 

(6th Cir. 1982), cert denied, 461 U.S. 928 (1983) as follows: 

"Knowingly", as used in the Act, does not have any 

meaning of bad faith or evil purpose or criminal 

intent. Its meaning is rather that used in contract 

law, where it means knowing or having reason to know. 

A person has reason to know when he has such 

information as would lead a person exercising 

reasonable care to acquire knowledge of the fact in 

question or to infer its existence 

ooo We believe this interpretation is consistent with 

both the statutory language and the remedial intent of 

the coal Act. iI a person in a position to protect 

employee safety and health fails to act on the basis of 

information that gives him knowledge or reason to know 

of the existence of a violative condition, he has acted 

knowingly and a manner contrary to the remedial 

nature of the statute. 3 FMSHRC 160 

The facts of this case clearly meet this definition. 

The ation was also serious in that by failing to report 

such conditions, the miners were permitted to work in the 

presence of at least three distinct hazardous conditions any one 

of which, according to the undisputed evidence, could- have led to 

reasonably serious injuries. The evidence suggests that Ziegler 

demonstrated good faith in attempting to achieve rapid compliance 

after notification of the violation. There is no evidence that 

he has been charged with any previous violations under 

816 
section llO(c) of the Act. 

The remaining criteria under section llO(i) of the Act i.e. 

the size of the business of the operator charged and "the effect 

on the operator's ability to continue in business" are of 

questionable relevance to these proceedings under section llO(c). 

However I find that the ability of the individual Respondent 

under section llO(c) to pay a civil penalty may appropriately be 

considered in determining the amount of the penalty. In this 

case it is indeed undisputed that the. Respondent is unemployed 

and.has been unemployed since June 1990, that he has significant 

debts from the recent hospitalization of his now deceased wife 

and that his significant assets appear to be limited to his house 

and two 1979 vehicles. Under the circumstances I find that a 

civil penalty of $100 is appropriate. 

ORDER 

Robert Ziegler is directed to pay a ci~il penalty of $100 

within 30 days of the date of this decision: 

~ ,t i ' 

.. 

l

/L/ ;. f~ ).,.1'··-··'\ I(""-. ·'· .. !~ t .. ~"- / ~)'""' . ' ·.,,/ ~~ .. · ~ t • Gary:Mel1ck 

Administrative Law Judge 

Distribution: 

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

Solicitor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 

(Certified Mail) 

Forrest Ho Roles, Esq.u Smith, Heenan and Althen, 1380 One Valley 

Square, Charlestonu WV 25301 (Certified Mail) 

nb 

817 
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. 

PEABODY COAL COMPANY, 

Respondent 

MAY 91991 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-194 

A. C. No. 15-02709-03724 

Docket No. KENT 90-208 

A. C. N0. 15-02709-03728 

Camp No. 1 

Docket No. KENT 90-441 

A. c. No. 15-07166-03634 

Sinclair Slope UG #2 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U. s. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

David R. Joest, Esq., Peabody Coal Company, 

Henderson, Kentucky, for the Respondent. 

Before~ Judge Weisberger 

Statement of the Cases 

In these cases, which were consolidated for a hearing, the 

Secretary (Petitioner) seeks civil penalties for alleged 

violations by the Operator (Respondent) of various mandatory 

safety standards. Subsequent to notice, the cases were scheduled 

for hearing in Nashville, Tennessee, on January 28-29, 1991. At 

the hearing Harold M. Gablin, Steve Henshaw, and Donald Wayne 

Ervin testified for Petitioner. Jim Ricketts, Brad Williams, and 

William Plum testified for Respondent. Respondent filed a Post 

Hearing Brief on March 11, 1991. Petitioner filed a Brief and 

Argument on April 8, 1991. 

Docket No. KENT 90-441 

At the hearing, Petitioner indicated that it would be 

vacating Citation No. 3416852. Accordingly, this Citation is 

dismissed. 

818 
Subsequent to the hearing, on April 16, 1991, Petitioner 

filed a Joint Motion to Approve Settlement. In the Motion, 

Petitioner indicated that Order No. 3416856 is to be vacated. 

Accordingly, it is DISMISSED. 

In addition, the Joint Motion seeks approval of a reduction 

in penalty from $288 to $20 for a violation set forth in Citation 

No. 3421270. I have considered the representations and 

documentation submitted along with the Motion, and conclude that 

the proposed penalty of $20 is appropriate for the violation 

charged, and it is approved. 

Docket Nos. KENT 90-194 and KENT 90-208 

I. Order No. 3419559 (KENT 90-194) 

a. Violation. 

On February 1, 1990, MSHA Inspector Harold M. Gablin 

performed an inspection of Respondent's Camp No. 1 Mine. He 

testified that in the First Main North belt entry, he observed 

coal dust that extended the full width and length of the belt. 1

/ 

Gablin also indicated that the accumulation was in the cross-cuts 

and that essentially it was "very black'' (Tr. 148). He described 

the material that had accumulated as not being spillage and 

consisting of fine dust. Gablin testified that he measured the 

depth of the coal dust accumulation and it measured between a 1/4 

to 1/2 inch. Gablin issued a l04(d) (1) Order alleging an 

accumulation of coal dust, including float coal dust in violation 

of 30 C.F.R. § 75.400 which, as pertinent, proscribes the 

accumulation of coal dust including float coal dust deposited on 

rock dusted surfaces. 

Donald Wayne Ervinv the Chairman of the Safety Committee, 

who accompanied Gablin on his inspection on February l, testified 

that he observed Gablin measure the depth of the accumulation; 

and corroborated that it was 1/4 to 1/2 inch deep. Ervin further 

indicated that he also observed float dust in the cross-cuts and 

the dust was dry and extended throughout the belt. 

1

/ Based on the testimony of Gablin, I conclude that the 

width of the belt was 20 feet. Gablin indicated that the length 

of the belt was 4000 feet. Jim Ricketts, Respondent's mine 

foreman for the third shift, indicated that the belt extended 

4500 feet. Brad Williams, Respondent's mine foreman for the day 

shift testified that the length of the belt was 5600 feet. I 

conclude that the belt extended at least 4000 feet. 

819 
William Plum, Respondent's belt foreman on the day shift, 

indicated that on the date of Gablin's inspection, he did not 

observe any accumulations 1/4 to 1/2 inch deep. Brad Williams, 

Respondent's mine foreman on the day shift, indicated that the 

accumulation was not as deep as 1/4 of an inch. I place more 

weight on the testimony of Gablin, as corroborated by Ervin, with 

regard to the depth of the accumulation, inasmuch as he (Gablin) 

actually measured it. Both Plum and Williams described the 

material as gray and not black. However, Williams stated that a 

gray color indicates that "· .• it's getting dust accumulation11 

(Tr. 264). Ricketts indicated that there was coal dust and rock 

dust, but did not contradict the specific testimony of Gablin, 

that there was float coal dust rib to rib the entire length of 

the belt line. Also, Plum indicated that the worst area of the 

accumulation was between the No. 12 cross-cut and the header. 

Since the centers of the cross-cuts are 70 feet apart, the length 

of this area is approximately 840 feet. I conclude that it has 

been established that on February 1, 1990, there was an 

accumulation of float coal dust in violation of Section 75.400, 

supra. 

b. UnwarrantabLe Failure. 

According to Gablin, because of the extent of the 

accumulation which extended the entire width of the entry, the 

depth of the accumulation, and the fact that the entry was dry, 

he concluded that the accumulation had been in existence for at 

least 30 days. 

Steve Henshaw, a belt examiner employed by Respondent on the 

day shift, indicated that on January 25, 1990, he performed a 

preshift examination of the belt entry in question, and that the 

Preshift Mine Examiner's Report (Examiner's Report) contains the 

following notation~ 11 clean track side 54-52f 49-48, 43-30, dust 

tail 21 & 12-drive o o o 11 (Government Exhibit 7, page l)o He 

said that on January 25, 1990, he had observed black float dust 

from the tail through cross-cut 21 and from cross-cut 12 to the 

drive, and the material extended from rib to rib. He testified 

that the following day the spillage and float dust was still 

thereo The Examiner's Report for the day shift of January 26, 

contains the following notation for the belt entry at issue, 91 dust belt o 11 (Government Exhibit 7 / Page 8) o Henshaw indicated 

that the condition was getting worse daily, and on January 30, he 

continued to observe float coal dust. The Mine Examiner's Report 

for the day shift January 30, 1990, contains the following 

notation for the First North belt. no • 0 clean track side 54-52 

& 49-48 & 53-40 & 34 & 1/2 & 32 & 1/2-30 & float dust at bottom 

roller, dust all, .. 0 

11 (Government Exhibit 7, Page 24). 

Henshaw testified that the following day on January 31, the 

accumulations of coal and float dust were still there. He 

indicated that the condition of the belt with regard to dust was 

the same on January 31, as it was on January 30. The preshift 

820 
Mine Examiner's Report for January 31, day shift states as 

follows: "clean areas listed 1-30-90, dust belt ..• " 

(Government Exhibit 8, Page 32). 

Jim Ricketts, the mine foreman for the third shift, midnight 

to 8:00 a.m., (a nonproduction shift), essentially indicated that 

unless there is a "trouble spot," or a hazard, each of 

Respondent's approximately 7 to 10 miles of belt line is dusted 

in a "cycle" (Tr. 241). He indicated that in a normal cycle each 

belt would be rock dusted every 2 weeks. He indicated that on 

the midnight to 8:00 a.m. shift February 1, 1990, he finished 

rock dusting the two North belt and thus, according to his normal 

cycle, would have rock dusted the First North belt the following 

night. 

The Preshift Mine Examiner's Report for the 4:00 p.m. to 

midnight shift for January 25, 1990, does not contain any 

notation of dust or the need to clean the First North entry. The 

second shift Daily and On-shift Report (for January 25, 1990) 

indicates as follow: "cleaned on spillage 1st N. 11 (Government 

Exhibit 7, Page 5). The Daily and On-shift Report for the second 

shift January 29, 1990, contains the following notation: 

"cleaned on spillage -1 N." (Government Exhibit 8, Page 21). The 

second shift Daily and On-shift Report for January 30, 1990, 

contains the following notation: ''cleaned on spillage 1st N." 

(Government Exhibit 8, Page 28). The Preshift Mine Examiner's 

Report for the 4:00 p.m. to 12:00 midnight shift for January 31, 

contains the follow note: "1 N-cont. clean on track side." 

(Government Exhibit 8, Page 35). 

In order for it to be found that the violation herein 

resulted from Respondent's unwarrantable failure the evidence 

must establish that there was aggravated conduct on the part of 

Respondent. (Emery Mining Corporation, 9 FMSHRC 1997 (1987}). 

For the reasons that follow, I conclude that the record 

establishes that Respondent 1 s conduct did indeed reach 

level. 

Based on my observations of the demeanor of Gablin in this 

regard, and because his testimony has not been specifically 

contradicted or impeached, I accept his testimony that on 

February 1, there was an accumulation of coal that extended 

across the width of the entry and continued for its entire 

length. Furtherp the testimony of Gablin that he measured the 

accumulation, and it was at a depth of between 1/4 to 1/2 half 

inch, has been corroborated by Ervin. Respondent did not adduce 

any evidence of any measurements taken that contradict Gabl 's 

testimony. Hence, based upon the extent of the accumulation, its 

depth, and fine consistency, as indicated by Gablin and Henshaw, 

I conclude that the accumulation had existed for at least a few 

days prior to February 1, 1990. 

821 
It is significant that, as evidenced by the Preshift Mine 

Examiner's Report (Government Exhibit 7), and as explained by 

Henshaw, in his testimony, he advised Respondent, on January 25, 

26, 30, and 31, of the need to clean and dust the belt. Further, 

in the Examiner's Report of January 10, the areas noted by him to 

be cleaned on the track side between cross-cuts 30 to 32 1/2, 

34 1/2, 48 to 49, and 52 to 54, were the same areas previously 

noted on January 25. Additionally, on January 31, Henshaw 

specifically noted to clean the areas previously listed on 

January 30. 

