MARCH 1993 

COMMISSION DECISIONS AND ORDERS 

03-03-93 

03-04-93 

03-22-93 

03-22-93 

03-25-93 

03-31-93 

Island Creek Coal Company 

Kerr-McGee Coal Corporation 

UMWA on behalf of Dan Nelson, et al. v. 

Secretary of Labor, MSHA, etc. 

Cyprus Tonopah Mining Corporation 

Peabody Coal Company 

Sherrell Steven Reid v Kiah Creek Mining 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-01-93 

03-03-93 

03-05-93 

03-08-93 

03-09-93 

03-09-93 

03-09-93 

03-09-93 

03-09-93 

03-09-93 

03-10-93 

03-10-93 

03-10-93 

03-10-93 

03-11-93 

03-16-93 

03-16-93 

03-16-93 

03-16-93 

03-17-93 

03-18-93 

03-17-93 

03-18-93 

03-19-93 

03-22-93 

03-24-93 

03-24-93 

03-26-93 

03-26-93 

03-26-93 

03-29-93 

03-29-93 

03-29-93 

03-29-93 

03-30-93 

03-31-93 

Consolidation Coal Company 

Williams Brothers Coal Co., Inc. 

Consolidation Coal Compal).y 

Fred Jones employed by Christian 

Energies, Inc. 

Peabody Coal Company 

Sec. Labor on behalf of Robert 

v. Black Mountain Coal Mining 

Consolidation Coal Company 

Consolidation Coal Company 

Consolidation Coal Company 

Consolidation Coal Company 

Sherrell Steven Reid v. Kiah Creek Mining 

Jim Walter Resources, Inc. 

Consolidation Coal Company 

Consolidation Coal Company 

United States Steel Mining Co. 

Perry Sisk 

Mountain Cement Company, etc. 

Noland Incorporated 

Calco Incorporated 

Bobby Gene Strouth v. Cavalier Mining 

Gatliff Coal Company 

Consolidation Coal Company 

Broken Hill Mining Co., Inc. 

Pyramid Mining, 

Chico Crushed Stone 

Monterey Coal Company 

Buck Mountain Coal Company 

Consolidation Coal Company 

consolidation Coal Company 

Gary L. Day v. Adena Fuels, Inc. 

Mountaintop Restoration, Inc. 

Martin Sales & Proces 

Consolidation Coal Company 

Maple Meadow Mining Company 

Nolichuckey Sand Company 

Peabody Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

02-3-11-93 Asarco Incorporated 

VA 91-47-R 

WEST 91-84-R 

SE 

WEST 

KENT 

KENT 

88-92-D 

90-202-M 

91-179-R 

92-237-D 

PENN 91-1302-R 

KENT 92-752 

WEVA 93-64 

KENT 92-415 

KENT 92-748 

KENT 92-867-D 

PENN 92-765 

WEVA 91-224-R 

WEVA 92-1011 

WEVA 92-1054 

KENT 92-237-D 

SE 92-249-R 

WEVA 92-657-R 

WEVA 92-935 

WEVA 92-783 

CENT 92-141 

WEST 91-109-M 

WEST 92-45-M 

WEST 92-139-M 

VA 91-34-D 

KENT 90-100 

WEVA 92-799 

KENT 92-610 

KENT 92-543 

CENT 92-136-Z.·'l 

LAKE 92-216-R 

PENN 93-221-R 

PENN 92-715 

PENN 92-814 

KENT 92-547-D 

KEENT 92-897 

WEVA 92-1008 

li'lEVA 92-1016 

WEVA 92-1025 

SE 92-361-RM 

KENT 92-651 

WEST 93-259-M 

Pg. 339 

Pg. 352 

Pg. 365 

Pg. 367 

Pg. 381 

Pg. 390 

Pg. 392 

Pg. 405 

Pg. 408 

Pg. 410 

Pg. 412 

Pg. 416 

Pg. 418 

Pg. 419 

Pg. 422 

Pg. 424 

Pg. 426 

Pg. 432 

Pg. 436 

Pg. 445 

Pg. 452 

Pg. 459 

Pg. 463 

Pg. 468 

Pg. 480 

Pg. 501 

Pg. 503 

Pg. 505 

Pg. 515 

519 

• 524 

• 529 

Pg. 539 

• 551 

. 553 

• 555 

• 556 

• 559 

Pg. 564 

Pg. 572 

Pg. 575 

Pg. 581 

Pg. 585 

MARCH 1993 

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

Martinka Coal Company v. Secretary of Labor, MSHA, Docket No. WEVA 93-45-R. 

(Judge Weisberger, January 19, 1993). 

Secretary of Labor, MSHA v. C.W. Mining Company, Docket No. WEST 92-210. (Judge 

Cetti, January 28, 1993) 

Secretary of Labor, MSHA v. Mid-Continent Resources, Inc., Docket Nos. 

WEST 91-168, etc. (Judge Morris, January 27, 1993) 

Secretary of Labor on behalf of Clayton Nantz v. Nally & Hamilton Enterprises, 

Inc., Docket No. KENT 92-259-D. (Judge Koutras, February 12, 1993) 

Sherrell Steven Reid v. Kiah Creek Mining Company, Docket No. KENT 92-237-D. 

(Judge Weisberger, March 10, 1993) 

There were no cases filed in whic~.review was denied. 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 3, 1993 

ISLAND CREEK COAL COMPANY 

v. 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA) 

Docket Nos. VA 91-47-R 

VA 91-48-R 

VA 91-49-R 

and 

UNITED MINE WORKERS OF AMERICA 

BEFORE: Holen, Chairman; Backle}i, Doyle and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This contest 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 issues 

are whether the presence of an explosive accumulation of methane behind 

stoppings along the bleeder entries of a gob1 in a longwall section presented 

an imminent and whether Island Creek Coal Company ("Island Creek") was 

complying with its VP-3 Mine ventilation plan in accordance with 30 C.F.R. 

§ 75.316. 2 This case arose when inspectors of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") issued two imminent orders 

and a citation to Island Creek after they measured the methane content of the 

air leaking from seals of three stoppings that separated the gob from the 

::. nGob,u in the context of this case, refers to the 11 Space left by the 

extraction of a coal seam .... " Bureau of Mines, U.S. Department of the Interior, 

Dictionary of Mining, Mineral, and Related Terms, at 497 (1968) (DMMRT). "Bleeder 

entries" are entries driven on a perimeter of block of coal mined 

and maintained as exhaust airways to remove methane promptly from the working 

faces to prevent buildup of high concentrations either at the face or in the main 

intake " DMMRT at 112. 

2 Section 75.316 provides in pertinent part: 

A ventilation system and methane and dust control 

and revisions thereof suitable to the conditions 

and the mining system of the coal mine and approved by 

the shall be adopted by the operator and set 

out in printed form. . . . Such plan shall be reviewed by 

the and the Secretary at least every 6 months. 

339 
bleeder entries and determined that an area within the gob contained an 

explosive accumulation of methane. Commission Administrative Law Judge George 

A. Koutras vacated both orders and the citation. Island Creek Coal Co., 13 

FMSHRC 592 (April 199l)(ALJ). For the reasons set forth below, we affirm the 

judge. 

I. 

Factual and Procedural Background 

The gob, known as the South Gob, is an inaccessible 1.75 square mile 

area resulting from the mining of ten longwall panels. Each panel is about 

5,600 feet long and, taken together, the 10 panels are about 8,000 feet wide. 

The gob is ventilated by air entering at the tailgate end of the longwall 

face, flowing through the gob, and exiting at three designated areas into 

bleeder and return entries. Air also exits through bore holes drilled from 

the surface and equipped with exhaust fans. This ventilation system is 

designed to dilute and render harmless any methane emitted in the gob. The 

VP-3 mine is a gassy mine that liberates more than one million cubic feet of 

methane per day. 

As mining has progressed, development entries have been established 

using a continuous mining machine in advance of each longwall panel. Each 

development entry consists of four individual entries, and serves as the 

headgate entry when the longwall equipment is moved into the panel and as the 

tailgate entry when the longwall is moved past the entry into the next panel. 

The development entries are consecutively numbered and, at the time the 

citation and orders were issued, the No. 12 development entry was the headgate 

and the No. 11 entry was at the tailgate. At the time they were built, each 

entry was connected to the bleeder entries at the back and was connected to 

the south main returns at the mouth. Island Creek had installed stoppings at 

the mouth of all of the development entries leading ·to the south returns 

except at t:he No. l and a·t t:he current headgate and ·tailgate entries 

(Nos. 12 and ll, respectively). MSHA has not challenged the placement of 

these stoppings. Island Creek also installed stoppings between the gob and 

the bleeder entries on the Nos. 5 through 10 development entries. 

On December 5, 1990, MSHA Inspector Arnold D. Carico conducted a 

ventilation inspection of t:he area around the South Gob. He did not detect 

any violations of safety and health standards in the headgate and tailgate 

entries of the longwall panel or in the bleeder entries for the gob. As he 

was inspecting the bleeder entries, he observed that stoppings were present in 

all four entries of the No. 10 development at the point where they connected 

with the bleeder entries. He tested for methane behind one of these stoppings 

by using his hand to locate air leaking through cracks in the stopping. He 

placed the tube of a hand-held methane detector into the cracks and took 

several readings of air escaping from the interior of the gob. He recorded 

the highest reading obtained, which was 6.2% methane. Inspector Carico then 

proceeded to the area where the four No. 9 development entries intersected 

with the bleeder entries. He performed the same type of test with his methane 

detector and found 8.3% methane in the air leaking from a crack in a stopping. 

Inspector Carico then traveled to the intersection of the four No. 8 

340 
development entries and the bleeder entries and measured 7.6% methane from a 

stopping crack. 

After taking the reading at the stopping in the No. 8 development 

entries, Carico inferred that tens of thousands of cubic feet of methane were 

present in the gob and that the gob was not being ventilated properly because 

these stoppings blocked the air flow into the bleeder entries. Carico 

believed that a roof fall could ignite the methane 3 and, thus, that an 

imminent danger existed. Accordingly, he issued an order under section 107(a) 

of the Mine Act, 30 U.S.C. § 817(a) ordering the withdrawal of all miners from 

the VP-3 Mine. 4 Inspector Carico also issued a citation under section 104(a) 

of the Mine Act, 30 U.S.C. § 814( , because he believed that the stoppings in 

the Nos. 8, 9, and 10 development entries violated the mine's ventilation plan 

adopted and approved pursuant to 30 C.F.R. § 75.316. 5 The inspector believed 

3 Methane presents an explosion hazard when found in concentrations between 

5% and 15%. Tr. Vol. I, 21; See also Wyoming Fuel Co., 13 FMSHRC 1210, 1213 n.3 

(August 1991). 

4 

5 

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

If, upon any inspection or investigation of a coal 

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

authorized representative of the Secretary finds that an 

imminent danger exists, such representative shall 

determine the extent of the area of such mine throughout 

which the danger exists, and issue an order requiring 

the operator of such mine to cause all persons, except 

those referred to in section [104(a)], 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 'Vihich caused such imminent danger no longer 

exist. 

The imminent danger order provided: 

Ivlethane concentrations ;;<Jere detected coming 

through permanent stoppings erected across the bleeder 

entry connectors between the gob and the South main 

bleeders at the following locations and in the following 

concentrations (as indicated by a Riken methane 

indicator): No. 2 Entry of No. 10 Development South 

[ 6. 2%] ; No. 4 Entry of No. 9 Development South 8. 3%; No. 

4 Entry of No. 8 Development South 7.6%; Citation No. 

3354743 is being issued with and as contributing factor 

to this order. 

The citation provided, in pertinent part: 

The Ventilation, Methane, and Dust Control Plan approved for 

341 
that these stoppings impeded the movement of methane from the gob into the 

bleeder entries. 

On the following day, December 6, MSHA Inspector Clardy Scammell used 

the same technique to take methane readings at the same stoppings and detected 

methane concentrations in the gob of 3.6% or less. He terminated the order of 

withdrawal because the measured methane levels were below the explosive range. 

On December 13, 1990, Inspector Scammell again checked the methane 

levels of air leaking from the stoppings in the Nos. 8, 9 and 10 development 

entries using the same technique that had been used on the previous two 

inspections. He found 6.2% methane at a crack in a No. 10 entry stopping, 

6.3% at a crack in a No. 9 entry stopping, and 5.75% at a crack in a No. 8 

entry stopping. Based on these readings, he issued an imminent danger order 

withdrawing all miners from the VP-3 Mine. The order was terminated on 

December 20, 1990. 

Island Creek filed notices of contest of the citation and orders and an 

expedited hearing was held before Ju~~e Koutras on December 19-20, 1990. The 

United Mine workers of America ("UMWA") intervened in the proceeding. In his 

decision, the judge stated that, based on the record, "one may reasonably 

conclude that the potential for a methane explosion is dependent on several 

essential ingredients; namely, fuel, oxygen and a ready ignition source." 13 

FMSHRC at 636. The judge questioned whether MSHA had established the 

existence of a substantial body of explosive methane in the gob. 13 FMSHRC at 

632. He noted that the inspectors had concluded that such a substantial 

quantity was present by testing for methane through small cracks in one of 

four stoppings at each of three of the eleven development entries adjacent to 

the bleeders. 13 FMSHRC at 628-29. The judge determined that "the presence 

of any explosive methane levels in the gob areas behind the stoppings ... , 

standing alone, did not present an imminently dangerous condition." 13 FMSHRC 

at 636. The judge also stated he had "difficulty understanding how one may 

reasonably conclude that there was a reasonable likelihood of a roof fall in 

the gob area which would have sparked an ignition." 13 FMSHRC at 635. 6 The 

this mine was not being complied with. Item 10 of the Plan requires 

that "Bleeder entries shall be connected to those areas from which 

pillars have been wholly or partially extracted at strategic 

locations in such a way as to control air flow through such gob 

areas, .... " Permanent stoppings were erected across all connectors 

between the gob and the South main bleeders at Nos. 8, 9, and 10 

Developments, and had been plastered to minimize leakage from the 

gob to the bleeders. Methane was detected ... leaking through these 

stoppings. . . . According to mine management the only locations where 

air is being intentionally regulated from the gob area are at No. 11 

Development (tailgate) connectors and No. 1 Development connectors 

to the main bleeders and main returns. 

6 MSHA asserted that, to a lesser degree, other ignition sources, such as 

an ignition at the working face, welding or cutting at the face or. in the 

bleeders, open flames or bolting in the face or bleeders, or the use of sparking 

342 
judge reviewed the Secretary's evidence concerning the history of roof falls 

at the mine, the presence of sparking minerals (quartzite) in the roof, the 

history of mine fires, and MSHA reports concerning prior ignitions at the 

mine. 13 FMSHRC at 630-35. The judge held that, although "the presence of 

explosive gas levels in a mine, under certain conditions, is dangerous, ... 

any determination as to whether an imminent danger existed must be made on the 

basis of the circumstances as they existed at the time the order is issued, or 

as they might have existed had normal mining operations continued." 13 FMSHRC 

at 637. 

The judge stated that he could not conclude that "Mr. Carico's reliance 

on the MSHA reports [concerning prior methane ignitions] provides any credible 

or probative evidentiary support for any conclusion that ready ignition 

sources capable of propagating an explosion of the methane in the gob ... were 

present when he issued the order, or were likely to be present if normal 

mining operations were to continue." 13 FMSHRC at 637. 7 He then stated: 

I recognize the fact that any judgment call by an inspector 

with respect to the existence of an imminent danger 

situation, when balanc~·cl against the safety of miners, must 

necessarily be made quickly and without delay. However, in 

any subsequent proceeding challenging the order, any 

imminently dangerous situation, which the inspector may have 

believed existed at the time he issued the order, must be 

proven. On the facts and evidence adduced in this case, I 

cannot conclude that MSHA has proven or established the 

existence of any ignition sources to support the inspector's 

imminent danger finding. I conclude and find that the 

inspector's speculative anticipation of a possible mine 

explosion, in the circumstances presented, falls short of 

the statutory requirement of reasonable expectation. 

The judge noted that there was no evidence that explosive concentrations 

of methane were entering the bleeders or the working areas of the mine. 13 

FMSHRC at 646. He also noted that neither the ventilation plan nor the 

Secretary's safety standards prohibit the existence of explosive 

concentrations of methane in the gob. The judge found that Island 

Creek's evidence, which he found credible and supported in part by Inspector 

Carico, established that the gob was being adequately ventilated because the 

tools in the face or bleeders, could propagate an explosion in the gob. The 

judge determined that the evidence in the record did not support a conclusion 

that any of these alleged ignition sources were present or would be present in 

the normal course of mining. 13 FMSHRC at 636. He also found that the 

inspectors' testimony concerning these alleged ignition sources was "less than 

credible and unsupported by any reasonably credible or probative evidence." Id. 

7 The judge analyzed each withdrawal order separately in his decision, but 

his conclusions were the same. 13 FMSHRC at 638-39. 

343 
"air flow through the cited development areas allowed for the mixing of the 

methane with the air coursing through those areas and . . . the methane which 

was mixing, or being diluted by the air, was coursing through the gob areas 

behind the stoppings in question ... into the mine bleeder system and out of 

the mine." Id. The judge concluded that MSHA failed to establish that Island 

Creek violated its ventilation plan and he vacated the citation alleging a 

violation of 30 C.F.R. § 316. 

The Secretary filed a Petition for Discretionary Review of that part of 

the judge's decision vacating the imminent danger orders and the UMWA filed a 

Petition for Discretionary Review of the judge's vacation of the citation and 

the withdrawal orders. The Commission granted both petitions. 

II. 

Disposition of the Issues 

Section 303(z)(2) of the Mine Act, 30 U.S.C. § 863(z)(2), requires that 

all abandoned areas of underground coal mines and areas from which pillars 

have been extracted must be ventilat~dby bleeder entries or be sealed off 

from the rest of the mine. This provision further states that "ventilation 

shall be maintained so as continuously to dilute, render harmless, and carry 

away methane and other explosive gases within such areas and to protect the 

active workings of the mine from the hazards of such methane and other 

explosive gases." This section also provides that "[a]ir coursed through 

underground areas from which pillars have been ... extracted which enters 

another split of air shall not contain more than 2.0 volume per centum of 

methane, when tested at the point it enters such other split." 

Island Creek contends that it fully complied with the Mine Act and the 

Secretary's safety standards because, pursuant to its ventilation plan, it 

provided sufficient ventilation in the gob to carry the methane away from the 

working areas of the mine through the bleeder entries. It maintains that the 

presence of methane in the bleeder entries at a level of less than 2% 

demonstrates that its ventilation controls were working and that no imminently 

dangerous conditions existed. Island Creek argues that explosive mixtures of 

methane are to be expected in the gob from time to time because the coal seam 

liberates large quantities of methane, but that the presence of methane in the 

gob does not, by itself, violate MSHA's safety standards or create an imminent 

danger. It maintains that the Secretary failed to prove the presence of an 

ignition source that could reasonably be expected to ignite the methane. 

The Secretary and the UMWA contend that the mine's ventilation system 

did not induce the drainage of methane from all portions of the gob, in part, 

because the presence of the stoppings between the bleeder entries and the gob 

prevented the ventilation system from functioning properly. Both the 

Secretary and the UMWA argue that the methane accumulation in the gob created 

an imminent danger. The UMWA argues, in addition, that the presence of the 

methane demonstrated that Island Creek violated its ventilation plan. 

344 
A. Imminent Danger Orders 

Section 3 (j) of the Mine Act defines an imminent danger as "the 

existence of any condition or practice in a coal or other mine which could 

reasonably be expected to cause death or serious physical harm before such 

condition or practice can be abated." 30 U.S.C. § 802(j). In Rochester & 

Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), the Commission 

noted that "the U.S. Courts of Appeals have eschewed a narrow construction 

and have refused to limit the concept of imminent danger to hazards that pose 

an immediate danger." (citations omitted). The Commission noted further that 

the courts have held that "an imminent danger exists when the condition or 

practice observed could reasonably be expected to cause death or serious 

physical harm to a miner if normal mining operations were permitted to proceed 

in the area before the dangerous condition is eliminated." Id., 

Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. App., 491 F.2d 277, 

278 (4th Cir. 1974). The Commission adopted the Seventh Circuit's holding 

that an inspector's finding of an imminent danger must be supported "unless 

there is evidence that he has abused his discretion or authority." 11 FMSHRC 

at 2164 quoting Old Ben Goal CorP_:~ v. Interior Bd. of Mine Op. App., 523 F. 2d 

25, 31 (1975). 

In Utah Power & Light Co., 13 FMSHRC 1617, 1627 (October 1991), the 

Commission reaffirmed that an MSHA inspector has considerable discretion in 

determining whether an imminent danger exists. The Commission held that there 

must be some degree of imminence to support an imminent danger order and noted 

that the word "imminent" is defined as "ready to take place [;] near at hand[;] 

impending ... [ ; ] hanging threateningly over one's head[;] menacingly near. 11 

13 FMSHRC at 1621 (citation omitted). The Commission determined that the 

legislative history of the imminent danger provision supported a conclusion 

that "the hazard to be protected against by the withdrawal order must be 

impending so as to require the immediate withdrawal of miners." Finally, 

the Commission held that an inspector abuses his discretion, in the sense of 

making a decision that is not in accordance with law, if he issues a section 

107(a) order without determining that the condition or practice presents an 

impending hazard requiring the immediate withdrawal of miners. 13 FMSHRC at 

1622-23. 

On review, the Secretary argues that the judge erred in finding that the 

MSHA inspectors did not reasonably conclude that explosive levels of methane 

in the gob created an imminent danger. The Secretary believes that his burden 

in an imminent danger case is to prove that the inspector "reasonably 

that the conditions at the mine created an imminent danger and that 

he is not required to show that an imminent danger "actually" existed. Sec. 

Br. 9 (emphasis in original). The Secretary contends that it was reasonable 

for the inspectors to rely on their knowledge that fires in the gob in 1972 

and 1975 had been attributed to sparks caused by falls of quartzite roof and 

that two more recent fires in the gob were of an indeterminable origin, with 

quartzite a possible ignition source. The judge erred, the Secretary asserts, 

in failing to recognize that inspectors must be given "great latitude in 

making on-the-spot determinations of whether imminent dangers exist." Sec. 

Br. 11. The Secretary contends that in order to affirm the judge, the. 

"Commission must determine that the inspectors acted irrationally, and abused 

345 
their discretion." Sec. Br. 14. The Secretary is asking the Commission to 

"independently examine the record evidence to determine whether a reasonable 

inspector could have reached the conclusions reached by Inspectors Carico and 

Scammell in this case." Sec. Br. 6. 

The UMWA argues that the judge failed to focus on the potential risk of 

serious physical harm at any time. The UMWA asserts that whenever a large 

accumulation of an explosive mixture of methane is present, there is a 

potential that the methane will be ignited. Moreover, it contends that the 

MSHA inspectors were properly concerned that the methane could be ignited by a 

spark caused by a roof fall in the gob. The UMWA further argues that the 

judge placed an impossible burden on the Secretary in this case to pinpoint an 

exact ignition source in the inaccessible areas of the gob. 

We conclude that the judge applied the appropriate analysis in his 

decision. The judge reviewed Commission and judicial precedent, including 

those decisions that stress the considerable discretion granted MSHA 

inspectors in issuing imminent danger orders. 13 FMSHRC at 626-28. He also 

specifically recognized that inspectors are required to decide whether a 

hazard presents an imminent danger "quickly and without delay." 13 FMSHRC at 

637. He determined that it was not reasonable for the inspectors to have 

concluded that "there was a reasonable likelihood of a roof fall in the gob 

area which would have sparked an ignition." 13 FMSHRC at 635. The judge held 

that "the inspector's speculative anticipation of a possible mine explosion, 

in the circumstances presented, falls short of the statutory requirement of 

reasonable expectation." 13 Fl1SHRC at 637. These findings demonstrate that 

the judge concluded that the inspectors abused their discretion and authority 

because, based on the facts readily available to them, it was not reasonable 

for them to have concluded that the presence of the methane "could reasonably 

be expected to cause death or serious physical harm." The Commission has held 

that, in imminent danger cases, the judge must determine "whether a 

preponderance of the evidence showed that the conditions or practices, as 

observed by the inspectors, could reasonably be expected to cause death or 

serious physical harm, before the conditions or practices could be 

eliminated." WyominB Fuel Co., 14 FMSHRC 1282, 1291 (August 1992)(emphasis 

added). We explained that, in making such a determination, a judge "should 

make factual findings as to whether the inspector made a reasonable 

investigation of the facts, under the circumstances, and whether the facts 

known to him, or reasonably available to him, supported issuance of the 

imminent danger order." 14 Fl1SHRC at 1292. Judge Koutras determined that the 

inspectors did not make a reasonable investigation of the circumstances and 

that the facts reasonably available to them did not support issuance of the 

imminent danger orders. 13 FMSHRC 629, 632, 635-36, 637. 

While the crucial question in imminent danger cases is whether the 

inspector abused his discretion or authority, the judge is not required to 

accept an inspector's subjective "perception" that an imminent danger existed. 

Rather, the judge must evaluate whether, given the particular circumstances, 

it was reasonable for the inspector to conclude that an imminent danger 

existed. The Secretary still bears the burden of proving his case by a 

preponderance of the evidence. Although an inspector is granted wide discretion because he must act quickly to remove miners from a situation that he 

346 
believes to be hazardous, the reasonableness of an inspector's imminent danger 

finding is subject to subsequent examination at the evidentiary hearing. 

It would be inappropriate for the Commission to reweigh the evidence in 

this case or to enter de novo findings based on an independent evaluation of 

the record. The Commission is bound by the substantial evidence test when 

reviewing an administrative law judge's factual determinations. U.S.C. § 

823(d)(2)(A)(ii)(I). "Substantial evidence" means "such relevant evidence as 

a reasonable mind might accept as adequate to support a conclusion." See, 

~. Rochester & Pittsburgh, 11 FMSHRC at 2163 quoting Consolidation Edison 

Co. v. NLRB, 305 U.S. 197, 229 (1938). 

We conclude that substantial evidence supports the judge's findings of 

fact. The judge found that it was unreasonable for the inspectors to believe 

that methane at this location could be ignited given continued mining 

operations. He determined that, after the 1975 mine fire, Island Creek 

instituted a drilling program to locate sandstone formations containing 

quartzite. The judge examined the reports that had been issued by MSHA and 

its predecessor concerning earlier mine ignitions at the VP-3 mine. The judge 

found that, in these reports, MSHA had discounted roof falls as the source of 

the subsequent ignitions. 13 FMSHRC at 632 33, Exhs. G-8, G-9. The judge 

further concluded that ignitions possibly caused by roof falls prior to 1975 

were "too remote in time to support any reasonable conclusion that [roof 

falls] pose a present ignition hazard." 13 FMSHRC at 633. 

The judge found that the inspectors speculated that a large body of 

explosive methane was present in the gob and that such a condition presented 

an imminent danger based on their understanding of previous reports. 13 

FMSHRC at 632. The judge also determined that the inspectors failed to make 

any effort to ascertain actual mining conditions or to evaluate the mine's 

ventilation system, and that the inspectors relied almost exclusively on the 

earlier MSHA reports to support the imminent danger orders. Id. As stated 

above, he determined that these reports indicated that quartzite was no longer 

a potential ignition source for methane at this mine. 13 FMSHRC 633-37. He 

then vacated the orders because he found that the reports did not provide "any 

credible or probative evidentiary support for any conclusion that ready 

ignition sources capable of propagating an explosion of the methane in the gob 

area in question were present." 13 FMSHRC at 637. The record as a whole 

contains substantial evidence to support the judge's findings. ~. 

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

While we recognize that the presence of an explosive concentration of 

methane in a mine presents a hazard, it is significant that the methane 

accumulation in this case was in a gob and not in an active area of the mine. 

At the hearing, the MSHA inspectors admitted that explosive levels of methane 

are to be expected in the gob at this mine. Counsel for the Secretary 

conceded that an explosive accumulation of methane in this gob would create an 

imminent danger "[o]nly if there's such a significant ignition source [that] 

there is a significant danger." Tr. Vol. I, 153. On review, counsel for the 

Secretary states that the primary point of contention is whether "it was 

reasonable to conclude that an ignition source was present that rendered the 

methane an imminent danger." Sec. Br. 9. Thus, the Secretary concedes that, 

34 7 
in the circumstances of this case, the methane that had accumulated in the gob 

did not create an imminent danger in the absence of an ignition source. In 

this case, we agree with the judge that the Secretary failed to prove that an 

ignition source existed. Therefore, we need not and do not reach the issue of 

whether, in another case, the Secretary may support an imminent danger order 

by showing that an explosive accumulation of methane is present without 

proving a specific ignition source. 

We reaffirm our holding in Rochester & Pittsburgh that an inspector must 

have considerable discretion in issuing imminent danger orders. Our 

affirmance of the judge's decision in this case should not be construed as 

circumscribing an inspector's authority or indeed his obligation to issue a 

section 107(a) order whenever he finds that an imminent danger exists. We 

base our decision on the narrow ground that substantial evidence supports the 

judge's determination that MSHA failed to meet its burden of proving that it 

was reasonable for the inspectors, based on the information available at the 

time, to conclude that the conditions in the mine constituted an imminent 

danger. 

B. Citation 

The section of the ventilation plan at issue in this proceeding is, in 

all essential respects, identical to the language of 30 C.F.R. §§ 75.316-2(e) 

& 75.316-2(e)(l). 8 The UMWA contends that MSHA established that the sealed 

stoppings Island Creek had constructed in the Nos. 8, 9 and 10 development 

entries were inconsistent with the mine's ventilation plan. UMWA Br. 16-17. 

8 The relevant provisions of the mine's ventilation plan provides: 

10. Bleeder entries, bleeder systems, or equivalent means shall be 

used in all active pillaring areas to ventilate the mined areas from 

which the pillars have been wholly or partially extracted so as to 

control the methane content in such areas. Bleeder entries or 

bleeder systems established after June 28, 1970, shall conform with 

the requirements of Section 75.316-2, 30 CFR 75. 

(a) Bleeder entries shall be defined as special air courses 

developed and maintained as part of the mine ventilation 

system and designed to continuously move air-methane 

mixtures from the gob, away from active workings, and 

deliver such mixtures to the mine return air courses. 

Bleeder entries shall be connected to those areas from 

which pillars have been wholly or partially extracted at 

strategic locations in such a way to control air flow 

through such gob area, to induce drainage of gob gas 

from all portions of such gob areas, and to minimize the 

hazard from expansion of gob gases due to atmospheric 

changes. 

Exh. G-4. 

348 
The UMWA argues that the plan required Island Creek to place regulators at 

those locations in order to provide the flexibility needed to adjust the air 

flow to remove methane before it could accumulate. 9 It contends that, 

because it would be impractical for the plan to identify where the bleeder 

entries must be connected to the gob, the operator is required to provide 

connections at locations that will induce drainage from all areas of the gob. 

UMWA Br. 18. The UMWA also asserts that, contrary to the findings of the 

judge, Inspector Carico testified that his method of testing for methane in 

the gob was sufficiently accurate to indicate that a large amount of explosive 

methane was present in the gob. UMWA Br. 20. 

We affirm the judge's decision vacating the citation alleging a 

violation of 30 C.F.R. § 75.316. Island Creek presented evidence at the 

hearing, credited by the judge, that the gob was being adequately ventilated 

in accordance with paragraph 10 of the mine's ventilation plan. MSHA 

witnesses admitted that whether the gob was connected with the bleeders at 

"strategic locations" is entirely dependent upon whether air was flowing 

through the gob to induce the drainage of methane from the gob into the 

bleeder entries. MSHA did not cppduct a ventilation survey to determine the 

effectiveness of the mine's ventilation system. Island Creek did conduct such 

a survey, which it believes established that a satisfactory quantity of air 

vms moving through the gob and adjacent bleeders, and that the gob atmosphere, 

including methane, was exiting the gob where intended. Island Creek's 

witnesses testified that it maintained the stoppings in the development 

entries so that it could control the air flow through the gob and that the 

ventilation survey demonstrated that its controls were working. Island Creek 

has been installing stoppings between the gob and the bleeder entries since at 

least 1987 and MSHA has never questioned their presence even though the 

ventilation plan has undergone semiannual review. 

The judge credited the testimony of Island Creek expert witness Donald 

i:J. Mitchell that it is not unusual to find methane in a gob and that methane 

will gravitate to the higher elevations in the gob, which in this instance 

were the areas where the inspectors took the methane readings. 13 FMSHRC at 

645. The judge noted that Inspector Carico conceded that explosive 

concentrations of methane are to be expected in some areas of a gob and that 

the area he tested for methane was one of "the highest elevations in the [gob] 

and that methane will go to that area even though it is enroute out of the 

mine." ld. Finally, the judge noted that Carico also conceded that the 

stoppings were installed to force the air to flow to another location where it 

would leave the gob and that, as the air flowed away from the stoppings, it 

would be picking up methane. 13 FMSHRC at 646. The ventilation plan, 

contrary to the assertions of the UMWA, does not require the installation of 

regulators at specific locations, other than between the headgate and tailgate 

entries and the bleeders. Exh. G-4. The record indicates that Island Creek 

had, in fact, installed regulators at those locations in the South Gob. Exh. 

C-2. 

9 A regulator is a door, that can be of any size, located in a stopping. 

The regulator can be opened or closed as needed. See DMMRT, at 910. 