The weight of the evidence fails to establish that 

Respondent paid heed to Henshaw's notations, and cleaned the 

accumulations in question. There are notations in the Examiner's 

Report for the second shift, on January 25, 29 and 30, that 

indicates as follows: "clean on spillage, 11 (Government 

Exhibit 8, Pages 5, 21, 28) for the First North, and on 

January 31, as follows: 11 1 N cont. cleaned on track side. 11 

(Government Exhibit 8, Page 35). Howeverr Respondent did not 

adduce the testimony of any witness who had personal knowledge as 

to exactly what cleaning, if any, was performed in the First 

North belt. Also, there is no-evidence that any cleaning had 

been performed during the third or nonproduction shift, i.e., 

midnight to 8:00 a.m. Indeed, Ricketts, the foreman of that 

shift, could not establish the last time, prior to February 1, 

1990, that the First North was cleaned. Although the need to 

clean or dust was not noted on the Presift Mine Examiner's Report 

of the 4:00 p.m. to midnight shift of January 25, 26, 30, and 31, 

the conclusion is inescapable that Respondent failed to take 

action to eliminate the accumulations, in spite of having been 

notified by Henshaw, who was termed by Brad Williams, 

Respondent's day foreman, as being the "· .. an awful good belt 

walker, probably the best belt walker we've got'' (Tr. 267) . 2/ 

- find that Respondent s failure to take action, spite of 

'.Je repeatedly informed by Henshaw of the need to clean or 

dust, not mitigated to any great extent by testimony from 

Hicke.tts and Williams that, in contrast to Henshaw 1 s customary 

practice, he neither personally advised Ricketts and Williams of 

the need to dust and clean, nor did he underline or otherwise 

ight any of his notations on the dates in question. For all 

these reasons I conclude that it has been established that the 

violation herein resulted from Respondentis unwarrantable failure 

See Emery, 

2

/ Also, Ricketts testified that the Preshift Mine 

Examiner 1 s Report is examined prior to a shift in order to 

correct hazards that are noted, and that Henshaw is "thorough" 

and accordingly the first report he looks at is Henshaw's. 

(Tr. 245) . 

822 
II. Citation No. 3419558 (KENT 90-208) 

a. Violation 

On February 1, 1990, Gablin issued to Respondent a 

Section 104(d) (1) citation, inasmuch as he had observed 17 frozen 

and damaged belt rollers in the First North belt line. 

Specifically, he indicated that on February 1, "I seen rollers 

that were partly worn in two, that they were worn completely in 

two, ••• " (Tr. 125). He indicated that the roller at crosscut 42 1/2 was frozen. 

It was Gablin's testimony that he spit on two rollers and he 

heard "frying" (Tr. 55-56). Ervin also spit on a roller and "it 

sizzled" (Tr. 228). Ervin testified that he observed damaged 

rollers when he accompanied Gablin on his inspection on 

February 1. He indicated that some rollers were "stuck, just not 

rolling at all, and the bottom roller was turning into the 

bottom" (Tr. 230). He also said that the cylinders of one or two 

of the rollers had "worn" to the extent that the cylinder had 

separated into two parts (Tr~ .. 230). Also, according to Ervin the 

"bearings were out" (Tr. 229) on some rollers and one or two were 

·running on the spindle. 

William Plum, Respondent's belt foreman for the day shift, 

testified that he changed the rollers at Gablin's direction on 

February 1. He indicated that he could not find anything wrong 

on some of the rollers that Gablin had him replace. According to 

Gablin there were no rollers that he could tell were frozen. 

However not much weight was accorded this conclusion, as he 

stated on cross-examination that when he changed the rollers the 

belt was not running, and it cannot be ascertained if a roller is 

hot or frozen if the belt is not running. Also, it is noted that 

he indicated that two rollers were broken in two. 

It was Gabl Gs testimony, which has not been rebutted, that 

a hotv damaged, or frozen roller can cause friction which can 

lead to a fire. 

I thus conclude that it has been established that at least 

two rollers were broken in two, two were worn, one was frozen, 

and two were hot. Thus, the record supports a finding that 

Respondent herein did violate 30 C.F.R. § 75.1725(A), as alleged 

in the Citation. 30 C.F.R. § 75.1725(a) requires that machinery 

and equipment be maintained in safe operating condition, and if 

they are in an unsafe condition, they shall immediately be 

removed from service. 
b. Unwarrantable Failure 

Gablin testified that a frozen roller could happen within a 

shift. However; in essence, he indicated that if a roller is hot 

or damaged to the extent that the belt is running on the shaft, 

there is an indication that this condition has been in existence 

for a week or longer. I note in this connection that Gablin 

indicated that he did see the belts running on the shaft, 

although he did not recall how many he saw. As explained by the 

testimony of Henshaw and as evidenced by the Examiner's Report 

(Government Exhibit 7), Respondent was advised of a hot middle 

insert at cross-cut 45· on January 25, 26, and 30. A hot middle 

insert, at cross-cut 51, was noted on the day shift Examiner's 

Report on January 30 and again on January 31. 3/ Also, Henshaw 

in his Preshift Mining Examiner's Report noted rollers designated 

as MI51 and BSI 38 1/2 on January 25, 26, and 30. On January 31, 

he noted "hot" BSI 38 1;2. 4; (Government Exhibit 8, Page 32) 

There is no evidence that Respondent took any action to fix or 

replace the rollers cited repeatedly by Henshaw, nor those 

indicated by him repeatedly to be "hot. 11 Essentially for the 

reasons stated in the discussion of Order No. 3419559, I do not 

find sufficient circumstances to have mitigated Respondent's lack 

of action herein. Inasmuch as Respondent had been made aware of 

the hot rollers and other rollers set forth in a Preshift Mine 

Examiner's Report, under the heading "hazardous conditions," and 

had failed to correct same, I conclude that the violation herein 

was as the result of Respondent's unwarrantable failure (See 

Emery, supra. ) 

3; It is significant to note that the Citation issued to 

Respondent alleges as follow~ 11 51 top center frozen and hot" 

(emphasis added). 

4; The Citation issued to Respondent lists ''38 1/2 top 

center hot" and 11 51 top center frozen and hot.n among the 

violative conditions. It is also significant to note that 

Henshaw, in his reports of January 30 and 31, under the heading 

Violations and other Hazardous Conditions Observed and Reported, 

listed "MI 41 1/2. iu (Government Exhibit 8, Page 24, 32). The 

Citation at issue lists 11 41 1/2 top center roller." Also, 

Henshaw's report of January 25, 26, 30 and 31, lists "BSI 54 11 as 

a hazardous condition. (Government Exhibit 8, Page 8, 24, 32). 

The Citation lists 11 54 top center." 

824 
III. Citation No. 3419558 and Order No. 3429559 

Significant and Substantial 

According to Gablin, the violative conditions cited in both 

Citation No. 3419558 and Order No. 3419559 are significant and 

substantial. For the reason that follow, I agree. 

As set forth above, infra, the record has established a 

violation of Section 75.1725, supra, in that, on February 1, 

1990, there were two hot rollers, two rollers that were in two 

pieces, and one or two rollers rolling on their spindle. Due to 

the heat and friction generated by these conditions a discrete 

safety hazard of heating and sparks was thereby contributed to. 

Indeed, although Ervin could not recall if he saw sparks, it was 

Gablin's testimony that he did see sparks at cross-cut 51 from 

either a belt roller or a frame. In addition, according to 

Ervin, one belt roller was turning in coal dust. Gablin 

testified that the belt between cross-cuts 29 and 30 was dragging 

in coal dust, raising coal dust in suspension. He also said that 

other belts were also rolling in dust. / The hazard of the belt 

turning in dust was exacerbated by the fact, as testified to by 

both Ervin and Gabl in,_ that tlie entry was dry. .Given all these 

conditions, I conclude that there was reasonable likelihood that 

the hazard of a fire or explosion contributed to by the presence 

of extensive amounts of coal dust, as well as the rollers not 

being in a safe condition, would resu~t in an injury of a 

reasonably serious nature, especially considering the effects of 

the resulting carbon monoxide, as testified to by Gablin. Based 

upon the above, I conclude that it has been established that the 

violations herein cited in Citation No. 3419558 and Order 

No. 3419559 were significant and substantial. 

IV. Citation No. 3419558 and Order No. 3419559 

Penalties 

ao Citation No. 419558 

Due to the extensive amounts of float coal dust 

accumulation, its consistency, and the presence of ignition 

sources discussed above, , and considering that there was 

dust in suspension between cross-cuts 29 and 30 and at crosscut 50, I conclude that the violation herein cited in Citation 

No. 3419558 was of a high level of gravity. Essentially, based 

5/ I find the testimony of Plum that the belt was running in 

a "heated bottom" (Tr. 276, sic.) consisting of clay, inadequate 

to rebut the specific testimony of Gablin that the belt between 

the 29 and 30 cross-cut was dragging in coal dust. Also, I note 

that Plum te~tif ied that in two places the belt was in contact 

with the float coal dust that was mixed with fire clay. 

825 
upon the same factors set forth above, (II.b., infra, I conclude 

that Respondent's negligence herein was high. Taking into 

account the remaining factors set forth in Section llO(i) of the 

Act, as stipulated to by the Parties, I conclude that a penalty 

of $1000 is appropriate for the violation cited in this citation. 

b. Order No. 3419559 

The record establishes specifically, that there were two hot 

rollers at 38 l/2 and 51 cross-cuts, two rollers that had been 

broken in two, and one or two rollers that were rolling on their 

spindle. In general, Gablin testified that two other rollers 

were damaged or frozen, but did not specify the exact nature of 

the damage. Although his Citation listed various rollers, he 

could not specify the exact unsafe problem with regard to the 

rollers cited. Taking into account the fact, as explained above, 

III., infra, that damaged rollers could produce heat and sparks, 

and taking into account the extensive amounts of coal dust and 

dust in suspension, I conclude that the violation herein was of a 

high level of gravity. Further, based upon essentially the same 

reason set forth above, II (b)._, infra, I conclude that Respondent 

herein acted with a high degree of negligence. I conclude that a 

penalty of $1000 is proper for the violation found herein. 

ORDER 

It is ORDERED that Respondent shall, within 30 days of this 

Decision, pay $2020 as a civil penalty for the violations found 

herein. 

It is further ORDERED 

No. 3416856 be DISMISSED. 

Distribution~ 

that Citation No. 3416852 and Order 

ge~r Administrative Law Judge 

Thomas A. Groomsr Esqr Office of the Solicitorr U. S. Department 

of Labor 1 2002 Richard Jones Road, suite B-201, Nashville, TN 

37215 (Certified Mail) 

David R. Joestr Esq.r Midwest Division Counsel, Peabody Coal 

Companyr 1951 Barrett Court, P. O. Box 1981, Henderson, KY 42420-

1981 (Certified Mail) 

dcp 

826 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 91991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. PENN 90-80 

Petitioner A.C. No. 36-07630-03503 

v. 

RANDY COAL COMPANY, 

Respondent 

Mine Hill Strip 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

The petitioner has filed a motion pursuant to Commission 

Rule 30, 29 C.F.R. § 2700.30, seeking approval of a proposed 

settlement of thi.s matter. The initial proposed civil penalty 

assessment for the contested violation is $98, and the respondent 

has agreed to settle the matter by paying a civil penalty 

assessment of $78. In support of the proposed settlement, the 

petitioner has submitted information pertaining to the six 

statutory civil penalty assessment criteria found in section 

llO(i) of the Act, a discussion of the violation in question, and 

a reasonable justification for the reduction of the initial 

proposed civil penalty assessment. I conclude and find that the 

proposed settlement is reasonable and in the public interest. 

The motion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $78 in satisfaction of the violation in 

question. Payment is to be made to MSHA within thirty (30) days 

of the date of this dec~sion and order, and upon receipt of 

payment, this matter is dismissed. 

A~~A-.fl~ ~~~rative Law Judge 

827 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BLACKFOOT COAL COMPANY, INC., 

Respondent 

91991 

CIVIL PENALTY PROCEEDING 

Docket No. VA 90-44 

A. C. No. 44-05415-03563 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On May 8, 1991, the Secretary filed a motion for approval of 

a settlement reached by the parties in this case. The violations 

were originally assessed at $4273, and the parties proposed to 

settle for $3273. 

The docket contains three citations and a 104(d) (1) order 

issued following a nonfatal roof fall accident. The fall caused 

a fractured pelvis of a continuous mining machine helper. 

Citation No. 3351176 charged a violation of 30 C.F.R. § 75.203 

because a pillar block had been mined in excess of the maximum 

width allowed by the Roof Control Plan. The violation was 

assessed at $2000. The motion proposes a reduction to $1500 

because (1) the inspector's diagram does not accurately reflect 

the condition that existed in that it shows more coal having been 

removed than was actually the case; (2) the violation concerns 

the condition of the pillar block between entries 5 and 6; the 

roof fall occurred between entries 4 and 5. Order No. 3351928 

charged a violation of 30 C.F.R. § 75.220 because posts or 

timbers had not been installed as required by the Roof Control 

Plan. The violation was assessed at $2000. The motion proposes 

a reduction to $1500 because it appears that the posts or timbers 

were not designed to and would not prevent a roof fall. The 

other three citations were originally assessed at $91 each, and 

the motion proposes that the assessed amount be paid. I have 

considered the motion in the light of the criteria in 

Section llO(i) of the Act, and conclude that it should be 

approved. 

828 
Accordingly, the settlement is APPROVED and Respondent is 

ORDERED TO PAY the sum of $3273 within 30 days of the date of 

this Decision. 

Distribution: 

"1 . 

)1,:1v? :5 ,4ffrv u{ /J"l ~1- .;J James A. Broderick 

Administrative Law Judge 

Ronald E. Gurka, Esq., Office of the Solicitor, u. s. Department 

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

Mail) 

Mr. Sam Blankenship, President, Blackfoot Coal Company, Inc., 

P. o. Box 1802, Bristol, VA 24203 (Certified Mail) 

dcp 

S29 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 91991 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF Docket No. WEVA 91-621-D 

DOUGLAS B. TUTTLE, HOPE CD 91-08 

Applicant 

v. Huffman Surface Mine 

A & M TRUCKING COMPANY, 

Respondent 

DECISION 

Appearances: Tina Gorman, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the 

Applicant; 

Before: 

Edward Dooley, Esq., Middlesboro, Kentucky, for 

the Respondent. 

Judge Melick 

case is before me upon the request for hearing filed by 

A & M Trucking Company (A & M) under section 105(c) (2) of the 

Federal Safety and Health Act of 1977, 30 u.s.c. § 801 

seq r the 00Act e 0

' and under Commission Rule 44 (b) , 29 C. F. R. 

§ 2700.44(b), to contest the Secretary of Labor's Application for 

Reinstatement on behalf of miner Douglas B. Tuttle: 

These proceedings are governed by Commission Rule 44(c). 

That rule provides as follows: 

The scope of a hearing on an for 

temporary reinstatement is limited to a determination 

the Judge as to whether the miner's complaint is 

frivolously brought. The burden of proof shall be upon 

the Secretary to establish that the complaint is not 

brought. In support of his application for 

temporary reinstatement the Secretary may limit his 

presentation to the testimony of the complainant. The 

respondent shall have an opportunity to cross-examine 

830 
any witnesses called by the Secretary and may present 

testimony and documentary evidence in support of its 

position that the complaint is frivolously brought. 

This scheme of procedural protections, including the 

statutory standard of proof provided by section 105(c) (2) of the 

Act, to an employer in temporary reinstatement proceedings far 

exceeds the minimum requirements of due process as articulated by 

the Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 

(1987). See JWR v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). 

Within this framework of law it is clear that the 

determination of whether the Secretary's application on behalf of 

a miner was frivolously brought (the functional equivalent of a 

"reasonable cause to believe" standard) is to be made on the 

basis of evidence adduced at, and as of the time of, the hearing 

before the Commission Administrative Law Judge under Ruie 44(c). 

The complaint of discrimination accompanying the Secretary's 

application herein alleges that the discriminatory firing of 

Mr. Tuttle took place-on December 17, 1990. The accompanying 

affidavit required by Commission Rule 44{a), certifies, however, 

that the act of discrimination took place on January 31, 1991, 

and the credible evidence adduced at hearing shows that 

Mr. Tuttle performed no work for A & M after December 11, 

1990. 1 It is clear, in particular from the last computerprinted "weigh ticket" corresponding to the No. 120 haulage truck 

Tuttle had been operating on the evening shift that Tuttle last 

worked for A & M on December 11, 1990 (Exhibit R-5). Further, it 

is not disputed that the truck drivers working for A & M received 

their pay twice a month with the first paycheck (covering the 

first of the month through the 15th of the month) due on the 25th 

of the month" From the undisputed testimony of A & M foreman 

Ronnie lliamsJ clear that after Tuttle had terminated his 

work relationsh A & M, he came to the mine site sometime 

before December 25, 1990, requesting his final paycheck. since 

the check due on December 25th would correspond to work performed 

between December 1 through December 15, and admittedly this was 

last paycheckr it clear that Tuttle did not work for A & M 

after December 15 19900 As Williams explained at hearing, if 

Tuttle had hauled coal after December 15th, he would not have 

been paid until January 10, 1991. Indeed Tuttle himself 

acknowl that he went to the mine site on December 21st to 

pick up this final paycheck and that December 25th would have 

been the normal corresponding payday. 

1 The Secretary's counsel represented at hearing that the 

affidavit was incorrect, but she has not submitted any corrective 

affidavit. 

831 
Given these serious conflicts, I am compelled to conclude 

that there is no reasonable cause to believe that any discharge 

or any other discriminatory event occurred as alleged in either 

the complaint or the affidavit. 2 Accordingly, I cannot find 

that the complaint was not "frivolously brought." commission 

Rule 44(c), supra; JWR v. FMSHRC, 920 F.d 738 at p. 747 

(11th Cir. 1990). 

However, even assuming, arguendo, that the Secretary had 

properly charged that the discriminatory event occurred on 

December 11, 1990, the individual complainant's allegations in 

own testimony at hearing fail to state a claim cognizable 

under the Act. Since the allegations of discrimination are 

facially insufficient, it cannot be said that the complaint 

herein was not frivolously brought. 

A miner's refusal to perform work is protected under section 

105(c) (1) of the Act, if it is based on a reasonable, good faith 

belief that the work involves a hazard. Fasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980), reversed on other grounds, 

sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 

(3d Cir. 1981}; Secretary on behalf of Robinette v. United Castle 

Coal Company, 3 FMSHRC 803 (1981). According to the complainant, 

on what turned out to be his last day of work, he first 

pre-tripped (pre-shifted) the No. 120 haulage truck he was to 

operate that evening. He observed that it had been "down" the 

day before and new brakes had been installed. After driving his 

first load to the dumping location, he noted that the brakes 

would not hold on an incline and accordingly reported that the 

brakes needed adjustment. 

A & M representative Anthony Mayes stated that he overheard 

Tuttle complain on his radio that he had to use his hand brake to 

on the slope so Mayes directed Tuttle to return to the truck 

ot. and have the brakes adjusted. Mayes then followed Tuttle to 

the 00 According to Tuttle, Mayes first told him to exchange 

truck truck No. 129 then changed his mind and told him to 

take truck No. 127. Tuttle testified that as he began 

npre-tripping11 truck No. 127 he heard the air leaking out. 

to Tuttle, the was leaking so badly that when he 

~eleased the parking brake, the release button would not remain 

the released position but would kick back out because of 

fficient air pressure. Indeed, according to Tuttle, the 

2 The Respondent also disputes the Secretary 1 s assertion that 

Tuttle was an employee rather than an independent contractor and 

maintains that independent contract miners are not entitled to the 

section 105(c) protections. In light of the decision herein, it is 

not necessary to reach these questions. 

832 
brakes were locked to such an extent that the truck could not be 

moved. 

While denying that there was any leak in the air brake 

system of truck No. 127 and that Tuttle had ever pre-shifted the 

truck that night, Mayes corroborated Tuttle's testimony that when 

the air pressure is inadequate the parking brake will set itself 

and completely lock the brakes. Indeed, according to Mayes, once 

the brakes lock up you must repair the air leak before you can 

ever move the truck again. 

According to Tuttle, after he pre-tripped the truck he told 

Mayes that the truck was unsafe. Mayes purportedly then told 

Tuttle to drive it or go home. Finally, after Tuttle allegedly 

refused to drive it he asked Mayes if he should return for his 

regular shift the next day. Mayes purportedly responded that if 

he did not drive the truck that shift he was not to return. 

Tuttle testified that he thereafter went home, believing that he 

had been fired. 

While Mayes generally denies this version of events, and 

indeed the allegations are not completely rational, it is not 

necessary to resolve these conflicts since I find Tuttle's 

allegations to be facially insufficient in any event to state a 

claim under the "work refusal" analysis. Indeed, according to 

the credible evidence of record it would have been mechanically 

impossible for the truck to have been driven in its alleged 

condition. The parking brakes would have been locked and the 

truck could not have been moved until the air leak was repaired. 

The truck could not have been operated without repairs and Tuttle 

therefore faced no hazard. Accordingly, Tuttle could not have 

entertained a good faith, reasonable belief in a hazard and there 

is no basis on this record for a violation under section 

105(c) (1) of the Act. Therefore, it must be concluded that the 

complaint was indeed frivolously brought. 

ORDER 

The Application for Temporary 

denied. 

833 

Reins~atement h rein is 1 ~ I 

I\ J 

,• 

\ 

c:;ary Me ,ick \! ../ 

Administjrative Law Judge 

'1 l!J I 

\ 
Distribution: 

Tina Gorman, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Room 403, Arlington, VA 22203 

(Certified Mail) 

Edward Dooley, Esq., P.O. Box 955, Middlesboro, KY 40965 

(Certified Mail) 

/fb 

834 
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 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-11 

A.C. No. 11-00585-03769 

Mine No. 10 

,DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, 

for the Petitioner; 

Davids. Hemenway, Esq., Thompson & Mitchell, 

St. Louis, Missouri for the 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 

seq., the "Act, 11 charging the Peabody Coal Company (Peabody) 

with two violations of mandatory standards and proposing civil 

penalties of $2,700 for those violations. The general issue 

before me whether Peabody violated the cited regulatory 

standards and, if so, the appropriate civil penalty to be 

assessed in accordance with section llO(i) of the Act. 

Citation No. 3035886, issued pursuant to section 104(d) (1) 

of the Act, alleges a violation of the mandatory standard at 

30 C.F.R. § 75.517 and charges as follows~ 1 

1

section 104(d) (1) of the Act reads 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 significant 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 

835 
The tr.ailing cable supplying direct current power 

to the #21 Shuttle car had been damaged to the extent 

that a bare wire was visible. The cable had a nick in 

it 31 inches long exposing the bare wire and had been 

partially covered with black tape. This tape did not 

provide adequate insulation to the wire. 17 similar 

violations have been issued thus far in fiscal year 

1990, and 26 were issued in fiscal year 1989. In the 

past, these similar violations of 75.517 have been 

discussed with mine management and the operator knows a 

problem with repeat violations exists at this mine. 

The citation was subsequently modified as follows: 

"section 1, item 8, is hereby modified to include the physical 

location of No. 21 shuttle car which is the l-east, 3-south, 6-

east, main south (006) coal producing unit." 

The cited standard, 30 C.F.R. § 75.517, provides that "power 

wires and cables, except trolley wires, trolley feeder wires, and 

bare signal wires, shall be insulated adequately and fully 

protected". 

Peabody admits the violation charged herein but maintains 

that it was not "significant and substantial" nor the result of 

"unwarrantable failure". It further maintains that it was not 

negligent in causing the violation. 

The observations by Inspector Edward Banovic of the Federal 

Mine Safety and Health Administration (MSHA) regarding the . 

violation are not disputed but only his conclusions regarding 

gravity, negligence and whether the violation was "significant 

contijd fno 1 

unwarrantable failure of such operator to comply with 

such mandatory heal th or safety standards, he shall 

include such finding in any citation given to the 

operator under this Act. If, during the same inspection 

or any subsequent inspection of such mine within 90 days 

after the issuance of such citation, an authorized 

representative of the Secretary finds another violation 

of any mandatory health or safety standard and finds such 

violation to be also caused by an unwarrantable failure 

of such operator to so comply, he shall forthwith issue 

an order requiring the operator to cause all persons in 

the area affected by such violation, except those persons 

referred to in subsection (c) to be withdrawn from,a nd 

to be prohibited from entering, such. area until an 

authorized representative of the Secretary determines 

that such violation has been abated. 

836 
and substantial" and due to the "unwarrantable failure" of the 

operator to comply with the standard. During the course of a 

regular underground inspection on May 10, 1990, Inspector Banovic 

examined the cable to the cited shuttle car and immediately 

noticed a cut in the cable exposing bare wires inside. Banovic's 

testimony that the damaged area and the bare exposed wires were 

readily visible is unchallenged. There had been some black tape 

placed over a portion of the cut but the cut in the cable 

extended beyond the taped area. In any event it was not an 

approved tape for insulation purposes. According to Banovic the 

power cable to the shuttle car was energized when he arrived in 

the unit and when he asked to examine the cable the Respondent 

elected to operate the car to unspool the cable. 

Banovic concluded that the 300 volts of direct current power 

supplied to the shuttle car through the cable made it reasonably 

likely that someone coming in contact with the shuttle car would 

suffer fatal injuries. He noted that the cable to the car had 

been energized and that, when unspooled, the defective part of 

the cable lay on the mine floor. Banovic also noted that as the 

cable would be rewound it could-come into contact with the metal 

frame of the shuttle ear. According to Banovic, persons walking 

by1 such as a foreman, touching the machine and persons carrying 

the cable would therefore be exposed to a shock hazard reasonably 

likely to result in fatal injuries. Banovic also opined that the 

cable could cause a fire within the reel compartment of the 

shuttle car thereby in this manner also creating a "significant 

and substantial" hazard. Within this evidentiary framework it is 

clear that the violation was indeed serious and "significant and 

substantial". Mathies Coal Company, 6 FMSHRC (1984). The 

credible expert testimony of MSHA supervisory Inspector Lonnie 

Conner fully corroborates these findings. 