349 
The judge concluded that the gob was being ventilated in a manner that 

mixed and diluted the methane with air and that this mixture was coursing 

through the gob into the bleeder system and out of the mine. 13 FMSHRC at 

646. Substantial evidence supports the judge's findings and his conclusion 

that Island Creek was in compliance with its plan -- a finding the Secretary 

did not choose to appeal. If the Secretary believes that specific accumulations of methane create a hazard in gobs or other inactive areas of 

underground coal mines, he should consider promulgating safety standards to 

deal with this problem. If the Secretary believes that this mine requires 

special provisions regarding methane in the gob, such as the installation of 

regulators in the disputed stoppings, he should seek to amend the mine's 

ventilation plan to specifically address the issue. 

III. 

Conclusion 

For the foregoing reasons, we affirm the judge's decision. 

Arlene Holen, Chairman 

L. Clair Nelson, Commissioner 

350 
Distribution 

Jerald S. Feingold, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Timothy M. Biddle, 

Robert P. Davis, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Administrative Law Judge George A. Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

351 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

KERR-McGEE COAL CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Harch 4, 1993 

Docket Nos. WEST 91-84-R 

WEST 91-85-R 

WEST 91-220 

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

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding arises under the 

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

"Mine Act" or "Act"), and presents the issue of whether miners may choose as 

their representative for "walkaround" purposes under section 103(f) of the 

Mine Act, 1 a union, or the agent of a union, that is not the miners' 

collective bargaining representative under the National Labor Relations Act, 

seq. (e.s amended) (1988) ("NLRA"). This case arose when an 

from the of Labor's Mine Safety and Health Administration 

:Lssued co Kerr-McG1"'e Coal Corporation ("Kerr-McGee") a citation 

that Kerr-McGee had violated 30 C.F.R. § 40.4 when it failed to post 

at it:s Jacobs Ranch Hine, a nonunion mine, the names of certain miners' 

representatives not employed by Kerr-McGee. These individuals were agents of 

The terli'. "walkaround" is used in reference to the rights granted miners' 

under section 103 (f) of the Mine Act, which provides in pertinent 

Subject to regulations issued by the Secretary, a 

representative of the operator and a representative 

authorized by his miners shall be given an opportunity 

to accompany the Secretary or his authorized 

representative during the physical inspection of any 

coal or other mine ... for the purpose of aiding such 

inspection and to participate in pre- or post-inspection 

conference held at the mine .... 

30 u.s.c. § 813(f). 

352 
the United Mine Workers of America ("UMWA") and were designated as miners' 

representatives by certain miners employed at the Jacobs Ranch Mine. 2 The 

inspector subsequently issued an order of withdrawal pursuant to section 

104(b) of the Mine Act, 30 U.S.C. § 814(b), after Kerr-McGee declined to abate 

the alleged violation. 

Following an evidentiary hearing, Administrative Law Judge Michael A. 

Lasher, Jr., upheld the citation and order. 13 FMSHRC 1889 (December 1991) 

(ALJ). The judge concluded that, although the UMWA did not represent the 

miners at the Jacobs Ranch Mine for collective bargaining purposes under the 

NLRA, the designation of nonemployee UMWA agents as miners' representatives 

did not constitute a "per se" abuse of the miners' representative process 

under the Mine Act and the Secretary's implementing regulations at 30 C.F.R. 

Part 40 ("Part 40"). For the reasons discussed below, we affirm. 

I. 

Factual and Procedural Background 

A. Factual Background 

Kerr-McGee owns and operates the Jacobs Ranch Mine, a surface coal mine 

employing approximately 270 miners and located in the Powder River Basin near 

Gillette, Wyoming. The employees at the mine have never been unionized. 

Dallas Wolf, an organizer for the UMWA, moved to Gillette in April 1990, for 

the purpose of unionizing miners in the Powder River Basin, including the 

Jacobs Ranch miners. 

The UMWA held several meetings in Gillette that were organized by Wolf 

and attended by a number of Kerr-McGee miners. In July 1990, the UMWA also 

sponsored several days of safety training for Kerr-McGee miners. These 

training sessions were presented by Robert Butera, a UMWA safety and health 

representative. At the end of the training sessions, wolf urged those in 

attendance to sign forms designa·ting l1Tolf and Butera as ·their miners' 

representatives under Part 40. 3 Seven of the Jacobs Ranch miners designated 

2 The regulations of 

representatives are contained 

nPosting at mine," 

the Secretary of Labor 

at 30 C.F.R. Part 40. 

dealing with miners' 

Section 40.4, entitled 

A copy of the information provided the operator 

pursuant to § 40.3 of this part [designating the miners' 

representative] shall be pos'ced upon receipt by the 

operator on the mine bulletin board and maintained in a 

current status. 

3 The Secretary's regulation defines the term "representative of miners" 

as "[a]ny person or organization which represents two or more miners at a ... 

mine for the purposes of the Act." It equates the term to "[rJepresentatives 

authorized by the miners, miners or their representative, authorized miner 

(continued ... ) 

353 
Wolf and Butero as their miners' representatives and themselves as alternate 

representatives. 4 The record reflects that neither Wolf nor Butero actually 

acted in his capacity as miners' representative at the Jacobs Ranch Mine. 

Under 30 C.F.R. § 40.3, miners' representatives are required to file 

with MSHA information regarding their designation and identity and to provide 

copies to the affected operator. Wolf mailed the miners' representative 

designation form to the MSHA District Office in Denver and its receipt was 

acknowledged. Kerr-McGee received its copy of the form and decided that it 

would not post the designation of Wolf and Butero at the mine pursuant to 

section 40.4 (n.2 supra), because it believed that it was not required to 

accept agents of the UMWA as miners' representatives. Kerr-McGee did not 

inform MSHA of its decision not to post the designation. 

MSHA Inspector Jimmie Giles inspected the Jacobs Ranch Mine on October 

25, 1990, in response to a complaint submitted to MSHA pursuant to section 

103(g) of the Mine Act, 30 U.S.C. § 813(g), that the miners' representative 

designation form had not been posted at the mine. Ron Crispin, Kerr-McGee's 

manager of administration, informed In~pector Giles that the designation form 

was not, and would not be, posted. Crispin read to Inspector Giles a prepared 

statement that Kerr-McGee was not required to accept the designation of 

nonemployees a.s miners' representatives. 5 

Inspector Giles issued Kerr-McGee a citation alleging a violation of 

section 40.4, for failure to post the designation form on the mine bulletin 

board, and allowed Kerr-McGee 15 minutes to abate the condition by posting the 

form. After Crispin again declined to post the designation form, Inspector 

Giles issued an order of withdrawal pursuant to section 104(b) of the Act, 30 

3 ( ... continued) 

representative," and other similar terms used in the Act. 30 C.F.R. § 40.l(b)(l) 

rS, (2). Thus, under Part 40, any two miners at a mine may designate "any person 

or organization" to represent them as a miners' representative. 

4 Prior to this designation, there had never been a miners' representative 

designated under Part 40 at the mine. Since this designation, approximately 92 

Jacobs Ranch miners have been designated as Part 40 representatives. S. Br. at 

18-19 n.9. 

5 The statement provides: 

Kerr-McGee does not believe it can lawfully be required 

to accept the designation of a non-employee walkaround 

representative at the Jacobs Ranch Mine or to recognize 

any other action by a non-employee. MSHA Inspectors are 

entitled to, and encouraged to, talk to Jacobs Ranch 

employees as a part of all inspections. Inspections 

should proceed on that basis without outside 

interference. 

Exh. C. to Stipulation, Exh. M-7. 

354 
U.S.C. § 814(b), for refusal to abate the alleged violation. Kerr-McGee 

finally abated the citation after receiving a letter from the MSHA district 

manager stating that Kerr-McGee would be assessed a daily penalty (~ 30 

U.S.C. § 820(b)) if it did not immediately abate the violative condition. 

Kerr-McGee filed timely notices of contest of the citation and the order, and 

the matter proceeded to an evidentiary hearing before Judge Lasher. 

B. Procedural Background 

Following the hearing, and before submission of the parties' posthearing briefs, Kerr-McGee moved to reopen the record based upon newly 

discovered evidence. Kerr-McGee asserted that, in an unrelated proceeding 

after the hearing, its counsel had obtained from the UMWA several documents 

establishing that certain statements made by Wolf in his pre-hearing 

deposition in this matter were incorrect. Wolf had testified in his 

deposition that he did not have any letters or written reports regarding this 

case or his designation as a miners' representative. Kerr-McGee offered, as 

its newly discovered evidence, a series of internal UMWA memoranda to and from 

Wolf, which, it asserted, revealed that Wolf had been designated as a 

walkaround representative in order to facilitate on-going UMWA organizing 

activities. 

In an unpublished order, the judge denied Kerr-McGee's motion to reopen. 

The judge stated that the prerequisites for reopening a record for the 

presentation of newly discovered evidence are: 

the evidence [is] discovered after the completion of 

the trial; due diligence on the part of the moving 

party to discover the new evidence prior to trial is 

shown or inferred; the evidence is not merely 

cumulative or impeaching; the evidence is material; 

and the evidence is such that a new trial would 

probably produce a new result. 

Unpublished Order at 2 (October 11, 199l)(citation omitted)("Order"). The 

judge determined that Kerr-McGee did not establish that it had exercised due 

diligence to discover the documents prior to trial. The judge next determined 

that the evidence was largely cumulative, and that a number of the documents 

had been discovered prior to trial and were either accepted into evidence or 

dismissed by the judge as irrelevant. The judge also noted that the veracity 

of Wolf's deposition testimony was a matter for impeachment and, as such, was 

not a sufficient basis for reopening the case. Finally, the judge rejected 

Kerr-McGee's argument that the newly discovered evidence would probably 

produce a different result. The judge explained that the documents merely 

revealed that union organizing activity was taking place in the Powder River 

Basin, and that this was established and undisputed at trial. Order at 2-3. 

In his decision on the merits, the judge concluded that the designation 

of Wolf and Butera as miners' representatives at the Jacobs Ranch Mine did not 

constitute a per se abuse of the miners' representative process, and that 

Kerr-McGee's refusal to post the designation was not justified. The judge 

first determined, upon examination of Part 40 and section 103(f) of the Mine 

355 
Act, that a union may represent miners for walkaround and other Mine Act 

purposes even though it is not the collective bargaining representative of 

those miners under the NLRA. 13 FMSHRC at 1901. The judge pointed out that 

the language of section 40.l(b) (n.3 supra) expressly provides that a 

"representative of miners" includes "any individual or organization" that 

represents two or more miners, and does not set forth any restriction or 

qualification that the representative must be recognized as such under other 

labor laws. Id. (emphasis added). The judge relied on Utah Power & Light Go. 

v. Secretary, 897 F.2d 447 (lOth Cir. 1990)("UP&L"), aff'g, Emery Mining 

Corp., 10 FMSHRC 276 (March 1988), in which the United States Court of Appeals 

for the Tenth Circuit, affirming the Commission, held that walkaround rights 

may be extended to miners' representatives who are not employees of the 

affected operator. Id. 

The judge further determined that a conflict did not exist between the 

Mine Act and the NLRA. The judge reasoned that the representative process has 

distinct meanings and purposes under each Act. 13 FMSHRC at 1902. He 

explained that under the NLRA, a representative is elected by a majority of 

workers for a broad range of collective,pargaining purposes. In contrast, 

under the Mine Act and the Secretary's Part 40 regulations, a representative 

is chosen by two or more miners for the primary purpose of accompanying a mine 

inspector during an inspection. Id. 

The judge also noted that MSHA has consistently interpreted the term 

"representative" in the Mine Act and Part 40 as any person qualified to be on 

a mine site, regardless of whether that person is an employee of the mine 

operator or a member of a labor or other organization. 13 FMSHRC at 1903. 

Fina~ly, the judge observed that UP&L had clearly indicated that the Secretary 

and an affected operator could take appropriate action against any miners' 

representative who abuses the walkaround process by engaging in inappropriate 

activities, such as union organizing, during walkaround. 13 FMSHRC at 1904-

05, citing UP&L, 897 F.2d at 452. The judge held that instances of abuse must 

be considered on a. case-by-case basis. The judge concluded that the exercise 

of Mine Act rights by Kerr-McGee employees to designate nonemployee UMWA 

members as their representatives was not an abuse of the miners' 

representative process. 13 FMSHRC at 1905. The judge determined that "at 

best [Kerr-McGee] showed [that the] UMWA used Part 40 as a 'tool' to create 

employee interest and to enhance its standing." 13 FMSHRC at 1898 n.7. 

Accordingly, the judge denied Kerr-McGee's contests of the citation and order, 

and assessed a civil penalty o~ $300. 13 FMSHRC at 1906. 

The Commission subsequently granted Kerr-McGee's petition for 

discretionary review, which challenges the judge's decision on the merits and 

his denial of the motion to reopen. The American Mining Congress, the 

National Coal Association and the Wyoming Mining Association (collectively, 

"industry amici"), jointly, and the UMWA, separately, filed amicus curiae 

briefs in this proceeding, and the Commission heard oral argument. 

356 
II. 

Disposition of Issues 

A. Motion to Reopen 

Kerr-McGee argues that the judge erred in denying its motion to reopen 

the record. We disagree. 

Although the Commission's procedural rules, 29 C.F.R. Part 2700, do not 

specifically address motions to reopen a hearing on the basis of newly 

discovered evidence, Commission Procedural Rule 54(a), 29 C.F.R. § 2700.54(a), 

authorizes Commission judges to regulate the course of hearings and to dispose 

of procedural motions. The Commission also may properly look for guidance to 

the Federal Rules of Civil Procedure ("Fed. R. Civ. P.")(29 C.F.R. 

§ 2700.1 (b)), and precedent thereunder. A motion to reopen the record to 

submit new evidence is not expressly addressed in the federal rules but, 

rather, is committed to the sound discretion of the trial judge. 

generally Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331 

(1971). In general, an abuse of discretion occurs when the trial court bases 

its decision on an erroneous conclusion of law or where there is no rational 

basis in the evidence for its ruling. See, ~. In re Coordinated Pretrial 

Proceedings. etc., 669 F.2d 620, 623 (lOth Cir. 1982). 

A motion for a new trial under Fed. R. Civ. P. 59 ("Rule 59") has 

certain similarities and affords some guidance. See J. Moore, J. Lucas & G. 

Grother, 6A Moore's Federal Practice~ 59.04[13](2d ed. 1992)("Moore's"). A 

motion to reopen, however, seeks to offer additional evidence before a 

decision has been rendered and, consequently, the standards for granting such 

a motion are less stringent than those for a motion seeking a new trial. 6 

Generally, in determining whether to grant a motion to reopen, it is 

appropriate to consider the time when the motion is made, the character of the 

additional evidence, and the effect of granting the motion. 6A Moore's at 

gl 59.04[13i. 

Yhe judge applied the post-judgment Rule 59 criteria, urged upon him by 

Kerr-McGee, and did not expressly refer to the less stringent pre-judgment 

test. In applying the somewhat similar Rule 59 criteria, however, the judge, 

in effect, considered the essential factors of the pre-judgment test. Of 

particular importance, the judge characterized the "new" evidence as 

cumulative, and noted that a number of the allegedly newly found documents had 

been discovered prior to trial and rejected at trial as irrelevant. Order at 

2. The judge also determined that admission of the evidence would not have 

altered his findings in any event. Order at 3. He explained that the 

evidence merely demonstrated that union organizing activity was taking place 

in the Powder River Basin, which had been established at trial and was not 

disputed. Under the circumstances, any error in setting forth the 

stricter Rule 59 criteria was harmless. 

6 The stricter criteria for a Rule 59 

cited by the judge in his pre-trial order. 

357 

udgment motion are the ones 
Because a rational basis existed for the judge's denial of Kerr-McGee's 

motion to reopen, and the judge's error, if any, was harmless, we conclude 

that the judge did not abuse his discretion. Accordingly, we affirm his order 

denying the operator's motion to reopen the record. 

B. Designation of Wolf and Butera as Miners' Representatives 

1. Contentions of the parties on review 

The thrust of the operators' 7 argument is that the Mine Act should be 

construed to prohibit a union or a union member from being designated as a 

"representative of miners," unless that union also represents the miners under 

the NLRA. The operators assert that granting representative status to a 

nonemployee union agent infringes upon an operator's right to control access 

to its private property by nonemployees, including nonemployee union 

organizers. In support, the operators rely heavily on Lechmere, Inc. v. NLRB, 

502 U.S. __ , 117 L.Ed.2d 79 (1992). 

Kerr-McGee distinguishes UP&L, '897 F. 2d 447, on the grounds that, in 

that case, the nonemployee miners' representative was a union member who 

sought to act as a representative at a union mine, whereas the present case 

involves a nonunion mine. Thus, Kerr-McGee asserts that UP&L is not 

controlling. 

According to the operators, the Secretary's Part 40 Regulations and, in 

particular, the definition of "representative of miners," are legally infirm. 

The operators assert that the Part 40 definition of representative, which 

allows for multiple representation by "any" individuals or organizations, 

conflicts with provisions of the NLRA that prohibit a unionized employer from 

dealing with any agent other than the official collective bargaining agent. 

They argue that permitting a union member to act as a miners' representative 

at a nonunion mine not only intrudes upon the operator's right under the NLRA 

to control access to its private property by union organizers but also tends 

to create a favorable impression among the miners towards the union. The 

operators contend that the Secretary's interpretation of Part 40 is 

unreasonable and that to permit the kind of representation involved here 

amounts to a failure to accommodate Part 40 to the NLRA's regulatory scheme. 

The operators contend that the designation of a union agent as a 

walkaround representative at a nonunion mine constitutes an abuse of section 

103(f), even under UP&L, because it is plainly for an ulterior purpose. KerrMcGee urges that the aim of designating UMWA representatives here was to 

foster their organizing efforts rather than to promote health and safety and, 

consequently, tha·t aim was abusive of the Mine Act. 

7 Unless otherwise noted, the arguments of industry amici are included in 

our discussion of Kerr-McGee's position and the term "operators" is used in 

reference to their arguments. Similarly, the arguments of amicus UMWA are 

incorporated in our discussion of the Secretary's position. 

358 
The Secretary responds that the operators' suggested approach to the 

miners' representative process is overly restrictive under the Mine Act and 

the Part 40 implementing regulations. The Secretary notes that nothing in 

Part 40 prohibits the Kerr-McGee miners from designating an agent of the UMWA 

or any labor union as their miners' representative under the Mine Act, even 

though the designated union is not the miners' collective bargaining 

representative under the NLRA. The Secretary emphasizes that section 103(f) 

of the Mine Act imposes no status limitations on who may serve as a miners' 

representative, and, accordingly, Part 40 regulations simply mirror the 

statute's broad approach. 

The Secretary urges that deference should be given to his interpretation 

of the Mine Act and to his interpretation of the regulations that he has 

adopted. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-45 (1984). The 

Secretary asserts that his interpretation of the relevant portions of Part 40 

should be accepted, as it is reasonable, consistent with the Mine Act, and is 

supported by his "contemporaneous construction" of Part 40, published at the 

time Part 40 was promulgated. ~~e preamble to the regulations specifically 

discussed and rejected the definition of "representative" as used in the NLRA, 

explaining that the purposes of the representation process under the two 

statutes were different. 8 

The Secretary further contends that UP&L, 897 F.2d 447, is dispositive. 

There, the Tenth Circuit held that nonemployees may serve as walkaround 

representatives. Under UP&L, an operator may take appropriate action against 

a designated representative only if he engages in spe~ific conduct unrelated 

to safety or health. The Secretary contends that, as the judge found, KerrMcGee has failed to show instances of such abusive conduct. The Secretary 

acknowledges that there was a union organizing campaign underway at the Jacobs 

Ranch Mine, but argues that, as shown by the record, the designation of the 

UMWA was also intended to advance miners' safety. Thus, even 

8 The preamble to Part 40 states: 

[T]he NLRB definition is inappropriate because the NLRB 

definition of "Representative" concerns itself 'vith a 

in the context of collective bargaining. 

The meaning of the word representative under this [A]ct 

is completely different. Additionally the rights of 

nonunion miners would be severely limited by a 

definition of 11Representative of Miners" based on the 

collective bargaining concept. Furthermore, the 

"majority rule" concept is a fundamental component of 

the NLRB definition of representative, which 

contemplates only any one union miner representative at 

each mine. The purposes of the Mine Act are better 

served by allowing multiple representatives to be 

43 Fed. Reg. 29508 (July 7, 1978). 

359 
if the miners' representatives possessed a "mixed motive," i.e., safety and 

unionizing, there was no abuse of the walkaround function. 

Finally, the Secretary argues that the Part 40 regulations do not 

impermissibly conflict with the NLRA. The Part 40 regulations do not impinge 

on Kerr-McGee's right under the NLRA to deny access to its property to 

nonemployees engaged in union organizing because the miners' representative 

has only a limited access, a carefully delineated right to assist with 

inspections, and may not use that access to engage in organizing activities. 

2. Analysis 

We find the judge's reasoning persuasive and conclude that this matter 

is controlled by the decisions of this Commission and the Tenth Circuit in the 

UP&L litigation. The general issue of whether an operator's miners may 

designate an individual who is not an employee of the mine operator as their 

miners' representative for walkaround purposes has been previously determined 

by the Commission. In Emery, the Commission held that "as a matter of 

statutory right a nonemployee may be chosen by the miners of a given mine as 

their representative and ... such a representative may properly be afforded 

the opportunity to participate in walkaround at that mine -- although without 

compensation from the operator." Emery, 10 FMSHRC at 284-85, aff'd, UP&L, 897 

F.2d at 449 52. The Commission's conclusion in Emery was based on the 

language of section 103(f) of the Mine Act, which "imposes no employee-status 

limitation as to whom [miners] may choose [as their own representative]." 10 

FMSHRC at 284. The Commission determined that the Secretary's Part 40 

regulations' "broad definition of representative is in accord with the 

underlying statutory text [of section 103(f)]." 10 FMSHRC at 285. 

In affirming the Commission's holding on this issue, the Tenth Circuit 

concluded that the Secretary's and the Commission's interpretation of section 

103 ( was "both reasonable and supportable" and held that miners may 

authorize nonemployees to act as their representative under § l03(f) of the 

Act. 897 F.2d at 452. In reaching this conclusion, the Court determined that 

the underlying purpose of section 103(f) "can be furthered by allowing both 

employees and nonemployees to act as miners' representatives for walkaround 

purposes." The Court noted that miners may benefit from the 

participation of nonemployee representatives in walkaround because such 

"may have greater expertise in health and safety matters than 

an employee representative." 897 F.2d at 451. 

In UP&L, the mine operator had argued that the Secretary's interof section 103(f) in the Part 40 regulations was not reasonable, in 

, because it would allow the representative of a union to gain access to a 

nonunion mine for purposes unrelated to the Act's safety objectives. 897 F.2d 

at 452. In addressing this argument, the Court stated: 

While we recognize UPL's concern that walkaround 

rights may be abused by nonemployee representatives, 

the potential for abuse does not require a 

construction of the Act that would exclude nonemployee 

representatives from exercising walkaround rights 

360 
altogether. The solution is for the operator to take 

action against individual instances of abuse when it 

discovers them. 

Id. Contrary to Kerr-McGee's assertions on review, the Court did not base its 

holding on the fact that, in that case, the miners were represented for NLRA 

purposes by a union and, therefore, the des of a nonemployee union 

member as a miners' representative was permissible. Rather, the Court 

interpreted the language of section 103(f) to permit representation by 

nonemployees generally, including agents of a labor organization. 

We discern no basis in section 103(f) or Part 40 for applying the 

principles set forth in Emery(UP&L only to situations where the designated 

representative is a member of a union that also represents the miners for 

collective bargaining purposes under the NLRA. The language of section 103(f) 

does not prohibit miners from designating agents of a union as their 

walkaround representatives on the basis that such miners are not represented 

by the union for collective bargaining purposes. To the contrary, the 

Commission has held that, under the broad language of section 103(f), miners 

possess the right to a· -representative of their own choosing for 

section l03(f) purposes. Emery, 10 FMSHRC at 284-85; Secretary on behalf of 

Truex v. Consolidation Coal Co., 8 FMSHRC 1293, 1298 (September 1986). 

Further, the operators' position would limit nonunionized miners' right to 

designate representatives of their own choosing, thereby creating distinctions 

between unionized and nonunionized miners that have no basis in the statute. 

The Commission held in Emery that section 103(f) specifically provides 

that the requirements set forth therein are "[s]ubject to regulations issued 

by the Secretary" and that the Secretary's pertinent regulations at Part 40 

are consistent with the language of section 103(f). 10 FMSHRC at 285. 

Moreover, the Secretary's manner of enforcement of his regulations is 

consistent with those regulations and with Emery. Thus, the Secretary says 

that he does not determine who qualifies as a walkaround representative based 

on a person's status or motives. Oral Arg. Tr. 45 48. Instead, the Secretary 

focuses on the actual conduct of the miners' during the 

inspection. Oral . Tr. 48. The Secretary states that it is irre~evant who 

is chosen as a miners' representative so long as the representative's 

"demeanor and behavior" is proper and consistent with the purposes of section 

103 (f). Id. 

The Commission is aware, as was the lOth Circuit ir1 , that allowing 

a union agent limited access to mine property under section 103(f) is subject 

to possible abuse. we agree with the Secretary and the j that it is the 

conduct of a miners' , during a walkaround under section 103(f), 

rather than the motivation of such representative, that must be examined to 

determine whether there has been abuse. Although the UMWA , wolf and 

Butero, are organizing mines in the Powder River Basin, there has been no 

showing here that they will, through their conduct, abuse the and 

corresponding responsibilities of section 103(f). Kerr-McGee's concerns as to 

possible future problems are speculative. Conduct by a miners' representative 

that constitutes abuse can be addressed on an individual basis by an operator 

361 
and the Secretary, while generally prese1.-ving the right of miners to select 

representatives of their choice. See UP&L, 897 F.2d at 452. 

Kerr-McGee also seeks reversal of the judge's decision on the basis that 

Part 40, as applied here, conflicts with the NLRA. The NLRA broadly 

guarantees employees the right to "bargain collectively through representatives of their own choosing .... " 29 U.S.C. § 157. The Mine Act, on the 

other hand, is a more narrowly tailored statute that pervasively regulates the 

safety and health of employees in one industry. In effect, the operators ask 

the Commission to read into section 103(f) of the Mine Act the concept of 

collective bargaining representation under the NLRA with the result that a 

nonemployee agent of a union could not be a miners' representative unless he 

is also a duly certified bargaining representative at that mine. When 

promulgating Part 40, the Secretary concluded that it would be inappropriate 

to incorporate the NLRA definition of a "representative" because "the meaning 

of the '1-Tord representative under [the Mine] Act is completely different." 43 

Fed. Reg. 29508 n.8 supra). 

Although \ve cannot ignore other statutes when interpreting the Mine Act, 

nothing in the Mine Act or general principles of administrative law requires 

that the Secretary or the Commission defer to or incorporate the NLRA. Our 

proper field of judicial inquiry is the .Mine Act. See &enerally PBGC y. LTV 

Cor~, 496 U.S. 633, 645~47 (1990). We agree with the Secretary that he is 

not required to integrate the NLRA's concepts of collective bargaining 

:Lnto his regulations implementing the Mine Act. Nor is this 

Commission required to integrate NLRA concepts into its interpretation of the 

Mine Act. See, ~. UMWA on behalf of James Rowe et al., etc, v. Peabody 

Coal Co., 7 FMSHRC 1357, 1364-65 (September 1985), aff'd, 822 F.2d 1134 (D.C. 

Cir. 1987). 

The restrictions that have developed under the NLRA concerning 

nonemployee access to an employer's property for organizing or related 

·oc:.z·poses 2:~:Lse ·under 2, statute "whose very purpose is ·the governance of labor-

:~·:~:L3.t5_ons.' 7 FMSHRC at 1365. The discrete safety and 

I1ee.lt:;,. :::,.:,rposc;, :;.f U1.e Hine Act, and "che text of section 103 (f), render these 

NLl~A J.napplicable here. As noted, the Secretary rejected the 

approach advocated by the operators when he promulgated Part 40. See UP&L, 

897 F. 2d at L:-52; 10 FMSHRC at 285 We hold that the concept of 

or under the NLRA is not determinative of the 

process under Part 40. 

The Court's decision in Lechmere does not require a different 

:(eS'L;.lt. construed ·the provisions of the NLRA governing the access 

;~10nemployee union organizers to employers' private property. In 

====' t:he Court was concerned with "the relationship between the rights of 

employees under§ 7 of the [NLRA] ... , 29 U.S.C. § 157, and the private 

property rights of employers." Lechmere, 117 L.Ed.2d at 85. The Court did 

not address general legal principles relating to the balancing of property 

of employers against federal regulatory requirements established under 

other statutes, such as the Mine Act. Lechmere does not reverse walkaround 

law as it has developed under the Mine Act and does not overrule UP&L. 

362 
Under the Mine Act, nonemployees may enter a mine for the limited 

purpose of accompanying MSHA inspectors during their inspection of a mine. 

The Mine Act entails pervasive regulation and a diminished expectation of full 

oyment of private property rights. For example, search warrants for 

government inspections are not required because, in , the Mine Act "is 

specifically tailored to address [Congress' safety and health] concerns, and 

the regulation of mines [that] it imposes is pervasive and 

defined that the owner of such a facility cannot help but be aware that he 

'will be subject to effective inspection.'" Donovan v. Dewey, 452 U.S. 594, 

603 (l98l)(citation and footnote omitted). Accordingly, the Court's analysis 

of the property rights of employers in Lechmere, which relates solely to 

employee organizing under the NLRA, is not applicable to this case. 

To the extent that Kerr-McGee is seeking a resolution of rights and 

obligations under the NLRA, it is in the wrong forum. If the Secretary, 

either through regulation or enforcement, requires an operator to take 

specific actions that could constitute an unfair labor practice or would 

otherwise conflict with the NLRA, the proper forum to resolve such conflicts 

is the National Labor Relations Board ("NLRB"). The NLRB may determine 

whether the Mine Act's requirements or the Secretary's implementing 

regulations serve as a defense to an unfair labor practice charge. 

III. 

Conclusion 

For the foregoing reasons, the judge's decision is affirmed. 

Arlene Holen, Chairman 

~~~ Richard V. Backley, Commissioner -

L. Clair Nelson, Commissioner 

363 
Distribution 

Charles W. Newcom, Esq. 

Sherman & Howard 

3000 First Interstate Tower North 

633 Seventeenth St. 

Denver, CO 80202 

Curtis B. Hendricks, Esq. 

Kerr-McGee Corporation 

P.O. Box 25861 

Oklahoma City, OK 73125 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Rosemary M. Collyer, Esq. 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

}fury Lu Jordan, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative :::..aw Judge Michael A. Lasher, Jr. 

Federal Mine Safety & Health Review Commission 

1244 Boulevard, Suite 280 

Denver, Colorado 80204 

,364 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

UNITED MINE WORKERS OF AMERICA, 

ON BEHALF OF DAN NELSON 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

AND ROBERT KIYKENDALL 

and 

UNITED MINE WORKERS OF AMERICA, 

ON BEHALF OF DAN NELSON, 

RONALD SONEFF, TOMMY BOYD, 

STAN ODOM, AND CARROLL JOHNSON 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

AND JOHN WEEKLY AND 

'HILLARD (GENE) QUERRY 

~·larch 22, 1993 

Docket Nos. SE 88-92 D 

SE 88-93-D 

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

BY THE COMMISSION. 

The United Mine Workers of America ("UMWA") filed these discrimination 

complaints pursuant to the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (1988), alleging that certain officials of the Department 

of Labor's Mine Safety and Health Administration ("MSHA") had failed to 

protect the confidentiality of miners who had reported violations of MSHA's 

safety standards. The tmwA requested an order directing MSHA to stop 

disclosing to mine operators the names of miners reporting safety violations 

and sought assessment of civil penalties for MSHA's alleged violations of 

section 105(c) of the Mine Act, 30 U.S.C. § 815(c). In an unpublished order 

dated February 14, 1992, Administrative Law Judge Avram Weisberger dismissed 

the UMWA's complaints on the basis of the Commission's decision in Wagner v. 

Pittston Coal Group, 12 FMSHRC 1178 (June 1990), aff'd mem. sub. nom. Wagner 

365 
v. Martin, No. 91-2025 (4th Cir. Nov. 5, 1991). 

UMWA's petition for discretionary review and, at 

this matter in April 1992, pending completion of 

negotiations. 

The Commission granted the 

the parties' request, stayed 

their settlement 

On March 8, 1993, the UMWA filed a motion to dismiss this matter on the 

basis that the parties have reached a settlement agreement and that it no 

longer wishes to proceed with this case. The motion states that MSHA has 

issued an internal memorandum "reaffirming MSHA's policy that confidentiality 

be maintained during investigations of safety or health complaints." The 

motion states further that MSHA has agreed to investigate all reported 

violations of this policy. 

Upon consideration of the motion and on the basis of the UMWA's 

representations, our prior stay is dissolved and this proceeding is dismissed. 

Distribution 

Nary Lu Jordan, 

United Nine Harkers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Jerald Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~~ Richard V. Backley, Gommissio~ 

) 

.Joyce A. Doyle, Gommissi er 

L. 

~~~ Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

366 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Harch 22, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CYPRUS TONOPAH MINING CORP. 

Docket Nos. WEST 90-202-M 

WEST 90-363-RM 

WEST 90-364-RM 

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

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding, arising under 

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

(1988)(the "Mine Act" or "Act"), involves a dispute between the Secretary of 

Labor and Cyprus Tonopah Mining Corp. ("Cyprus") regarding two citations 

issued to Cyprus alleging violations of 30 C.F.R. §§ 56.3200 and 56.3130. 1 

The citations were later modified to allege that the violations were caused by 

Cyprus' unwarrantable failure to comply with the mandatory standards. 