In reaching these conclusions I have not disregarded 

Peabody 0 s claims that it had an inspection policy that would have 

resulted in discovery of the defective cable. Absent evidence of 

actual effective enforcement of such a policy however I can give 

but little weight to this self-serving declaration. 

Banovic also opined that the violation was the result of 10 unwarrantable failure 11 and high negligence. He based his 

conclusion upon evidence that the cut in the cable was obvious 

and that it had been improperly covered with tape which failed to 

provide adequate insulation and which was even in violation of 

the operator 1 s own corrective procedures. He inferred from this 

evidence that the damage to the cable should therefore have been 

known to the operator and that, in addition, inadequate and 

improper ac~ion had been taken in an attempt to correct the 

problem. I agree. Clearly, this evidence shows that the 

operator knew or should have known of this condition and that it 

failed to abate the condition because of a lack of due diligence, 

indifference or lack of reaonsable care. Quinland Coals, Inc. 

837 
10 FMSHRC 705 (1988). As the Commission stated in that case this 

formulation describes aggravated conduct constituting more than 

ordinary negligence within the meaning of the Emery Mining Corp., 

9 FMSHRC 1997 (1987) decision. 

In reaching his negligence findings Banovic also relied upon 

evidence of Peabody's repeated violations of the same mandatory 

standard over the recent past. In this regard Supervisory 

Inspector Conner observed that there had been 18 citations at 

this mine for violations of the mandatory standard at issue 

during fiscal year 1990 up to the date of the instant citation, 

May 10, 1990, (Exhibit P-4). All of these violations involved 

defective power cables and most specifically involved defective 

trailing cables. Moreover four of the violations were found in 

the two months preceding the instant violation. While those 

violations occurring most closely in time to the instant 

violation are most significantly related to the issue of 

negigence herein I find all of the violations to be sufficiently 

related in time to be probative on the issue of operator 

negligence herein. Clearly such a definitive pattern of repeated 

similar violations over a rel:atively brief period of time shows 

in itself such indif:rerence and lack of reasonable care as to 

constitute such gross negligence and aggravated acts and/or 

omissions as to warrant the "unwarrantable failure" findings 

herein. Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007 

(1987) 0 

Conner further testified that he conducted several meetings 

with management of the subject mine in March, June and November 

1989 emphasizing the problems of these repeated violations. 

According to Mine Superintendent William Raetz, following the 

November meeting with MSHA officials, he met with his supervisory 

personnel and orally instructed them to physically walk and check 

their trailing cables before operation of equipment. There is no 

evidence however that this practice was actually thereafter 

followed and indeed a succession of violations of the same 

standard continued after this meeting. Thus, in spite of 

specific notice of these problems Peabody failed to take 

effective corrective action. This too is evidence demonstrating 

aggravated conduct and omissions. Under the circumstances the 

evidence separately and collectively warrants a finding of gross 

negligence and 11 unwarrantable failure". Emery Mining co., supra; 

Youghiogheny and Ohio Coal Co., supra; Quinland Coals. Inc., 

supra. 

Order No. 3035889, also issued pursuant to section 104(d) (1) 

of the Act, alleges a "significant and substantial" violation of 

the standard at 30 C.F.R. § 75.400 and charges as follows: 

Accumulations of coal and coal dust were present under 

the 7th west belt at the transfer point of the 2nd 

north belt line. There were two piles of coal 15 feet 

838 
long and 30 inches high rubbing the belt and rollers 

were turning in coal. The drive of the 2nd north had 

coal dust and coal packed in it rubbing the belt and 

packed up to 24 inches high on the drive roller. Two 

piles were present between the head roller and drive 

roller 30 inches high and 4 feet wide by 4 feet long. 

The standard at 30 C.F.R. § 75.400 requires that "[c]oal 

dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be 

cleaned up and not be permitted to accumulate in active workings, 

or on electric equipment therein." Peabody also admits this 

violation but maintains that it was neither a serious violation 

nor was it the result of high negligence or "unwarrantable 

failure". 

Inspector Banovic testified that on May 18, 1990, before 

entering the underground portion of the No. 10 Mine, he inspected 

the mine examiner's book and noted that coal dust was reported to 

exist at the cited transfer point in about 7 of the preceding 

shift reports. Once underground, Banovic found that excessive 

loose coal and coal dust existed at 5 locations. There were two 

piles under the 7th west belt line 15 feet long and about 30 

inches high and the coal was being rubbed by the belt rollers and 

the belt. There was another pile around the second north drive 

roller. He concluded that this coal had been packed for up to a 

week. Dust had been compressed around the 30 inch diameter 

roller. There were also two piles between the second north drive 

roller and the transfer point. According to Banovic these piles 

were "fresh" and looked as though they had been deposited within 

24 hours. 

Inspector Banovic concluded that coal dust in contact with 

the belt and rollers provided an ignition source from friction. 

He also noted that ventilating air proceeds inby to two working 

units and that any smoke from a fire would proceed over working 

miners possibly resulting in suffocation. The inspector noted 

that an electric motor runs the belt drive and could also provide 

an ignition source. He observed that some of the coal piles 

along the seventh west belt line were also not in an area covered 

by fire suppression devices. Under the circumstances Banovic 1 s 

expert opinion that the violation was "significant and 

substantial" is clearly supported by a preponderance of the 

evidence. Mathies Coal Co., supra. 

Banovic concluded that the violation was the result of high 

negligence since the cited area had been reported several times 

in the preshift book as having had loose coal. He noted that no 

one was then present to clean up these conditions and that it 

took five persons working four hours to clean up the cited coal. 

The inspector also concluded that the belt had recently been 

running because, in his presence, several foremen were asking on 

839 
the telephone why the belt was down. He felt that the violation 

was the result of "unwarrantable failure" not only because the 

condition had been recorded in the preshift examination book that 

morning and no ene was then working to correct the condition but 

that violations of the same standard had been repeatedly 

occurring at this mine. 

According to Supervisory Inspector Conner, he and other MSHA 

officials met with Peabody officials in March, June and November 

1989, to bring to management's attention, among other things, the 

frequent and repeated violations of the standard at issue herein. 

Conner observed that there had been no decrease in these 

violations even after these meetings. 

According to Mine Superintendent Raetz, in May 1990, at the 

time of the order herein, they employed 42 "belt shovellers" to 

clean up the belt lines. He acknowledged that the intersection 

at issue in this case was a dumping location and was frequently a 

problem area. While Raetz had no personnel knowledge concerning 

the violation herein he thought that the coal pile-ups ~ould have 

resulted from the failure of-the belts to coordinate after one 

belt went down from a roof fall. If that had occurred and the 

other belts continued to operate the coal spillage could, he 

speculated, have resulted. 

Finally, Raetz testified that it was his understanding that 

when safety hazards are reported in the preshift book the 

oncoming shift foreman has until the completion of his 8 hour 

shift to abate any reported hazards. Raetz noted that an 

individual had been assigned to correct the instant violation 

but that she was working in another area of the mine at the titne 

the violation was cited. It was Raetz' opinion that she would 

have arrived to clean up the cited violations by the end of her 

shift. is noted however that in order to abate the instant 

violation it required 5 miners working 4 hours. Accordingly 

Raetz 1 opinion that one person working part-time to clean up the 

cited violation in less than one shift is not credible. This 

evidence clearly supports a finding that under all the 

circumstances the operator knew or should have known of these 

loose coal and coal dust deposits and failed to abate the 

violative conditions because of lack of due diligence, 

indifference or lack of reasonable care. Under the facts of this 

case the negligence was particularly aggravated. 

Raetz also testified that following the meeting with MSHA 

officials he gave oral instructions to his supervisors to correct 

coal dust problems. Although Raetz indicated that Peabody 

maintains a computer record of disciplinary action, including in 

some cases reference to the specific regulatory standard which 

the disciplined employee failed to correct, he could not state 

whether any disciplinary action had in fact been taken for 

employees failing to correct any of the previous violations of 

840 
the standard at issue. Indeed the record shows that Peabody had 

been previously cited for violations of the standard at issue 

herein 17 times between October 30, 1989 and May 10, 1990. This 

evidence is relevant in showing a pattern of lack of due 

diligence, indifference or lack of reasonable care and supports 

the finding that the violation herein was the result of gross 

negligence and aggravated acts and/or ommissions constituting 

"unwarrantable failure". Youghiogheny and Ohio Coal Co., supra, 

Emery Mining, supra, and Quinland coals, Inc. supra. 

Considering all of the criteria under section 110(i) of the 

Act it is clear that the penalties proposed by the Secretary in 

this case are appropriate. 

ORDER 

Citation No. 3035886 is affirmed as a citation under section 

104(d) (1) of the Act. Order No. 3035889 is affirmed as an order 

under section 104(d) (1) of the Act. Peabody Coal Company is 

directed to pay civil penalties of $1,300 and $1,SOO respectively 

for the violations alleged in the above ci ..tation [' n. d order within 

30 days of the date of this decisf.' fi. ' I ,. /J 

/vi1 _,{iu[i~ Cf ry Me ick .ve\ ,_ ~ 

Distribution: 

Adminii, rative aw Judge 

Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 S. Dearborn Street, Chicago, IL 60604 

(Certified Mail) 

David So Hemenway, Esq" Thompson & Mitchell, One Mercantile 

Center Suite 3400; St" Louis, MO 63101 (Certified Mail) 

nb 

841 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 201991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On behalf of 

THOMAS PROUDFOOT, 

Complainant 

v. 

MOHIGAN MINING COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 91-126-D 

MSHA Case No. MORG CD 91-01 

Flaggy Meadow Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

The Complainant, Secretary of Labor, requests approval to 

withdraw its complaint in the captioned case with the consent of 

the represented individual, Thomas Proudfoot. Under the 

circumstances herein, permission to ti thd:paw is gra·n. ·,.·ted. 29 C.F.R. § 2700.11. This case is t ~re~"re dismis~ed. 

i ii 

/ / ·~ \'. /) I ---" ; L_ ,, I . 

~~rn~~~~~~~:e Law\ Li9' (,1\ ( 7 O 3 ) 7 5 6 -i6i2 61 , I 

; ~ I Distribution~ 

James V. Blair, Esq., Office of the Solicitor, U.S. Department of 

Labor, Ballston Towers #3, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

J. Douglas Crane, Esq., Mohigan Mining Company, Inc., 153 Walnut 

Street, Morgantown, WV 26505 (Certified Mail) 

Mr. Thomas Proudfoot, 204 Serpell Avenue, Belington, WV 26250 

(Certified Mail) 

/fb 

842 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th F'LOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 2 0 1991 

EAGLE NEST, INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

CONTEST PROCEEDING 

Docket N. WEVA 91-293-R 

Citation No. 3751114; 

3/20/91 

Eagle Nest Mine 

Mine ID 46-04789 

Appearances: David J. Hardy, Esq., Jackson & Kelly, Charleston, 

West Virginia, for Contestant; 

Pamela S. Silverman, Esq., Office of the 

Solicitor, U. s. Department of Labor, 

Arlington, Virginia, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

On April 9, 1991, the Operator, Eagle Nest, Incorporated 

(Contestant), filed a Notice of Contest alleging that Citation 

No. 3751114 issued to on March 20, 1991, is invalid and should 

be vacated. Contestant also filed on April 8, 1991, a Motion for 

Expedited Proceedings. In a telephone conference call initiated 

by the undersigned, with Counsel for both Parties on April 11, 

1991, the matter was set for hearing in Charleston, 

West Virginia, for April 16, 1991. At the hearing, Ronnie Joe 

Dooley, Franklin Miller, and James P. Addison testified for the 

Secretary (Respondent). Donnie G. Roberts and Steve ' 

Alexander, Jr., testified for Contestant. At the conclusion of 

the hearing, pursuant to the request of the Parties, they were 

granted until May 1, 1991, to file Proposed Findings of Fact and 

a Brief, and were granted until May 8, 1991, to file a reply. 

Pursuant to a request by Respondent, not opposed by Contestant, 

these dates were extended to May 6 and May 13, respectively. the 

parties each filed a post-hearing brief on May 6, 1991. Reply 

briefs were filed on May 15, 1991. 

843 
Findings of Fact and Discussion 

I. Introduction 

On March 20, 1991, while making· a spot inspection of the 

longwall, A panel, at Contestant's Eagle Nest Mine, Ronnie Joe 

Dooley, an MSHA Inspector, issued Citation No. 3751114 alleging 

as follows: "At least one entry of the longwall tailgate return 

entry could not be made safely in its entirety. Water had 

accumulated in depth exceeding 16 inches at survey spad No. 3777 

and various locations outby. This condition creates a hazard to 

those persons required to make weekly examinations" (sic). The 

Citation alleges a violation of 30 C.F.R. § 75.305. 