1 

provides: 

provides: 

30 C.F.R. § 56.3200, entitled "Correction of hazardous conditions," 

Ground conditions that create a hazard to persons 

shall be taken down or supported before other work or 

travel is permitted in the affected area. Until 

corrective work is completed, the area shall be posted 

with a warning entry and, v1hen left unattended, 

a barrier shall be installed to impede unauthorized 

30 C.F.R. § 56.3130, entitled "Wall, bank, and slope stability," 

Mining methods shall be used that will maintain 

wall, bank, and slope stability in places where persons 

work or travel in performing their assigned tasks. When 

benching is necessary, the width and height shall be 

based on the type of equipment used for cleaning of 

benches or for scaling of walls, banks, and slopes. 

367 
Following an evidentiary hearing, Administrative Law Judge Michael Lasher 

found that Cyprus had violated the standards and that the violations were 

caused by Cyprus' unwarrantable failure to comply with the standards, but that 

they were not significant and substantial ("S&S") in nature. 13 FMSHRC 1523 

(September 199l)(ALJ). The judge also concluded that the citations were not 

duplicative, and could be modified following their termination. The 

Commission granted Cyprus' petition for discretionary review, which challenged 

all of these conclusions except the judge's determination that the violations 

were not S&S. For the reasons that follow, we affirm the judge's rulings, 

except for his determination that Cyprus' violation of section 56.3200 was 

caused by its unwarrantable failure, which we reverse. 

I. 

Factual and Procedural Background 

Cyprus owns and operates an open pit molybdenum mine in Tonopah, Nevada. 

The lower pit of the mine, "Pushback One" ("PBl"), is the focus of this 

proceeding. 

On February 27, 1990, Arthur Ellis, an inspector from the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), conducted a regular 

inspection of the mine. Inspector Ellis, accompanied by Mike Curran, Cyprus' 

operations supervisor, observed that on the east wall of PBl there was only 

one partial bench "about one quarter of the way from the top ... and no 

benches the rest of the way down," and that the bench was partly full of loose 

and unconsolidated material. 2 Tr. I 16-17, 20. He noticed that the east 

wall was rather steep and had a "nose," or protrusion, that considerably 

narrowed the middle of the pit floor. He observed that most of the benches on 

the west wall of PBl were covered by loose and unconsolidated material and 

were impassable. 

Inspector Ellis also observed a dozer descending into PBl and was 

informed by Mr. Curran and Robert Altamirano, Cyprus' safety manager, that 

miners were building a new berm along the base of the west wall because a 

previous berm had been filled with loose material that had sloughed from the 

wall. Inspector Ellis was told by Curran and Altamirano "that material was 

continually filling up the benches, and the berm was being built in an attempt 

to prevent material from falling onto miners working at the pit bottom. The 

inspector was concerned that, if the west wall were disturbed in the process 

of building the berm, loosened material would collapse onto the dozer 

operator. He suggested that the berm be rebuilt by hauling material into PBl 

by truck, rather than by using existing material from PBl. This was 

subsequently done. 

2 A bench is defined as "a ledge, which ... forms a single level of 

operation above which mineral or waste materials are excavated from a contiguous 

bank or bench face .... " Dictionary of Mining. Mineral. and Related Terms, 96 

(1968). 

368 
Later that evening, Inspector Ellis discussed his observations with his 

supervisor, Roger Breland, and requested ground control advice from MSHA's 

technical support division. The following day, on February 28, Ellis issued 

Citation No. 3459560, which alleged an S&S violation of section 56.3200, and 

stated: 

There was loose material and rocks on high walls in 

the Push Back One pit. Benches were full and did not 

provide protection from falling material. The walls 

were about 145 ft. high. An access road ran next to 

the west wall and pumps were being utilized to pump 

water at the bottom of the pit. An employee enters 

the area to move and maintain pumps. The area was not 

posted or barricaded to prevent travel alongside the 

high walls. 

S-Exh. 2. The citation was terminated on March 2, 1990, after the "entrance 

to Push Back One pit was barricaded and posted to prevent entry into the pit." 

S-Exh. 2. 

Inspector Ellis also issued Citation No. 3645243 on February 28, which 

alleged an S&S violation of section 56.3130, and stated: 

Benches between the 5545 level and the 5400 level in 

the Push Back One had accumulated with materials and 

would not provide an adequate catch bench to protect 

persons working below. An access road ran next to the 

west wall and pumps were being utilized to pump water 

from the bottom of the pit. Employee's [sic] enter 

the area to move and maintain pumps. 

S-Exh. l. The citation also provided that "[a]ll future 

benches that are cleanable and maintainable." S-Exh. l. 

the citation was terminated after mining activity in PBl 

mlnlng will include 

On March 2, 1990, 

was abandoned. 

Inspector Ellis modified both citations on March l, 1990, prior to their 

termination, by adding unwarrantable failure findings, thereby changing the 

two l04(a) citations to one citation and one order issued pursuant to section 

104(d)(l) of the Mine Act. The citation and order were again modified on 

September 5, 1990, to change the number of persons affected by the 

violations. 3 

Cyprus subsequently filed notices of contest and also filed a motion for 

partial summary judgment, alleging that the September 5 modifications were 

improper because they occurred after the citation and order had been 

terminated. The judge denied Cyprus' motion, and the matter proceeded to an 

evidentiary hearing. 

3 The citations were modified on various other occasions for minor or 

technical reasons unrelated to the issues presented. 

369 
Following the hearing, the judge affirmed his pretrial ruling on the 

post-termination modifications. 13 FMSHRC at 1527. The judge also rejected 

Cyprus' allegation that the citations4 were issued for the same condition in 

the same area and, thus, were duplicative. 13 FMSHRC at 1549. The judge 

reasoned that the requirements of sections 56.3200 and 56.3130, and the 

conditions described in the two citations, differed. 13 FMSHRC at 1549-50. 

The judge concluded that Cyprus had violated both sections 56.3200 and 

56.3130. 13 FMSHRC at 1550-51. The judge further determined that the 

violations were not S&S but were caused by Cyprus' unwarrantable failure to 

comply with the standards. 13 FMSHRC at 1551-55. 

On review, Cyprus challenges all of the judge's adverse determinations 

and also argues that the judge did not address its claim that the Secretary 

failed to plead violations with requisite particularity. 

II. 

Disposition of Issues 

A. Violation of section 56,3200 

In concluding that Cyprus violated section 56.3200, the judge found: 

there existed loose rock and material on walls and 

slopes of Pushback 1, which together with full and 

partly full, inadequately maintained, failing benches 

created a hazard to miners working in the narrow pit 

below and traveling along the haul road leading into 

the lower pit area. These hazardous ground conditions 

had not been taken down or corrected, and the area was 

not posted with a warning against entry or otherwise 

barricaded l:o impede entry .... 

13 FMSHRC at 1550. 

On review, Cyprus argues that the judge's conclusion is not supported by 

substantial evidence. Cyprus further contends that the judge erred by 

adopting an interpretation of the standard whereby the mere presence of loose 

material would constitute a per se violation. Cyprus also contends that the 

judge 1 s determination of the existence of a hazard is flawed because he failed 

to consider that the west wall sloped to an angle of repose, and because the 

factors he relied upon to determine the violation was not S&S could also 

support a conclusion that there was no hazard. 

We disagree with Cyprus's arguments. The judge did not interpret the 

standard to require a finding of violation whenever loose material was 

4 After finding the S&S allegations invalid, the judge modified the 

citation and order to section 104(a) citations. Consequently, we refer to the 

subject enforcement actions as "citations." See Mettiki Coal Corp., 13 FMSHRC 

760, 764 (May 1991); Consolidation Coal Co., 4 FMSHRC 1791, 1794 (October 1982). 

370 
present. Rather, he expressly considered factors in addition to loose 

material, stating that a hazard existed due to the "loose rock and material, 

filled benches, failing benches, tension cracks, and narrow pit floor." 13 

FMSHRC at 1536. While the judge noted the testimony of Cyprus's witnesses 

that the west wall had reached an angle of repose, and was stable (See, ~. 

13 FMSHRC at 1537-38, 1540-41), he credited testimony of the Secretary's 

witnesses asserting that material on the west wall had a potential to move 

and, in fact, was moving and reaching the pit bottom. 13 FMSHRC at 1535, 1551 

n.27. 

Cyprus' further contention that the judge should have considered the 

same factors that he utilized in considering whether the violation was S&S to 

determine whether there was a hazard is without merit. In establishing that a 

violation is S&S, the Secretary must prove that there is a reasonable 

likelihood that the hazard contributed to by the violation will result in an 

~nJury. 6 FMSHRC 1, 3-4 (January 1984). Section 56.3200 

requires that operators restrict miners' access to areas where hazardous 

conditions exist, whether or not,;Lt is likely that the hazard will result in 

an injury. 

We also conclude that substantial evidence supports the judge's finding 

that ground conditions on the east and west walls and pit floor created a 

hazard within the meaning of section 56.3200. 5 See Donovan v. Phelps Dodge 

Corporation, 709 F.2d 86, 92 (D.C. Cir. 1983). The judge credited Inspector 

Ellis' testimony that the benches on the west wall were full, that there was 

loose material on the faces, that the loose material "could come down and get 

somebody," and that the berm along portions of the west wall was "filled up." 

13 FMSHRC at 1529 n.8 & 1530. In addition, the judge credited the testimony 

of David Ropchan, a mining engineer from MSHA's technical support division who 

had observed the conditions in PBl on March 6, 1990, that the west wall was in 

a "state of distress" in that there was a partial failure of the wall, 

resulting in partly or fully covered, inaccessible and ineffective catch 

benches. 13 FMSHRC at 1531, 1533. Mr. Ropchan testified that pieces of loose 

material, up to several feet in diameter, existed near the top of the west 

wall. 13 FMSHRC at 1532-33. He stated that such conditions were hazardous 

because they could feed rock onto the slopes below and allow material to roll 

into the pit. 13 FMSHRC at 1532. Ropchan observed that the rough surface of 

the west wall would allow falling rock to bounce, become airborne, and assume 

a "considerable horizontal velocity." 13 FMSHRC at 1533-34. He explained 

that such loose material was a threat to miners and equipment in the pit 

because the west wall benches would be unable to contain some falling 

material, and the west wall stood over a very narrow travelway. Id. Ropchan 

testified that material and "material coming down with enough energy" 

could roll over the berm or "blow" through it. Tr. II 38-39. 

The judge also credited Ropchan's written report, in which he stated 

that a berm along the west half of the haul road was too close to the 

5 Evidence is undisputed that PBl was not posted or barricaded against 

entry and that miners were working in the area. Tr. I 63; Tr. III 15; 13 FMSHRC 

at 1536. 

3 71 
wall and too small to "provide sufficient rock fall protection considering the 

overall condition" of the west wall. 13 FMSHRC at 1535. Ropchan also stated 

in his report that tension cracks existed along the crest of the west wall. 6 

13 FMSHRC at 1534. 

With respect to the east wall, the judge credited Inspector Ellis' 

testimony regarding the scarcity of benches and the narrowness of the bottom 

of the pit, allowing only limited room for a miner to escape falling rock. 13 

FMSHRC at 1529-30; Tr. I 16-17, 20. Ropchan also testified that the east wall 

would tend toward greater instability because of its protrusion. Tr. II 85-

86. The judge also credited Ropchan's testimony that the condition of the 

wall posed some hazard to miners working in the narrow bottom of the pit. Tr. 

II 30, 37; 13 FMSHRC at 1531 n.lO. 

Cyprus challenges the judge's credibility determinations, arguing that 

MSHA's witnesses failed to investigate the conditions sufficiently, and that 

Cyprus' expert witnesses were better qualified than MSHA's. The Commission 

has recognized that: .. 

[e]xpert witnesses testify to offer their scientific 

opinions on technical matters to the trier of fact. 

If the opinions of expert witnesses conflict in a 

proceeding, the judge must determine which opinion to 

credit, based on such factors as the credentials of 

the expert and the scientific bases for the expert's 

opinion. 

Asarco, Inc., 14 FMSHRC 941, 949 (June 1992). 

The judge recognized Ropchan as well as two of Cyprus' witnesses, James 

Savely, a senior geological engineer in Cyprus' technical service assistance 

group, and Richard Call, the president of a geotechnical consulting firm, as 

experts. Tr. ll 14; Tr. III 77, 116. The judge noted that, in weighing their 

testimony, he would consider such factors as experience, qualifications, 

familiarity with the precise conditions, and how convincingly the testimony 

was stated. Tr. II 15. The judge credited the testimony of Ropchan and other 

MSHA witnesses over that of Cyprus' witnesses because he found it to be more 

convincing, reliable, and objective. 13 FMSHRC at 1534, 1546. The judge also 

found Ropchan's conclusions regarding the conditions in PBl to be "consistent 

with the general sense of the evidentiary record (including the various 

photographic exhibits therein)." 13 FJ:1SHRC at 1534. In addition, Ropchan 

testified that he had examined the mine conditions sufficiently to reach his 

conclusions (Tr. II 91), and the judge credited this testimony. Furthermore, 

the judge noted that the mining conditions observed by Ropchan had remained 

materially unchanged from the time of citation. 13 FMSHRC at 1532 n.ll. 

However, the judge noted that the conditions observed by Dr. Call were 

6 Ropchan testified that such cracks are a precursor to slope failure. Tr. 

II 28-29. 

372 
different from those in existence of the time of citation. 13 FMSHRG at 

1541. 7 we find no circumstances in this case warranting the unusual measure 

of rejecting the j 's determination that the testimony of MSHA's expert 

witnesses should be credited over the testimony of Cyprus' expert witnesses. 

See 12 FMSHRC 363, 374 (March 1990). 

Therefore, we conclude that substantial evidence supports the judge's 

finding that ground conditions existing in PBl created a hazard within the 

meaning of section 56.3200. we affirm the judge's finding that Cyprus 

violated section 56.3200. 

B. Violation of section 56.3130 

In concluding that Cyprus violated section 56.3130, the judge determined 

that the use of maintained benches was a necessary part of the 

mining method employed in PBl, and that the benches had accumulated rock and 

other material and did not serve as adequate catch benches. 13 FMSHRC at 

1536, 1550. The judge also founa·that Cyprus had not otherwise maintained 

wall, bank, and stability. 13 FMSHRC at 1551 n.27. 

Cyprus argues that the judge's determination is erroneous because the 

judge misinterpreted the standard by holding that the "potential requirement 

of benches was the paramount requirement" of the standard. C. Br. at 25. 

Cyprus maintains that an operator is required to accomplish the purpose of the 

standard, that is, provide stable walls, benches and slopes where miners work 

or travel, by whatever mining method is appropriate. Cyprus also argues that 

the standard requires cleaning and scaling of benches only when the mining 

process is initiated. Cyprus further contends that the judge's finding of a 

violation of section 56.3130 is not supported by substantial evidence and that 

the standard is impermissibly vague. 

Section 56.3130 requires the use of m~n~ng methods that 

maintain wall, bank and slope stability where persons work or travel. The 

standard also requires that "[w]hen benching is necessary, the width and the 

height shall be based on the type of equipment used for cleaning of benches or 

for scaling .... " 30 C.F.R. § 56.3130. The standard does not expressly 

require benching, nor does it set forth specific parameters for cleaning or 

maintaining benches if are used. 

The to section 56.3130 further explains its application: 

When benches are included in the "mining 

method," there must also be a maintenance system 

selected to prevent the deterioration of the ground 

from a fall of ground hazard. When required, 

7 The judge explained, however, that the testimony of Mr. Savely and Dr. 

Call had more probative value as to whether the violation was S&S, rather than 

as to whether Cyprus had violated the standard, because they seemed to concede 

the hazard of rock fall, and only gauged its probability of occurrence. 13 

FMSHRC at 1542 n.l8. 

373 
the benches must be able to serve as catch benches. 

MSHA agrees with the commenter who stated that many 

factors contribute to the determination of bench width 

and height. The standard provides a performanceoriented approach without restrictions on width and 

height of benches, other than those necessitated by 

the equipment selected for the maintenance function. 

51 Fed. Reg. 36192, 36193 (October 8, 1986). The purpose of the standard is 

to require mining methods that will maintain ground stability. The standard 

contemplates that benches, when included as part of an operator's mining 

method, must function as catch surfaces and must be maintained in order to 

prevent fall of ground hazards. Benches, therefore, must be accessible to 

maintenance equipment. 8 

Evidence regarding the state of the benches in PBl and Cyprus' failure 

to clean them is probative of the stability of the walls, banks, and slopes in 

PBl. The judge concluded that the ~ast and west walls were not competent, 

relying upon the failure of the benches, as well as other evidence that the 

walls were not stable. As noted above, the judge credited Inspector Ellis' 

testimony regarding the lack of space on the east wall benches to catch 

material. The judge also credited statements in Ropchan's written report that 

the east wall did "not have adequate catch benches to protect against falling 

rock in the work and travel areas below." 13 FMSHRC at 1535. Cyprus 

acknowledges that it employed benching on its east wall as a method of ground 

control and that no consideration was given, when designing the benches, to 

making them accessible for maintenance. Tr. II 143; C. Br. at 35. 

With respect to the west wall, the judge determined that benching was a 

necessary part of the mining method employed, in part because Cyprus had 

originally constructed benches on that wall and had adjusted its doublebenching method to a single-benching method. Cyprus contends that, because it 

encountered unexpected problems in the west wall, it had to alter its mining 

methods and, on the day of the inspection, benches were no longer necessary 

because the wall sloped to an angle of repose and a berm existed along 

portions of its base. The record, however, reveals that, although Cyprus 

relied upon other methods, it did not abandon benching. As Cyprus 

acknowledged, when it adjusted its mining method due to conditions encountered 

on the west wall, it inserted a bench at the 5475 foot level and inserted "a 

wider than planned bench" on other portions of the west wall. C. Br. at 4, 

33. 

The judge credited MSHA witnesses' testimony that the west wall was in a 

state of distress in that benches had failed or were partially full of fallen 

material rendering some of them quite ineffective, and that a sufficient 

8 We disagree with Cyprus' assertion that an operator is required under the 

standard to clean benches only upon their initial construction. The standard 

contemplates that benches must be cleaned whenever such activity would aid their 

ability to catch material, or to prevent ground from deteriorating and creating 

a hazard. 

374 
threat existed that the benches would be unable to catch material moving down 

the wall. 13 FMSHRC at 1529 n.8, 1532-33. The judge also credited testimony 

that material was moving down the wall and had partially filled an existing 

berm. 13 FMSHRC at 1535. Cyprus' operations supervisor conceded that some 

material from the wall had raveled to the bottom. Tr. III 33-34. In 

addition, the judge credited testimony from Ropchan regarding the inadequacy 

of the augmentation to the existing berm along portions of the west wall. 13 

FMSHRC at 1535. In sum, substantial evidence supports the judge's finding 

that the east and west wall were not stable and that the benches were not 

maintained to fulfill their function as required by the standard. 

We further agree with the judge that section 56.3130 is not 

impermissibly vague. The Commission has previously recognized that, in order 

to afford adequate notice, a mandatory safety 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." Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990) 

(citations omitted). Section 56.3130 incorporates a "performance-oriented" 

approach so that it is "broad enough to apply to the wide variety of 

conditions encountered." 51 Fed. Reg. at 36193. The appropriate test in 

interpreting and applying such broadly worded standards: 

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, 12 FMSHRC at 2416. The judge properly found that a reasonably prudent 

person would have recognized that section 56.3130 requires operators to adopt 

mining methods that maintain wall, bank, and slope stability, and that 

benches, when used, must be maintained so as to aid wall stability. 

Accordingly, we affirm the judge's determination that Cyprus violated section 

56.3130. 

c. 

In concluding that the violations were unwarrantable, the judge rejected 

Cyprus' argument that the condition of the benches justified its failure to 

clean them. 13 FMSHRC at 1552. He found that Cyprus never planned to 

maintain its benches, and that the failure to clean them created the hazard of 

falling rock. Id. In addition, the judge determined that Cyprus' conduct in 

these instances was inconsistent with its abatement actions with regard to 

previous violations of sections 56.3200 and 56.3130. The judge concluded 

that Cyprus' :. 

failure to maintain and clean its benches was not 

merely due to inadvertence or inattention since it is 

beyond dispute that its management personnel were 

quite aware of the continuity of conditions, [but] 

375 
proceeded intentionally to expose miners on the haul 

road and in the very narrow pit despite ineffective 

failing catch benches, and the presence of loose rock 

and material. 

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the 

Commission determined that unwarrantable failure is aggravated conduct 

constit1~ting more than ordinary negligence. This determination was derived, 

in part, from the plain meaning of "unwarrantable" ("not justifiable" or 

"inexcusable"), "failure" ("neglect of an assigned, expected or appropriate 

action"), and "negligence" ("the failure to use such care as a reasonably 

prudent and careful person would use, characterized by 'inadvertence,' 

'thoughtlessness,' and 'inattention'"). Id. The Commission's determination 

also was based on the purpose of unwarrantable failure sanctions in the Mine 

Act, the Act's legislative history, and judicial precedent. Id. 

Prior to this proceeding, MSHA-inspectors had been concerned about the 

stability of the high walls in PBl and had previously issued citations, which 

were uncontested, for those conditions. In May 1989, nine months before 

Inspector Ellis' inspection, MSHA Inspector Ron Barri had visited the mine, in 

response to a miner's complaint about various matters including the condition 

of the west wall. On May 31, and June 1, 1989, Inspector Barri issued two 

citations that alleged S&S violations of sections 56.3200 and 56.3130. The 

section 56.3200 citation stated that there "were large piece[s] of loose 

material hanging on the west high wall ... above the ramp" and that the "area 

was not posted or barricaded to prevent travel alongside the high wall." SExh. 18. The section 56.3130 citation stated that benches on the south end of 

the east vmll "had been allowed to accumulate materials and would not provide 

an adequate catch bench to protect haul truck traffic below," and that a 

"maint·3:::lance progr&u for maintaining benches had not been established .... " s~ 

.<.xr;_ . :Sreland (supe:nrisor of Ellis and Barri) had inspected the mine 

_)nne 19 8 9 , and ~!e ld a post~ inspection conference regarding the two 

~it:at:Lons :Lssued Inspec-tor Barri. At the meeting, Breland, Cyprus' General 

Manager Bill Gibson, Curran, Altamirano, and a miners' representative 

discussed the walls, overall mining plan, and signs of failure in the west 

\vall Breland testified that they discussed the requirements of section 

6. 3130 anci 56. 3200 " extensively." Tr. I 111. 

The testimony in the instant proceeding reveals that Cyprus apparently 

believed that maintenance of a berm along portions of the west wall put it in 

compliance with section 56.3200. In May 1989, when cited for violating 

section 56.3200 because of conditions existing on the west wall, Cyprus had 

abated the citation by a berm along the base of the west wall. SExh. 18. Although Supervisory Inspector Breland testified that Cyprus had 

been permitted to abate the earlier citation in such a fashion because MSHA 

understood that Cyprus was going to lessen the angle of the west wall, Curran 

testified that he did not understand that building the berm and lessening the 

angle of the west wall \vere linked. Tr. I 172; Tr. III 30-32. Curran 

understood that construction of the berm alone was sufficient to abate the 

citation. Tr. III 31-32. The description of the abatement action for the 

376 
May 1989 citation does not indicate that the angle of the west wall had to be 

reduced, but states only that "the west high wall in the ... has been 

barricaded with a large berm along its full length .... " S Exh. 18. Mr. 

Gibson also testified that, from the discussions of the closeout conference in 

June 1989, he understood that building a berm was sufficient for safe 

operation. Tr. II 211-12. 

We also find significant the fact that on the day of Inspector Ellis' 

inspection, Cyprus was in the process of constructing a larger berm at the 

base of the west wall. The Commission has previously recognized that an 

operator's pre-citation efforts in mitigating a violative condition are 

relevant in reviewing an unwarrantable failure determination. ~. Utah 

Power & Light Co., 11 FMSHRC 1926, 1933 (October 1989). 

Because Cyprus' conduct apparently resulted from a good faith, albeit 

mistaken, belief that its actions were in compliance with section 56.3200, we 

conclude that substantial evidence does not support the judge's finding that 

Cyprus' violation of 56.3200 wa~ .. caused by its unwarrantable failure. 

generally Utah Power & Light Co., 12 FMSHRC 965, 972 (May 1990). 

The record, however, supports the judge's conclusion that Cyprus' 

actions in violation of section 56.3130 were a result of its unwarrantable 

failure. The citation issued to Cyprus in June 1989, alleging a violation of 

section 56.3130, specifically provided that catch benches in PBl "had been 

allowed to accumulate[] materials and would not provide an adequate catch 

bench to protect haul truck traffic below." S-Exh. 19. The citation also 

provided that a "maintenance program for maintaining benches had not been 

established." S-Exh. 19. In order to abate the citation, Cyprus was required 

to clean a bench above a working area on the south wall. With respect to the 

close-out conference regarding the citation, Breland testified: 

Also the 3130 I specifically had gone out on several 

of those benches 1.vith l"like Curran and my 

superintendent. I ·talked to him about what was going 

on there. They were or could have been accessed to do 

the bench maintenance that's required as of the 

standard. However, they were not doing that and had 

not been doing that, and I explained the requirement 

there ·to keep ·those benches clear as as there w-as 

staff beneath them. 

Tr. I 111. Thus, Cyprus had been advised in June 1989, that it was required 

to adopt a maintenance program so that benches above -v;here miners worked could 

be cleaned when necessary to maintain ground stability. Even after receiving 

such notice from MSHA, Cyprus constructed benches that it never intended to 

enter for maintenance purposes. Tr. II 111, 146. 

Cyprus' experience with ground stability in PBl should have put it on 

notice that bench maintenance would, most likely, be necessary, and, as 

explained above, section 56.3130 requires an operator to maintain ground 

stability. The standard contemplates that benches, when used, be accessible 

to maintenance equipment. Cyprus continued to use benches in its mining, but 

377 
did not construct them so that they could be maintained. As the judge found, 

the benches did not serve their function as catch benches, and the 

unmaintained benches contributed to ground instability. 13 FMSHRC at 1550-51. 

We conclude that substantial evidence supports the judge's conclusion that 

Cyprus' failure to maintain the benches or take other adequate measures to 

maintain stability was aggravated conduct. Accordingly, we affirm his finding 

that Cyprus' violation of section 56.3130 was caused by its unwarrantable 

failure to comply with the standard. 

D. Whether the citations are duplicative 

Cyprus argues that the citations are duplicative because they address 

the same conditions in the same area of the mine. However, the requirements 

of sections 56.3200 and 56.3130 are different. Section 56.3130 requires that 

an operator use mining methods that maintain wall stability and sets forth 

additional requirements if benching is necessary. In contrast, section 

56.3200 requires that, if a hazardous,ground condition occurs, it be corrected 

and entry into the area be restricted until corrective work is completed. The 

standards are related in that an operator's failure to mine in a way that 

maintains stability may also result in a hazardous condition requ~r~ng an 

operator to restrict access until the hazardous condition is corrected. As 

the Commission has recognized: 

[t]he 1977 Mine Act imposes a duty upon operators to 

comply with all mandatory safety and health standards. 

It does not permit an operator to shield itself from 

liability for a violation of a mandatory safety 

standard simply because the operator violated a 

different, but related, mandatory standard. 

El Paso Rock Quarries, Inc., 3 FMSHRG 35, 40 (January 1981), Thus, although 

Cyprus' violations may have emanated from the same events, the citations are 

not duplicative because the two standards impose separate and distinct duties 

upon an operator. Accordingly, we affirm the judge's conclusion that the 

citations are not duplicative. 

E. Modification of the citations following termination 

Cyprus argues that the September 5, 1990, modifications to the citations 

changing the number of persons affected by the violations, were improper 

because the citations had been terminated. We agree in result with the 

judge's conclusion that the subject citations were not improperly modified. 

In Wyoming Fuel Corp., 14 FMSHRC 1282 (August 1992)("WFC"), the 

Commission held that, absent legal prejudice to the operator, the Secretary's 

modification of a section 104 citation, terminated pursuant to section 104(h) 

of the Mine Act, 30 U.S.C. § 814(h), was permissible. 14 FMSHRC at 1287-92. 

The Commission reasoned that termination of a section 104 citation is an 

administrative action of the Secretary that is meant to convey that a 

violative condition has been abated and to inform the operator that it will no 

longer be subject to a withdrawal order pursuant to section l04(b), 30 U.S.C. 

§ 814(b), for failure to abate. 14 FMSHRC at 1289. The Commission drew an 

378 
analogy between the Secretary's modification of a terminated citation or order 

and the amendment of a pleading pursuant to Fed. R. Giv. P. 15(a), concluding 

that a modification should be permitted unless the operator would be legally 

prejudiced by the modification. 14 FMSHRG at 1290. 

Here, Cyprus has offered no evidence that it was prejudiced by the 

modifications but only argues that the modifications were improper as a matter 

of law. We conclude that Cyprus' challenge to the modifications is without 

merit. 

F. Particularity of citations 

Cyprus argues that the citations failed to plead violations with 

sufficient particularity because they do not clearly set forth the time or 

location that the allegedly violative conditions existed and, furthermore, 

that it was confused as to the proper method of abatement. Cyprus contends 

that the judge failed to address this argument. In fact, the judge noted that 

Cyprus maintains that "both enforcement documents (the Citation and the Order) 

... are impermissibly vague." 13 FMSHRC at 1525 (emphasis added). The judge, 

by considering specifically the merits of each alleged violation, implicitly 

rejected Cyprus' particularity argument. 

Section 104(a) requires that each "citation shall be in writing and 

shall describe with particularity the nature of the violation, including a 

reference to the provision of the Act, standard, rule, regulation, or order 

alleged to have been violated." The Commission has generally recognized that 

this requirement for specificity serves the purpose of allowing the operator 

to discern what conditions require abatement, and to adequately prepare for a 

hearing on the matter. See,~. Mid-Continent Resources,Inc., 11 FMSHRC 

505, 510 (April 1989)(citations omitted); Jim Walter Resources, Inc., 1 FMSHRG 

1827, 1829 (November 1979); Old Ben Goal Go., 2 FMSHRC 1187, 1190 (June 1980); 

3 FMSHRC 1181 (May 1981). 

We conclude that the citations were sufficiently specific to provide 

notice to Cyprus that conditions existed that were alleged to be in violation 

of the cited standards and that corrective action was necessary. Moreover, 

Cyprus conducted extensive pretrial discovery that provided it with an 

opportunity to gain the information necessary to prepare adequately for trial. 

See, ~. Annotation, Construction and Application of Provision of 29 U,S.C. 

§ 658(a) that OSHA Citation "shall describe with Particularity the Nature of 

the Violation," 48 ALR Fed 466, § 6(b) (1980). In addition, the cited 

conditions were, in fact, adequately abated. Accordingly, we affirm the 

judge's implicit conclusion that the citations met the Act's specificity 

requirements. 

379 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's findings that Cyprus 

violated sections 56.3200 and 56.3130, that Cyprus' violation of section 

56.3130 was caused by its unwarrantable failure to comply with the standard, 

and that the citations were not duplicative, could properly be modified 

following their terminations, and charged violations with sufficient 

particularity. We reverse the judge's finding that Cyprus' violation of 

section 56.3200 was caused by its unwarrantable failure. Accordingly, we 

remand to the judge for recalculation the penalty for Cyprus' violation of 

section 56.3200. 

Distribution 

R. Henry Moore, Esq. 

Buchanan 

600 Grant Street 

58th Floor 

Pit , PA 15219 

Colleen A. Geraghty, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Arlene Holen, Chairman 

Richard V. 

L. Clair Nelson, Commissioner 

Federal Xine Safety & Health Review Commission 

280 Colonnade Center 

1244 Speer Blvd. 

Denver, CO 80204 

380 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PEABODY COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Ha r c h 2 5 , 1 9 9 3 

Docket Nos. KENT 91-179-R 

KENT 91-185-R 

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

, .. DECISION 

BY THE COMMISSION: 

This consolidated contest 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 Secretary of Labor issued two citations to Peabody Coal Company 

("Peabody") alleging violations of 30 C.F.R. § 75.316 (1990) 1 for operating 

mines without approved ventilation plans. Administrative Law Judge Gary 

1 30 C.F.R. § 75.316 (1990), which adopted the language of 30 U.S.C. 

§ 863(o), provided as follows: 

A ventilation system and methane and dust control 

plan and revisions thereof suitable to the conditions 

and the mining system of the coal mine and approved by 

the Secretary shall be adopted by the and set 

out in form on or before June 28, 1970. The 

plan shall show the and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

Secretary may , the quantity and velocity of air 

reaching each working face, and such other information 

as the Secretary may Such shall be 

reviewed by the operator and the Secretary at least 

every 6 months. 

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

revised its ventilation standards in 1992, superseding former section 75.316. 

Ventilation plan requirements are now set forth at 30 C.F.R. §§ 75.370-.372 

(1992). 

381 
Melick upheld the citations. 13 FMSHRC 1332 (August l99l)(ALJ). The 

Commission granted Peabody's petition for discretionary review. 

Peabody raises the following issues on review: (1) whether a certain 

ventilation requirement related to "deep cut" mining that the Secretary 

insisted be included in Peabody's plans should have been issued pursuant to 

the Mine Act's notice and comment rulemaking procedures; (2) whether Peabody 

was required to negotiate in good faith with the Secretary over the deep cut 

ventilation provision in the plans; (3) if such an obligation existed, 

whether Peabody negotiated in good faith over the disputed provision; and 

(4) whether MSHA acted reasonably in requiring the provision at issue. 

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

ventilation plan provision was mine specific and that Peabody was obligated 

to negotiate in good faith. We reverse with respect to the third issue, 

i.e., we conclude that Peabody negotiated in good faith. We remand the case 

to the judge for a determination of whether the disputed provision was, in 

fact, suitable to these mines. 

I. 

Procedural and Factual History 

A. Factual Background 

Peabody operates the Martwick Mine in Muhlenburg County, Kentucky, and 

the Camp No. 2 Mine in Union County, Kentucky. Both are underground coal 

mines that utilize a method of continuous mining known as deep cut mining. 2 

MSHA's District 10 Office ("District 10") revoked Peabody's ventilation 

plans at the Martwick and Camp No. 2 Mines because Peabody refused to adopt 

a particular provision dealing with the ventilation of deep cuts. District 

10 insisted that Peabody extend the line curtain during roof bolting to 

within 10 feet of the row of bolts being set and to provide a certain 

minimum air velocity. Under previously approved plans, the line curtain was 

not extended into deep cuts until after the roof was fully bolted. MSHA 

cited both Peabody mines for operating without approved ventilation plans in 

violation of section 75.316. 

1. 

On December 4, 1990, District 10 informed the Martwick Mine that it 

was conducting its regular six-month review of the ventilation plan pursuant 

to section 75.316. Martwick submitted its plan on December 28, 1990. On 

January 10, 1991, District 10 rejected the Martwick plan and informed 

Peabody that it should include a provision outlining in detail the placement 

of line brattice and the volume of air reaching the end of the line brattice 

2 "Extended" or "deep cut continuous mining" is a method of m1.n1.ng that 

cuts deeper than 20 feet from the last full row of permanent roof supports. 

Remote~controlled continuous mining machines allow the operator to remain under 

permanent roof supports when making extended cuts. 

382 
in places where roof bolting was in progress. On January 17, District 10 

and Peabody officials met. The parties discussed deep cut ventilation 

requirements. The particulars as to what Peabody was told were 

controverted. 

On January 25, Peabody submitted a revised ventilation plan but failed 

to outline how it would ventilate deep cuts. The plan was rejected. 

Peabody then submitted a second revised ventilation plan that again did not 

provide for the ventilation of deep cuts. In explaining the omission in its 

transmittal letter, Peabody stated: 

This item has never been included in any previous 

plans. Peabody has operated under previous 

ventilation plans at this location without safety 

problems or conflicts concerning this issue. 

Therefore, Peabody feels this plan submitted today 

without this item included meets all applicable laws 

and regulations. 

Peabody attached to its letter a decision by Administrative Law Judge 

William Fauver in Peabody Coal Company, 10 FMSHRC 12 (January l988)(ALJ), 

dealing with ventilation requirements at another Peabody mine. In that 

decision, the judge found that MSHA's District 3 guideline calling for 

ventilation of 3,000 cubic feet of air per minute during the roof bolting 

process was not mine specific. Judge Fauver concluded that MSHA could not 

insist upon inclusion of the provision because MSHA failed to show 

"individual analysis, evaluation and negotiation" concerning each mine. 10 

FMSHRC at 16. Peabody asserted that its current situation and the case 

decided by Judge Fauver were identical and that it should not have to 

include the deep cut ventilation provision in its plan. 

On February 11, MSHA cited Peabody for violation of section 75.316, 

for operating without an approved ventilation plan. Peabody submitted a 

revised ventilation plan, under protest, containing the changes required by 

MSHA. 

2. Camp No. 2 Mine 

Peabody submitted its six-month plan for the Camp No. 2 Mine to 

District 10 on November 28, 1990, and that plan was rejected on December 17. 

Peabody submitted a revised plan on January 4, 1991. District 10 again 

rejected the plan, informing Peabody that it must include a provision for 

ventilation of the deep cuts during the roof bolting stage. Peabody then 

submitted another plan that included the following provision: 

Deflector curtains shall be used to ventilate deep 

cuts during the roof bolting cycle such that the 

current of air shall be of sufficient quantity to 

dilute, render harmless, and to carry away, 

flammable, explosive, noxious, and harmful gases and 

dust, and smoke and explosive fumes. 

383 
MSHA found this provision unacceptable and rejected the plan. 

By letter to District 10 dated February 13, 1991, Peabody requested a 

meeting and written notification of the reasons for the plan's rejection. A 

meeting between Peabody officials and MSHA ventilation specialists was held 

on February 19. Again, the particulars of MSHA's explanation to Peabody 

were controverted. 

On February 19, Peabody resubmitted its ventilation plan. The plan 

contained no provision relating to the ventilation of deep cuts. MSHA 

replied that the plan was unacceptable because it failed to explain how deep 

cuts would be ventilated. On February 21, Peabody was again cited for 

operating without an approved ventilation plan. Under protest, Peabody 

submitted a revised plan complying with MSHA's demand. 

B. Procedural Historv 

Peabody filed notices of contests of both citations and moved for 

expedited hearings. The cases were ~gnsolidated and assigned for hearing. 

A hearing was held on August 7 8, 1991. The judge bifurcated the hearing 

and first heard the issue of whether the provision regarding the ventilation 

of deep cuts was specific to the particular conditions of the Peabody mines 

or was of such a general nature as to be subject to the notice and comment 

rulemaking process for mandatory safety and health standards set forth in 

section 101 of the Mine Act, 30 U.S.C. § 811. The judge concluded that 

"MSHA's insistence upon the inclusion of these particular ventilation 

requirements ... is not a general requirement subject to the rulemaking 

procedures but rather is mine specific." 13 FMSHRC at 1335. 

The judge based his conclusion on the testimony of the MSHA witnesses, 

who outlined criteria that were examined on a mine-by-mine basis to 

determine whether the deep cut ventilation provision would be required in a 

particular plan. 13 FHSHRC at 1335. The judge found compelling the 

testimony of Martwick Mine Superintendent Charles Jernigan that he was told 

by HSHA "that the reason for the new requirements implemented at the 

Martwick Hine was its high methane liberation and that mines with deep cuts 

were being examined on a mine-by-mine basis." Id. The judge also attached 

weight to evidence that two deep cut mines in District 10 that liberate 

comparatively low quantities of methane were not required to incorporate the 

provision at issue. Id. 

After announcing this determination orally at the conclusion of the 

first of the hearing, the judge recessed the hearing until the 

following morning and requested that the parties negotiate with respect to· 

the ventilation provision. When no resolution was forthcoming, the judge 

heard testimony on the issues of whether good faith negotiations over the 

disputed provision had occurred between the parties and whether the 

ventilation plan provision proposed by HSHA was valid. 

The judge determined that Peabody had failed to negotiate in good 

faith, as required by Carbon County Coal Company, 7 FMSHRC 1367 (September 

1985). 13 FMSHRC at 1336. The judge reasoned that Peabody's "good faith 

384 
reliance on a colorable legal position," i.e., Judge Fauver's decision in 

Peabody Coal, supra, did not excuse Peabody from "negotiating regarding the 

specific underlying safety issue." Id. The judge held that, given 

Peabody's failure to negotiate in good faith, it was "clearly premature for 

the Commission to intervene in the approval-adoption process." Id. 

Accordingly, he declined to rule on the validity of the deep cut ventilation 

provisions and affirmed the citations against Peabody. 13 FMSHRC at 1337. 

II. 

Disposition of Issues 

A. Whether the deep cut ventilation requirement was mine specific 

Peabody asserts that the provision in dispute was not mine specific 

and should have been implemented through the Mine Act's notice and comment 

rulemaking procedures set forth in 30 U.S.C. § 811. 

Section 303(o) of the Mine Act mandates the development of ventilation 

plans as follows: 

A ventilation system and methane and dust 

control plan and revisions thereof suitable to the 

conditions and the mining system of the coal mine 

and approved by the Secretary shall be adopted by 

the operator and set out in printed form within 

ninety days after the operative date of this 

title .... 

30 U.S.C. § 863(o)(emphasis added). 

The legislative history of section 303(o) explains that mine 

ventilation plans must address the conditions of each mine: 

[I]n addition to mandatory standards applicable to 

all operators, operators are also subject to the 

requirements set out in the various mine by mine 

compliance plans required by statute or regulation. 

The requirements of these plans are enforceable as 

if they were mandatory standards. Such individually 

tailored plans, with a nucleus of commonly accepted 

practices, are the best method of regulating such 

complex and potentially multifaceted problems as 

ventilation, roof control and the like. 

S. Rep. No. 181, 95th Cong., 1st Sess. 25 (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 

613 (1978). 

The Commission and the courts have further emphasized the individual 

nature of roof control and ventilation plans. See Zeigler Coal Co. v. 

385 
Kleppe, 536 F.2d 398, 406-07 (D.C. Cir. 1976); Carbon County, 7 FMSHRC at 

1370. See also Southern Ohio Coal Co., 14 FMSHRC 1, 10-11 (January 1992) 

("SOCCO")(discussing Zeigler and Carbon County). Zeigler and Carbon County 

set forth limits on MSHA's authority by prohibiting MSHA from imposing 

general rules applicable to all mines in the plan approval process, but did 

not resolve the question of whether MSHA may require the inclusion of a 

provision that is applicable to a number of mines. In UMWA v. Dole, 870 

F.2d 662, 669-72 (D.C. Cir. 1989), the D.C. Circuit, construing both Zeigler 

and Carbon County, clarified that mine plans need not "be confined 

exclusively to mine-specific conditions" but may contain generally 

applicable provisions so long as the provisions address the particular 

conditions of the mine to which they apply. 870 F.2d at 670. Dole 

recognized that the Secretary should utilize mandatory standards for 

requirements of "universal application." 870 F.2d at 672. Nonetheless, the 

court emphasized that the Secretary possesses "considerable authority" to 

determine which hazards are more properly addressed by the promulgation of 

mandatory standards under section 101 of the Mine Act. 870 F.2d at 671. 

The Court endorsed Carbon County for the proposition that the Secretary 

commits an abuse of discretion by re'luiring·adoption of plan provisions 

without consideration of the particular conditions of a mine or by imposing 

plan provisions of "universal application" outside the mandatory standard 

promulgation process. 870 F.2d at 672. 

Thus, mine ventilation or roof control plan provlslons must address 

the specific conditions of a particular mine. Such conditions, however, 

need not be unique to the mine. Indeed, a general plan provision addressing 

conditions that exist at a number of mines may be permissible providing 

those conditions are present at the mine in question. 

The judge determined that the deep cut ventilation provlslon at issue 

was mine specific. 13 FMSHRC at 1334. He found that District 10 insisted 

upon the new requirement at the Hartwick and Camp No. 2 mines primarily 

because of the mines' high methane liberation rates. 3 He credited the 

·testimony of MSHA witnesses as well as Peabody's mine superintendent in 

determining that MSHA applied this requirement on a mine-by-mine basis. 

Peabody asserts that the deep cut ventilation provision was being 

applied across the district. Peabody terms the Secretary's position "selfserving," alleging that any mine-by-mine examination began only after this 

litigation commenced, as shown by the Secretary's announcement at the 

hearing that the new ventilation requirement would not be applied in one 

seam at the Camp No. 2 mine. Tr. III 84; P. Br. 20. Further, the mine 

3 Hartwick is subject to 15-day spot inspections under section 103(i) of 

the Hine Act, 30 U.S.C. § 813(i), because it liberates more than 200,000 cubic 

feet of methane during a 24-hour period. One MSHA official testified that MSHA 

determined that ventilation of deep cuts was necessary at Martwick because of the 

mine's methane liberation levels. Tr. 73. Camp No. 2 liberates methane at a 

rate of over 500,000 cubic feet during a 24-hour period and is subject to a 10-

day spot inspection, pursuant to section 103(i) of the Mine Act. 

386 
plans that would not be required to incorporate the provlslon had not yet 

been approved. Peabody also asserts that the criterion of total methane 

liberation is too simplistic a measure of safety. 

We find that substantial evidence in the record supports the judge's 

finding that the required provision was mine specific. All MSHA witnesses 

testified that they addressed application of the new requirement in District 

10 on a mine-by-mine basis. The Martwick Mine superintendent testified that 

MSHA officials explained to him that the plan provision was being 

implemented based on methane levels at individual mines. The judge found 

that two other deep cut mines in the district, which liberate low levels of 

methane, would not be required to include the provision. While, as Peabody 

argues, methane liberation is not the only relevant factor in evaluating 

mine ventilation, a number of factors were considered by MSHA before 

imposing the new plan provision. MSHA also took into account the depth of 

the cut, the size of the continuous miner and the height of the coal. Tr. 

18-19, 121-27. 

We conclude that the deep c.ut ventilation requirement was not applied 

by rote process, as condemned in Carbon County, 7 FMSHRC at 1373, but, 

instead, was based on specific conditions at the two mines. While the 

requirement may also be appropriate for similarly situated deep cut mines, 

its general application does not render it invalid. See Dole, 870 F.2d at 

669-72. The record evidence does not suggest that the requirement is of 

such universal application that the Secretary committed an abuse of 

discretion by failing to promulgate it as a mandatory standard. 

Accordingly, we affirm the judge's finding that MSHA's deep cut ventilation 

requirement was mine specific. 

B. Whether Peabody negotiated in good faith 

Peabody asserts that, even if the provision was sufficiently mine 

specific in nature, it was nonetheless substantively invalid because it was 

not "suitable" to the conditions in Peabody's mines within the meaning of 

section 303(o) of the Mine Act and 30 C.F.R. § 75.316. The judge did not 

reach the merits of the provision because he determined that Peabody had not 

fulfilled its duty of good faith negotiation with MSHA over the provision. 

On review, Peabody urges that only MSHA, not an affected operator, is 

required to conduct good faith negotiations over plans but that, in any 

event, Peabody had so negotiated. In support of its argument, Peabody 

asserts that the good faith negotiation requirement is intended solely as a 

check on the Secretary's potential abuse of power. We disagree. The 

Commission's and the courts' longstanding view has been that both the 

Secretary and the operator are required to enter into good faith discussions 

and consultation over mine plans. As the Dole court noted, "[t]he specific 

contents of any individual mine [ventilation or roof control] plan are 

determined through consultation between the mine operator and the [MSHA] 

district manager." 870 F.2d at 667. In Carbon County, the Commission 

explained this process: 

387 
The requirement that the Secretary approve an 

operator's mine ventilation plan does not mean that 

an operator has no option but to acquiesce to the 

Secretary's desires regarding the contents of the 

plan. Legitimate disagreements as to the proper 

course of action are bound to occur. In attempting 

to resolve such differences, the Secretary and an 

operator must negotiate in good faith and for a 

reasonable period concerning a disputed provision. 

Where such good faith negotiation has taken place, 

and the operator and the Secretary remain at odds 

over a plan provision, review of the dispute may be 

obtained by the operator's refusal to adopt the 

disputed provision, thus triggering litigation 

before the Commission. 

7 FMSHRC at 1371 (citation omitted)(emphasis added). See also Penn Allegh 

Coal Co., 3 FMSHRC 2767, 2773 & n.8 (December 1981); Jim walter Resources, 9 

FMSHRC 903, 907 (May 1987). 

Thus, we affirm the judge's determination that both Peabody and the 

Secretary were required to engage in good faith negotiations. However, we 

conclude that the record does not support the judge's finding that Peabody 

failed to negotiate in good faith. Rather, the record reveals that adequate 

discussion occurred between the parties. Judge Fauver's decision, on which 

Peabody relied, involved nearly identical facts. Peabody asserted that its 

previously approved plans were suitable to the conditions of the two mines 

and sought from MSHA the reasons for imposing the new requirement. Peabody 

requested and attended meetings with MSHA to discuss the ventilation 

provision and proposed an alternative. 

Reliance on a cognizable legal position is not indicative of bad faith 

negotiation by an operator in the plan approval process. Peabody 

communicated its legal position to the Secretary and engaged in discussions 

concerning the disputed provision. Having presented to the Secretary a 

position that was arguably controlling, Peabody was not obligated to abandon 

its position. Accordingly, we reverse the judge's conclusion that Peabody 

failed to negotiate in good faith. 

C. The merits of the disputed urovision 

we remand to the judge to decide whether the disputed prov1s1on was 

"suitable" to Peabody's mines, as contemplated by 30 U.S.C. § 863(o). The 

Secretary bears the burden of proving that the plan provision at issue was 

suitable to the mines in question. See JWR, 9 FMSHRC at 907 (involving 

ventilation plans), and SOCCO, 14 FMSHRC at 13 (involving safeguards). 

388 
III. 

Conclusion 

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

ventilation plan provision was mine specific but reverse his conclusion that 

Peabody did not negotiate in good faith. We remand for consideration of 

whether the disputed provision was suitable to the mines in question. 

Distribution 

C. Gregory Ruffennach, 

Smith, Heenan & Althen 

1110 Vermont Ave. N.W. 

Suite 400 

Washington, D.C. 20005 

Tina Gorman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Hole , Chairman 

/./} 

('dvJ'vv-v-/~k4', Richard V. Backley, Commissioner 

~JL~ L. Clair Nelson, Commissioner 

Administrative Law Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

389 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SHERRELL STEVEN REID 

v. 

KIAH CREEK MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 31, 1993 

Docket No. KENT 92-237-D 

DIRECTION FOR REVIEW AND ORDER 

In this discrimination proceeding arising under the Federal Mine Safety 

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

parties have filed a "Joint Petition for Discretionary Review/Joint Motion to 

Vacate AW Decision, Approve SettlemE:rnt Agreement, and Dismiss Proceeding." 

For the reasons set forth below, the petition and joint motion are granted. 

On March 10, 1993, Administrative Law Judge Avram Weisburger issued a 

decision finding that the complainant had not established a violation under 

section lOS(c) of the Mine Act. Prior to the issuance of the judge's 

decision, the parties had engaged in settlement negotiations. On March 12, 

1993, they entered into a settlement agreement. Upon informing the judge's 

office of the settlement, they learned that the judge had already issued his 

decision.* 

The judge's jurisdiction in this matter terminated when his decision was 

issued on March 10, 1993. 29 C.F.R. § 2700.65(c). Under the Mine Act and the 

Commission's procedural rules, relief from a judge's decision may be sought by 

with the Commission a petition for discretionary review within 30 days 

of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70. The joint 

petition for discretionary review is granted. 

Oversight of proposed settlements is, in general, committed to the 

Commission's sound discretion. See, ~' Pontiki Coal Corp., 8 FMSHRC 668, 

674-675 (May 1986). The parties attached to their joint motion a copy of 

their settlement agreement, which is signed by Kiah Creek's President and by 

Complainant Reid. We have reviewed the settlement agreement, motion, and 

record and, upon full consideration, we approve the settlement and grant the 

motion. See, Duval Corporation, 8 FMSHRC 662 (May 1986); Western Fuels -

Utah, Inc., 11 FMSHRC 134 (February 1989); Birchfield Mining, 11 FMSHRC 1428 

(August 1989); Medusa Cement, 12 FMSHRC 1913 (October 1990). 

* We note that the judge issued his decision shortly after receipt of final 

briefs. Parties should inform a judge when settlement negotiations may obviate 

the need for a ruling on the merits. 

390 
Accordingly, this proceeding is dismissed. 

L. Clair Nelson, Commissioner 

Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense Fund 

of Kentucky, Inc. 

630 Maxv7el ton Court 

Lexington, KY Lr0508 

for Sherrell Steven Reid 

Billy R. Shelton, Esq. 

Baird, Baird, Baird & Jones 

PoOo Box 351 

Pikeville, KY 41502 

for Kiah Creek Mining 

Administrative Law Judge Avram Heisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

391 

ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

6203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MA~ 1 1993 

CONSOLIDATION COAL COMPANY, 

Contestant 

Vo 

SECRETARY OF LABORu 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. .. 

. . 

0 

. 

. 

0 

. . 

. 

0 

0 

" 

0 

" ~ .. . 

• 

CONTEST PROCEEDINGS 

Docket No. PENN 91-1302-R 

Order No. 3690652; 6/24/91 

Docket No. PENN 91-1304-R 

Order No. 3702374; 7/2/91 

Docket No. PENN 91-1305-R 

Order No. 3690658; 7/3/91 

~ Dilworth Mine 

: Mine ID 36-04281 

g CIVIL PENALTY PROCEEDING 

~ Docket No. PENN 91-1462 

A.C. No. 36-04281-03740 

0 

Q 

Dilworth Mine 

DECISION 

Appearancesg Daniel Rogers, Esq., Consolidation Coal 

company, Pittsburgh, Pennsylvania, for 

Consolidation Coal Company. 

Theresa Timilinu Esq. 0 U.S. Department of 

Laborv Office the Solicitoru Philadelphiau 

Pennsylvaniau for the Secretary of Labor. 

Beforeg Judge Weisberger 

These consolidated cases are before me based upon petitions 

for assessment of a civil penalty filed by the Secretary of Labor 

(Petitioner)u alleging violations of various mandatory safety 

standards. Pursuant to notice, the cases were heard in 

Waynesboro, Pennsylvania, on October 28, 1992. George Rantovich, 

Randy cunningham, Ronald Gossard, Ronald Hixson, Marlon Whoolery, 

James Samuel Conrad, Jr., and James W. Reed, testified for the 

Petitioner. James Hunyady, John Burr, Patrick M. Wise, and 

Robert Belesky, testified for Respondent. 

39 2 
Respondent filed a Post-Hearing Brief on January 11, 1993. 

Petitioner's Proposed Findings of Fact and Brief was filed on 

February 4, 1993. 

I. Citation No. 3702400 

A. Introduction 

on June 5, 1991, on the s-o Section during the evening 

shift, Paul Checoski, the mechanic on the section, locked and 

tagged the power center supplying power to a 7,200 volt cable. 

The cable was then moved, and another cable was attached to it by 

John Holonich, a roof bolter, and John Rerko, a miner operator. 

Neither of these was a qualified person meeting the requirements 

of 30 C.F.R. § 75.153. In making the connection between the two 

cables, threaded ends are screwed together by hand and then 

tightened with a wrench if necessary. This is the only way for 

the cables to be connected to one another. 

Randy c. Cunningham, a roo.f bolter, and Don Jones, a 

foreman, neither of whom is qualified pursuant to Section 75.153 

supra, connected the extended cable to the load center. 

Cunningham indicated that when he made the connection to the load 

center, he and Jones "might have wiped some dirt out" (Tr. 56), 

but 91 it wasn 1 t bad, it was just dry dirt." (Tr. 57) He also said 

that the area was damp, and there were mud puddles at various 

locations. 

Once the connections were made, and before the power was 

restored, Cunningham asked Sam Basle, the section foreman, 

whether the connection should be inspected by a qualified person 

before the cable is energized. Basle checked with the 

maintenance foremanu cy Wilson. According to Cunninghamu Basle 

said that Wilson told him said that such an inspection is not 

necessary. When the cable was energized after the connections 

had been madeu functioned properly and there were no sparks. 

On June 19v 199lv George Rantovich, an MSHA inspector, 

inspected the subject mine in response to Section 103(g) 

complaint that had been received in the MSHA office on June 13 1 

or June 14u 1991. He issued a section 104(a) citation alleging a 

violation of 30 C.F.R. § 75.511 based on the incident that had 

occurred on June 5 6 1991. Specifically, the citation alleges as 

followsg auEvidence indicates that on the 8-D section 72.00 

cableu an examination by a qualified person was not conducted on 

the additional cable connectors and plugs before the power was 

restored on cable. gg [sic] 

30 C.F.R. § 75.511, as pertinent, provides as follows: "No 

electrical work shall be performed on low, medium, or highvoltage distribution circuits or equipment, except by a qualified 

person or by a person trained to perform electrical work and to 

393 
maintain electrical equipment under the direct supervision of a 

qualified person." 

As his rationale for the issuance of the citation at issue, 

Rantovich indicated that a person not qualified would not 

recognize the dangers presented by the presence by mud and water 

in the ends of the high voltage cables that had to be connected. 

He indicated that should such mud and water be present and not 

removed, there is a danger of an explosion causing injuries, once 

the cables are connected and energized. Ronald J. Gossard, an 

MSHA electrical supervisor corroborated Rantovich's testimony in 

this regard. Respondent has not impeached or contradicted this 

testimony. 

B. Discussion 

The record is clear that the persons who connected the 

extension to the cable, and the cable to the load center, were 

not qualified as that term is defined in Section 75.153, supra, 

nor were they performing this work under the direct supervision 

of a qualified person. However, in order for the activities at 

issue to be violative of Section 75.511 supra, they must fall 

within the ambit of that section i.e., they must be "electrical 

work11 • In this connection, Rantovich relied on the MSHA Program 

Policy Manual ("PPM")v dated April 1, 1991, which defines 

electrical work as "the work required to install or maintain 

electric equipment or conductors". The PPM lists as examples of 

work not required to be performed by a qualified person, inter 

alia, the following: "inserting low-and-medium-voltage cable 

couplers into receptacles or withdrawing low-and-medium-voltage 

cable couplers from receptacles". Rantovich and Gossard, in 

essenceu argued that since coupling low and medium-voltage cables 

are examples of work not requiring a qualified person, then 

coupling a high voltage cable would be considered work requiring 

a qualified person. Although weight is to be accorded the 

Secretary 1 s interpretation of her regulations, the interpretation 

is not binding where it goes beyond the plain meaning of the 

regulations especiallyu where the regulationsv reiterate 

statutory language. (Seeu King Knob Coal COou 3 FMSHRC 1417u 

1420 8 No3 9 (198ljj. 

Section 75.511 suprau contains the exact language found at 

Section 305(f) of the Federal Coal Mine Health Safety Act of 

1969 8 (PoL. 91-173)u (nthe 1969 Act")u which has been 

incorporated in the Federal Mine Safety and Health Act of 1977 

("the 1977 Act 11 ). Both the parallel language in the Senate 

version of the 1969 Act, S.2917, and the House Bill, H.R. 13950, 

provided that, "no work" shall be performed on high voltage 

circuit or equipment except by qualified persons." (emphasis 

added) The House of Representative Conference Report 

accompanying S. 2917 specifically qualified this provision by 

providing that, "no electrical work", is to be performed except 

394 
by a qualified person. (H.R. Rep. No. 91-761, 91st Cong., 1st 

Session, at 25, found in Legislative History of the Federal Mine 

Health and Safety Act of 1969, ("Legislative History of the 1969 

Act"}, at 1479 (emphasis added). This language was continued and 

enacted in Section 305(f) of the 1969 Act. 

Neither the 1969 Act, nor the 1977 Act, nor the Code of 

Federal Regulations, defined the term "electrical work". Since 

the word "electrical" was added by the Conference Report, supra 

and enacted in section 305(f} supra it must be concluded that it 

was meant to limit or to modify the type of work required to be 

performed by a qualified person or under his supervision. The 

term "electric" or "electrical" is defined in Webster's Third New 

International Dictionary, ("Websters") (1986}, as "1a: of 

relating to, or produced by electricity •••• " The activities at 

issue, connecting one end of the cable to another end by hand, 

are clearly physical or mechanical acts and not "electrical" 

work, although the activities are performed on electrical 

equipment. 1 See, u.s. Steel Min·ing Co., 13 FMSHRC 1451 (Judge 

Koutras} (1991); Consolidation Coal co., 12 FMSHRC 2643 (Judge 

Weisberger) (1990).I thus find that the activities at issue 

herein do not fall within the scope of section 75.511 supra, and 

hence the citation at issue is to be vacated. 

II. Orders No. 3690652, 3690658, and 3702374, and 

Citation Nos. 3690660, 3690659. and 3702375 

A. Order No. 3690652 

Findings of Fact and Discussion 

In the track haulage entry at Respondent 0 s Dilworth Mineu 

power supplied to the trolley wire by way of a 600 volt de 

wire that is supported from the roof by being attached to wooden 

planks (hangers) which are installed at 10 foot intervals, and 

are bolted to the roof. An insulator attached by its top to the 

plank, and by its bottom to the trolley wireu serves to insulate 

the energized trolley wire from the wooden plank and the coal in 

the roofo 

on June 24Q 199lr Ronald Hixsonv an MSHA inspector, while 

inspecting the track haulage entry at approximately 10~30 a.m., 

observed flames on one of the planks close to the No. 8 crosscut. 

The plank, was 2 to 3 inches thick, 14 inches long, and 10 inches 

wide. He said that the flames were 1 to 3 inches in height, and 

covered an 8 inch square area. He indicated that there were 

three different areas where the plank had been burnt. Also, he 

1

To the extent that u.s. Steel Mining co., Inc, 5 FMSHRC 

1752 (Nov. 1983) (Judge Broderick) cited by Petitioner is 

inconsistent with my decision, I choose not to follow it. 

395 
said that the roof was warm. Power was then removed from the 

wire by a switching it off, and the flames went out. 

On June 24, 1991, the miners at the Dilworth mine were on 

vacation, and accordingly there was no pre-shift examination of 

the area in question. Hixson indicated in this regard that had 

he not noticed the fire, it could have smoldered or developed 

into a large fire, as a few hours could have elapsed before 

someone entered the area. He noted the presence of combustible 

materials such as the planksf and sloughage, and the presence of 

heat in the roof. He indicated that, as a consequence, within 

minutes there could have been a major fire? or explosion, had he 

not immediately corrected the situation. He concluded that there 

was an imminent dangerQ and an order was subsequently issued 

under section 107 of the Federal Mine Safety and Health Act of 

1977 ("the 1977 Act"). 

Once the power was removed and the flames went out, the 

trolley wire was removed from· a clip which prevented electrical 

contact between the trolley wire and the plank. Also, the area 

of the roof that was warm was cooled with water. Subsequent to 

these actions, Hixson left the underground area and, once outside 

the mine, wrote and issued a section 107(a) withdrawal order 

(Government Exhibit No. 4). 2 

Section 3(j) of the 1977 Act supra defines an imminent 

danger as 11 ••• the existence of any condition or practice in a 

coal or other mine which could reasonably be expected to cause 

death or serious physical harm before such condition or practice 

can be abated". (Emphasis added) It thus would appear that once 

conditions constituting an imminent danger have been dealt u and no constitute an imminent dangerr the subsequent 

issuance an order under 107 not proper. 

·definition imminent danger contained Section 3(j) 

of the 1977 Actu supra is the same as that contained in the Coal 

Mine and Safety Act of 1969 ("the 1969 Acte1 ) u 30 u.s.c. § 801 

seg. The Senate Report accompanying the 1959 Act states that 

once an finds ~chat. an imminent. danger Q 0

' 0 0 o he 

2

The following testimony offers possible 

explanation why did not a \'llithdrawai order at 10~30 a.m. 

when he encountered the ~'situation°' is as lows~ 10When we 

discovered the flame 1 the initial reaction was to get out to 

find out exactly how much we ~- how much of a problem we had. 

Probably in that hour time period where we discussed what kind of 

a violation or what kind of a citation that was going to be 

issued. But it was not of primary concern at the time that we 

found the situation." (Tr. 161). 

396 
would be ·required" to issue an order requiring the withdrawal of 

workers from the section of the mine where the danger exists 

" ••• until it is determined by an inspector that the condition no 

longer existo 99 (S. Rep. No. 411, 91st Cong. 1st Sess. at 37 

(1969)), reprinted in Legislative History of the 1969 Act, supra 

at 163). To the same affect is the following language in the 

Section by Section Analysis, of the Senate Report, supra, with 

regard to the duration of the imminent danger order, "The order 

remains in effect until the inspector determines that there is no 

danger." (Legislative History supra at 215). The analysis 

further states that, "The concept of an imminent danger as it has 

evolved in this industry is that the situation is so serious that 

miners must be removed from the danger forthwith when the danger 

is discovered without waiting for any formal proceedings or 

notice. The seriousness of the situation demands such immediate 

action.n (Legislative History, supra at 215). 

The House Report accompanying H.R 13950, the House version 

of the Bill that became the 1969 ,.Ac1:., ~xplains that subsection a 

of Section 104 deals with the finding of an imminent danger by an 

inspector and that "When this occurs, the representative will 

determine the area where the danger exists and immediately issue 

an order requiring the mine operator to withdraw all persons, 

except those necessary to take corrective action from the 

affected area until the danger is abated." (H.R. Rep. No. 91-

563, 91st Cong., 1st Sess., at 8, reprinted in Legislative 

History, supra at 1038). (Emphasis added) 

Hence, in requiring inspectors to issue withdrawal orders in 

the presence of an imminent danger, Congress clearly intended to 

have miners immediately withdrawn once the dangerous condition is 

discovered 7 and to remain withdrawn until there is no longer any 

as determined by the inspector. Thus, to effectuate this 

int.ent.c the t'lfithdrawal order should be issued during 

:che t:ime t:he conditions constituting the imminent danger are in 

existence. It does not serve any purpose to issue such an order 

once the conditions are no longer an imminent danger. (See, Utah 

Power and Light COor 13 FMSHRC 1617 at 1621, wherein the 

Commission 9 analyzing the legislative history of withdrawal 

orders for an imminent danger concluded as follows~ ~~Thus, the 

hazard ~o be protected against by the withdrawal order must be 

impending so as to require the immediate withdrawal of miners. u') 

Hencep clear t:hat once the danger has been abated and is no 

longer in existencep the hazard is no longer impending, and as 

suchv the withdrawal of miners is no longer required. 

In the instant case, in the judgment of Hixson, an imminent 

danger presented itself because there were flames on the wooden 

plank, the roof was hot, combustible material such as coal 

sloughage, and wooden planks were present, and the mine was 

considered to be gassy. However, the imminent danger order was 

397 
not written3 and issued until Hixson was outside the mine, power 

to the wire had been turned off, the fire had been extinguished, 

and cold water had been poured on the hot area to cool it. 4 

Since there was no longer any imminent danger when the order was 

issued, it cannot be found to be valid. 5 (See, consolidation 

Coal co., supra. 