Section 75.305, supra, provides, as pertinent, that, "At least 

once a week," an examination of the return entry "in its 

entirety," shall be made. Section 75.305, supra, requires that 

the examinations shall be made for "hazardous conditions," 

including tests for methane, and for compliance with mandatory 

health or safety standards, and that the examiner shall place his 

initials and the date and tirm~ at the places examined, and, "if 

any hazardous condition is found, such condition shall be 

reported to the operator promptly." Section 75.305, supra, 

further provides that "Any hazardous condition shall be corrected 

immediately." 

In essence, it is Contestant's position that the Citation is 

invalid, in that it does not allege that a weekly examination was 

not made, or that hazardous conditions noted in the previous 

examination were not corrected. Contestant further argues, in 

essence, that an accumulation of water up to 34 inches does not, 

constitute a hazardous condition. For the reasons that follow, I 

not find merit in Contestant's arguments. 

Respondent is correct in its assertion, that, on its face, 

Citation in issue does not allege that a weekly examination 

was not performed or that hazardous conditions previously noted 

were not corrected. Neither did the testimony of Dooley set 

forth such allegations. Further, a record of weekly examinations 

at the subject mine contains the following note: "A-Panyl 

Return-Ch4 Neg-Water 4 feet deep at #23 Pump 3/14/91 ... 11 I 

(Government Exhibit 4). Hence, at the time the Citation was 

sued, March 20, 1991, there is evidence, which has not been 

impeached or contradicted by Respondent, that an examination had 

been made within the immediate preceding 7 day period, and this 

examination did report the existence of water 4 feet deep in the 

entry in question. However Section 75.305, supra, requires, in 

essence, that any "hazardous condition" that is found during a 

1; A signature appears after the date of 3/14/91, but the 

signature is not legible. 

844 
weekly examination, be reported to the Operator and "shall be 

corrected inunediately." Hence, it must be resolved whether, on 

March 20, 1991,_ the date of Dooley's inspection, there had been a 

report of hazardous conditions which had not been corrected 

inunediately. 

II. Hazardous Condition 

On March 14, 1991, an examiner reported water 4 feet deep at 

#23 pump. On March 19, 1991, Ronnie G. Roberts, Contestant's 

longwall coordinator, .examined the entire return entry in 

question. At the #23 pump he observed that there w~s an 

accumulation of water approximately 48 inches deep. I 

On March 20, 1991, when Dooley examined the entry in 

question, he walked down the entry outby from the face and 

indicated that he encountered water, and at ~pad 377 (crosscut 40). He said that when the water had reached the top of the 

16 inch boots he was wearing, he stopped and did not proceed 

further. He indicated that the water extended across the width 

of the entry, which he approximated as being 20 feet, and 

extended outby as far-as he could.see. 

Essentially, it is Contestant's position that the 

accumulations of water did not constitute such a hazard as to bar 

an examiner from performing an examination of the entire entry. 

In essence, Roberts opined that water at a level of 16 inches is 

not a hazard, as one could walk around it while staying within 

the walkway, wearing hip boots provided by Contestant. He 

indicated that the water could be traversed safely by walking 

slowly and carefully by keeping one foot placed in a firm 

position and using the other to feel for underwater hazards. 

Roberts indicated that those miners required to perform 

examinations in the area could be ~rained in this fashion. 

In essence, Roberts 1 testimony in this regard was 

corroborated by Steve Alexander, Jr., the superintendent of the 

mine in question. Also, Roberts and Alexander indicated, in 

essence, that hazards encountered on the floor of the entry 

underwater, such as rocks, mud, and slippery surfaces would 

similarly exist in absence of water. In this connection, 

Alexander stated that there have been more accidents due to falls 

in dry areas than in areas with water. 

According to Dooley, the accumulations of water that he 

observed on March 20, 1991, were murky, and the bottom could not 

been seen. Accordingly, he opined that one walking in the area 

would be exposed to slipping hazards occasioned by mud on the 

2; Roberts testified that he is authorized to make 

examinations pursuant to Section 75.305, supra. 

845 
bottom of the mine floor, as well as submerged rocks, and 

abandoned pieces of wood from cribs and pallets. In essence, he 

opined that if a person wearing 16 inch boots would enter water 

at a lever higher than that, the water would enter his boots 

making them heavier and, in essence, decreasing his agility if he 

were to slip and lose his balance. He indicated that this 

problem would be exacerbated by wearing hip boots and 

encountering water at a lever higher than the boots, allowing 

water to enter and fill the boots. 

Dooley opined that one slipping and falling could suffer 

injuries such as a broken limb. He further indicated that a 

fatality could occur by drowning, if a person in falling would 

hit his head and lose consciousness. Also, according to Dooley, 

a fatality by drowning could also result if an examiner loses his 

balance while walking in the water and is unable to arise from 

the water due to the weight of the water in his boots. 

I thus find, based on the testimony of Dooley, that the 

accumulation of water herein did present a hazard to those miners 

who would have to traverse it to make an examination. I find 

that at best the testimony, of Roberts and Alexander, indicates 

that steps may be taken to minimize the degree of exposure to the 

hazards. However, their testimony does not negate the fact that 

the accumulation of water herein did constitute a hazardous 

condition. 

III. Innnediate Correction 

According to Roberts, Contestant had, prior to the opening 

of the longwall panel in question, anticipated problems with 

water accumulation and attempted to alleviate these problems by a 

number of methods. Test were taken which indicated that the 

water in the areas in question came from the surface, and 

attempts were made to divert surface streams from leaking into 

these areaso Also, surveys were made to establish the low points 

along floor of the entry in question. Electrical pumps were 

then installed in these locations to pump water out of the entry 

through a 10 inch pipe, which had replaced a 6 inch pipe, to 

make the removal of water more efficient. However, in spite of 

these efforts? the conclusion is inescapable that the 

accumulations of water reported by the examiner on March 14, 

1991, had not been corrected immediately, as accumulations were 

observed again on March 19, 1991, by Roberts, and again noted, on 

March 20, 1991, by Dooley and Franklin Miller, who accompanied 

him. 

Accordingly 1 inasmuch as the hazardous condition of water 

accumulation had not been immediately corrected by March 20, 

1991, the Contestant herein did violate Section 75.305 as 

alleged. 

846 
In light of this finding, I deny Contestant's request for a 

declaratory rulling that it is not a hazardous condition for its 

examiners to travel through water accumulations of 24 inches or 

less when they are wearing hip boots and proceeding at a careful 

leisurely pace. 

IV. SIGNIFICANT AND SUBSTANTIAL 

In order to establish that the violation herein is 

significant and substantial, the Secretary must establish a 

violation of a mandatory standard, a discrete safety hazard 

contributed to by the violation, a reasonable likelihood that the 

hazard contributed to will result in an injury, and that a 

reasonable likelihood exists that the resulting injury will be of 

a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 

(1984).-

As set forth infra, the evidence establishes a violation of 

a mandatory standard, as well as a safety hazard of slipping or 

falling contributed to by, the violation. The key issue is 

whether they was a reasonable· likelihood that the hazard of 

slipping or falling will result in an injury. As explained by 

the Commission in Consolidation Coal Co., 6 FMSHRC 189, at 193 

(1984), proof as this issue "embraces a showing of a reasonable 

likelihood that the hazard will occur because of course, there 

can be no injury of it does not". 

Although a stumbling or falling hazard certainly is present, 

due to the depth and musky nature of the water accumulation, the 

hazard can be mitigated by walking cautiously to feel for 

submerged objects so they may be avoided. 

I conclude that accordingly, it has not been established 

that there was a reasonable likelihood that the hazard of falling 

or slipping would occuro Hence the violation is nor "significant 

and substantial 1v 0 

ORDER 

It is ORDERED that the Notice of Contest be DISMISSED. 

It is further ORDERED that Citation Noo 3751114 be amended to 

lect the fact that the violtion cited therein is not 

significant and substantial. 

gwbr 

Administrative Law Judge 

847 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 24, 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 90-305 

A. C. No. 46-01867-03859 

v. Blacksville No. 1 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Appearances: Wanda M. John~9n, Esq., Office of the Solicitor, 

U. s. -Department.of Labor, Arlington Virginia, 

for Petitioner; 

Before: 

Walter J. Scheller, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for Respondent. 

Judge Merlin 

This case is a petition for the assessment of civil penalties filed by the Secretary of Labor against Consolidation Coal 

Company under section 110 of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 820. 

Citation No. 3314686 

This citation was settled by the parties prior to the 

hearing. A settlement motion was submitted by the Solicitor 

requesting that the citation be modified to delete the significant and substantial designation and asking that the operator be 

ordered to pay a civil penalty of $200. The settlement motion 

was approved on the record at the hearing (Tr. 4}. 

citation No. 3314689 

This citation alleges a violation of 30 C.F.R. § 75.JOJ(a). 

A hearing was held on March 27, 1991. Post hearing proceedings 

were delayed because of many errors made by the court reporter in 

preparation of the administrative transcript, necessitating 

retranscription. This has now been done and the parties have 

filed post-hearing briefs. 

30 C.F.R. § 75.303(a), which restates section 303{d) (1) of 

the Act, 30 u.s.c. § 863{d) (1), provides in pertinent part: 

(a) Within 3 hours immediately preceding the beginning of any shift, and before 

848 
any miner in such shift enters the active 

workings of a coal mine, certified persons 

designated by the operator of the mine shall 

examine such workings and any other underground area of the mine designated by the 

Secretary or his authorized representative. 

Each such examiner shall 

* * * 

examine for such other hazards and violations 

of the mandatory health or safety standards, 

as an authorized representative of the Secretary may from time to time require. 

* * * * 

Citation No. 3314689, dated July 13, 1990 and challenged 

herein, charges a violation for the following alleged condition 

or practice: 

An adequate preshift examination was not 

performed for the 8am - 4 p.m. shift of 

07/13/90 from the 4 South loaded track to the 

4 South Clear haul on the 4 South supply 

track. Condition of trolley wire installation and adequate roof support were easily 

observed by this inspector. No mention had 

been reported by the examiner. Citations 

of 75.516, No. 3314687, and 75.202(a) 

No. 3314688 were cited. A reexamination is 

required of the area. 

The inspector marked the citation as significant and substantial (hereafter referred to as 11 S&S") and found negligence 

was moderate. 

As appears hereinafter, Citation Nos. 3314687 and 3314688 

also are relevant. Citation No. 3314687 charged an S&S violation 

30 C.F.R. § 75.516 for the following condition~ 

The trolley wire 250 v, D.C. l~ Blocks 

outby 50+00 on the 4 South supply track was 

not installed on suitable insulators to prevent such from contacting combustible materials. As track mounted equipment would pass, 

the trolley poles would push the wire against 

a wooden heading. Graving (sic) of the board 

indicated repeated contact. such conditions 

may create fires and smoke inhalation to 

miners. 

849 
And citation No. 3314688 charged an S&S violation of 30 

C.F.R. § 75.202(a) for the following condition: 

The roof along the 4 south supply track, 

50 feet outby so+oo, was not adequately supported in a loose shale roof area. An area 

nearest the wire side of the entry contained 

a roof bolt which had become loosen (sic) due 

to shale deterioration. such left an area 

loose shale roof 7 1 8 11 wide by 6'3" in length. 

Nearly 6 11 of loose shale had fallen from 

around the bolt. Such conditions may cause 

fall of roof striking person in open jitneys 

presenting broken bones and cuts to head 

faces and arms. 

At the prehearing conference the parties agreed to the 

following stipulations (Tr. 3-4): 

(1) The operator is the owner and operator of the subject 

mine; 

(2) the operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977; 

(3) I have jurisdiction of this case; 

(4) the inspector who issued the subject citation was a 

duly authorized representative of the Secretary; 

(5) a true and corr.act copy of the subject citation was 

properly served upon the operator; 

(6) payment of any penalty will not affect the operator's 

to continue in business; 

(7) the operator demonstrated good faith abatement; 

(8) the operator has an average history of prior violations;: 

(9) the operator is large in size; 

(10) Citation Nos. 3314688 and 3314687 were not contested by 

the operator, have been paid, and are final with respect to all 

matters therein; 

(11) the Blacksville No. 1 mine had no fatal injuries in 

1989 or in 1990. 

The inspector testified that when he travelled to the P-9 

area of the mine he observed black markings and indentations on a 

850 
board in the roof which showed that a trolley pole had been 

repeatedly striking the board (Tr. 14). As a result the inspector issued Citation No. 3314687, quoted above, which, as already 

set forth, was not contested and is final. (Stipulation No. 10). 

Accordingly, the condition described therein and the finding that 

it was S&S are accepted for present purposes. The inspector 

stated the condition was obvious because the indentations with 

black graphite marks from the trolley wire were easy to see (Tr. 

14, 46). In his opinion the condition had not happened overnight, but had come about over a matter of days (Tr. 15-16, 38). 

Upon questioning, the operator's preshift examiner expressed the 

opinion that the condition occurred between the preshift and the 

inspection, but his explanation was confusing because it appeared 

to mix up the two underlying citations (Tr. 90-91). The operator's mine safety supervisor said anything was possible but 

admitted that he did not know when the violation occurred (Tr. 

104-105). In light of the foregoing, I accept the inspector's 

testimony that the trolley wire condition had existed' for a 

matter of days. 

The preshift examiner further testified that he would have 

had to have been directly underneath the board in order to have 

seen the indentations made by the trolley wire. He relied upon 

the fact that on the preshift examination he travelled in an 

outby direction, whereas the inspector travelled inby (Tr. 78, 

88-89). The mine safety supervisor testified to the same effect 

(Tr. 98-101). However, I find more persuasive the inspector's 

testimony that he could see the black marks made by the trolley 

wire when he looked backwards (outby) from an inby position (Tr. 

60-61). Accordingly, I find the trolley wire condition was 

readily observable and should have been seen. 

With respect to the roof condition cited in Citation 

Noo 3314688f the inspector testified that roof deterioration had 

occurred gradually over a number of days (Tro 24)o Here too, the 

operator"s preshift examiner averred that the condition could 

have happened between the time of the examination and the inspection. The mine safety supervisor also said it was possible 

(Tr. 91, 103-104). I find the inspector's judgement more convincing with respect to the length of time the roof condition 

existedo I also accept the inspectoris testimony that the roof 

condition was easily observable because six inches of roof 

material had fallen to the floor (Tr. 22)o 

It is not disputed that the trolley wire and roof condition 

were not reported by the preshift examiner (Operator 1 s Exhibit 

Noo 5; Tr" 68-69). In Quinland Coals Inc., 9 FMSHRC 1614, 1619 

(1987), the Commission held that 30 C.F.R. § 75·.303 required a 

preshift examiner to report hazardous conditions and violations 

of the mandatory safety standards such as an inadequately supported roof and that in failing to report such conditions, the 

preshift examiner violated the standard. In accordance with the 

851 
decision in Quinland, I find a violation of 30 C.F.R. § 75.303 

existed in this case. 

The next issue is whether the violation was S&S as that term 

has been defined by Commission in Mathies Coal Co., 6 FMSHRC 1 

(January 1984). As already noted, the findings that the trolley 

wire violation presented a significant and substantial risk of 

fire and that the roof violation presented a significant and 

substantial risk of a fall are final for purposes of this case. 

I conclude that the failure to report these violations also 

presented a reasonable likelihood of serious injury. In this 

connection, I find particularly relevant the inspector's testimony that the conditions which were not reported, occurred on the 

main artery where people and 90% of all vehicles normally travel 

(Tr.34). The purpose of the preshift examination is to detect 

hazardous conditions so that corrective measures can be taken and 

thereby eliminate the exposure of miners to dangerous conditions. 

Indeed, the administrative law judge in Quinland whose findings 

were upheld by the Commission, specifically found that the 

failure of the pre-shift examiner to report hazardous conditions could have significantly and substantially contributed to a 

serious mine acciden~a FMSHRC 1175, 1180 (August 1986). In 

light of the foregoing, I conclude the violation was significant 

and substantial. 

I further find the operator was negligent. As set forth 

above, the unreported conditions were readily observable and had 

existed for some period of time. As the inspector stated, the 

preshift examiner should have been on the lookout for bad roof 

conditions because this mine had thirty-three unintentional roof 

falls in only the last 4 or 5 years (Tr. 24-25). The remaining 

criteria with respect to the amount of civil penalty to be 

assessed have been stipulated to by the parties. 

The parties are reminded that I am not bound by an MSHA assessed penalty but rather have de nova authority to assess a 

civil penalty herein. Sellersburg Stone Co., 5 FMSHRC 287 (March 

1983), aff'd. 736 F.2d 1147 (7th Cir. 1984); Consolidation coal 

Co., 10 FMSHRC 1935 (October 1989). I do not believe the MSHA 

assessed penalty is sufficient to serve as an effective deterrent. A penalty of $500 is assessed. 

The post-hearing briefs filed by the parties have been 

reviewed. To the extent that the briefs are inconsistent with 

this decision, they are rejected. 

ORDERS 

Citation No. 3314689 

It is ORDERED that the finding of a violation be AFFIRMED. 

852 
It is further ORDERED that the finding of significant and 

substantial be AFFIRMED. 

·rt is further ORDERED that a penalty of $500 be ASSESSED. 

citation No. 3314682 

It is ORDERED that the citation be MODIFIED to delete the 

significant and substantial designation. 

It is further ORDERED that the proposed settlement of $200 

be APPROVED. 

ORDER TO PAY 

It is ORDERED that the operator PAY $700 within 30 days of 

the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Wanda M. Johnson, Esq., Office of the Solicitor, U. s. Department 

of Labor, Suite 516, Ballston Towers #3, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Walter Jo Scheller, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Mro Steven Solomon, UMWA, Box 370, Cassville, WV 26527 (Certified Mail) 

Mr. Denzel Ammons, Consolidation Coal Company, P. o. Box 24, 

Wana, WV 26590 (Certified Mail) 

/gl 

853 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 24, 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 91-18 

A. C. No. 46-01453-03930 

Humphrey No. 7 Mine 

DECISION 

Appearances: Wanda M. John~_on, Esq., Office of the Solicitor, 

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

for Petitioner; 

Beforeg 

Walter J. Scheller, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for Respondent. 

Judge Merlin 

This case is a petition for the assessment of four civil 

penalties filed by the Secretary of Labor against Consolidation 

Coal Company under section 110 of the Federal Mine Safety and 

Health Act of 1977. 30 u.s.c. § 820. 

Prior to the hearing the Solicitor submitted a motion to 

approve settlements and other dispositions for three of the four 

citations. I have reviewed the motion and determine that it is 

in accord with the provisions of the Act. Accordingly, as 

requested in the motion Citation No" 3314152 modified to 

delete the significant and substantial designation and a penalty 

in the amount of $250 is assessed: Citation No. 3314153 is 

vacated for the reasons explained by the Solicitor: and a penalty 

of $370 assessed in the original amount for Citation 

No. 3314148. 

There remains for consideration Citation No. 3314143. A 

hearing was held on March 27, 1991. Post hearing proceedings 

were delayed because of many errors made by the court reporter in 

preparation of the administrative transcript, necessitating 

retranscription. This has now been done and the parties have 

filed post hearing briefs. 

Citation No. 3314143 charges a violation of 30 C.F.R. 

§ 75.517 for the following alleged condition: 

The power cable serving power to the 

loading machine operating on the 12 East 0490 

854 
section is not being adequately insulated. 

The outer jacket of the cable had been damaged and taped. However, the tape was worn 

exposing the insulated power leads. 

30 C.F.R. § 75.517 which is a restatement of section 305(1) 

of the Act, 30 u.s.c. § 865(1), provides as follows: 

Power wires and cables, except trolley 

wires, trolley feeder wires, and bare signal 

wires, shall be insulated adequately and 

fully protected. 

At the hearing the parties agreed to the following 

stipulations (Tr. 3-4): 

(1) The operator is the owner and operator of the subject 

mine; 

( 2) the operator and the .. mine are subject to the Federal 

Mine Safety and Health Act of 1977; 

(3) the Administrative Law Judge has jurisdiction in this 

matter; 

(4) the inspector was a duly authorized representative of 

the Secretary; a true and correct copy of the subject citation 

was properly served upon the operator; 

(5) payment of any penalty will not affect the operator's 

ability to continue in business; 

(6) the operator demonstrated good faith abatement~ 

(7) the operator has an average history of prior violations~ 

(8) the operator is large in size; 

(9) the Humphrey No. 7 Mine had no fatalities in 1989, 

1990, or to date. 

The MSHA inspector testified that he noticed a damaged place 

6 to 7 inches long in the middle of the cable to a loading 

machine (Tr. 8, 12, 13, 29). That area of the cable had been 

previously damaged and retaped (Tr. 13). He said that when he 

picked up the cable he noticed some slight color but not much 

from an inner power lead of the cable (Tr. 8). He first stated 

he "believed" the color was green and when called on rebuttal 

said he "assumed" it was green (Tr. 10, 110). Seeing the color 

meant to him that the outer insulation was inadequate (Tr. 9). 

855 
The inspector testified that after he saw the color he bent the 

cable five or six times (Tr. 14). Originally, he asserted that 

he used minimal pressure because not much pressure was necessary 

on a taped area, but on rebuttal he could not remember how far he 

bent the cable (Tr. 15-16, 111). 

The operator's inspector escort testified in contradiction 

to the MSHA inspector. According to the escort, the inspector 

picked up the cable and bent it further then normal bending until 

the cable was almost in a figure eight (Tr. 52, 53). The inspector bent the cable until his hands met and the cable was in a 

loop (Tr. 54). The escort stated that the inspector bent it in 

that manner five or six times while twisting it (Tr. 53). Only 

after he bent the cable did the inspector tell the escort, who 

was standing next to him, that there were exposed wires (Tr. 55, 

63). Both the operator's escort and the operator's foreman 

testified that the inspector bent the cable far more than it 

would have been bent under normal mining operations (Tr. 53, 62, 

67, 96). The escort testified that the taping was adequate 

before the inspector bent the cable and it was his view that the 

inspector himself exposed the i.nner leads by his excessive 

bending and twisting-(Tr. 59, 61). 

After listening to and observing the witnesses and reviewing 

the transcript, I find the evidence of the operator's witnesses 

more credible and I accept their version of what transpired. As 

noted above, the operator's escort stated that the inspector did 

not say anything about an exposed power wire until after the 

bending. The inspector could not remember if he told the escort 

the lead was exposed before bending the cable (Tr. 110, 111). It 

is clear to me that if the inspector had seen an exposed wire 

when he first picked the cable up, he would have told the escort 

who was by his side (Tr. 52, 63). I accept the evidence that the 

conductor in question was yellow not green as the inspector said 

and I particularly note that the inspector 9 s testimony on this 

po during rebuttal was tentative in manner and tone. The 

inspector admitted that he bent the cable while the machine was 

energized and admitted that this was dangerous as well as stupid 

(Tr. 20-21). I find it hard to believe that an experienced MSHA 

inspector would engage in life-threatening actions such as 

bending and twisting a live cable which had an exposed wire. 

Accordingly, the fact that the power was on casts further doubt 

upon the inspector 1 s testimony that he saw an exposed wire before 

he bent the cable. Based upon the foregoing, I find that the 

inspector did not see an exposed power wire before he bent the 

cable. 

I conclude, therefore, that when the inspector undertook to 

bend the cable the place was taped and that, as the escort 

testified, the tape was adequate. In this connection, I again 

note that the inspector first testified he used minimal force but 

on rebuttal said he did not remember how far he bent the cable. 

856 
The consistent testimony of the operator's escort and section 

foreman shows that the inspector bent the cable into a loop while 

twisting it thereby subjecting the cable to more stress than it 

would have undergone in normal mining operations. Also, the 

section foreman's testimony that bending the cable excessively 

causes the adhesive of a taped place to come loose is accepted 

(Tr. 90). Accordingly, I conclude that the inspector himself 

created the violative condition and that therefore the citation 

must be vacated. 

The post-hearing briefs filed by the parties have been 

reviewed. To the extent that the briefs are inconsistent with 

this decision, they are rejected. 

ORDERS 

It is ORDERED that Citations Nos. 3314143 and 3314153 be 

VACATED. 

It is further ORDERED that Citation No. 3314152 be MODIFIED 

to delete the significant and-substantial designation. 

It is further ORDERED that the proposed settlement of $620 

for Citation Nos. 3314152 and 3314148 be APPROVED. 

It is further ORDERED that the operator pay $620 within 30 

days of the date of this decision. 

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution~ 

Wanda M. Johnson, Esq., Office of the Solicitor, U. S. Department 

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

(Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

Mr. Barry Dangerfield, Consolidation Coal Company, P. o. Box 100, 

Osage, WV 26543 (Certified Mail) 

/gl 

857 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 281991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 90-248 

A.C. No. 36-08036-03507 

v. 