B. Citation 3690660 

As a result of the conditions Hixson observed on June 24, 

1991, he issued a section 104(a} citation alleging a violation of 

30 C.F.R. § 75.516 in that " •.. due to the breakdown of the 

insulator or dampness in the 8-D haulage at No. 8-D crosscut a 

proper insulator to insulate the 550 volt de trolley wire from 

the mine roof and wooden planks was not provided.n 

30 C.F.R. § 75.516 supra, as pertinent, provides that power 

3Section 107(d) of the 1977 Act, supra provides, in essence, 

that withdrawal orders shall be given "promptly" to the operator 

and 11 ••• shall be in writing" (emphasis added). Section 107(c) of 

the Act mandates that a withdrawal order n ••• shall contain a 

detailed description of the conditions or practices which cause 

and constitute an imminent danger and a description of the area 

of coal or other mine from which persons must be withdrawn and 

prohibited from entering." In the case at bar, the written order 

issued pursuant to Section 107 supra, was not issued until Hixson 

was outside the mine and there was no longer any imminent danger. 

4In some circumstances a timely verbal order of withdrawal 

valid where H: subsequently committed to writing (See 

Consolidation Coal Co. 14 FMSHRC 2066 (Judge Melick) (1992)). 

However, the record does not convincingly establish that Hixson 

issued a verbal withdrawal order at a time when the perceived 

danger was in existence. On cross-examination, he indicated that 

he did not tell Respondent~s representatives that he was going to 

issue a withdrawal order as he approached the burning hanger 

(tvooden p o He also indicated v on cross-examination, that he 

not i l\l'hen he told Respondent's representative Patrick 

who ~vas present, that 10 this was a 1.07 (a) situation and 

people wit.hdrawn11 (Tr. 162) c 

Complainant's brief it is arguedp essence 1 that the 

stipulation by parties that the 107(a} order was properly 

served on Respondent, establishes that Respondent was given 

proper notice that there was an imminent danger. The key issue 

is not whether Respondent was aware of a dangerous condition, but 

rather, whether Complainant issued a withdrawal order during the 

time when an imminent danger existed. As set forth above, the 

record does not establish that the withdrawal order was timely 

issued. 

39 8 
wires "sha be supported on well-insulated insulators and shall 

not contact. combustible material 1 roof, or ribs." 30 C.F.R. § 

75.516~1 defines the term "well-insulated" as follows: "wellinsulated insulators is interpreted to mean well-installed 

insulators. . . 01 Hixson explained that he issued the citation 

alleging a violation of Section 75.516 supra, as the failure of 

the insulation is a violation i.e., that the insulator did not 

do what was designed to do i.e., to keep the electricity in 

the wire. Gossard testified that if the insulator fails, 

electricity from the wire will then ground to the plank and roof, 

causing heatv which could lead to combustion. 

Gossard aJ.so indicated that the trolley wires at 

Respondent 0 s mine were a 600 volt system, whereas the insulators 

at issue were not designed specifically for use with a 600 volt 

wire system. He said the insulators could be used with either a 

300 or 600 volt wire system. He indicated, in essence, that 

accordingly, tvhen t:he insulators are used with a 600 volt system, 

arcing more likely to occurif the insulators are not 

functioning properly. In essence, he recommended using an 

insulator designed to be resistent to moisture in order minimize 

the risk of arcing. 

Complainant cites the fact that combustion had occurred, (as 

described II(A) infra) as evidence that the hangers and 

insulators failed to operate as designed. Complainant also 

refers to Hixsonns testimony which sets forth his opinion that 

Section 75.516 supra is intended to prevent the hazards attendant 

upon contact between power wires and combustible materials. In 

connectionf Complainant argues that since combustion 

::;ccurred" electrical current from the trolley wires came in 

~ont.c:ac'~: lflooden plank. For the reasons that 

~o~_ows arguments to be without merit. 

aec~icn 5.516 supra requires that wires such as the trolley 

issue shall be supported on "well-insulated insulators 

combustible materials roof or ribs". 

~ence cf Section 75.516 supra indicates that 

::.;:: p :q t.he insulators are not 

'''d'eli ·trolley wires contact combustible 

5.516=1 defines well insulated insulators as 

1-installed insulators". At best, the evidence 

herein tends to establish that the insulators did not serve their 

intended purpose due perhaps to moisture. However, there is a 

lack of evidence to base a conclusion that the insulators were 

not "well-installed". There is no evidence in the record to base 

a conclusion as to the manner in which the insulators were 

installed" Indeedv the parties stipulated that the insulators at 

399 
issue were "well installed". (Tr. 115) Thus, I conclude that the 

trolley wires were well insulated. 

2. Trolley wires in contact with combustible material 

Also, Section 75.516 supra is violated if the trolley wire 

comes in "contact" with combustible material .. roof or ribs. 

Section 75.516 supra contains the identical language that was set 

forth in Section 305(k) supra of the 1969 Act and which was 

incorporated in the 1977 Act. Neither the 1969 Act nor the 

regulations clarify as to whether section 305(k) (Section 75.516 

supra) intended to prohibit physical or electrical contact 

between a trolley wire and combustible material. However, 

enlightenment as to as to Congressional intent found in the 

legislative history of the 1969 Act. The Senate Report, its 

section by section analysis, indicates that section 206(g) of the 

Senate Bill, whose language was reiterated in Section 305(k) of 

the 1969 Act, requires that all power conductors be nnot allowed 

to touch combustible material; roof, or ribs." (Legislative 

History, supra at 193). To the same affect~ the House Report in 

its analysis of Section 305(1) of the House Bill whose language 

was reiterated in Section 305(k) of the 1969 Act, states that 

Section 305(1) requires that all underground power conductors be 

91 not allowed to touch combustible materials, roof or ribsyzy. 

(Legislative History, supra, at 1079}. Thus, I conclude that 

Congress intended that trolley wires not touch combustible 

material i.e. not come in physical contact with these materials . 

There is insufficient evidence before me to conclude that 

the trolley wires were touching any combustible material. None 

of the witnesses who vJere present at the time" Hixsonr Marlan 

Whoolery a union '1!-JOrk-around r or P.atr~.ck 'YL :Respondent. 0 s 

safety escort, provided description of the 

relationship of the t:o 

or plank. Hixson indicated that once the power was off and the 

flames went out 9 he took the trolley wire out located 

at the bottom of the insulator between the insulate:':' and the 

trolley t'lfire See Government El;:hibH: No, ::::::: does 

not establ that the tvas 'couchinar the 

combustible surfaces o ~, 

Wh.oolery ,, indicated that when he observed 9lan1t burning 

the hanger was no longer attached to the i=~f:ter the pov1er 

was turned offu he removed the hanger from the If the vlire 

was attached to the hanger, but the hanger was not attached to 

the plank, I cannot conclude that the wire was in contact and 

touching the plank or other combustible materialo 

Therefore, for all the above reasonsr it is concluded that 

Petitioner has not established a violation herein of Section 

75.516 supra as alleged. 

400 
c. Order No. 3690658 

On July 3, 1991, Hixson, upon entering the 7-D track entry, 

observed smoke "billowing" from the base of a hanger (Tr. 149). 

He said that he then had the power turned off. Hixson said that 

--the roof was extremely hot where the pipe hanger was attached to 

the roof. According to Hixson, there was a one-foot distance 

between the hanger and the roof. The hanger was attached to the 

roof by a pipe which was not insulated. An insulator separated 

the roof from the energized wire. Hixson said that the roof felt 

hot for about two feet around the pipe. According to Hixson, the 

roof consisted of coal, shale and rock, and sloughage was 

present. 

After approximately an hour, the roof had cooled off, and 

there was no longer any smoke observed. Whoolery, who was 

present with Hixson, indicated that after the power was turned 

off, he was not part of a conversation between Hixson and Wise 

but heard "bits and pieces" and that "I think it was explained it 

was a 107-A" (Tr. 187). According to Hixson, "right after the 

power was removedn, he told Respondent's personnel that he was 

going to issue an imminent danger withdrawal order (Tr. 169). 

Hixson issued a written imminent danger order outside the mine at 

11:35 a.m., after a new hanger was installed to replace the one 

that had become hot. 

The critical issue for determination is whether an imminent 

danger still existed when Hixson issued a 107(a) withdrawal 

order. The order was issued in writing at 11:35 a.m., outside 

the mine, clearly after the condition constituting on imminent 

danger was no longer existence. The earliest that Hixson 

orally informed Respondent that he was going to issue a 

withdrawal order was after power was removed from the mine 

hanger. Once power >:qas ::::amoved g the "heavyii smoking stopped; but 

there was l smoking and "hot spots <u (Tr" 17 o) • The roof was 

u

1extremelyic hot around the area where the pipe entered the roof 

(Tr. 150). The order subsequently issued by Hixson cites the 

following conditions as constituting the imminent danger~ 01A hot 

hanger " . was " . 6 the hanger had gone to ground causing 

t.he mine roof become i.:1ot vli th a large amount smoke. The 

mine roof ... had coal this area" [sic). In his testimony, 

Hixson explained that presence of smoke indicated a fire, and 

that he issued the 107(a) order because there was an 

"uncontrolled" fire that had a potential for disaster (Tr.159). 

Ron Gossard, an MSHA electrical-supervisor testified, in essence, 

that smoke indicates that combustion was taking place. According 

to Gossard, the presence of smoke can lead to smoke inhalation, 

exposure to carbon monoxidef and the impediment of exit from the 

mine. He also indicated that the amount of heat in the coal roof 

is dependent on the amount of current that passes into the coal 

strata, as well as the passage of time. I accept his testimony 

due to his expertise and experience. Hence, I find that even 

401 
though power had been turned off when Hixson orally advised 

Respondent that he was going to issue a 107(a) order, there still 

was a fir.e in the coal roof. Gossard opined that given the 

combustion, the roof will fracture and "in all probability" drop 

out of the main mine roof (Tr. 237). When this occurs, particles 

of smoldering coal are exposed and "can very readily" burst into 

flames (Tr. 237). This "could happen quickly" (Tr. 237) Gossard 

also indicated that with the roof falling out, "there's a very 

distinct possibility that when this roof fractures it will bring 

a long section of trolley wire down with it" (Tr. 238). In this 

event trolley wire contacting the rail will cause arcing. 

Within the framework of this testimony I affirm the oral 

notification of withdrawal issued by Hixson when the power was 

turned off, and subsequently committed to writing as Order No. 

3690562. 

D. Citation No. 3690659 

On July 3 0 1991, in addition to the imminent danger order, 

Hixson issued a Citation alleging a violation of Section 75.516 

supra. According to Hixson, smoke was coming from the point 

where the pipe hanger was attached to the roof. He did not 

specifically indicate that the trolley wire was touching the 

roof, or any other combustible material. Whoolery indicated that 

there was a glow around the insulator, the plastic on the trolley 

wire was smoldering, and that coal in the roof was burning. He 

too did not specifically state that the trolley wire was touching 

any combustible material. Neither Whoolery nor Hixson nor any 

other witness or any ether evidence has indicated the manner in 

which the insulators were installed. I thus find that it has not 

been established that the insulators were not well installed. It 

has been established that the trolley wire was in 

contact with any combustible material, roof or ribs. ThUSp for 

the reasons set forth aboveg II {B) infra, I conclude that has 

not been est.ablished that there was any violation of Section 

75.516 supra, and thus Citation No. 3690659 must be dismissed. 

E. Order No. 3702374 

On p 19 91 9 J-ames Samuel Conrad v Jr o r an MSHA 

inspector" was at the subject mine to perform a methane spot 

inspectiono At approximately Bg45 a.m.v in the track haulage 

entryv he observed that the roof was smoldering and there was 

smoke around the metal rod in the roof. He said the roof was 

warm to touch for an approximately five foot radius around the 

smoke. He said that the only obvious reason for this heat was 

the failure of an insulator, as there was no other source to 

generate ·smoke out of a hole where the metal rod had been placed 

in the coal. He then cut off power to the trolley wire, removed 

the insulator from the rod, and proceeded to pick down coal from 

the roof. Water was applied for approximately 45 minutes to cool 

the roof. Also the hanger was replaced. 

402 
conrad indicated that there was coal four inches into the 

roof. In addition, he said that sloughage was present, and there 

were wooden cribs in the intersection. He said that all these 

items were combustible" 

James w. Reed, a union walk-around who was with Conrad, also .. observed a ~&good bit 11 of smoke coming out of the coal in a 4 foot 

wide area surrounding the pipe hanger (Tr. 224). He also said 

that the slate '!1-Jas hot t.o the touch above the coal. He indicated 

that the coal from the roof that had been 91 picked down" had 

fallen to the ground. {Tr. 226) He said that this coal was still 

"smokingeu. when it t .. Tas on the ground (Tr~226). According to his 

testimonyu the coal was hosed down about a little more than 

10 minutes, and 9ait was cooled down pretty much and we felt we 

had pretty much in control" .227). [sic] He said that at 

approximately 9~35 a.m.il the situation was nunder control and we 

left .•• ". (Tr. 229) Prior to time, Conrad did not orally 

advise Respondent of any withdrawal order. 

At about 10~35 aom., after the imminently dangerous 

conditions ceased to existu conrad told Respondent's 

representative Robert Veleskyu that he probably will issue a 

section 107 order with regard to hot hanger. 

At iC.ne end of the inspection at about 1:00 p.m., Conrad 

issued a written imminent danger order indicating that the order 

was issued 8~45 a.m. 0 and terminated 9:35a.m. In essence, 

Conrad said he did not issue the order earlier, because "I was 

more concerned with the facts of dealing with the condition at 

hand. And I felt the paperwork was just a preliminary thing, a 

s indicated that he took 

had previously issued a 

, find t.hat 'the evidence not establish that the 107 (a) 

order was issued at a time when the conditions constituting an 

imminent danger lvere still existence. Therefore as explained c !I( jnfra~ ! conclude Section 107(a) order was 

issueC:o 

c~tation No. 3702375 

July 3, Conrad issued citing the conditions 

by him on July 2, and alleging a violation of 30 C.F.R. 

75.516. In the citation he that a "shorted out 

insulator that was supporting the energized trolley and feed wire 

caused the roof coal in the immediate mine roof to catch fire." 

However, there is no evidence in the record with regard to the 

manner in which the insulators were installed. Specifically, 

there is no evidence that the insulators were not well installed. 

Also, there is no evidence that the trolley wire was touching the 

roof or any other combustible material. 

403 
Therefore, for the reasons set forth above, II(B) infra, I 

find that it has not been established that there was a violation 

of Section 75.316 supra. Accordingly the citation should be 

dismissedo 

ORDER 

It is hereby ORDERED that Order No. 3690658 be affirmed and 

Notice of Contest Docket No. PENN 92-1305-R be DISMISSED. It is 

further ORDERED that the following Orders and Citations be 

DISMISSED: 3690652, 3690659, 3690660 702374, 3702375 and 

3702400. 

Distribution: 

~vram Weisberger 

Administrative Law Judge 

Daniel Rogers, Esq., Consolidation coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

Theresa c. Timilin, Esq.v Office of the Solicitor, U. s. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

nb 

404 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WILLIAMS BROTHERS COAL 

COMPANY, INCORPORATED, 

Respondent 

. 

& 

Docket No. KENT 92-752 

AoC. No. 15-16666-03512 

No. 3 Mine 

DECISION 

Appearances: Mary Sue Taylor, Esq., u.s. Departmeni: of Labor, 

Office of the Solicitor, Nashville, Tennessee 

for Petitioner'fl 

Hufford Williams, Vice President, Williams Brothers 

Company, Incorporated, pro se, 

for Respondent. 

Before~ Judge Feldman 

In this proceeding the Secretary seeks to impose a civil 

penalty on respondent for an alleged non-significant and 

substantial violation the mandatory safety standard Section 

ol605(d),, C.FoRo §77.1605(d "! Pllrsuant~to noticer an 

evidentiary hearing was held in Prestonsburg, Kentucky, wherein 

Clifford Crum testified on behalf of the Secretary and Hufford 

Williams testified for the respondent. The parties stipulated to 

my jurisdiction this matter and waived the ing of posthearing briefs. the culmination of the hearing, I issued a 

bench decision vacating citation issue and dismissing this 

case. This decision formalizes my bench rulinga 

The dispositive facts this matter are not disputeo 

On March 23v~1992v Mine Safety Inspector Clifford crum issued 

Citation No. 3810327 for an alleged violation of Section 

77.1605(d). The citation was based upon one inoperable right 

lower front headlight and two inoperable rear taillights on the 

respondent's Caterpillar front-end loader, Model No. 9808, 

1 section 77.1605 (d) provides: "Mobile equipment shall be 

provided with audible warning devices. Lights shall be provided on 

both ends when required." The subject front-end loader was 

equipped with the requisite audible warning system. (Tr.46). 

405 
located on the surface of the respondent's underground No. 3 

Mine. 2 It is undisputed that the front-end loader had three 

operational headlights on the front and two operational 

headlights on the rear. It is also undisputed that two 

operational headlights on the front and two operational 

headlights on the rear satisfy the requirements of Section 

77.1605(d). (Tr. 31-32). Inspector Crum testified however, that 

the respondent was cited under the theory that all equipment on a 

piece of machinery must be operational. (Tr. 20-21). In this 

regard, crum considered the violation to have been abated when 

the respondent replaced the front headlight and removed the 

inoperable taillights. (Tr. 19-20). At the hearing, I issued the 

following bench decision which is edited with non-substantive 

changes: 

The issue is whether Section 77.1605(d) has been 

violated. This section requires loading and haulage 

equipment to have lights on both ends. The operable 

part of this section is lights in the plural sense. 

In issue is the condition of the front and rear of this 

front-end loader. Starting with the front, the 

equipment has a standard two light operational mode 

with two additional headlights that can be added as an 

option. 

The undisputed testimony indicates that three of the 

four front headlights were operational. Mr. Crum's 

testimony indicates that if only two headlights were 

operational and there were only two headlights 

installed on the vehicle, there would be no violation. 

However, we have the anomalous situation of a citation 

issued for three operational headlights where only two 

headlights are required. 

My view Section 77.1605(d) is that if two lights are 

sufficient, certainly three lights are sufficient. 

Although it would have been preferable to have the 

fourth light operational 8 I find that the three 

operational headlights satisfied Section 77.1605(d) 

with regard ·to the front of the loader. 

Turning to the rear end of the loaderv the testimony 

reflects two operational headlights. What were not 

operational were two taillights. Mr. Crum testified 

that removal of these inoperable taillights abated the 

2 The loader is only used on the surface to load stockpiled 

coal into dump trucks. It travels approximately 50 to 60 feet 

during the loading process. It is used only during the day shift 

from approximately 6:00a.m. until 3:00p.m. (Tr 41-43). 

406 
alleged violation with respect to the rear of the 

vehicle. I am hard pressed to conclude that there's 

been a violation with regard to the rear because the 

taillights were inoperable if removing the taillights 

abates the situation. 

Therefore, I conclude that both the front and rear of 

the loader satisfied the requirements as intended under 

Section 77.1605(d) in that headlights were provided on 

both ends. I am hereby vacating the citation and 

dismissing the case. {See Tr. 56-58). 

ORDER 

In view of the above, Citation No. 3810327 IS VACATED and 

this civil penalty proceeding IS HEREBY DISMISSED. 

Distribution: 

~---.®~ ~-- > 

Jerold Feldman 

Administrative Law Judge 

Mary Sue Taylor, Esq., Office of the Solicitor, u.s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Mr. Hufford Williams, Williams Brothers Coal Co., Inc.f 415 Card 

Mountain Roadv Mouthcardu KY 41548 (Certified Mail) 

vmy 

407 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

~~AR 5 1993 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 93-64 

A.C. No. 46-01867-03937 

Blacksville No. 1 

SUMMARY DECISION 

Before: Judge Merlin 

The above captioned case is a petition for the assessment 

of civil penalties filed by the Secretary of Labor against 

Consolidation Coal Company pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C.A. § 815(d), 

and section 2700.27 of Commission regulations, 29 C.F.R. § 2700.27. 

The twelve citations which were issued under section 104(a) of 

the Act, 30 U.S.C.A. § 814(a), charge violations of section 

50.30-l(g) (3) of the Secretary's regulations, 30 C.F.R. 

§ 50.30-1(g) (3), for overreporting of employee hours on the 

Quarterly Employment and Coal Production Report (MSHA Form 

7000-2) 0 

This case involves the same issue as in Consolidation Coal 

Co.u Docket No. WEVA 93-7u wherein the parties filed cross 

motions for summary decision. 14 FMSHRC ____ (March 4, 1993). 

In that case, I determined that summary decision was proper under 

Commission rules, 29 C.F.R. § 2700.64(b), since no issue of 

material fact was in dispute, but rather only the appropriate 

amount of penalties to be assessed in accordance with statutory 

criteria. 30 U.S.C.A. § 820(i). To date the parties in this 

case have not filed cross motions. However, since the issues and 

parties in this case are identical to those in WEVA 93-7 (only 

different mines are involved) I find that summary decision lies 

here as well. 

In Docket No. WEVA 93-7, the summary decision rejected the 

Secretary 0 s motion for imposition of a $500 penalty for each 

overreporting of employee hours subsequent to my May 24, 1990, 

decision in Consolidation Coal Co., 12 FMSHRC 1129, but prior to 

the Commission's June 9, 1992, decision, 14 FMSHRC 956. Instead 

penalties of $100 apiece were assessed for such violations. The 

summary decision in WEVA 93-7 is controlling and therefore, 

penalties of $100 each should be assessed for the violations 

herein. 

408 
In light of the foregoing, it is ORDERED that the 

secretary's findings of violations for the twelve citations in 

the subject penalty petition be AFFIRMED. 

It is further ORDERED that penalties of $1,200 be ASSESSED 

and that the operator PAY such penalties within 30 days from the 

date of this decision. 

~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

RobertS. Wilson, Esq., u.s. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, ... R,oom 516, Arlington, VA 22203 

(Certified Mail) 

Daniel E. Rogers, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail) 

409 
FEDERAL MINE SAFETY AND HEALTH. REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MAR 8 

FRED JONES, EMP. BY CHRISTIAN 

ENERGIES, INC., 

Respondent 

1993 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-415 

A. C. No. 15-16448-03562 A 

Christian Energies No. 2 

Mine 

DECISION APPROVING SETTLEMENT 

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

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

for the Secretary; 

Mr. Fred Jones, Williamsburg, Kentucky, pro se. 

Before: Judge Maurer 

This case is before me upon a petition for assessment of 

civil penalty under section 110(c) of the Federal Mine Safety and 

Health Act of 1977 (the Act). At hearing, on January 27, 1993, 

Kentucky 2 petitioner filed a motion to approve a 

agreement and ·to dismiss the case. A reduction in 

from $11 p 400 ·to $2800 was proposed because of the limited 

resources of the respondent. I have considered the 

representations and documentation submitted in this case, 

including the representations on the record at hearing, and I 

conclude that the proffered settlement is appropriate under the 

set section 110(i of the Act. 

WHEREFORE 1 the motion for approval of settlement is GRANTED, 

ORDERED that respondent pay a penalty of $2800 in 14 

monthly installments of $200 each, beginning within 30 days 

of the date of this order, and continuing until paid in full. 

urer 

ative Law Judge 

410 
Distribution: 

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

of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 

(Certified Mail) 

Mr. Fred Jones, 3707 Lot Mud Creek Road, Williamsburg, KY 40769 

(Certified Mail) 

dcp 

411 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FlOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

. . 

. . 

. . 

Docket No. KENT 92-748 

A.C. No. 15-14074-03610 

Martwick Underground 

DECISION 

Appearances: Darren Courtney, Esquire, Office of the 

Solicitor, U.s. Department of Labor, 

Nashville, Tennessee, for Petitioner; 

Beforeg 

David R. Joest, Esquire, Peabody Coa1 

Company, Henderson, Kentucky for Respondent 

Judge Melick 

This case is before me upon the petition for assessment 

of civil penalty filed by the Secretary of Labor pursuant 

to Section 105(d) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. 801, et seg., the "Act," charging the 

Peabody Coal Company (Peabody) with one violation of the 

mandatory standard at 30 C.F.R. Section 75.400 in a citation 

issued pursuant to Section 104(d)(1} of the Act. 1 

The citation baru No. 3417103 0 alleges a vvsignificant 

and substantial 99 violation and charges as follows: 

Section 104(d}(l) of the act provides 6 in part, 

as follows~ 

91 u upon the inspection or 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 find that, while the conditions 

created by such a violation do not cause imminent danger, 

such violation is of such nature as could significantly and 

substantially contribute to the cause and effect of a coal 

or other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act." 

412 
Coal dust and float coal dust were permitted 

to accumulate under the bottom rollers with 

the bottom rollers running in the coal dust at 

twelve locations along the 2nd North West main 

conveyor belt, three rollers between Nos. 6, a, 

and 70 crosscuts and (1) between No. 71 and 72 

with accumulations measured 12 inches deep, 

five feet long and four feet wide, measured 

with steel tape, No. 1 sample collected, one 

between Nos. 75 and 76 crosscut, one between 

No. 81 and 82 crosscut, four (4) bottom rollers 

running in coal dust at No. 84 crosscut No. 2 

spot sample collected, accumulative measured 

at locations five (5) feet long 1 eleven inches 

deep and four feet wide, one roller in coal 

dust at No~ 88 crosscut, accumulations measured 

five (5) feet long and 12 inches deep 

four (4) feet wide No. 5 Spot sample collected 

and one bottom roller runnJng- in coal dust at 

No. a 9 crosscut. · · 

The cited standard provides that "[c]oal dust, 

including float coal dust deposited on rock-dusted 

surfaces, loose coalu and other combustible materials, 

shall be cleaned up and not be permitted to accumulate 

in active workings, or on electric equipment therein." 

At hearings Peabody admitted the twelve cited violative 

conditions and conceded that those conditions constitued a 

"significant and substantial" violation. It denies only that 

the violation was the result of its "unwarrantable failure." 

ununwarrantable failureva has been defined as conduct that is 

u<not justifiableuo or is 00 inexcusable. ou aggravated 

conduct by a mine operator constituting more than ordinary 

negligence See Youghiogheny and Ohio Coal Co.P 9 FMSHRC 

2007 (1987)u Emery Mining corporation 6 9 FMSHRC 1997 (1987). 

Within this framework of law, it is clear that the admitted 

illegal accumulations in this case were the result of 

Peabody8 s unwarrantable failure. 

According to the undisputed testimony of Mine 

Safety and Health Administration (MSHA) inspectoru 

Darrold Gamblinu the twelve cited accumulations in fact 

existed on October 28u 1992 7 as he described them in the 

citation at bar. The existence of such a large number of 

significant accumulations along the northwest belt line 

in itself constitutes such an obvious and unusual number 

and size of violative conditions that it may reasonably 

be inferred from that evidence alone that management knew 

of the conditions. Moreover, the absence of any evidence 

of any concurrent cleanup efforts in the presence of such 

413 
a large amount of accumulations constitutes an inexcusable 

omission of an aggravated nature. See Peabody Coal Company, 

14 FMSHRC 1258 (1992). 

In addition, the undisputed testimony of Peabody's 

belt examiner, David Arbuckle, that the conditions he 

reported in the belt inspection report (Joint Exhibit 

No. 2) needed correction on October 25, 1991 (i.e., 

"second northwest-clean bottom rollers from No. 68 to 

No. 83-bad [top roller] No. 94") also clearly describes 

a serious and major problem with the accumulation of loose 

coal in proximity to an ignition source. Again, according 

to Arbuckle's undisputed testimony, that problem remained 

uncorrected at the time of the examination three days later 

when he again inspected the area and again noted in the 

belt inspection report that the same coal accumulations 

still needed correction. Since these reports were countersigned by the mine foreman or other "certified official" 

of Peabody 1 the operator was placed on written notice of 

the condition and failed to 'correct it for at least 

three days. It may reasonably be inferred that this was 

one of the conditions also cited on October 28, by Inspector 

Gamblin since it was within the same area cited by Gamblin. 

These aggravated circumstances are sufficient alone to 

constitute unwarrantable failure. 

Finally, the practice at the Martwick Mine at the 

time of the instant violation of failing to note in the 

belt inspection reports that "corrections" to the conditions 

noted in the reports (in this case, the cleanup of coal 

accumulations) had in fact been made was a particularly 

serious omission of an aggravated nature and constitutes 

high negligence o For this adcii tional and independent 

reason the violation herein was the result of unwarrantable 

failure a 

Considering the above evidence 0 it is clear that the 

Secretary has sustained her burden of proving that the 

violation charged in Citation Noo 3417103 was the result 

of the unwarrantable failure of "the operator to comply 

\.d th the law o 

414 
ORDER 

Citation No. 3417103 is AFFIRMED and Peabody Coal 

Company is directed to pay a civil penalty of $500 within 

30 days of the date of this decision. 

Distribution: 

Ga Meli ~::\ k lcl 

Administr_tive Law udge 

703-756-62 1 

\ 

\ 

\ 

Darren Courtney, Esq., Office of the Sol1citor, 

u.s. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215 (Certified Mail) 

David Ro Joest, Esq., Peabody Coal Company, 

1951 Barrett Court, P.O. Box 1990, Henderson, 

KY 42420-1990 (Certified Mail) 

/lh 

415 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

q 

v 1993 

SECRETARY OF LABOR, . . DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

ROBERT C. TEANEY, 

Complainant 

ROBERT C. TEANEY, 

Intervenor 

v. 

BLACK MOUNTAIN COAL MINING, 

INCORPORATEDe 

Respondent 

ROBERT C. TEANEY, 

Complainant 

v. 

BLACK MOUNTAIN COAL MINING, 

INCORPORATED, 

Respondent 

. . 

. . 

. . 

. . 

. . 

0 

0 

e 

0 

. . 

. 

• 

. . 

. . 

. . 

: 

Docket No. KENT 92-867-D 

MSHA Case No. BARB CD-92-14 

No • l. Mine 

DISCRIMINATION PROCEEDING 

Docket No. KENT 93-264-D 

MSHA Case No. BARB CD-92-53 

No. ]. Mine 

AMENDED DECISION APPROVING SETTLEMENT 

Before Judge Melick 

Pursuant to Commission Rule 65(c}u 29 C.F.R. § 2700.65(c) 

the Decision Approving Settlement issued in these proceedings 

on February 23 8 1993, is hereby amended to include within its 

incorporated terms payment by Respondent of attorney fees for 

uOOO counsel for Robert c. Teaney. It is further noted 

that payment of backpay of $3u600, interest of $400, and 

attorney fees of $1,000 has correspo dingly been de within 

the corrected timeframe of 30 days om the date o hearing. 

This Amended Decision must ~ pos d at the mine o fice in 

accordance with the terms o0 the~et lement. 

lJ 

Gary 

Admin' 

416 

Judge 
Distribution: 

Donna E. Sonner, Esq., Office of the Solicitor, 

u.s. Department of Labor, 2002 Richard Jones Road, 

Sui:t;e B-201, Nashville, TN 37215 (Certified Mail) 

William A. Hayes, Esq., 2309 Cumberland Avenue, 

P.O. Box 817, Middlesboro, KY 40965 (Certified Mail) 

Tony Oppegard, Esq., Mine Safety Project of the 

Appalachian Research and Defense Fund of Kentucky, 

Inc.f 630 Maxwelton Court, Lexington, KY 40508 

(Certified Mail) 

/lh 

417 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 2CXX>6 

Harch 9; 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE AND SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

Docket No. PENN 92-765 

A. C. No. 36-04281-03785 

CONSOLIDATION COAL COMPANY, 

Respondent 

Dilworth 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The above-captioned case was-the subject of an extensive 

conference call between the undersigned and counsel for both 

parties on January 28, 1993. 

In accordance with the conference call discussion on February 8, 1993, the Solicitor filed a motion to approve settlement 

of the two violations. The originally assessed penalties were 

$684 and the proposed settlements are for $684. I have considered the representations and documentation submitted in this case 

along with the discussions on January 28, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in section 110(i) of the Act. 

In l of the foregoing, the motion for approval of 

settlements GRANTED, and it is ORDERED that the operator pay a 

pena of $684 within 30 days of the date of this decision. 

~-------- --- --~ll~~~~~ n . 

Chief 

Paul Merlin 

Administrative 

"' ~-Law Judge 

D (Certified Mail) 

Richard W. Rosenblitt, Esq., Office of the Solicitor, U.S. 

Department of Labor, 14480 Gateway Bldg., 3535 Market st., 

Philadelphia, PA 19104 

Daniel Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington 

Road, Pittsburgh, PA 15241 

rdj 

418 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 2()()06 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFE'rY AND HEALTH 

ADMINISTRATION (MSHA) 1 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Mt~!< 9 1993 

CONTEST PROCEEDING 

Docket No. WEVA 91-224-R 

Citation No. 3315515; 2/14/91 

Docket No. WEVA 91-227-R 

citation No. 3315517; 2/19/91 

Docket No. WEVA 91-229-R 

Citation No. 3315562; 2/21/91 

Arkwright No. 1 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-1159 

A. C. No. 46-01452-03876R 

Arkwright No. 1 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

Before: Judge Merlin 

ORDER LIFTING STAY 

ORDER OF DISMISSAL 

ORDER TO PAY 

The above-captioned cases were the subject of an extensive 

conference call between the undersigned and the parties on 

February 1, 1993. on February 12, 1993, the Solicitor filed a 

motion to approve settlement of the eighteen violations involved 

in this case. Three of the violations, Citation Nos. 3315515, 

3315517 1 and 3315562, were also the subject of notice of contest 

proceedings, WEVA 91-224-R, 91-227-R and 91-229-R. The originally assessed penalties were $4,380 and the proposed settlements 

are for $2,677. 

The Solicitor advises that the operator has agreed to pay 

the originally assessed penalty for nine of the violations, 

citation Nos. 3315515, 3315562, 3306386, 3306387, 3314481, 

3314482, 3314883, 3306397, and 3314484. I have reviewed these 

419 
violations along with the Solicitor's motion and find that the 

proposed penalties are appropriate. The Solicitor moves to dismiss Citation Nos. 3315576, 3315577, 3315578, 3315579, and 3315580 

because they were previously contained in WEVA 91-1833 and were 

incorrectly duplicated in this case. 

The Solicitor also requests that Citation Nos. 3315517, 

3315573, 3315574 and Order No. 3306392 be modified. 

citation No. 3315517 was issued for a violation of 30 C.F.R. 

§ 75.1403 because the red reflector for a turn was off the shaft 

heading switch. The originally assessed penalty was $157 and the 

proposed settlement is $94. The Solicitor requests that the 

citation be modified to reduce the likelihood of injury from 

reasonably likely to unlikely and to delete the significant and 

substantial designation. The reason for the reduction and 

modification is that gravity was less than originally thought. 

As the Solicitor advised during the conference call, the indicator was visible under normal lighting even without the reflector. 

Citation No. 3315573 was issued for a violation of 30 C.F.R. 

§ 77.1104 because fine dry coal and coal dust accumulated on the 

raw coal crusher frame and floor, and fine damp coal accumulated 

at the transfer. The originally assessed penalty was $157 and 

the proposed settlement is $94. The Solicitor requests that the 

citation be modified to reduce the likelihood of injury from 

reasonably likely to unlikely and to delete the significant and 

substantial designation. The reason for the reduction and 

modification is that gravity was not as high as originally 

thought. As the Solicitor advised during the conference call, 

the raw coal crusher was run only once a week and not for a long 

enough time to heat to ignite the combustible material. 

Citation No. 3315574 was issued for a violation of 30 C.F.R. 

§ 77.402 because an electric drill in the repair shop was 

equipped with a switch lock. The originally assessed penalty was 

$213 and the proposed settlement is $120. The Solicitor requests 

that the citation be modified to reduce the likelihood of injury 

from reasonably l to unlikely and to delete the significant 

and substantial designation. The reason for the reduction and 

modification is that gravity was not as high as originally 

thought. As the Solicitor advised during the conference call, 

the drill had recently been purchased and was stored in a sealed 

box awaiting modification of the switch to comply with the Act 

which would have been done before normal mining operations began. 

These circumstances also reduce negligence. 

Order No. 3306392 was issued as a 104(d) (2) order for a 

violation of 30 C.F.R. § 75.400 because float coal dust 

accumulated on the bottom, roof and ribs from halfway between 

Nos. 2 and 3 entries to the No. 4 entry. The originally assessed 

penalty was $769 and the proposed settlement is $350. The 

420 
Solicitor request that the order be modified from a 104(d) (2) 

order to a 104(a) citation and that negligence be reduced from 

high to moderate. The reason for the modification and reduction 

is that negligence was not as high as originally thought. As the 

Solicitor advised during the conference call the accumulation 

arose because the miner responsible to rock dust this area was 

assigned to other duties in order to abate citations that had 

been written earlier by the inspector. The operator's conduct 

was therefore not "aggravated''· Emery Mining Corp., 9 FMSHRC 

1997 (Dec. 198 7) 

I have considered the representations and documentation 

submitted in this case along with the discussions on February 1, 

and I conclude that the proffered settlements are appropriate 

under the criteria set forth in section 110(i) of the Act. 

In light of the foregoing, the motion for approval of 

settlements is GRANTED. 

It is ORDERED that Citation Nos. 3315517, 3315573, and 

3315574 be MODIFIED to reduce the likelihood of an injury from 

reasonably likely to unlikely and to delete the significant and 

substantial designations. 

It is ORDERED that Order No. 3306392 be MODIFIED from a 

104(d) (2} order to a 104(a) citation and to reduce negligence 

from high to moderate. 

It is further ORDERED that the stays in WEVA 91-224-R, 91-

227-R and 91-229-R be LIFTED and that these cases be DISMISSED. 

It further ORDERED that Citation Nos. 3315576, 3315577, 

3315578, 3315579, and 3315580 be DISMISSED without prejudice to 

the operatoris notice of contest or the Secretary 1 s penalty 

petition filed in Docket No. WEVA 91-1833. 

It is further ORDERED that the operator pay a penalty of 

$2,677 within 30 days of the date of this decision. 

~=\-==~ ~ 

-==-~~\~=~ 

Chief 

Paul Merlin 

Administrative 

~ 

Law Judge 

Distribution: (Certified Mail) 

Charles M. Jackson, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Daniel E. Rogers, Esq., Consol, Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421 

rdj 

421 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR MAR g 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-1011 

A. C. No. 46-01452-03860 

Arkwright No. 1 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Merlin 

The above-captioned case was the subject of an extensive 

conference call between the undersigned and the counsel for both 

parties on February 1, 1993. 

In accordance with the conference call discussion, the 

Solicitor, on February 12, 1993, filed a motion to approve 

settlement of the two violations involved in this case. The 

originally assessed penalties were $338 and the proposed settlements are for $265o 

The Solie advises that the operator has agreed to pay 

the originally assessed pena for Citation No. 3717918. I 

have reviewed this lation along with the Solicitor's motion 

and find that the proposed penalty is appropriate. 

With to the other violation in this case, Citation 

Noo 3717916, the Solicitor requests that the citation be modified 

by changing the evaluation of negligence from moderate to low and 

reducing the proposed penalty from $288 to $215. Citation No. 

3717916 was issued for a violation of 30 C.F.R. § 75.503 because 

the conduit for the right side bolter emergency stop switch on 

the continuous mining machine was pulled out of gland. As 

became apparent during the conference call, the reason for the 

reduction and modification was that the condition had not been 

present when the equipment was examined earlier in the shift but 

must have developed immediately prior to the issuance of the 

citation. 

I have considered the representations and documentation 

submitted in this case along with the discussions on February 1 1 

and I conclude that the proffered settlements are appropriate 

under the criteria set forth in section 110(i) of the Act. 

422 
In light of the foregoing, the motion for approval of 

settlements is GRANTED. 

It is ORDERED that Citation No. 3717916 be MODIFIED to 

reduce negligence from moderate to low. 

It is further ORDERED that the operator pay a penalty of 

$265 within 30 days of the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) ·-

Charles M. Jackson, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Daniel E. Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421 

423 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

1993 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-1054 

A. C. No. 46-01455-03902 

Osage No. 3 

DEGISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Merlin 

The above-captioned case was the subject of an extensive 

conference call between the undersigned and the parties on 

February 1, 1993. On February 5, 1993, the Solicitor filed a 

motion to approve settlement of the six violations involved in 

this case. The originally assessed penalties were $1,725 and the 

proposed settlements are for $1,052. 

The Solicitor advises that the operator has agreed to pay 

the originally assessed penalties for five of the violations, 

citation Nos. 3718022, 3718025 1 3718184, 3718185, and 3718186. 

The Solicitor requests that Order No. 3718027 be modified from a 

104(d) (2) order to a 104(a) citation and the penalty reduced from 

$851 to $178. The Sol itor advises that the degree of faul·t was 

not as high as originally thought. The cited combustible materials were not immediately removed so as to accomplish abatement 

because the miner on the section had been assigned to abate 

another more serious violation. Therefore, although the operator 

was at fault its conduct cannot be characterized as Haggravated11 

as that term has been interpreted and applied by the Commission 

to establish unwarrantable failure. Westmoreland Coal Co., 7 

FMSHRC 1338 (Sept. 1985); Emery Mining Corp., 9 FMSHRC 1997 (Dec. 

1987). The agreed upon settlement reached at the February 1 

conference call, wherein the reasons for the modification and 

reduction were discussed 1 was approved by the undersigned. 

I have considered the representations and documentation 

submitted in this case along with the discussions on February 1, 

and I conclude that the proffered settlements are appropriate 

under the criteria set forth in section llO{i) of the Act. 

In light of the foregoing, the motion for approval of 

settlements is GRANTED. 

424 
It is ORDERED that Order No. 3718027 be MODIFIED from a 

104(d) (2) order to a 104(a) citation and to reduce negligence 

from high to moderate. 

It is further ORDERED that the operator pay a penalty of 

$1,052 within 30 days of the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Roberts. Wilson, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Blvd., ,;Arlington, VA 22203 

Daniel Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington 

Road, Pittsburgh, PA 15241-1421 

rdj 

425 
OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~1AR 1 0 1993 

SHERRELL STEVEN REID, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. KENT 92-237-D 

v. 

No. 1 Mine 

KIAH CREEK MINING COMPANY, 

Respondent 

Appearances: 

:OEC:ISION 

Tony Oppegard, Esq., Mine Safety Project of the 

Appalachia~ Research and Defense Fund of Kentucky, 

Incorporated for Complainant. 

Billy R. Shelton, Esq., Baird; Baird, Baird & 

Jones, P.S.C. for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based upon a Complaint filed by 

Sherrell Steven Reid, (Complainant) on January 21, 1992, which 

alleges, in essence, that he was discharged by Kiah Creek Mining 

Company; (Respondent) in violation of Section 105(c) of the 

Mine Safety and Health Act of 1977 ("the Act"). 

Respondent f an answer on February 3, 1992v and the case was 

assigned to me on February 201' 1992. on March 2, 

1992 7 a ·telephone conference call initiated lby the undersigned 

with counsel for both parties, the parties indicated that they 

wanted to explore settlement of this case. In a subsequent 

conference on March llv 1992, the parties indicated that 

~hey were not able to settle this case~ and it was agreed that it 

be set f,or hearing June 10-11, 1992 7 and a Notice was issued on 

March 13e 1992r to that affect" On May 15, 1992, Respondent 

to continue which was not opposed by Complainant. 

lias and the matter was rescheduled for hearing 

15-17i 1992. The case was subsequently heard on 

Paintsviller Kentucky, and also on October lr 

7 Kentucky. 

The parties were granted time to file post hearing briefs 

three weeks after receipt of the transcript of the hearing. The 

hearing transcript was received in the office of Administrative 

Law Judges on October 23, 1992. On December 2, 1992, 

Respondent 9 s counsel filed a statement indicating he and 

complainant's counsel agreed to request an extension until 

January 15, 1993 for the filing of Briefs. This request was 

426 
granted. On January 15, 1993, Complainant's counsel sent by 

facsimile a request for an extension to February 8, to file his 

brief due to "caseload demands", and indicated that Respondent's counsel did not object to this request. This request was 

granted, but it was indicated that no further extensions will be 

granted. On February 4, 1993, Complainant's counsel sent by 

facsimile a request for an extension until February 14, 1993, to 

file his brief citing that he was overwhelmed by his caseload 

commitment. The request was granted. Respondent filed its Brief 

on February 5, 1993, and Complainant filed his brief on February 

9, 1993. on March 3, 1993, Complainant's Reply Brief was 

received. Respondent 0 s Reply Brief was received on March 5, 

1993. 

Findings of Fact and Discussion 

Charles Steven Reid1 , a miner, had been employed by 

Respondent at its No. 1 underground mine for approximately for 

four-and-a-half months until he was fired on August 13, 1991. 

According to Reid, no one prior·to August 13, 1991, including his 

foreman William E. Whetsel 1 had complained to him or issued any 

warning about the quantity of his production. 

On the evening shift August 13, 1991, Reid's Section was 

involved in pillar mining. According to Reid, he was instructed 

by his foreman, William Whetsel, to cut into the heading at the 

No. 4 entry towards the old works. Reid indicated that during 

the shift he indeed made such a cut, and also cut into the 

heading toward the old works at entry No. 3. Essentially, he 

testified that, for safety reasons, he cut into these two 

headings for only 14 feet, removing 9 car loads of coal. He 

indicated that he did not cut any further for fear of 

encountering methaneu black damp, or water, which are all found 

·the old , testified that when he took the first 

cut off entry Noo 5, he cut only 13 or 14 feet deep. He 

indicated that he was concerned about the hazards of a roof fall 

due to a crack in the roof. In addition, the third cut that he 

took extended only 14 feetu as he heard thumping which he said 

was indicative of 2 bad roof" Reid indicated that for the same 

reasons v and also due "co dribbling from the roof f his fourth cut 

was limited to only 13 to 14 feet. He also limited his fifth cut 

to only 14: feetr as he felt. that cutting any further would be 

hazardous 

During the shift Whetsel did not reprimand Reid for any of 

his actions. After approximately 6 hours into the shift, Whetsel 

ordered the crew to go above ground early. According to Reid, 

1The complaint identifies the Complainant ~s Sherrell Steven 

Reid. At the hearing, the Complainant gave his name as Charles 

Steven Reid. 

427 
after the crew reached the surface, Whetsel told him that 

" ••. there 1 s no use for you to come out tomorrow because I've got 

nothing for you to do on the second shift any more" (Tr.91). In 

addition, Reid said that Whetsel told him "you didn't get enough 

coal worth s tout of them places" (Tr. 91). Reid testified 

that he toldWhetsel as follows: "You and I know that the top is 

bad up there and if I cut them any deeper, I would have 

endangered my life."(sic) (Tr. 91) He said that in response 

Whetsel told him that he had dry chained. 

In contrast, Whetsel indicated that at the end of the shift 

he told Reid that he (Reid) was dry chaining and that he was not 

needed any more. According to Whetsel 1 he discharged Reid 

because he 11 felt we could run coal better then what we did" (Tr. 

63). On cross-examination, Whetsel indicated that he told Sammy 

Fraley, Jr., Respondentts superintendent, that he had fired Reid, 

and that were only nine cuts taken, and only 95 car loads 

produced. In this connection, Reid indicated that when he spoke 

to Fraley after being fired'byWhetsel, the latter told him that 

Whetsel had indicated that he had fired Reid for dry chaining, 

and not getting enough coal. According to Reid, Fraley indicated 

to him that the production reports showed 9 cuts and 95 loads, 

and that it was his position to support Whetsel. Fraley did not 

specifically rebut this testimony of Reid. 

Whetsel indicated that on August 13, 1991, he had timed 

Reid, and it was taking him 85 seconds to load a buggy, whereas 

the normal time is approximately 30 seconds. According to 

Fraley, when Whetsel called him on the evening of August 13, to 

tell him that he had fired Reid, Whetsel told him that he had 

discharged Reid for dry chainingu and that he was taking up to 85 

seconds to load a buggy" 

Essentially f it: Complainant 0 s position that because he 

had engaged in protected activitiesf any of his actions that 

resulted in decreased coal production constituted a justified 

work refusal, and hence these activities are protected. Hence, 

an analysis must be made of Reid 0 s activities to determine if 

these activi·ties are protectedu and if his conduct can be ·termed 

a 'lfJOrk refusal. 

Protected Activities 

The first cut that Reid took on the evening of August 13r 

off of the No. 5 entryp (see Complainant's Exhibit No. 2) was 

only 13 to 14 feet deep, resulting in a quantity of coal which 

filled only 8 cars. According to Reid, in essence, he did not 

cut any deeper because there was a crack in the roof. He 

indicated the crack was 2 to 3 inches below the level of the rest 

of the roof. He also observed draw rock, approximately 6 inches 

to 1 1/2 feet thick, and saw pieces of coal dribbling down from 

the roof. In contrast, James Burlin Adkins the chief electrician 

428 
on the day shift, testified that he was in the area in question between the day shift and evening shift on August 13, and did not 

see any cracks in the roof of the No. 5 heading. To the same 

effect, Michael Taylor, the miner operator on the day shift on 

August 13, described the roof on the No. 5 entry as being of 

sandstone. He said that there were no problems, and that he had 

not observed any cracks. Rodney Coleman, who assisted Reid on 

the evening shift of August 13, 1991, moving cables of the miner, 

also described the roof as being of sandstone. He said that he 

did not remember any cracks or defects in the roof. He was asked 

whether he heard any thumping of the top, or saw any dribbling on 

the ribs in the number five entry, and he said he did not 

remember "seeing anything" (Tr.l57) I find this testimony to be 

insufficient to rebut the positive testimony of Reid as to his 

observation of cracks in the roof in the evening of August 13. 

Reid also limited the length of cuts No. 3 and 4 that he 

took (See Respondent's Exhibit No. 2), and thus decreased 

production due to the conditions of the roof which he described 

as very bad. He said he had heard thumping, and observed 

dribbling. Goebel Burke, Michael Taylor, Whetsel, and Fraley, 

all essentially described the roof at the working face as being 

of sandstone, and in good condition. However, no witnesses 

specifically contradicted or impeached Reid's testimony as to the 

conditions that he observed in the roof on the evening of August 

13, when he took cuts 3 and 4. In this connection, Larry Haley, 

the shuttle operator on Reid's shift, said that the roof in the 

No. 5 entry was cracked real bad and was ready to fall out. Paul 

Helton, who previouslyu worked as an MSHA inspector and roof 

control specialist, testified that, in general, a miner operator 

is in the best position to know how safely a cut can be madeo 

Taylor "~,1'ho runs cl r <testified t:o the same effect" 

issue for resolution whether Reid 0 s failure to 

take full cutsp constitutes a valid work refusal protected by the 

Act. It is well established that under Section 105{c) supra, a 

miner has the right to refuse to perform work which he reasonably 

believes poses a safety hazard" (See 9 Robinetteg 3 FMSHRC 803 

198l}Q Pasula 7 2 FMSHRC 2786 (1981)), Within the framework of 

the facts set forth abover I find that Reid reasonably believed 

that cuts deeper than the cuts he had made in the areas referred 

to as Noo lv 3 and 4 Respondent 1 s Exhibit Noo 2, posed a 

discrete safety hazard considering the roof condition observed by 

himo According to Reid, he pointed out the cracks in the roof to 

Whetsel, and the latter told the crew to watch the cracks. In 

contrast, Whetsel indicated that he did not discuss the roof 

conditions with Reid on August 13. Even if Reid's version is 

found more credible, his prima facie case is beset with 

difficulty, inasmuch as, at no time during the work shift of 

August 13, did he communicate to Whetsel or any one else in 

management that he refused to cut beyond 13 or 14 feet in the 

areas in question due to safety concerns with the conditions of 

429 
the roof. 

In teeco, Inc. v. Ricky Hays, 965 F.2d 1081 (D.C. Cir., 

1992), the o.c. Circuit Court considered the appeal of an 

operator from a decision by Commission Judge Koutras who had 

found that a miner who was fired for not performing one part of 

his job, was discriminated against under section 105(~) supra of 

the Act, where he had unsuccessfully complained to a supervisor 

about the dangers performing th.is task, even though he did not 

bring to his employer's attention the fact that he was refusing 

to perform this task. The court in Leeco, supra, in remanding 

to the Commission for reconsideration of how the miner's conduct 

therein qualified as an activity protected under Section 105(c) 

of the Act, specifically held that it was " ••• unable to sustain 

the ALJ's conclusion that such a concealed stoppage is protected 

by the Act." (Leeco, supra at 1085.) The court, in Leeco, supra 

at 1085 indicated, in essence, that to conclude that a failure to 

perform a job amounted to the same thing as a communicated 

refusal because the operate~ was already aware of safety related 

complaints 11 o •• obviously represented a significant extension of, 

if not a departure from pre-existing law ...• " The Court in 

Leeco, supra, at 1084 in its review of existing law noted as 

follows: 

So far as we can tell in all prior Commission and 

court decisions upholding a miner's right to refuse 

unsafe work, the miner has expressly or implicitly made 

his employer aware of the fact that he would not 

continue to perform his assigned task. See, e.g., 

Gilbert, 877 F.2d at 458. Price v. Monterey Coal Co., 

12 FMSHRC 1505 (1990); Secretary ex rel Pratt v. River 

Hurricane Coal Co.u 5 FMSHRC 1529 (1983); Bush, 5 

FMSHRC Magma Cooper Co.u 4 FMSHRC 1985 

(1982); v. Dunmire & Estle v. 

Coal Co.u 4 FMSHRC 126 (1982); Robinette; 3 FMSHRC at 

807. 

Hencep as explained Leeco, supra, existing law has not 

recognized a minerqs right to refuse unsafe work in a situation 

where the miner has not made his employer aware that he would not 

continue to perform his assigned task. 

Thus, in light existing law, I cannot find that the scope 

of protected activities set forth in section 105(c) of the Act 

supra, extends to a miner who has not communicated his work 

refusal for safety related concerns to his employer. Accordingly, 

I conclude that complainant has not established that his actions 

in not cutting beyond 13 to 14 feet in the areas in question, 

were protected under Section 105(c) of the Act. Accordingly, I 

conclude that his discharge did not violate Section 105(c) of the 

Act supra, and thus his complaint of discrimination must be 

dismissed. 

430 
ORDER 

It is hereby ORDERED that this case be DISMISSED. 

~i~ Administrative Law Judge 

Distribution: 

Tony Oppegard, Esq., Mine Safety Project of the ARDF of Kentucky, 

Inc., 630 Maxwelton Courtv Lexington, KY 40508 (Certified Mail) 

Billy R. Shelton, Esq., Baird, Baird, Baird, & Jones, P.S.C., 415 

Second Street, P.O. Box 351, Pikeville, KY 41502 {Certified 

Mail) 

nb 
I'BDBRAL JU:BB SU'Bft AIID BBAL'l'B llBVl:BW COIIlll:SS:IOII 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

M';R ',P, .. -1 l 01993 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. 

0 

. . 

. . 

. 

0 

. . 

CONTEST PROCEEDING 

Docket No. SE 92-249-R 

citation No. 2804441; 3/13/92 

Mine No. 7 

Mine ID 01-01401 

CIVIL PENALTY PROCEEDING 

Docket No. SE 92-328 

A.C. No. 01-01401-03887 

Mine No. 7 

DECISION 

Appearances: R. Stanley Morrow, Esq., Birmingham, Alabama, for 

Contestant/Respondent; 

Before~ 

William Lawson, Esq., Office of the Solicitor, 

UoSo Department of Labor, Birmingham, Alabama, for 

Respondent/Petitionero 

Judge Fauver 

The companyis notice of contest and the Secretaryvs petition 

for civil penalties were consolidated for hearing and decisionu 

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

§ 801 et seg" Nine of the ten citations involved were settled. 

A hearing was held on the remaining charge, Citation No. 2804441. 

Having considered the hearing evidence and the record as a 

wholeu I find that a preponderance of the substantial, probative, 

and reliable evidence establishes the Findings of Fact and 

further findings in the Discussion below: 

FINDINGS OF FACT 

1. Jim Walter Resources, Inc., operates an underground 

coal mine, known as Mine No. 7, which produces coal for sale or 

use in or substantially affecting interstate commerce. 

432 
2. On March 13, 1992, Federal Mine Inspector Bill Deason 

inspected the No. 1 longwall section of Mine No. 7. He observed 

that the operator had dangered off approximately 75 feet of the 

travelway in the No. 4 entry because of bad roof (beginning at 

the forward crosscut), that some roof had fallen in and near the 

crosscut (as shown in Exhibit G-2), and that in ~ntry No. 3, near 

the crosscut, there were a crack across the entry and a brow. He 

found that the roof conditions constituted a hazard to miners who 

were required to travel through the crosscut, and therefore 

issued citation No. 2804441, charging a violation of 30 C.F.R. 

§ 75.202. The regulation provides that "The roof, face and ribs 

of areas where persons work or travel shall be supported or 

otherwise controlled to protect persons from hazards related to 

falls of the roofu face or ribs and coal or rock bursts." 

§ 75.202(a). 

3. The company promptly submitted a supplement to its roof 

control plan, providing for additional roof and rib support in 

the area where the miners were traveling. Specifically, it 

proposed to support the area by installing additional timbers on 

five foot centers in the No. 3 ~;ntry to a point outby the brow, 

and to install additional cribbing on five foot centers from the 

rib line to the shields in the No. 3 entry (as shown in Exhibit 

G-3). The plan was promptly approved by MSHA and the citation 

was terminated. The supplemental plan, although acknowledging 

that it was 81 submitted as a result of the conditions being 

experienced'1 , was submitted under protest by the company, which 

stated in the plan: "No. 7 Mine does not agree with the necessity 

of the plan and is only doing so to abate the citation issued 11 Exhibit G-3. 

4. The company had previously dangered off a travelway in 

No. 3 entry because of bad roof, so that in the course of two 

shifts travelways in Nose 3 and 4 entries were dangered off 

because of bad roof. No. 3 entry had been re-opened before 

No. entry was closed. 

5. Advancement of the longwall put stress on the roof 

across the crosscut intersecting Nos. 3 and 4 entries, as 

evidenced by the conditions observed by Inspector Deason. 

Additional roof support was needed to protect the miners who 

traveled through the crosscut in the area shown in Exhibit G-3)" 

DISCUSSION WITH FURTHER FINDINGS 

I find that the evidence sustains the inspector~s finding 

that the roof where the miners were traveling was hazardous and 

required further support to comply with 30 C.F.R. § 75.202(a). 

The company contends that the citation is unenforceable 

because it was based upon an unwritten, arbitrary policy of the 

Subdistrict Manager of MSHA's Birmingham Office. About ten years 

ago, the Subdistrict Manager (Mr. Weekly) adopted an enforcement 

policy to cite a violation if the forward longwall crosscut was 

used as a travelway without additional roof support or 

433 
safeguards. Mr. Kenneth Ely, an MSHA supervisor, testified that 

Mr. Weekly's concern was that roof pressures created by advancing 

the longwall exerted substantial pressure on the forward 

intersection of the longwall entries (such as the forward 

crosscut connecting Nos. 3 and 4 entries) and that, as a regular 

occurrence, the roof in that area would deteriorate and present a 

hazard of falling without warning. 

The Secretary contends that this enforcement policy is not 

arbitrary but was arrived at on the basis of the Subdistrict 

Manager's review of roof control plans, accident reports, etc., 

and his discussions with MSHA supervisors, inspectors, and roof 

specialists, as well as his own background and experience in 

mining and mine safety and health. Mr. Ely testified that the 

MSHA inspectors attempted to "marry" the manager's policy to 

existing mine conditions, and that MSHA recognizes that 

enforcement citations and orders must be supported by the facts 

independent of a managervs policy. 

The company contends that the managerus policy is not 

enforceable because it was not promulgated in accordance with 

§ lOl(a) of the Act, which requires formal rulemaking procedures 

(in compliance with § 553 of the Administrative Procedure Act) 

for any rule "promulgating, modifying, or revoking a mandatory 

health or safety standard." 

The Commission has held that MSHA 6 s Program Policy Manual's 

"instructions are not officially promulgated and do not prescribe 

rules of law binding upon [the Commission]." Old Ben Coal 

Company 2 FMSHRC 2806, 2809 (1980). A fortiori, a Subdistrict 

Manager's unwritten policy is not a safety standard or 

modification binding on the Commission and cannot independently 

support a § 104(a) citation. Rather 9 it is a local MSHA office 

directive to inspectors" Citations or orders issued under such a 

policy must stand or on their factual merits based on 

actual mining conditions. 

The evidence as to the mining conditions sustains the 

inspector 1 s finding of a violation of 30 C.P.R. § 75.202. 

Considering the cr~~eria civil penalties 

·the i7 I find ·that a civil penalty of $800.00 

for this violation. 

CONCLUSIONS OF LAW 

§ llO(i) of 

appropriate 

1. The judge has jurisdiction in these proceedings. 

2. Jim Walters Resources, Inc.u violated 30 C.F.R. 

§ 75.202 as alleged in Citation No. 2804441. 

434 
ORDER 

WHEREFORE IT IS ORDERED within 30 days from the date of this 

Decision, Jim Walters Resources, Inc., shall pay the approved 

settlement civil penalties of $2,814 and a civil penalty of $800 

for the violation charged in Citation No. 2804441, for a total of 

$3,614 in civil penalties. 

~;[~~4-, Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, u.s. Department of 

Labor, 2015 Second Avenue North, Suite 201, Birmingham, Alabama 

35203 (Certified Mail) 

R. stanley Morrow, Esq., Jim Walter Resources, Inc., P. o. Box 

830079, Birmingham, Alabama 35283-0079 (Certified Mail) 

jfcca 

435 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 1 0 1993 

CONSOLIDATION COAL COMPANY, 

Contestant 

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 PROCEEDINGS 

Docket WEVA 92-657-R 

Citation No. 3108710;1/13/92 

Docket No. WEVA 92-658-R 

citation No. 3108711;1/13/92 

Humphrey No. 7 Mine 

Mine ID 46-01453 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-838 

A. C. No. 40-01453-04005 

Humphrey No. 7 Mine 

Appearances Charles . Jacksonu ., of the Solicitor, 

Before~ 

u.s. Department of Laboru Arlington; Virginia for 

the Secretary of Labor; 

Daniel RogersQ Esq.u Consolidation Coal companyu 

Pittsburghu Pennsylvaniav for Consolidation Coal 

Companyo 

Judge Weisberger 

statement of the Case 

These consolidated proceedings involve the issue of the 

validity of various citations and orders issued by the Secretary 

(Petitioner), to the Operator (Respondent), alleging violations 

of various mandatory safety standards. Pursuant to notice, a 

hearing was held in Washington, Pennsylvania, on December 1, 

1992. At the hearing, Petitioner moved to vacate Order 

No. 3108710 (Docket WEVA 92-657-R) , and this motion was granted 

based on the representations and documentation submitted by 

436 
Petitioner. Petitioner also moved to approve a settlement that 

the parties had reached with regard to Citation Nos. 3108711, 

3108762, 3108920, and 3108604. These motions were granted based 

upon the representations of counsel. In addition, Petitioner 

moved to withdraw citation No. 3108711, and this motion was 

granted based upon the representations of counsel. 

At the hearing, Charles J. Thomas testified for Petitioner, 

and Mike Jackson, and Stanley Brozick, testified for Respondent. 

Petitioner filed a post-hearing brief on January 21, 1993. 

Respondent filed a post-hearing brief on January 29, 1993. 

Findings of Fact and Discussion 

I. Violation of 30 C.F.R. § 75.1003(c) 

on January 16, 1992, MSHA Inspector Charles J. Thomas, while 

inspecting the 6 SW Longwall at Respondent's Humphrey No. 7 Mine, 

approached the working section.Jn a covered personnel carrier. 

Two other personnel carriers were located inby on this same 

track, one in front of the other. The trolley wire, which 

supplies power to the personnel carrier, and which was suspended 

from the roof of th~entry, was not guarded above the outby 

personnel carrier.·· Thomas issued Citation No. 3108919 alleging 

that ij

9 ••• the trolley wire is not guarded over the extra 

personnel carrier at the man-trip station", in violation of 

30 C.F.R. § 75.1003. At the hearing, the parties agreed that 

the issue to be determined is whether the cited condition 

constitutes a violation of 30 C.F.R. § 75.1003 which, as 

pertinent, provides that ntrolley wires shall be guarded 

adequately ••. (c) at man-trip stations". The initial issue 

to be determined is ~Jhether the personnel carriers are 9uman- ao ,, and vlhether area where the outby carrier was located 

on January 16r 1992 was a "man-trip station". 

A. Man-Trips 

The personnel carriers at issue are coveredu have a capacity 

of transporting 12 men and are used to transport a longwall 

crewu consisting of men to and from the section. The 

personnel carrier has two trolley poles~ one located at the inby 

end of the carrier" and ·the other at the outby end of the 

carrier" These poles are utilized to make the connection with 

the overhead trolley wire and thus provide power to move the 

personnel carriere When the personnel carrier is traveling inby 

it uses only the inby trolley pole. To prepare the personnel 

carrier for the outby trip 1 the operator of the carrier has to 

remove the inby trolley pole from the trolley wire and connect it 

to the pole "dog." The operator must then "undogtt the outby 

pole, and connect it to the trolley wire. 

The term "man-trip" is not defined in either the regulations 

437 
or in Section 310(d) of the Federal Mine Safety and Health Act of 

1977, "the 1977 Act", or Section 310(d) of the Federal Coal Mine 

Health and Safety Act of 1969 ("the 1969 Act"), both of which 

contain the same language as Section 75.1003, supra. 

According to Stanley Brozick, Respondent's Safety Supervisor 

at the mine in question, he does not know of any definition of 

the term "man trip." He opined that a covered carrier is not a 

"man-trip"e He explained that prior to 1971 or 1972, Respondent, 

and other operators, utilized uncovered "man-trips" pulled by 

locomotives to transport miners to and from the section. He 

indicated that these man-trips did not remain on the section, but 

instead dropped persons off as they travelled inby. He indicated 

that the places where persons entered and exited the man-trip 

were termed mantrip stations. However, Brozick indicated that, 

now, a "man-trip" is considered synonymous with the term "portal 

bus. 15 Mike Jackson, a safety escort employed by Respondent at 

the Humphrey No. 7 Mine, concurred. In contrast, Thomas opined 

that a nman-trip91 the saillE? as a personnel carrier as the 

latter carries miners. Hence, the record fails to convincingly 

establish a recognized definition in the mining industry of the 

term nman-trip" • 1 

Respondent refers to 30 C.F.R. § 75.1403-6 and 30 C.F.R. 

§ 75.1403-7 as support for its proposition that personnel 

carriers powered by electricity from a trolley wire are not to be 

considered man-trips, which are pushed or pulled by locomotives. 