Signal Frackville Energy 

MOREA SERVICES, INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Carl J. Steinbrenner, Esq., Rosenn, Jenkins & 

Greenwald, Wilkes-Barre, Pennsylvania, for the 

Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Petitioner has filed a motion to 

approve a settlement agreement and to dismiss the case. A 

reduction in penalty from $15,000 to $12,000 proposed. I have 

considered the representations and documentation submitted in 

this case, as well as testimony at hearings, and I conclude that 

the proffered settlement is appropriate under the criteria set 

forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty of $12,0~0 within 

30 days of this order. f 

\ 

"! \ 

i 

Gci.ry Melick 

Administrative Law Judge 

858 
Distribution: 

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

earl J. Steinbrenner, Esq., Rosenn, Jenkins & Greenwald, 15 South 

Franklin Street, Wilkes-Barre, PA 18711 (Certified Mail) 

/fb 

859 
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 81991 

LOCAL UNION 2874, DISTRICT 5, 

UNITED MINE WORKERS OF 

AMERICA, 

Complainant 

v. 

BETHENERGY MINES, INC., 

Respondent 

COMPENSATION PROCEEDING 

Docket No. PENN 88-232-C 

Marianna Mine No. 58 

ORDER OF DISMISSAL 

Before: Judge Fauver 

Complainant's Motion to Dismiss is GRANTED, and this 

proceeding is DISMISSED. 

Distribution~ 

uJ~~+wv~ William Fauver 

Administrative Law Judge 

Mary Lu Jordan, Esq", Ms. Joyce Ao Hanula, Legal Assistant, UMWA, 

900 15th Street, NoW., Washington, DC 20005 (Certified) 

R. Henry Moore, Esquire, Buchanan Ingersoll Professional 

Corporation, 600 Grant Street, 57th Floor, Pittsburgh, PA 15219 

(Certified) 

fas 

860 
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 81991 

BRADLEY S. CRAIG, 

complainant 

v. 

ARCH OF ILLINOIS, INC., 

Respondent 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 91-38-D 

Captain Mine 

Appearances: Bradley s. Craig, prose, DuQuoin, Illinois, for 

Complainant; 

David S. Hemenway, Esq., Thompson & Mitchell, 

St. Louis, Missouri, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainant Craig contends that he was constructively 

discharged from his job as a utility machine fill-in (UMFI) 

worker by Respondent Arch, because of activity protected under 

the Mine Act. Respondent contends that Craig voluntarily 

terminated his employment and that his termination was unrelated 

to any protected activityo Both parties engaged in pretrial 

discovery. Pursuant to notice, the case was called for hearing 

Sto Louis, Missouri, on March 26, 1991. Bradley Craig 

testified on his own behalf and Brenda Craig and Bobby Gene Craig 

testified on his behalf. At the conclusion of Complainant's 

case, Respondent made a motion to dismiss which I denied on the 

record. Respondent called Gregory Bigham, Benny R. McElvain, 

Allan Schulz, and Hubert Place as witnesses. Both parties have 

filed Post Hearing Briefs. I have considered the entire record 

and the contentions of the parties, and make the following 

decision. · 

FINDINGS OF FACT 

I 

At all times pertinent to this proceeding, Respondent Arch 

of Illinois (Arch) was the owner and operator of the Captain 

Mine, a surface mine located in the State of Illinois. 

Complainant was employed by Arch from July 1976 to October 18, 

1990 as a miner. The Captain Mine produces approximately 

6 million tons of coal a year from two pits. The pit in which 

861 
Craig worked was.about 5600 feet long, with a highwall of between 

20 and 40 feet. The coal bench is about 90 feet wide and the 

dragline bench from about 110 feet to 140 feet wide below the 

first coal seam. 

Craig was hired in July 1976 as a drill helper. He received 

orientation and on the job training. He continued as a drill 

helper until November 12, 1976, when he became a driller. He 

continued as a driller until June 2, 1979, when he bid for a job 

on railroad maintenance·. He remained on that job until April 

1980. From April 3, 1980 to November 17, 1982, he worked as a 

belt wagon operator. From November 17, 1982 to August 22, 1987, 

he went back on railroad maintenance. Thereafter he was a belt 

repairman until January 12, 1988. He then returned to railroad 

maintenance work until April 18, 1988, when the job was 

eliminated. He then became an UMFI worker until October 18, 

1990. 

II 

An UMFI employee may be_.assigned to different jobs on 

different days - wher~ver they are needed. One of the jobs an 

UMFI may be required to perform is that of a pumper. A pumper is 

required to set and take out pumps and to monitor the pumps which 

are set. He hooks the hoses and the electric cable to the pump 

which is set in the area where the water is to be pumped out. 

The job requires physical exertion, but very little skill. On 

January 12, 1989, Arch sent a memorandum to all classified 

employees setting forth the criteria for job testing. The job of 

pumper lists the experience required as "experience in pumping." 

(R. Ex. 4). on March 20, 1989, it sent out another memorandum 

entitled "Changes in Experience Requirement." It listed the 

different jobs at the Captain Mine including the job of pumper 

which states requires 1 month pumping experience. 

Comp. Ex n 3) o 

Craig had been assigned to the pumper job between 6 and 

12 times beginning in August 19890 On August 21, 1989, he was 

assigned to a pumper's job and received new task training as a 

pumper from Pit Foreman Allan F. Schulz. Craig signed MSHA 

f icate of Training form that he had completed the new task 

training. (R. Exo 3). Thereafter he was assigned to pumper 

duties on September 13, 1989, February 27, 1990; May 17, 1990; 

August 24 and 25 7 1990, October 16, 17, and 18, 1990. (R. Ex. 5). 

Before October 1990, he never set up a pump completely by 

himself, nor did he ever take one out. He did however work with 

others in setting up and taking out pumps. He was never 

classified as a pumper. 

on October 16, 1990, he was assigned as a pumper and was 

task-trained for the job by Pit Foreman Benny McElvain. McElvain 

testified that it was his practice to task-train any employee 

862 
assigned to a new job if he is unsure of the employee's 

experience. He showed him how to hook the hose to the pump 

truck, and to attach the hoses and cable to the pump. He 

completed a certificate of training on an MSHA Form, which Craig 

signed attesting that he had completed the training. (R. Ex. 2). 

III 

on October 17, 1990, Craig and another UMFI employee, Olan 

Thompson, were assigned to pumping duties in the 2750 pit of the 

captain Mine. Allan Schulz was the foreman. It was raining 

heavily, and Craig and Thompson were directed to set a pump. 

Craig testified the Thompson actually set the pump, hooked it up 

and started it. Craig helped drag the hoses and lines. He also 

testified that he had to go under the swing of the dragline to 

get to the pump, but he "didn't squawk safety that night, I just 

wanted to get the job done, get the hell out of there, and get up 

to the top and get on some clean clothes because I was drenched 

to the bone." (R. 20). Setting the pump took from 30 minutes to 

an hour. 

When Craig arrived at the mine on October 18, he was told by 

Pit Foreman Benny McElvain that he was to be the pumper on his 

shift. Craig testified that two pumps were set in the sump and 

McElvain told his to hook the hoses and electric cables to them. 

He also testified that the pumps were down a "real steep 

bank .•• and one of them was setting at a real awkward angle. 11 

(R. 33). Before Craig and McElvain left for the worksite, Craig 

told McElvain that he "could be hurt down here," (R. 145), 

referring to the pumper's job. 

McElvain testified and I find as a fact that the hoses were 

already attached to the pump, but had been taken apart at the 11 parting11 in order to load out the coal. Craig 1 s assigned task 

was to splice the ends of the hoses together and plug the cable 

into the pumps" Craig told McElvain that he was not qualified to 

be the pumper and asked for another job. McElvain told him that 

he didn't have anyone else to do the job and that Craig would 

have to do it. Craig asked for help and McElvain sent Joe 

Summers, a heavy equipment operator who helped him drag the cable 

and to where they were to be hooked up, but Summers did not 

of to help Craig hook up the cable and hoses. Craig again 

asked McElvain for a different job and McElvain again refused. 

There no evidence that Craig made specific safety complaints 

to McElvain at that time. He merely reiterated that he disliked 

and did not have the skill to perform the pumper 1 s.job. 

After further discussion, McElvain took Craig in his truck 

to the Shift Superintendent Steve Bigham. Craig told Bigham that 

he didn't like to pump and asked for another job. Bigham told 

him that he was the only person available and capable of pumping 

at the time and that he would have to perform the duties of a 

863 
pumper. Craig also told Bigham that the pumping job was not 

safe. After further discussion, Bigham asked Craig if he wanted 

a union representative or safety committeeman to come to the 

area. Craig, who testified that he was under great mental stress 

at the time, rejected the offer because he "just wanted out of 

there." (R. 44). Bigham then gave Craig a direct order to 

perform the job of pumper or be suspended with intent to 

discharge. When Craig again raised a safety issue, Bigham again 

asked if he wanted a safety committeeman or pit committeeman. 

Craig again said no. Craig than said he wanted to sign a quit 

slip. McElvain took him to the office where he signed a 

separation form in which he checked the type of separation as 

elective layoff. (R. Ex. 1). The fact that Craig signed a 

voluntary separation from does not establish that he was not the 

recipient of adverse action: in fact he was terminated for 

refusing to perform certain work, and whether the termination 

took the form of a quit slip or suspension with intent to 

discharge is irrelevant under the Mine Act. Before signing the 

separation form, Craig asked for an union representation. Bigham 

refused because he "saw no need after twice before refusing a 

safety committeeman and a pit committeeman to have any other 

representation there.""'' (R. 124). Craig testified that he 

assumed when he signed the separation form as an elective layoff, 

he would be entitled to unemployment benefits and continuation of 

medical insurance for 1 year. 

The weight of the evidence establishes and I find as a fact 

that Craig's work refusal was based on his dislike for the 

pumper's duties, and his belief that he was unable to perform 

them. His reference to alleged unsafe aspects of the job was not 

a significant factor in his refusal to perform the duties 

assigned him. 

Following his separation, Craig was very distraught and 

depressedo He was seen at the Perry County Counseling Center 

because of 10 his emotional reaction to losing his job. 11 He 

exhibited symptoms of depression. (Comp. Ex. 1) . He consulted 

the Union President after his separation, but was told that since 

he signed the quit slip, there was nothing the union could do. 

IV 

Beginning in January 1988, Complainant Craig was enrolled in 

a program at the Logan College/Wabash Valley College in 

Carterville, Illinois, for an associate degree in coal mine 

technologyo Arch paid his tuition. By October 1990, Craig had 

completed 61 hours of a required 70 hours. He was given credit 

by the college for his annual retraining at the mine. 

864 
Complainant has not worked since his separation from Arch. 

He attempted to find employment and filed applications with a 

large number of prospective employers between October 23, 1990 

and January 16, 1991. 

ISSUES 

1. Whether Complainant was constructively discharged or 

otherwise discriminated against because of activity protected 

under the Mine Act? 

2. If so, to what remedies is he entitled? 

CONCLUSIONS OF LAW 

I 

Respondent Arch is subject to the provisions of the Mine Act 

in the operation of the captain Mine. Complainant Craig was 

employed by Arch as a miner, and is protected under 

Section lOS(c) of the Act. I-have jurisdiction over the parties 

and subject matter of~this proceeding. 

II 

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 Fasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company 1 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation 1 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981), 

rev 1 d on other grounds sub nom. Donovan v. Phelps Dodge Corp., 

709 F.2d 86 (D.C. Cir. 1983). The operator may rebut the prima 

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 was also motivated by the miner's unprotected activities 

alone. The operator bears the burden of proof with regard to the 

affirmative defense. v. Magma Copper Company, 4 FMSHRC 1935 

(1982). The ultimate burden of persuasion does not shift from 

the complainant. Robinette, supra. See also NLRB v. 

Transportation Management Corporation, 462 U.S. 393, 76 L.Ed.2d 

667 (1983), where the Supreme Court approved the NLRB's virtually 

865 
identical analysis for discrimination cases arising under the 

National Labor Relations Act. Refusal to perform hazardous work 

can be protected activity under the Mine Act. 

Generally, refusal to work cases turn on the miner's belief 

that a hazard exists, so long as that belief is held in good 

faith and is a reasonable one. Secretary ex rel. Bush v. Union 

Carbide Corp., 5 FMSHRC 993 (1983); Miller v. FMSHRC, 687 F.2d 

1984 (7th Cir. 1982). 

In analyzing whether a miner's belief is reasonable, the 

hazardous condition must be viewed from the miner's perspective 

at the time of the work refusal, and the miner need not 

objectively prove that an actual hazard existed. Secretary ex 

rel. Bush v. Union Carbide Corp., 5 FMSHRC 993 (1983); Secretary 

ex rel. Pratt v. River Hurricane Coal Co. 5 FMSHRC 1529, (1983); 

Haro v. Magma Copper Co., 4 FMSHRC 1935 (1982); Robinette, supra. 

The Commission has also explained that "[g]ood faith belief 

simply means honest belief that a hazard exists." Robinette, 

supra, at 810. 