Sections 75.1403-6, supra. and Section 75.1403-7 supra, contain 

criteria by which an inspector is to be guided in issuing 

safeguards to minimize hazards with respect to the transportation 

of men. Separate criteria are provided for "self-propelled 

personnel carriers 11 for 19 man=trips~ • The terms 1'self-

:propelled personnel 90 and 11man-trip11 are not defined in 

75ol403 6 and Section 75.1403-7 9 supra. There 

no indication that a personnel carrier powered by electricity 

from a trolley u which it is connected by way of a pole 

attached to the personnel carrieru is not within the scope of the 

ter:m 00man-trip" u~ 

In UoSo Steel Companv, Inco, 7 FMSHRC 865 at 868 (1988) the 

Commission set forth its analysis of Section 75ol003 supra as 

1

Petit.ioner u at t.he hearing v made reference to the following 

definition of the "man-trip" as set forth A Dictionary of 

Mining. Mineral. and Related Terms (United States Department of 

the Interioru (1967)): na. A trip made by mine cars and 

locomotives to take men rather than coal, to and from the working 

places." Inasmuch as this defines the term "mantrip" when used 

as an adverb, it is not of much probative value with regard to a 

definition of that term when used as a noun, as in the instant 

case. 

438 
follows: 

As the language of section 75.1003 specifies, in 

order to effectuate the purpose of the standard, 

guarding is especially necessary at mantrip stations. 

Miners are discharged at such stations and pass under 

trolley wire in the process. Further, a common hazard ·- presented by unguarded trolley wire at a mantrip 

station is the possible shock hazard to the mantrip 

operator when he stands to remove the trolley pole from 

the overhead wire. 

Clearly the hazards intended to be protected against by 

Section 75.1003, supra, apply to all vehicles transporting miners 

that are powered by trolley wires. Since the carriers at issue 

are used to transport miners to and from the working section, I 

find that they are man-trips within the purview of Section 

75.1003, supra. 

B. Man-trip Station 

During normal mining operations, one personnel carrier is 

left in place to be used, in the event of an emergency, by those 

personnel working on the section between shifts. The other 

carrier transports men to the section at the beginning of the 

shift, and then transports them from the section at the end of 

the shift. 

During normal mining operations, a specific area, such as 

the one in question, is used by miners to get off the personnel 

carrier at the beginning of the shift, and to enter the personnel 

carrier at the end of the shift" Howeveru as the longwall mining 

advances outby, the area in which the miners get on and off the 

personnel carrier is also moved outbyo According to Thomas, the 

locations where miners enter and exit the personnel carrier are 

moved outby approximately once a week, depending upon the speed 

at which the longwall face advances outbyo Respondentvs 

witnesses have not contradicted or impeached this testimony. 

In u.s. Steel Company, Inc., suprav at 868v t:he Commission; 

evaluating whether the location where the man-trip therein 

stopped was a uvman-trip station" at which the trolley wire must 

be guarded? held that no ••• a mantrip station can be established 

through routine or regular stopping practice 1 as well as by 

explicit designation" Such a construction of the standard is 

founded in the practicalities of daily mining operation and 

furthers the protective concerns of Congress cited above." In 

this connection, the Commission, in U.S. Steel, supra, at 867, 

analyzed the legislative intent regarding the enactment of the 

language in the 1969 Act that is repeated in Section 75.1003(c}, 

supra, as follows: 

The primary purpose of the guarding requirement in 

439 
section 75.1003 is to prevent miners from contacting 

bare trolley wires. As noted above, this standard 

repeats section 210(d) of the Mine Act, 30 u.s.c. 

§ 870(d), which, in turn, was carried over unchanged 

from section 310{d) of the 1969 Coal Act, 30 u.s.c. 

§ 801, et seg., (1976) (amended 1977). The legislative 

history of the 1969 Coal Act relevant to section 

75.1003 reveals a strong Congressional concern with the 

hazards associated with bare trolley wires: 

This section requires that trolley wires 

and trolley feeder wires be insulated and 

guarded adequately at doors, stoppings, at 

mantrip stations, and at all points where men 

are required to work or pass regularly •••• 

Alsov this section would require temporary 

guards where trackmen or other persons work 

in proximity to trolley wires and trolley 

feeder wires. The·Secretary or the inspector 

may designate other lengths of trolley wires 

or trolley feeder wires that shall be 

protected . ••. The guarding of trolley wires and 

feeder wires at doors, stoppings, and where 

men work or pass regularly is to prevent 

shock hazards. 

Because of the extreme hazards created 

by bare trolley wires and trolley feeder 

wires, the committee intends that the 

Secretary will make broad use of the 

authority to designate additional lengths of 

trol and trolley feeder wires that 

shall be protected. 

s. Rep. No. 411, 91st Cong., 1st Sess. 77 (1969), reprinted 

in Senate Subcommittee on Labor, Committee on Labor and Public 

Welfare 1 94th Cong.u 1st Sess.u Part 1 Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, at 203 (1975)~ 

In u.s. Steel, supra, 868 1 the Commission, in analyzing 

Section 75.1003, supra, indicated that to effectuate the purpose 

of Section 75.1003, , guarding is necessary at man trip 

stations where miners are discharged and walk under trolley 

wires. Also recognized was the hazard at a man-trip station of a 

possible shock to the man-trip operator when he stands to remove 

the trolley pole from the overhead wire. 

According to Thomas, in essence, due to the requirement of 

only a 12 inch minimum clearance between the rib and the carrier 

on the tight side of the entry, the operator of the carrier 

normally slides back an access door in the roof of the carrier to 

allow him to reach up and "undog" the trolley pole and attach it 

440 
to the trolley wire. Since the pole must be "undogged" from a 

spring, and placed on the trolley wire, which according to Mike 

Jackson, Respondent's expert, is located a minimum of 16 inches 

from the roof of the carrier, I conclude that there was a 

possible shock hazard to the man-trip operator when engaging in 

this activity under unguarded wire at the area in question at the 

beginning and end of a shift. 

Further, since the use of the area in question by miners 

to exit and enter personnel carriers was not random or a onetime-only stop, but instead was used regularly, although for a 

limited time, I conclude within the framework of u.s. Steel, 

supra, that the particular location in question was a man-trip 

station. Since the trolley wire above the area in question was 

not guarded, I conclude that Respondent violated Section 75.1003 

supra. 

II. Significant and Substantial 

According to Thomas, in order to "undog" the trolley pole 

and place it on the trolley wire, operators of the carrier in 

question have their arms, head and shoulders outside the access 

door, and on top of the carrier. He indicated that he has driven 

a portal bus, and he positioned his head outside on top of the 

carrier while "undogging" the trolley wire. He also said that 

most of the operators he observed performing ~his procedure, 

positioned their head outside, on top of the carrier. He 

indicated that if a person 6-foot tall was required to do this 

procedure, his head would be a foot from the wire. 

Thomas indicated that he has always seen operators 

performing the Q

1undogging11 procedure using two hands. Thomas 

indicated that takes two hands to "undog" the pole, as it is 

spring loadedo According to Thomasu in the procedure of moving 

the pole from the 11 dogn to the trolley wire, the operator 1 s hand 

would be between an inch and a foot away from the wire. He 

indicated that generallyu the operator would be exposed to the 

hazard of shock or burn; if he were to come in contact with the 

trolley 'Vdre when he reached to 10 undog" 'che trolley pole and 

on the wire. 

Thomas opined that a reasonably serious injury was 

reasonably likely to occur as a result of the lack of guarding 

hereino He explained that contact with the wire would have been 

reasonably likely to occur, as the procedure of undogging the 

pole and placing it on the wire had to be performed twice a 

shift, on each of three daily shifts. He indicated that 

generally the working conditions are cramped, and that if the 

operator should get mud on his shoes and slip, he then "could" 

come in contact with the wire (Tr.82). On-cross-examination he 

indicated that such contact "may occur someday" (Tr.83). 

441 
Jackson indicated that he has operated a carrier and, in 

generalv he used one hand to put the pole on the wire. He also 

indicated that there is no reason for the operator to place his 

head out of the vehicle. In this connection, he indicated that 

an operator would be less likely to put his head out if the wire 

is unguarded, as the visibility is better, and it is thus easier 

to ~ee where to place the pole on the wire. Brozick indicated 

that the base of the pole is practically at eye level. Hence, 

according to Brozick, to release the "dog", it is not necessary 

for the operator's head to be above the carrier except, on 

occasion, if the roof is low. 

A "significant and substantial" violation is described, in 

section 104(d) (1) of the Mine Act, as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.P.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed-to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co.v 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: (1) the underlying violation 

of a mandatory safety standard; (2) a discrete 

safety hazard--that isv a measure of danger to 

safety-contributed to by the violation; {3) a 

reasonable likelihood that the hazard contributed 

to will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of 

a reasonably serious nature. 

In United States Steel Mining Company, Inc.v 7 FMSHRC 1125v 

1129 0 the Commission stated further as follows~ 

We have explained further that the third 

element of the Mathies formula "requires that the 

Secretary establish a reasonable likelihood that 

the hazard contributed to will result in an event 

in which there is an injury.n u.s. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized 

that, in accordance with the language of section 

104(d) (1), it is the contribution of a violation to 

the cause and effect of a hazard that must be 

significant and substantial. u.s. Steel Mining 

142 
company, Inc., 6 FMSHRC 1866, 1868 (August 1984); 

U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular 

facts surrounding the violation, including the nature of the 

mine involved, Secretary of Labor v. Texasgulf. Inc., 10 FMSHRC 

498 (April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

The first two elements of the Mathies test have been met, 

inasmuch as I have found that there was a violation of 75.1003 

supra. The evidence also clearly establishes that, due to the 

violation herein, the hazard of contact with a 120 volt trolley 

wire resulting in injuries was contributed to. The issue herein 

is whether the third element of Mathies has been met, i.e., 

whether there was a reasonable likelihood of an injury producing 

event, i.e. contact with the unguarded trolley wire. Certainly, 

given the proximity of the wire to the roof of the carrier, there 

was a possibility of the operator making inadvertent contact with 

the unguarded wire in the procedure of "undogging" the pole, and 

placing it on the wire. Petitioner has not described with 

specificity the exact manner in which the undogging of the 

trolley pole is performed, aside from Thomas' testimony that the 

"dog" is spring loaded and two hands are required to perform this 

procedure. Also, the distances between the operators hands and 

the trolley wire that Thomas testified to are, at best, 

estimates, and vary with the height of the roof and the height of 

the operator. Petitioner has not proffered documentation of any 

incidents where inadvertent contact with an unguarded wire has 

JCesulted from 00 undogging'1 a pole from a carrier of the type in 

issuer and placing it on a t:rolley wireo For all these reasonsr 

I conclude that has not been established that there was a 

reasonable likelihood of contact with the wire. Accordinglyv it 

has not been established that the violation herein was 

significant and substantial. 

IIL Penalty 

According to Thomas~ the cited condition would have been 

obvious to a trained foreman, as it was obvious to him. 

Also 5 on July 30v 1990v October 11, 1990 5 November 12, 1991, 

and November 25 5 1991, Respondent had been previously cited for 

not having a guarded trolley wire at a man-trip station, and 

Respondent paid the penalties assessed for these violations. 

Further, Thomas indicated that, prior to the date of the 

citation, at issue, he had a discussion with the mine foreman, 

and John Haizer, the superintendent, with regard to how much 

guarding was necessary. I conclude that Respondent's negligence 

herein was moderate. Further, considering the gravity of the 

violation, as evidenced by Thomas' testimony that should one come 

443 
in contact with the electric trolley wire, burns or electric 

shock could result, and considering the remaining factors set 

forth in section 110(i) of the Act, I conclude that a penalty of 

$300 is appropriate for this violation. 

ORDER 

It is hereby ordered that (1) Respondent shall, within 

30 days of this decision, pay a civil penalty of $300 for the 

violation cited in Citation No. 3108919, and a civil penalty of 

$930, based on the granting of the parties' Motion to approve a 

settlement regarding Citation Nos. 3108711, 3108762, 3108920, and 

3108604; (2) Order No. 3108710 (Docket No. WEVA 92-657-R) is 

VACATED; (3) Citation No. 3108711 be withdrawn; and (4) Citation 

No. 3108919 be amended to a violation that is not significant and 

substantial. 

~We~ Administrative Law Judge 

Distribution: 

Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

Daniel Rogers, Esq., Consolidation Coal Company, 1800 Washington 

Road, Legal Department, Pittsburgh, PA 15241 (Certified Mail) 

444 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR t 0 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEVA 92-935 

A. C. No. 46-01318-04064 

v. 

Robinson Run No. 95 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Appearances~ Charles M. Jackson, Esq., Office of the Solicitor, 

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

the Secretary of Labor; 

Before: 

Daniel Rogers, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Consolidation Coal 

Company. 

Judge Weisberger 

Statement of the Case 

This case before me based upon a petition for assessment 

l penalty filed by the Secretary (Petitioner) , alleging a 

v the Operator (Respondent of 30 C.F.R. § 75.517. An 

answer was filed, and pursuant to noticey the case was 

scheduled for hearing on December 2, 1992p in Washington, 

Pennsylvania, and heard on that date. Richard Gene Jones, and 

Michael G. Kalich, testified for Petitionerff and Richard Lee 

Moatsp testified for Respondent. The parties filed post-hearing 

briefs on January 22 2.993. 

Findings of Fact and Discussion 

I. Violation of 30 C.F.R. § 75.517 

On March 12v 1992, Richard Gene Jones, an MSHA Inspector, 

inspected the 5-North Conveyor System of Respondent's Robinson 1 s 

Run No. 95 Mine. He observed a 12/4 power 120 volt cable that 

was not in place hung on the wall, but instead was lying on the 

ground in rib sloughage. When he picked it up, he noticed that 

the outer jacket rubber insulation was torn for approximately 

five inches. He also indicated that beneath the area where the 

rubber insulation was torn, some of the insulation surrounding 

445 
the copper wires had been "peeled" or "scraped" and he could see 

the wiring inside {Tr.30). Jones issued Citation No. 3107821 

alleging a violation of 30 C.F.R. § 75.517 in that the 12/4 power 

cable "is not insulated adequately qnd fully protected. Near the 

off-track side switch there is a location in the cable with an 

extensively damaged 5-inch place that exposes the electrical 

dama-ged conductors •••• " (sic) Section 75.517, supra,---provides, 

as pertinent, that power cables "shall be insulated adequately 

and fully protected. " 1 

According to Jones, the purpose of the rubber outer jacket 

is to provide protection to the cable wires from moisture, and 

dust. It also protects the cable from being hit by foreign 

objects. According to Jones 1 the outer jacket also provides 

electrical insulation. 

The outer jacket of the cable in question was completely 

removed for a distance of approximately 8 inches in length. The 

width of the exposed area extended approximately 180 degrees 

around the circumference of the cable. Further, the insulation 

surrounding the individual interior copper wires was damaged, and 

was no longer providing physical protection against moisture and 

dust. Nor was it providing electrical insulation, i.e. 

protection from phase-to-phase, and phase-to-ground contact. 

Respondent's witness, Richard Lee Moats, did not rebut or impeach 

the testimony of Jones in these regards. Nor did Respondent 

offer any other evidence impeaching or contradicting Jones' 

testimony in these regards. Accordingly, based on Jones' 

testimony, I find that inasmuch as the cable in issue was not 

insulated adequately and fully protected, Respondent herein did 

violate Section 75.517u supra. 

II Significant and Substantial 

lyu it was Respondent's position at the hearing 

thatv in essenceu a violation of Section 75.517u supra, does not 

occur in the absence of the proof that the violative condition 

was caused by the Operatorqs negligence. I do not find this 

argument persuasivev as it is well established that the mandatory 

safety regulations impose strict liability on the operator. 

(See 1 Western Fuels-Utah; 10 FMSHRC 256 (1988); Asarco. Inc.; 

8-FMSHRC 1632 (1986)). As such, if the facts establish that a 

certain condition is violative of a mandatory standard, an 

operator .is liable even in the absence of any negligence on its 

part. A discussion of the Operator's negligence is set forth 

subsequently in this decision (Section III, infra) as it relates 

to the issue of the operator's penalty. 

446 
According to Jones the violation herein is significant and 

substantial. A "significant and substantial" violation is 

described in section 104(d) (1) of the Mine Act as a violation "of 

such nature as could significantly and substantially contribute 

to the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d) (1). A violation is properly 

desi-gnated significant and substantial ttif, based upon-~'the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division, National Gypsum Co. 1 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984}, the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National 'Gypsurnthe Secretary 

of Labor must prove: (1) the underlying violation 

of a mandatory safety standard; (2) a discrete 

safety hazard--that is, a measure of danger to 

safety-contributed to by the violation; {3) a 

reasonable likelihood that the hazard contributed 

to will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of 

a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

t:he Mathies formula oqrequires that the Secretary 

establ a reasonable ihood that the hazard 

contributed to wi result in an event in which there 

is an injury. 01 U.S. Steel Mining Co. 1 6 FMSHRC 1834, 

1836 (August 1984)" We have emphasized that, in 

accordance the language of section 104(d) (1), it 

the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantialo U.S" Steel Mining Company, Inc", 6 FMSHRC 

1866f 1868 (August 1984)t u.s. Steel Mining Company, 

Inc.u 6 FMSHRC 1573ff 1574~75 (July 1984). 

The question of whether any particular violation is si~nificant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

447 
With regard to the first element of Mathies, supra, I have 

already found that the evidence establishes a violation of 

Section 75.517, a mandatory safety standard. 

According to Jones, should the power cable be energized, a 

person coming into contact with the unprotected non-insulated 

section of the exposed power cable could suffer burns,-~lectric 

shock, or heart fibrillation. He also indicated that should 

phase-to-phase, or phase-to-ground contact occur as a consequence 

of the lack of the rubber insulation around the copper wires, 

arcing could result, which could cause a fire, especially in the 

presence of methane. In the main, this testimony of Jones has 

not been contradicted, and, in essence, finds support in the 

testimony of Michael G. Kalich, an MSHA electric inspector, who 

also testified for the Petitioner. I thus find that the second 

element of Mathies, supra, has been met. Accordingly, the 

critical issue to be determined is whether the third element of 

Mathies, supra, has been met, i.e., whether there was a 

reasonable likelihood of either aperson coming in contact with 

the energized exposed portion of the cable, or of phase-to-phase, 

or phase-to-ground contact in the cable when energized. 

The cable was attached to a coal feeder at one end. The 

other end of the cable was attached to an on/off switch which 

allows a miner to operate the coal feeder from a remote position. 

When cited by Jones, the cable was not energized, as the section 

was idle, and was not producing coal. The circuit breakers which 

energized the cable were both in the off position. Hence, there 

was no hazard at that time. 

Howeverf it critical, when making a determination as to 

whether a condition is significant and substantial, to evaluate 

that condition in terms of the continuation of normal mining 

operationso (See U.S. Steelv 6 FMSHRC 1573, 1574)o In this 

connection, Kalich explained that, when production would resume, 

the circuit breakers at the power center and feeder would be 

re-setu thus causing electric power, 120 volts, to flow to the 

damaged area of the cable in question. Richard Lee Moatsu a mine 

escort who testified for Respondentv stated that the foreman of a 

section normally instructs his crew, at the beginning of the 

shift before work commencesu to check all cables and, as such, 

the crew would have located the damaged area prior to 

reintroducing electric power. Moats is neither a member of a 

work crew working in the area, a foreman, or supervisor of a 

foreman. Accordingly, I do not place much weight on his 

testimony as to specifically what occurs in the area in question 

in normal mining operations. 

According to Moats, on the date the citation was issued, 

after the power was turned off, he examined the damaged area. He 

indicated he saw that two of the copper wires had been severed. 

on the other hand, Jones testified that it was extremely hard to 

448 
see the wires as they were too extensively damaged to check. He 

said that it was difficult to tell if the wires were touching. 

However, he indicated that he did not examine the wires to see if 

they were touching. I observed Moats' demeanor, and I find his 

testimony credible that, upon looking inside of the cable, he did 

see that two wires were not touching, and I accept his testimony in this regard. ---

According to Moats, since two of the wires were severed, the 

femco monitoring system would prevent the circuit breakers at the 

power center from being reset, and power would not flow to the 

wires in question. In contrast, according to Kalich, if two of 

the wires in the cable are severed, current will still flow to 

these wires. Further, in rebuttal, Kalich stated that the femco 

system at the power center serves as protection only from the 

power center to the feeder, and does not monitor the 12/4 cable 

in issue, whose only protection is a 10 amp fuse. He indicated 

that the feeder contains a transformer which reduces 480 volts of 

current entering the feeder to,120 volts, which is transferred 

out to the cable in question. Kalich explained that, 

accordingly, if two of the wires in the cable are severed, only 

120 volts would go beyond the transformer in the feeder to the 

high side of the transformer. Kalich explained that accordingly, 

there would not be enough current to trip the breaker, which is 

set for 480 volts. Moats, who was recalled in rebuttal, did not 

contradict the specific testimony of Kalich in these regards. 

Accordingly, and based on Kalich's extensive work experience as 

an electrical inspector, I accept his testimony in these regards. 

According to Jones, when he originally passed the cable in 

question and observed that it was not in its place on the rib, 

but instead was on the ground in sloughage, he bent to pick it up 

to put it back on the rib. In this regard, he indicated that men 

the working crew automatically pick up cables that are laying 

on the floor. Respondent did not contradict or impeach the 

testimony of Jones in this regard. I therefore accept it. 

According to Kalich, arcing would result even if two of the 

wires were severedQ as they could come in contact when the cable 

is picked up. Also, Kalich indicated that even if the wires 

barely touched, arcing could resultu which could lead to a fire. 

He also noted that normally it could take up to a minute for a 

fuse to blow, and thatv in the one minute interval, arcing upon 

phase-to-phase or phase-to-ground contact can occur. 

I find the testimony of Moats that two of the four wires 

were severed, to be insufficient to diminish the likelihood of 

contact between the wires, given the fact that the interior wires 

were bare for approximately three inches, as testified to by 

Jones and not contradicted by Moats. Further, according to the 

uncontradicted testimony of Kalich and Jones, since the damaged 

cable was in coal sloughage, and the coal seam is considered to 

449 
be very volatile, arcing from the cable can result in ignition. 

This testimony was not contradicted by Respondent or impeached. 

Jones also noted the presence of methane on the date of the 

citation. Although the amount of methane found at the face was 

within the permissible range, and the area in question was 

approximately 450 feet from the face, it should be noted that the 

mine- is considered to be a liberator of methane, as if--tiberates 

a million cubic feet in a 24 hour period. 

According to Moats, on the date the citation was issued, an 

emergency stop located at the feeder was locked out. 

Accordingly, it would have to be unlocked and then reset to allow 

power to flow. Moats indicated that, based upon his review of a 

schematic diagram, Government Exhibit No. 3, he concluded that 

with the emergency stop switch activated, power is cut off to the 

cable in question. Moats, in his testimony, however, did not 

specifically refer to the flow of power in this schematic diagram 

to support his opinion. In contrast, Kalich, indicated the 

specific circuit that is af~ected by the emergency stop. 2 He 

also indicated that the flow of power to the remote switch, via 

the cable in question, is a separate circuit. 3 Hence, according 

to Kalich with the emergency stop switch activated power still 

flows to the cable in question. Moats did not rebut this 

testimony. Hence, due to the detailed nature of this testimony 

and the expertise of Kalich, I accept it. 

Within the framework of all of the above, I conclude that 

there was a reasonable likelihood of either a person coming in 

contact with the exposed portion of the cable when energized, or 

of arcing from the cable when energized causing a fire. Jones 

and Kalich essentially testified that a person coming in contact 

with the bare exposed wire in the cable would reasonably likely 

suffer from burns; electrical shock, or fibrillation. Their 

testimony also indicated that in the event of fire caused by 

arcing, smoke inhalation, carbon monoxide poisoning, or other 

injury would have been reasonably likely to have occurred. 

Respondent has not rebutted this testimony and, accordingly, I 

have accepted it. Thereforer for all the above reasons, I 

conclude that it has been established that the violation herein 

was significant and substantial (See U.S. Steel, supra). 

IIIo ~ENALTY 

I find, based on the testimony of Petitionervs witnesses, 

that once power would be restored, and normal operations' would 

resume, should one contact the bare exposed wire, or should 

2

The green and yellow lines on Government Exhibit No. 3. 

3

See the red lines below "A" on Government Exhibit No. 3. 

150 
arcing occur, serious injuries could result. Thus, the violation 

was of a high degree of gravity. 

According to Kalich, the rib near where the cable at issue 

was locat.ed appeared as if a bumper of a car, or something sharp, 

had hit it or rubbed against it. He also noted the presence of 

sloughage such as loose, fine coal, which also supported this 

conclusion. He said that when he made his inspection at 

approximately 9:25a.m., the shift was idle, and the coal that 

had been knocked from the rib appeared fresh. He thus opined 

that the incident knocking the cable off its place on the wall 

and removing the insulation, occurred during the midnight shift. 

He further opined that during an inspection of the belt which was 

required to be performed between 5:00a.m. to s:oo a.m., the 

person making the inspection would have passed this area and 

should have observed the cable in question. He also indicated 

that when he cited the cable, a supervisor was working 100 feet 

outby and, although he would not have seen the cable, he would 

have passed this area during the shift. on the other hand, Jones 

could not establish with any certainty the exact time when the 

incident occurred. Considering all of the above and, taking into 

account the further factors set forth in Section llO{i) of the 

Act, I find that a penalty of $250 is appropriate. 

It is ordered that within 

Respondent pay a civil penalty 

herein. 

Distribution6 

ORDER 

30 days of this decision, 

of $250 for the violation 

Administrative 

~is~ Law Judge 

Charles M. Jackson, Esq.f Office of the Solicitor, 

UoS" Department of Labora 4015 Wilson Boulevard 9 Room 516 9 

Arlington~ VA 22203 (Certified IVIail} 

Daniel Rogers 1 Esq. 1 Consolidation Coal Company, 1800 

Washington Roada Legal Department 9 Pittsburgh9 PA 15241 

nb 

451 

found 
I'BDBRAL JaiiB SAJ'BTY DD HEALTH. RBVJ:D CO.IDUSSXOH 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FAllS CHURCH, VIRGINIA 22041 

M 1'\R ·1 ''l i OQ3 ~!!""! .. iL. ,;} ... 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UNITED STATES STEEL MINING 

COMPANY, INCORPORATED, 

Respondent 

Docket No. WEVA 92-783 

A.C. No. 46-01816-03805 

Gary No. 50 Mine 

··DECISION 

Appearances: Javier I. Romanach, Esq., Arlington, Virginia, for 

Petitioner; 

Before: 

Billy M. Tennant, Esq. 6 Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Fauver 

This is a civil penalty case under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. 

Having considered the hearing evidence and the record as a 

wholev I find that a preponderance of the substantialu reliable 

and probative evidence establishes the Findings of Fact and 

further findings in the Discussion belovn 

FINDINGS OF FACT 

Safeguard No. 3238838 

1. MSHA Inspector James Bowman conducted a regular 

inspection at Respondent 1 s Gary No. 50 Mine on May 23r 1989. 

The mine produces coal for sale or use in or substantially 

affecting interstate commerce. 

2. The inspector observed two vehicles whose trolley poles 

frequently came off the trolley wire as they traveled along the 

track, thereby de-energizing the equipment. 

3. He found that the problem was caused, at different 

locations, by kinks, bends and twists in the wire and by an 

excessive distance between the track and the trolley wire. 

Lt52 
4. He found that the loss of power created a number of 

transportation hazards, including loss of illumination, 

communication and brakes, and the fact that as the pole swung 

loose it could propel or loosen rock, strike persons, and create 

arcs and sparks. 

5. Based upon his evaluation of the hazards, Inspector 

Bowman issued Safeguard No. 3238838, which requires that trolley 

wire "be installed within a gauge where anti-swing devices can be 

used on all equipment and installed without excessive kinks, 

bends, and twists that de-energize track equipment while 

traveling along the track within reason. 11 

6. The conditions found by Inspector Bowman were abated by 

repairing the wire trolley and by moving the track closer to the 

wire" 

Citation No. 3579261 

7. MSHA Inspector Earl Cook conducted a regular inspection 

at Gary No. 50 Mine on February ~,, 1992. 

So As he traveled along the 5K track entry in a jeep, the 

trolley pole came off the trolley wire at numerous locations, 

thereby de-energizing the equipment. 

9o He found that this condition violated Safeguard 

No. 3238838 and therefore issued Citation No. 3579261. 

DISCUSSION WITH FURTHER FINDINGS 

Safeguard No. 3238838 

Under the Act and regulationsu MSHA inspectors have the 

authority to issue safeguards based upon hazards involving 

·::ransportation men and materials in underground coal mines. 

safeguard regarding a specific transportation hazard may be 

issued at one mine even if that hazard is commonly encountered at 

other mines. Southern Ohio Coal Co. 0 14 FMSHRC 1, 5-8 (1992). 

In Southern Ohio Coal Co.u 7 FMSHRC 509 (1985), the 

Commission distinguished safeguards from safety standards adopted 

through rulemaking procedures. The latter are liberally 

construedu but safeguards issued by an inspector are to be 

narrowly construed. Thusu recognizing safeguards as an 

cgunusually broad grant of regulatory power u n the Commission stated~ 

••• [A] safeguard notice must identify with specificity the 

nature of the hazard at which it is directed and the conduct 

required of the operator to remedy such hazard. We further 

hold that in interpreting a safeguard a narrow construction 

of the terms of the safeguard and its intended reach is 

required. [Id. at 512.] 

453 
In BethEnergy Mines, Inc., 14 FMSHRC 17 (1992), the 

Commission reaffirmed its holding in Southern Ohio Coal Co., 

stating: 

••• [A] safeguard must be interpreted narrowly in order to 

balance the Secretary's unique authority to require a 

safeguard and the operator's right to fair notice of the 

conduct required of it by the safeguard The focus of 

judicial inquiry is on whether the safeguard is based on 

specific conditions at a mine and, as to those specific 

conditions, whether it affords the operator fair notice of 

what is required or prohibited by the safeguard. [Id. at 

25.] 

See also Rochester and Pittsburgh Coal Co., 14 FMSHRC 37, 41 

(1992)Q 

On May 23, 1989, MSHA Inspector James Bowman inspected 6-B 

and 6-C track entries at the subject mine. He testified that: 

When I went to those two sections, there was two vehicles on 

the track. I was following one and I think it was numbers 

33 and 97, and the poles would come off in almost exactly 

the same -- would come off in exactly the same spots 

numerous different times on those two tracks. It was 

probably more than 30 times because I was, you know -- there 

were so many that I just quit counting. so, what I started 

looking for was the causes for the pole to come off the wire 

to de-energize the piece of equipment. And the causes of 

that was the gauge of the wire in relation to the rail and 

kinks, bends and twists in the wire. [Tr. 12.] 

Pursuant to 30 C.F.R. § 75.1403, Inspector Bowman issued 

Notice to Provide Safeguard No. 3238838g which stated: 

was inadequately installed in 6-B and 6-C 

sec~1ons that the wire gauge was much wider than the 

track. Kinksv bends and twists were present in the trolley 

wire, causing the trolley pole to de-energize on numerous 

occasions. The wire gauge is so wide that anti-pole swing 

devices can not be used at several locations along the 6-B 

6-C track entries by Jeep No. 97 and personnel carrier No~ 33o 

This Notice Provide Safeguardo All trolley wire shall 

installed within a gauge where anti-swing devices can be 

on equipment and installed without excessive kinks, 

bendsv and twists that de-energize track equipment while 

traveling along the track within reason. 

The safeguard thus noted two conditions that caused a 

transportation hazard of the pole coming off the wire. First, at 

various places the wire was not installed close enough to the 

track so that the trolley pole with an anti-swing device would 

stay on the trolley wire. Inspector Bowman testified that "what 

454 
I saw was the wire so far outside the gauge that it was 

impossible for the wire to -- for the pole to stay on the wire 

because the anti-swinging device would not allow it to swing far 

enough to reach the distance that they had the wire from the 

rail." Tr. 17-18. 

second, the safeguard stated that "kinks, bends and twists 

were present in the trolley wire, causing the trolley pole to deene~gize ··~· 11 

The safeguard required that trolley wire be installed within 

a gauge where anti-swing devices can be used on all equipment and 

installed without "excessive kinks, bends, and twists that deenergize track equipment while traveling along the track within reason~" 

The Secretary contends that 81 excessive 81 refers to any kink, 

bend or twist in the wire that causes the pole to fall from the 

trolley wire. The company contends that the word "excessive" 

means an excessive number of kinks, bends or twists that cause 

the pole to fall from the wire and that, in any event, if there 

is ambiguity the safeguard is not·enfo:tceable because it fails to 

give fair notice of the prohibited conduct. 

I find that the term 11 excessive" as used in the safeguard 

reasonably refers to the degree of distortion in the wire caused 

by any kinkf bend, or twist and that if any of these causes the 

trolley pole to fall from the wire it is "excessive" within the 

meaning of the safeguard. 

The phrase 91while traveling along the track within reason" 

reasonably means "at a reasonable rate of speed given the track 

conditions and equipment in the area,n as stated by Inspector 

Bowmano Tlro 5lo 

Inspector Bowman t.estified that the two prohibited 

conditions (excessive distance wire from track and any 

excessive kink0 bend 0 or twist) created a transportation hazard 

of the trolley pole becoming disconnected from the trolley wire. 

This hazard created further hazards. The swinging pole could hit 

a person 0 could propel or loosen rocks, it could cause sparks 

and arcs 9 and 9 disconnecting the powerv it would cause a loss 

of communicationy _ights, and brakes. In additionu when the 

distance from the track to the trolley wire was too wide to use 

the anti=swinging deviceu employees or supervisors might be 

tempted to block out or tie off the anti-swinging device in order 

to keep the pole connected to the wire. This would create a 

hazard of operating without this important safety protection. 

I find that the safeguard was "based on an evaluation of the 

specific conditions at the mine and the determination that such 

conditions created a transportation hazard in need of correction" 

and that it "provided the operator with sufficient notice of the 

nature of the hazard at which it (was] directed and the conduct 

required of the operator to remedy such hazard." Southern Ohio 

455 
Coal Company. 14 FMSHRC 1, 13, (1992). 

Citation No. 3579261 

on February 4, 1992, Inspector Cook issued Citation No. 