III 

Although the Commission has declined to articulate a 

standard as to how severe a hazard must be to trigger a miner's 

right to refuse to work, see Secretary/Pratt v. River Hurricane 

Coal Co., 5 FMSHRC 1529 (1983)), it is clear that the refusal to 

work must involve a hazard beyond the hazards inherent in the 

mining industry or the job itself. Simmons v. socco, 4 FMSHRC 

1584 (1982); Runyon v. Big Hill Coal Co., 8 FMSHRC 1441 (1986). 

IV 

The evidence in the present case establishes that 

complainant refused to perform the work of a pumper. He was told 

that if he continued to refuse to perform the work, he would be 

discharged. Rather than accept a discharge which he believed 

would "mess up" his "good record over the past fourteen years," 

he signed the "quit slip." (R. 46-47). A miner who resigns 

because of intolerable conditions may be found to have been 

constructively discharged. Simpson v. FMSHRC, 842 Fo2d 453 

(D.Co Cir" 1988). If the operator maintains conditions so 

intolerable that a reasonable miner would feel compelled to 

resign, he is constructively discharged. 

What were the conditions at the Captain Mine which 

precipitated Craig's resignation? First and foremost, Craig 

disliked the job of pumper and felt that he was not capable of 

performing its duties. Secondly and more by way of a postdischarge rationale, he complained of a steep slope going down to 

the pumps, rocky, wet ground, and the dangers of a fall of ground 

from the highwall. These conditions are not hazards beyond those 

866 
inherent in the job itself. Complainant's distaste for the 

duties of the pumper, and his lack of skill and ability to 

perform the job are not intolerable safety hazards, or in fact 

hazards at all. I find, based on the testimony of McElvain and 

Bigham that the highwall did not pose a hazard to the pumper, nor 

did the slope to the pumps. From Craig's point of view, these 

conditions were not such as to cause a reasonable belief that 

they were safety hazards. I conclude that Craig's work refusal 

was not based on a reasonable good faith belief that the work he 

as asked to perform was hazardous, but rather on his long-held 

dislike for the pumper job, and his belief that he was unable to 

perform the duties of the job. His safety rationale was not made 

in good faith. Therefore, I conclude that Craig has failed to 

establish that his termination was the result of activity 

protected under the Mine Act. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED that the complaint of discrimination is DISMISSED. 

1{1)jt iti :{ /~8v 7-,1cfA ~·t·,,(c~ James A. Broderick ~ Administrative Law Judge 

Distribution: 

Mr. Bradley s. Craig, 109 South Leonard Street, DuQuoin, IL 62832 

(Certified Mail) 

David So Hemenway, Esq., Patricia L. Cohen, Esq., Thompson & 

Mitchell 1 One Mercantile Centeru Suite 3400, St. Louis, MO 63101 

(Certified Mail) 

dcp 

867 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 291991 

THOMAS J. MCINTOSH, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 90-113-D 

MSHA Case No. BARB CD 90-06 

FLAGET FUELS, INC., 

Respondent No. 1 surface Mine 

Appearances: 

Before: 

DECISION 

Tony Oppegard,'"Esq., ··Appalachian Research & 

Defense Fund of Kentucky, Inc., Lexington, 

Kentucky, for the Complainant. 

Judge Koutras 

Statement of the Case 

This proceeding is before me to determine the relief due the 

complainant based upon my decision of May 3, 1991, finding that 

the respondent Flaget Fuels, Inc., discriminated against the 

complainant in violation of section 105(c) of the Federal Mine 

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

response to my order of May 3, 1991, the complainant has filed 

his petition for backpay and expenses, and a statement of 

attorney fees and litigation expenses incurred as a result of his 

discriminatory discharge by the respondent. The respondent, who 

failed to appear at the hearing to defend this action, filed no 

response to the complainant's pleadings for relief. 

Backpay 

The complainant is claiming backpay for the period of 

December 1 1 1989, through January 15, 1990, a period of 6 work 

weeks. Based on a wage rate of $8 per hour for regular time and 

$12 per hour for overtime, the complainant's weekly pay rate was 

$440 ($320 regular time and $120 overtime). Complainant asserts 

that for the six weeks backpay period, he would have earned 

$2 1 640 1 had he not been unlawfully discharged. 

In addition to backpay, the complainant claims mileage 

expenses of $87.97, in conjunction with his search for work 

during the backpay period, as well as for his meetings with his 

attorney and his attendance at the hearing in this matter. The 

complainant has filed a detailed log in support of this claim. 

868 
Citing Secretary of Labor on behalf of Bailey v. ArkansasCarbona Co. and Walker, 5 FMSHRC 2042, 2049 (1983), and Local 

Union 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988), 

aff'd sub nom, Clinchfield Coal Co.,·v. FMSHRC, 895 F.2d 773 

(D.C. Cir. 1990), the complaintant also seeks the payment of 

interest on the damages owed him by the respondent, and he 

requests an order requiring the respondent to pay interest 

pursuant to the computation formula established by the Commission 

in Arkansas-Carbona and Clinchfield Coal Co., supra. 

After due consideration of the complainant's petition for 

backpay and expenses, I conclude and find that it is reasonable 

and proper and the petition IS GRANTED. The complainant is due 

$2,727.97 ($2,640 + $87.97) (less interest) for backpay and 

expenses. 

Attorney Fees and Litigation Expenses 

Section 105(c) (3) of the Act provides in part as follows: 

Whenever an order is issued sustaining the 

complainantts charges under this subsection, 

a sum equal to the aggregate amount of all 

costs and expenses (including attorney's 

fees) as determined by the Commission to have 

been reasonably incurred by the miner, 

applicant for employment or representative of 

miners for, or in connection with, the 

institution and prosecution of such 

proceedings shall be assessed against the 

person committing such violation. 

The complainant has requested $7,740 in attorney fees, based 

on 51.6 hours of work claimed by counsel Oppegard at the rate of 

$150 per hour" The complainant also requests $317.34, for 

certain enumerated litigation expenses incurred by the 

Appalachian Research & Defense Fund of Kentucky in pursuit of his 

case. The total amount of claimed attorney fees and litigation 

expenses is $8,057.34. 

Included in the 51.6 hours of claimed work by counsel 

Oppegard is a claim of 20.1 hours for work performed during the 

period December 11, 1989, to February 16, 1990, prior to the 

complainant's filing of his complaint with the Commission on 

March 9, 1990. I conclude and find that the time spent by 

Mr. Oppegard during the time that the complaint was being pursued 

and investigated by MSHA, including interviews, phone calls, and 

contacts with MSHA's special investigator, was non-legal work 

unconnected with the trial of the case, or preparation for the 

trial of the case, and that an hourly rate less than $150 is 

appropriate in the circumstances. See: Johnson v. Georgia 

Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974), and my 

869 
decision of April 19, 1991, in Ricky Hays v. Leeco, Inc., Docket 

No. KENT 90-59-D. I Further conclude and find that $50 per hour 

is a reasonable billing rate for this work. Accordingly, I will 

allow $1,005 for this work (20.l hours x $50). 

I have reviewed the remaining claims for work performed by 

Mr. Oppegard from March 5, 1990, through May 9, 1991, and with 

the exception of 4.4 hours ($660) claimed for round trip travel 

from Lexington to Pikeville, Kentucky, I conclude that the 

charges are reasonable and they are allowed. In view of the 

allowable mileage, lodging, and meal expenses in connection with 

the relatively brief hearing held in this case, I conclude that 

counsel has been adequately compensated for these expenses and 

that an additional charge of $660 for counsel's travel time is 

unreasonable. Accordingly, it is disallowed. I will allow 

payment for the remaining 27.1 hours of work at an hourly rate of 

$150 ($4,065). 

I have further reviewed the claims for other litigation 

expenses incurred by counsel in the amount of $317.34, and I 

conclude and find th.at they 'are reasonable and proper, and they 

are allowed. 

ORDER 

IT IS ORDERED THAT: 

1. My decision in this case, issued on May 3, 

1991, is now final. 

2. The respondent shall reinstate the complainant 

to his former position with full backpay and 

benefits, with interest, at the same rate of pay, 

on the same shift, and with the same status and 

classification that he would now hold had he not 

been unlawfully discharged. 

The backpay due the complainant for the period of 

December 1, 1989, through January 15, 1990, is 

$2,640. Backpay interest will continue to accrue 

until this matter becomes final and the 

complainant is reinstated and paid. The interest 

accrued with respect to the backpay will be 

computed according to the Commission's decision in 

Local Union 2274, UMWA v. Clinchfield Coal Co., 

10 FMSHRC 1483 {1988), aff'd sub nom. 

Clinchfield Coal Co. v. FMSHRC 895 f .2D 773 (D.C. 

Cir., 1990), and calculated in accordance with the 

formula in Secretary/Bailey v. Arkansas Carbona, 

5 FMSHRC 2042 (1984). 

870 
3. The respondent shall expunge from the 

complainant's personnel records and/or any other 

company records any reference to his discharge of 

December 8, 1989. 

4. The respondent shall pay the complainant's 

expenses of $87.97, incurred during the backpay 

period. The respondent shall also pay the 

complainant's attorney fees and other litigation 

costs and expenses in the amount of $5,387.34. 

5. The respondent shall post a copy of my 

decision of May 3, 1991, and the instant decision, 

at its No. 1 Surface Mine in a conspicuous, 

unobstructed place where notices to employees are 

customarily posted for a period of 60 consecutive 

days from the date of this decision and order~ 

6. The respondent shall comply with the aforesaid 

enumerated Orders within thirty (30) days of the 

date of this decisi6n~ 

~1~~ Administrative Law Judge 

Distribution: 

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

Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508 

(Certified Mail) 

Flaget Fuelsr Inc.: 825 High Street, Hazard; KY 41701 

(Certified Mail) 

/ml 

871 
872 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

1J 1 S COAL CORPORATION, 

Respondent 

May 3, 1991 

. . • 

ORDER 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 90-356 

A. C. No. 15-16477-03526 

Docket No. KENT 90-399 

A. C. No. 15-16637-03528 

No. 3 Mine 

Docket No. KENT 90-358 

A. C. No. 15-16637-03504 

No. 4 Mine 

On April 8, 1991, Respondent filed a Motion asking "the 

Court" to "disqualify" me from hearing the above captioned cases 

on the ground that in not approving a Joint Motion to Approve 

Settlement, I had "determined" my "opinion" in "these matters." 

29 C.F.R. § 2700.81(b) provides that a Party may request a 

Judge to withdraw 12 ••• on grounds of personal bias disqual ication by filing promptly upon discovery of the alleged facts an 

affidavit setting forth in detail the matters alleged to 

constitute grounds for disqualification. 11 

Respondent has not filed any affidavit setting forth matters 

alleged to constitute grounds of disqualification. 

In an Order entered February 25, 1991, I set forth the 

pertinent history of these cases as follows: "On January 14, 

1991, Counsel for the Petitioner filed a Joint Motion to Approve 

Settlement (the Motion). In essence, neither the Motion nor the 

exhibits attached to it allege the existence of any facts or 

circumstances which contravene or dilute assertions set forth in 

the various citations at issue, and in the accompanying Narrative 

Findings for Special Assessment. Specifically the Motion does 

not allege any facts or circumstances with regard to the gravity 

of the alleged violations, and the Operator's negligence which 

contravene or dilute the assertions set forth in the Citations at 

issue. Indeed, the Joint Motion does not allege any facts or 

circumstances other than those set forth in the various 

Citations." 

873 
on January 18, 1991, in a conference call I initiated 

between counsel for both Parties, it was explained that, inasmuch 

as the Motion did not contain sufficient facts to support the 

proposed settlements it could not be approved. 

In my analysis of the Joint Motion to Approve Settlement, 

and in my Decision denying the Motion, and in my conversation 

with the Parties on January 18, 1991, concerning my inability to 

approve the Motion, I in no way reached any opinion as to the 

merits of the issues raised by the pleading as the record did not 

contain any evidence. I continue to have a totally open mind 

with regard to the issues raised by the pleadings, as there is no 

evidence before me. My mind shall remain open until a 

evidentiary hearing scheduled for June 18-20, 1991, is concluded 

and post hearing briefs are received. Only at this time shall I 

weigh the evidence and reach a decision on all matters at issue. 

The fact that I have denied a Motion to Approve Settlement on the 

grounds that it does not provided facts in support of the 

appropriateness of the proposed penalties, does not in any way 

preclude me from subsequently reaching an objective, impartial 

decision based solely on the--evidence to be presented at the 

evidentiary hearing.-

Accordingly, for all these reasons, Respondent's Motion is 

DENIED. 

~ !::::erger Administrative Law Judge 

(703) 756-6210 

FAX (703) 756-6201 

Wo F. Taylor, Esq., Office of the Solicitor, U. S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

Ivl:Z:". Carl E. McAfee, LJ's Coal Corporation, P.O. Box M, 

St" Charles, VA 24282 (Certified Mail) 

dcp 

874