3579261, charging a violation of Safeguard No. 3238838 and 30 

c.F.R. § 75.1403, citing five locations where the gauge from the 

track to the trolley wire was too wide to keep the trolley pole 

(with an anti-swing device) from falling from the trolley wire 

and ten locations where kinks in the trolley wire caused the pole 

to fall from the wire. 

The cited conditions were abated by sliding the track to 

within a gauge that would allow the pole to stay on the wire 

while using an anti-swing device and by removing the kinks in the 

trolley wire. 

I find that the conditions cited by Inspector Cook were 

proved by the evidence and constituted a violation of Safeguard 

No. 3238838 and 30 C.F.R. § 75.1403. 

The company contends that if a violation existed, it was 

not "significant and substantial." 

The Commission has held that a violation is "significant and 

substantial n if there is a ••reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a 

reasonably serious nature." u.s. Steel Mining Co .. Inc., 7 

FMSHRC 327, 328 1 (1985); Cement Division, National Gypsum Co., 3 

FMSHRC 822, 825 1 (1981); Mathies Coal Co., 6 FMSHRC 1, 3-4, 

(1984). This evaluation is made in terms of "continued normal 

mining operations" without abatement of the violation (U.S. Steel 

Mining Co .• Inc,u 6 FMSHRC 1573, 1574 (1984)) 1 and must be based 

on the particular facts surrounding the violation" (Texasgulf. ~ 10 FMSHRC 498v 1988) Youghiogheny & Ohio Coal Company, 9 

FMSHRC 1007 1987))o 

Analysis of the statutory language and the Commission 9 s 

decisions indicates that the test of an S&S violation is a 

practical and realistic question whether the violation presents a 

substantial possibility resulting or disease 9 not a 

requirement that the Secretary of Labor prove that it is ~ 

probable than not that injury or disease resulto See 

judges 0 decisions in Consolidation Coal Companyu 14 FMSHRC 748-

752 (1991) and Mountain Coal Co., 14 FMSHRC 748-752 (1991). The 

statutef which does not use the phrase uBreasonably likely to occur~ or ~reasonable likelihood" in defining an S&S violation, 

states that an s&s violation exists if "the violation is of such 

nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard" 

(§ 104(d) (1) of the Act; emphasis added). Also, the statute 

defines an "imminent danger" as 11 any condition or practice •.. 

which could reasonably be expected to cause death or serious 

456 
physical harm before (it] can be abated," 1 and expressly places 

s&S violations below an imminent danger. 2 It follows that the 

commission's use of the phrase "reasonably likely to occur" or 

"reasonable likelihood" does not preclude an S&S finding where a 

substantial possibility of injury or disease is shown by the 

evidence, even though the proof may not show that injury or 

disease was more probable than not. 

As stated above, the violation of Safeguard No. 3238838 

presented a number of safety hazards: a disconnected trolley 

pole would stop the power immediately causing a loss of lights, 

communication, and brakes; 3 the disconnected pole could strike 

someone, it could propel or loosen rocks and it could cause 

sparks. Also, a wide gauge between the track and trolley wire 

could tempt employees or supervisors to block out the anti-swing 

device in order to keep the pole from falling from the wire. 

This would create another hazard of the pole striking them. 

Taken as a wholeu I find that the hazards caused by the risk of a 

disconnected trolley pole presented a reasonable likelihood of an 

accident involving serious injury. 

considering the criteria for a civil penalty in § 110(i) of 

the Act, I find that a penalty of $690 is appropriate for this 

violation. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction. 

2. Safeguard No. 3238838 was validly issued. 

3. Respondent violated Safeguard No. 3238838 and 30 C.F.R. 

§ 75.1403 as alleged in Citation No. 3579261. 

Respondent 

the date c~: decisiono 

ORDER 

penalty of $690 within 30 days 

~~:r~v~ W2ll1am Fauver ' 

Administrative Law Judge 

Section 3{j} the 1969 Mine Actu unchanged by the 

Federal Mine Safety and Health Act of 1977o 

2 Section 104(d} (1) limits S&S violations to conditions 

that 91 do not cause imminent danger .••. 11 

3 With the power off, all vehicle lights would go off, and 

the vehicle phone would not transmit, although the driver could 

hear incoming messages. Electric brakes would be inoperative. 

Backup brakes would be available if they were working properly. 

457 
Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, u.s. 

Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, 

Virginia 22203 (Certified Mail) 

Billy M. Tennant, Esq., United States Steel Mining Company, Inc., 

600 Grant Street, Pittsburgh, Pennsylvania 15219 (Certified Mai~) 

/fcca 

458 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 92-141 

A.C. No. 34-01692-03501JNG 

v. 

PERRY SISK; 

Appearances: 

Before: 

Respondent 

Docket No. CENT 92-163 

A.C. No. 34-01692-03502JNG 

Kanima Mine 

DECISION 

Ernest A. Burford, Esq., Office of the Solicitor, 

u.s. Department of Labor, Dallas, Texas, 

for Petitioner; 

Perry Sisk, pro se, Checotah, Oklahoma, 

for Respondent. 

Judge Lasher 

This proceeding arises on the filing by the Secretary of 

Labor of two complaints proposing penalties the above two 

dockets pursuant to Section llO(a} of the Federal Mine Safety and 

Health Act of 1977: 30 DoS.C. § 820(a) wherein the Secretary 

seeks assessment of penalt for a total of eight alleged violationso seven Docket No. CENT 92-141 and one in Docket No. 

CENT 92-163. 

At t.he hearing of these two consolidated proceedings in 

le Rockf Arkansas 8 on January 21 9 1993 9 a bench decision was 

rend~red (T. 57-63) which decision is here AFFIRMED. 

It. noted tha'c the actual occurrence of the violative conditions and practices described in the eight citations was conceded by Respondent both prior to and during the hearing (T. 12, 

34), who made a substantial challenge, however, to the question 

of the jurisdiction of the Mine Safety enforcement process over 

his particular operation and on that basis contends that there 

being no jurisdiction there of course could not be violations of 

the Act of implementing regulations. 

At the outset of the hearing the parties stipulated that the 

Administrative Law Judge had jurisdiction to determine the matter 

459 
and also that the penalty levels reflected in MSHA's initial 

proposed penalties would not affect the ability of the Respondent 

to continue in business. 

It was also stipulated and it also appears (See Ex. D-1) 

that Respondent has not history of previous violations and that 

Respondent, upon notification by MSHA of the occurrence of the 

violations, proceeded in good faith to timely abate the same. 1 

Based on the evidence presented of record I find that Respondent is a sole proprietorship owned by Mr. Sisk and that in 

September 1991, when the citations in question were issued, approximately 11 total employees were on the payroll. At this time 

Respondent had a contract with Inter-Chem Coal Co., Inc., coal 

brokers, to pick up coal at the Kanima Mine owned by Wendall 

Johnson. 

Respondent was not a subcontractor of Wendall Johnson who 

owned the surface coal mine in question where Respondent picked 

up the coal for delivery elsewhere, but rather, was an independent contractor as is more fully shown subsequently. 

The Kanima Mine, located five miles east of Stigler, Haskell 

county, Oklahoma, had a stockpile located some one and one-half 

miles from the entrance to the mine at which were located scales. 

Respondent's contract with Inter-Chem which ran for a period 

of approximately ten weeks called for Respondent to pick up coal 

from the stockpile and deliver the same to Oklahoma Gas and 

Electric Power Plant in Muskogee, some 70 miles distant. 

Respondent used four trucksu each having its own driver 

(Mr" Sisk drove one of the trucks himself) who would, on a typ 

cal day at the mine at approximately six a.m., proceed to 

·the stockpile, load the trucks (taking approximately 20 minute to 

tal)u and then proceed to Muskogee. The trucks would be weighed 

before being loaded and again after being loaded. While the 

truck was being weighed, it would be necessary for the truck 

driver to out of the truck and go into the scale house, a 

distance of approximately five steps, to sign a ticket. After 

delivery of the coal to Muskogee, the trucks on a typical day 

would return to the Kanima Mine and repeat the process. On a 

typical day during the ten-week period, each of the four drivers 

In terms of the mandatory statutory penalty criteria, there remain 

for subsequent consideration the size of the Respondent and the seriousness of 

the violations and any negligence involved in the commission thereof, since I do 

subsequently determine that there does exist jurisdiction over the Respondent 

under the 1977 Mine Act. 

460 
would pick up and deliver four loads at the Kanima Mine. The 

four truck drivers were employees of Mr. Sisk. 

Mr. Sisk did not have an identification number assigned by 

MSHA until after the subject citations were issued. 

The primary business of Wendall Johnson, doing business at 

the Kanima Mine, was selling coal from the stockpile in question. 

Mr. Sisk, as reflected by his assumption of the responsibility for abating the infractions cited by MSHA and the other clear 

evidence of the employment relationship with the truck drivers in 

question shown in the record, had control over and the responsibility for the safety of the working conditions of these 

employees. 

In the 1977 Amendment to the Mine Safety Act, Congress 

amended the definition of a "mine operator" to include "any 

independent contractor performing services or construction at 

such mine," 30 U.S.C. § 802(d). 

The Mine Act declares that the "operators" of the nation's 

mines have primary responsibility for preventing the existence of 

unsafe and unhealthful conditions, 30 U.S.C. § 801(e). In Bituminous Coal Association v. Secretary of Interior, 547 F.2d, 240, 

246-247 (4th Cir., 1977), herein BCOA 1 the Court interpreted the 

definition of "operator" to include independent contractors performing services at the production-operator's mine, and held that 

the Secretary has the power to cite the independent contractor, 

the operator, or bothr for independent contractor violations. 

The Secretary's administrative rule on independent contractors found at part 45, 30 C.F.R. (see§ 45.2, definitions), defines independent contractor as nany person, partnership, corporation, subsidiary of a corporation, firm, association, or other 

organization that contracts to perform services or construction 

at a mine." Here, clear that the Respondent fits this 

definition of independent contractor~ since he is a person performing services at a mine. This in accord with the Senate 

Committee report on the 1977 Amendments, stating that, 91 It is the 

intent of this committee that doubts be resolved in favor of inclusion of a facility within the coverage of the Act. 19 Senate 

Report No. 91-181, 95th Congress, reprinted in U.S. Code and 

Congressional Administrative News (1977), 3401, 3414. 

Here also, the Respondent's connection was more than just a 

one-time or brief incursion on mine property such as occurred in 

the case of an electric facility company employee meter reader 

who read a meter monthly near a mine access road in Old Dominion 

Power Co. v. Donovan, 722 F.2d 82 (4th Cir. 1985). In that case, 

the Fourth Circuit determined there was no jurisdiction, since 

the meter employee rarely went on to mine property. By contrast, 

461 
the meter employee rarely went on to mine property. By contrast, 

in this case, Respondent's employees during the period in question regularly were on mine property performing work directly 

related to the business of the mine itself. The contacts here 

occurred every day over a period of some ten weeks. See Secretary v. Lang Brothers, Inc., 14 FMSHRC 413 (Sept. 24, 1991) for 

the proposition that such a period of time and exposure constitutes much more than a de minimus contact. 2 

CONCLUSIONS OF LAW: 

1. Respondent is subject to the provisions of the 1977 

Mine Act: 

2. Respondent having so conceded, the eight violations 

described in the eight citations contained in the two subject 

dockets are found to have occurred~ 

PENALTY ASSESSMENT: 

In addition to the penalty assessment factors previously 

found, it is further determined that Respondent is a small 

operator and that the gravity and negligence determination made 

by the Inspector on the fact of the citations, there being no 

challenge to the contrary, are accurate. Based on these 

findings, ,I find no reason to either raise or lower the MSHA' s 

proposed assessment in this matter. 

ORDER 

Respondent SHALL 1 within 30 days from the issuance of this 

written decision PAY to the Secretary of Labor the total sum of 

$285.00 ($50.00 for Citation No. 3407357 in Docket No. CENT 92-

163~ $39 each for Citation Nos. 3407346, 3407347Q 3407349, 

3407355 3407356; and $20.00 each for Citation Nos. 3407348 and 

3407359. 

mine 

/~~~-~ /(', ~· Jz r 

Michael A. Lasher, Jr. 

Administrative Law Judge 

2 As Petitioner contends, Respondent had a "continuing presence" at the 

(T. 56). 

462 
PBDBRAL Ja11B SAI'BTY A11D BDL'l'B RBVIBW COJIKISSIOII 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

MAR 1 6 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOUNTAIN CEMENT COMPANY, 

a Wyoming Partnership, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

PAUL MILLER, JR., employed 

by MOUNTAIN CEMENT COMPANY, 

Respondent 

SECRETARY OF LABORr 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), · Petitioner 

Vo 

PAUL ESTEVEr employed by 

MOUNTAIN CEMENT COMPANY 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JAMES F. MAY, employed by 

MOUNTAIN CEMENT COMPANY, 

Respondent 

463 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-109-M 

A.C. No. 48-00007-05548 

Mountain Cement company 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-321-M 

A.C. No. 48-00007-05563A 

Mountain Cement Company 

Albany County, Wyoming 

CIVIL PENALTY PROCEEDING 

Docket No., WEST 92-322-M 

A.C. No. 48-00007-05565A 

Mountain Cement Company 

Albany County, Wyoming 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-323-M 

A.C. No. 48-00007-05566A 

Mountain Cement Company 

Albany County, Wyoming 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RICK G. WILSON, employed by 

MOUNTAIN CEMENT COMPANY, 

. . 

. . 

. . 

Respondent : 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WILLIAM SMITH, employed by 

MOUNTAIN CEMENT COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)~ 

itioner 

THOMAS Go JACKSONu employed 

by MOUNTAIN CEMENT COMPANYu 

Respondent 

SECRETARY OF LABORe 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

STEVEN M. BONER, employed 

by MOUNTAIN CEMENT COMPANY, 

Respondent 

e 

. 

: 

0 

. 

. . 

. . 

0 

0 

0 

0 

Q 

0 

0 

0 

0 

0 

0 

0 

0 

. 

. . 

. . 

464 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-324-M 

A.C. No. 48-00007-05568A 

Mountain Cement Company 

Albany County, Wyoming 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-325-M 

A.C. No. 48-00007-05569A 

Mountain Cement Company 

Albany County, Wyoming 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-358-M 

A.Co Noo 48-00007-05567A 

Mountain Cement Company 

Albany Countyu Wyoming 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-376-M 

A.C. Noo 48-00007-05564A 

Mountain Cement Company 

Albany County, Wyoming 
DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

These cases are civil penalty proceedings initiated by 

Petitioner against Respondents pursuant to the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et ~ (the 

"Act"). 'Dhe civil penalties sought here are for the violation 

of Section 110(a) and Section llO(c) of the Act. 

The eight cases herein were assessed penalties totaling 

$7,900. The Secretary agreed to settle the cases for voluntary 

civil penalty payments totaling $5,300.00. 

The proceedings all involve MSHA Citation No. 3451535 which 

was issued to the corporate mine operator on June 7, 1990, citing 

a violation of 30 C.F.R. § 56.15006. 

The violation was issued beg(iuse special protective clothing 

was not worn by an employee attempting to poke and unplug the 

preheat tower. The Secretary's investigation of the serious burn 

injury accident, related to the issuance of the above-cited violation, indicated that it was an established practice, by both 

management and employees at this mine, to unplug or poke the 

preheat tower without wearing protective clothing. 

It is the Secretary's position that each of the above-named 

Respondents, acting as agents of the corporate mine operator 

within the meaning and scope of Sections 3{e} and 110(c) of the 

Mine Act, ,knowingly authorized, ordered, or carried out the 

aforesaid violation of the corporate mine operator. Further, it 

is the SecretaryPs position that each of the respondents allowed 

and condoned the existence of the practice not to use, or require 

<the use of u the hot suit when efforts related to unplugging the 

preheat tower took place 9 prior to the issuance of the aforesaid 

violation. 

The Respondents each take the position that~ but for purposes of the Actr nothing contained here shall constitute 

an admission by any of the Respondents that they knowingly violated the Mine Act or its regulations. 

The Settlement agreement involves the full payment of the 

proposed penalty for the company case filed in Docket No. WEST 

91-109-Mo It also includes the full payment of the proposed 

penalty for Docket No. WEST 92-376-M, which involves the agent 

who was on duty at the time the accident occurred, and which 

resulted in the violation being issued. The settlement further 

includes reduced penalties of $500o00 for each of the other 

Section 110(c) cases involved in these proceedings. 

465 
Therefore, the settlement is allocated among the various 

cases as follows: 

A/0 No. 

Docket No. 48-00007 R.esQQndent fenalt:t: Settleaent 

WEST 91-109-M -05548 Mountain $1,500 $1,500 

Cement Co. 

WEST 92-358-M -05567-A Thomas Jackson 1,200 500 

Vice President 

WEST 92-323-M -05566-A James May 1,000 500 

Superintendent 

WEST 92-322-M -05565-A Paul Esteve 1,000 500 

Superintendent 

WEST 92-324-M -05568-A Rick Wilson 800 soo 

Shift Foreman 

WEST 92-321-M -05563-A Paul Miller 800 500 

Shift Foreman 

WEST 92-325-M -05569-A William Smith 800 500 

Shift Foreman 

WEST 92-376-M -05564-A Steve Bonar 800 800 

Shift Foreman 

TOTALS $7,900 $5,300 

The Secretary submits that the violation involved a degree 

of both negligence and seriousness because it resulted in a 

miner's suffering a serious burn injury, and that it was abated 

good ith after issuance. The Secretary further submits 

corporate operator is a medium-size operator with an average 

history of violations for an operation size. It is 

also noted that none of the agent Respondents has a prior history 

of Section 110{c} violations" 

I have reviewed the settlement and I find it is reasonable 

and in the public interest¢ It should be approved. 

Accordinglyg I enter the following: 

ORDER 

1. Tne settlement agreement is APPROVED. 

2. In WEST 91-109-M and WEST 92-376-M the Petition for 

Assessment of a Civil Penalty and the proposed civil penalties 

are AFFIRMED. 

466 
3. Respondent's Mountain Cement Company and Steve Bonar 

are ORDERED TO PAY to the Secretary of Labor their respective 

penalties of $1500 and $800 within 30 days of the date of this 

decision. 

4. In the remaining six cases, the Petition for Assessment 

of a Civil Penalty and the amount of the Proposed Settlement are 

AFFIRMED. 

5. Respondents Jackson, May, Esteve, Wilson, Miller, and 

Smith are ORDERED TO PAY to the Secretary of Labor within 30 days 

their respective penalties of $500 each. 

Law Judge 

Distribution~ 

Robert J. Murphy, Esqo, Office of the Solicitoru u.s. Department 

of Labor, 1585 Federal Office Buildingo 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Edward H. Fitch" Esq." Office of the ·solicitoru U.Sa Department 

of Labor 0 4015 Wilson.Boulevardu Arlingtonu VA 22203 (Certified 

Mail) 

Allen Gardzelewskiu Esq. 9 CORTHELL' KINGu P.O. Box 1147u 

Laramieu WY 82070 C~ertified Mail) 

Phillip Nicholasu Esq., NICHOLAS LAW OFFICEu P.O. Box 928, 

Laramie, WY 82070 (Certified Mail) 

ek 

467 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

MAR 1 61993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} 

Petitioner 

Docket No. WEST 92-45-M 

A.C. No. 05-04119-05510 

v. Docket No. WEST 92-88-M 

A.C. No. 05-04119-05511 

NOLAND INCORPORATED, 

Respondent Noland Pit 

Appearances: 

Before: 

DECISION 

Kristi Floyd, Esq., Office of the Solicitor, 

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

for Petitioner; 

Kent F. Williamson, Esq,, Cortez, Colorado, 

for Respondent. 

Judge Morris 

The Secretary of Labor, in these civil penalty proceedings, 

charges Noland Incorporated, ("Noland") with violating safety 

regulations promulgated under the Federal Mine Safety and Health 

l\ct of 1977 p 30 oSoCe § 801 (the 00Act9°). 

A hearing on the merits was held in Durango, Colorado on 

September 22 9 1992. 

The 

mitted the 

waived the fil of post-trial briefs and subon oral argument. 

Stipulation 

At the commencement of the hearing the parties filed a 

written stipulation and they agreed as follows: 

1. Respondent is engaged in mining and selling of sand and 

gravel in the United States and its mining operations affect 

interstate commerce. 

2. ~espondent is the owner and operator of the Noland Pit, 

MSHA I.D. No. 05-04119. 

468 
3. Respondent is subject to the jurisdiction of the Federal 

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

Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations and orders were properly served by 

a duly authorized representative of the Secretary upon an agent 

of Respondent on the date and place stated therein, and may be 

admitted into evidence for the purpose of establishing their 

issuance. 

6. Additionally, Citation Nos. 3630511, 3630517, 3630518, 

3630648, 3630650, 3630651, 3630654 and 3630614KF and order 

numbers 3630615 and 3630617 are admitted into evidence for the 

truthfulness and relevancy of the facts and designations 

contained therein. The sole issue remaining with regard to the 

above listed citations and ordE?.:LS is whether the plant was in 

operation at or about the time of the inspections. This issue 

alone will determine whether the alleged violations occurred. 

(See Judge's order of February 6, 1993). 

7. Order numbers 3630620 and 3630646 are admitted into 

evidence for the purpose of establishing their issuance and not 

for the truthfulness or relevancy of any statements asserted 

therein. 

8. The exhibits to be offered by Respondent and the 

Secretary are stipulated to be authentic but no stipulation is 

made as to their relevance or the truth of the matters asserted 

<therein. 

9o The proposed penal 

li to continue business. 

ll not affect Respondent's 

10. The operator demonstrated good faith in abating the 

violations. 

11. Respondent a small mine operator with 4 560 tons of 

production 1990. 

12. The certified copy of the MSHA Assessed Violations 

History accurately reflects the history of this mine for the two 

years prior to the date of the citation. 

In view of paragraph 6 of the stipulation as to the truth 

and relevancy of the ten citations/orders therein, it is appropriate to set forth the text of the enforcement documents. 

469 
citation Nos. 3630511, 3630517, 3630518, 

3630648. 3630650, 3630651, 3630654, 3630614 

and Order Nos. 3630615 and 3630617 

citation 3630511 alleges Respondent violated 30 C.F.R. 

§ 56.12040. 1 The violative condition cited by MSHA reads as 

follows: 

The metal cabinet/enclosure containing 

motor circuit 480VAC switchgear for the 

"Telsmith Cone Crusher" motor and the 91 Pioneer Screen" drive motor was observed 

having unsafe access. Operating controls, 

such as overload relay reset button and 

circuit breaker ON-OFF levers were not 

installed so that they can be operated 

without danger of contact with energized 

conductors, parts and terminals. Voltage in 

this cabinet was 4"80VAC. The cabinet door 

was not locked and hot-line tools were not 

available as an alternative measure. If a 

person was to unintentionally contact an 

energized 480VAC component there could easily 

be an electrocution. Normal practice is not 

to enter equipment when energized however it 

has been done on occasions without incident. 

Citation No. 3630517 alleges Respondent violated 30 C.F.R. 

§ 56.12001. 2 The violative cited condition by MSHA reads as 

follov.Js ~ 

2 

The lityj ion transformer 

located at the MCC room was not properly 

breakers or fuses of the 

correct type and capacityo The transformer 

is believed to be 15KVA, single phase, 60KZ; 

primary wired for 480VAC and the secondary 

for two voltages 240/120v. The primary was 

protected by an MCP (Meter Circuit 

30 amp circuit breaker set to trip 

§ 56,120~0 Installation of operating controls 

Operating controls shall be installed so that they can 

be operated without danger of contact with energized 

conductors, 

§ 56.12001 Circuit overload protection. 

Circuits shall be protected against excessive overload 

by fuses or circuit breakers of the correct type and 

capacity. 

470 
at 120 amps. The secondary conductors from 

the transformer were not protected by fuses 

or a breaker. The individual branch circuits 

at the 100 ap panel were protected by circuit 

breakers. 

Citation No. 3630518 alleges Respondent violated 30 C.F.R. 

§ 56.12018. 3 The violative condition cited by MSHA reads as 

follows: 

Some principal power switches located at 

the genset van MCC room were not labeled to 

properly show what they control and identification could not be readily made by location. These were on 480 and 240/120 VAC 

circuits. 

Citation No. 3630648 alleges Respondent violated 30 C.F.R. 

§ 56.14201. 4 The violative condition cited by MSHA reads as 

follows: 

The entire length of the conveyors were not 

visible from the the starting switches inside 

the crusher control van, and an audible 

waring (sic) system was not provided to warn 

persons that the conveyors would be starting. 

Citations No. 3630650 alleges Respondent violated 30 C.F.R. 

3 

4 

§ 56.12018 Identification of power switches. 

Principal power switches shall be labeled to show 

which units thev control, unless identification can be 

made readily -location. 

§ 56.14201 Conveyor start-up warnings. 

(a) When the entire length of a conveyor is visible 

from the starting switch, the conveyor operator shall 

visually check to make certain that all persons are in 

the clear before starting the conveyor. 

(b) When the entire length of the conveyor is not 

visible from the starting switch, a system which 

provides visible or audible warning shall be installed 

and operated to warn persons that the conveyor will be 

started. Within 30 seconds after the warning is given, 

the conveyor shall be started or a second warning shall 

be given. 

471 
§ 56.11002. 5 The violative condition cited by MSHA reads as 

follows: 

Handrails were not provided on the access 

stairway to the generator/electrical trailer 

to prevent a person from slipping or falling! 

The trailer floor was about 43 inches above 

ground level. 

Citation 3630651 alleges Respondent violated 30 C.F.R. 

S 56.18002. 6 The violative condition cited by MSHA reads as 

follows: 

6 

Records were not being kept by the operator 

that a competent person designated by the 

operator was examining each working place at 

·least once each shift for conditions which 

may adversely affect safety or health. It is 

intended that such,·examinations will assist 

the operator in detecting potentially dangerous conditions which can unnecessarily 

expose persons to hazards. 

Unsafe conditions were found as a result of 

this inspection resulting in the issuance of 

citations and orders. It is apparent that 

effective safety exams are not being conducted as required by the standard. 

§ 56"11002 Handrails and toeboards. 

Crossovers, elevated walkways, elevated ramps, and 

stairways shall be of substantial construction provided 

with handrails, and maintained in good condition. Where 

necessary, toeboards shall be provided. 

56.18002 Examination of working places. 

(a) A competent person designated by the operator 

shall examine each working place at least once each 

shift for conditions which may adversely affect safety 

or health. The operator shall promptly initiate 

appropriate action to correct such conditions. 

(b) A record that such examinations were conducted 

shall be kept by the operator for a period of one year, 

and shall be made available for review by the Secretary 

or his authorized representative. 

(c) In addition, conditions that may present an 

imminent danger which are noted by the person conducting 

the examination shall be brought to the immediate 

attention of the operator who shall withdraw all persons 

from the area affected (except persons referred to in 

section 104 (c) of the Federal Mine Safety and Health Act 

of 1977) until the danger is abated. 

472 
These records shall be made available for 

review by the Secretary or his authorized 

representative. 

Citation No. 3630654 alleges Respondent violated 30 C.P.R. 

§ 56.15001. 7 The violative cited by MSHA reads as follows: 

First aid material at the Noland Pit did 

not include a stretcher and blanket in the 

event of an emergency. 

Citation No. 3630614 alleges Respondent violated 30 C.F.R. 

§ 56.1410?. 8 The violative condition cited by MSHA reads as 

follows: 

The head pulley, tail pulley and belt drive 

on the 5X16 conveyor under the Red Pioneer 

screen were not guarded to protect a person 

from contact with the pinch points. The head 

pulley was approxima."t:.ely ·57 inches above 

ground level, the tail pulley was approximately 9 inches above ground level and the 

drive was approximately 60 inches above 

ground level. The pinch points were easily 

accessible while the conveyor was in operation. This condition existed for 6 days. 

This is an unwarrantable failure condition. 

Order No. 3630615 alleges Respondent violated 30 C.P.R. 

§ 56.14107. 9 The violative cited by MSHA reads as follows: 

7 

g 

9 

•§ 56.15001 ~irst-aid aaterials. 

Adequate first-aid materials, including stretchers and 

blankets, shall be provided at places convenient to all 

working areas. Water or neutralizing agents shall be 

abailable where corrosive chemicals or other harmful 

substances are stored, handled, or used. 

§ 56.14107 Moving machine parts. 

(a) Moving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, 

head, tail, and takeup pulleys, fly-wheels, couplings, 

shafts, fan blades, and similar moving parts that can 

cause injury. 

(b) Guards shall not be required where the exposed 

moving parts are at least seven feet away from walking 

or working surfaces. 

Cited in footnote 8. 

473 
The head pulley on the output #1 conveyor 

was not guarded to protect a person from 

contact with the pinch point. The pinch 

,points were approximately 62 inches above 

ground level and easily accessible while in 

operation. The condition existed for at 

least 6 days. This is an unwarrantable 

failure condition. 

Order No. 3630617 alleges Respondent violated 30 C.F.R. 

§ 56.14107. 10 The violative condition cited by MSHA reads as 

follows: 

The head pulley on the primary reject 

conveyor under the primary screen was not 

guarded to protect a person from contact with 

the pinch points. The pinch points were 

approximately 53 inches above ground level 

and easily accessible while the conveyor is 

in operation. This condition has existed for 

at least 6 days. This is an unwarrantable 

failure condition. 

Discussion and Further Findings 

The parties stipulated that the sole issue in connection 

with the above citations and orders is whether the plant was in 

operation at or about the time of the inspection. That issue 

will determine whether the alleged violations occurred. 

(Stipulationv paragraph 6). 

On credibility issue I credit the testimony of Randy 

Smith. He was the Noland Crusher operator for eight years before 

quitting in March 1991. He quit because of an accident involving 

his uncle, Wayne Noland. When he quit in March 1991, the plant 

was running while he didn 1 t think it was in "full operation" it 

was "

1 producing sand. ou 

credit Mr. Smith since appears to be a totally disin-

·terested 'toJi tness. At the time he quit the company, he was 

running a 950 loader stacking sand. (Tr. 67). In such an 

occupation he would be in a position to know if the plant was in 

operation. He also indicated the plant had produced about 500 

yeards of sand. (Tr. 68). 

The testimony of Randy Smith that the plant was in operation 

is further confirmed by MSHA's inspector Ronald J. Renowden. He 

indicated •that after returning from the house (from reviewing 

to Cited in footnote 8. 

474 
Part 50 records) the pit and the crusher were operating. (Tr. 

87). Also there was material corning off the belts and going into 

the crusher. The whole plant, including every conveyor, was in 

operation. (Tr. 88). 

Mr. Dennehy also testified that when the inspectors returned 

to the plant from Mr. Noland's horne they noticed they were 

feeding the feed hopper and the crusher. In addition, material 

was coming off the belt screens and being stockpiled. (Tr. 21). 

Respondent's witnesses, Ricky F. Noland and Wayne Noland, 

testified as to many reasons why the plant was not operational. 

The new crusher was being assembled; test runs were still being 

conducted; a second conveyor and hopper had to be built; a lot of 

different construction had to be done. Further, the various 

electrical amperages had to be set; on the day of the inspection 

there was no power at the wash plant. When the plant started up 

on March 26, 1991, Mr. Noland was aware everything had not been 

aligned and adjusted. 

Respondent's evidence is not persuasive since Respondent was 

able to start the plant on the same morning the inspectors 

arrived. It is true that Mr. Noland thought he was operating the 

plant at MSHA's request. But the fact is that he was able to 1

'turn onn the plant at about 10 a.m. on the morning of the inspection. This causes me to conclude the plant was "in operation" at or about the time of the inspection. 

While Mr. Noland had requested a CAV (Compliance Assistance 

visit) inspection from MSHA there is no indication he would 

receive such an inspection. In factu Mr. Renowden told Mr. Rick 

Noland that didn 1 t think MSHA could do a CAV inspection. (Tr. 

79p 80) 0 

For the foregoing reasons and on the basis of the sole issue 

as presented by the parties I find the plant was "in operation" 

at or about the time of the inspection. Accordingly 1 the eight 

citations and two orders received in evidence herein should be 

affirmed. 

Civil Penalties 

Section llO(i) of the Mine Act mandates consideration of six 

criteria in assessing civil penalties. 

The stipulation here indicates Noland as a small operator 

producing some 4,560 tons of production in 1990. 

The stipulation further indicates the penalty will not 

affect the operator's ability to continue in business. 

475 
Exhibit G-1 establishes a favorable prior history with only 

five assessed violations for the two year period ending March 25, 

1991. 

Noland was negligent since the violative conditions were 

open and obvious. 

I consider the gravity of the violative conditions in 

Citation Nos. 3630511, 3630517, and 3630518 to be high since 

these violation involve electrocution hazards. 

The gravity involved in citation Nos. 3630648 1 3630650, 

3630651 and 3630654 is moderate and do not involve life 

threatening hazards. 

Citation No. 3630614 and Order Nos. 3630615 and 3630617 

involve unguarded equipment. Such conditions can cause severe 

injuries including amputati9~· The gravity is accordingly high. 

The penalties contained in the order of this decision are 

appropriate. 

Order No. 3630620 

The facts involved in this order and the subsequent order 

are more complex than in the previous 10 citations/orders. In 

view of this factor it is appropriate to enter findings of fact 

based on the credible evidence. 

As a threshold matter, the parties stipulated that the above 

two orders are admitted into evidence for the purpose of establishing their issuance and not for the truthfulness or relevency 

of any asserted therein. 

Order No. 3630620 alleges a violation of 30 C.F.R. 

§ 56.14107. 11 The condition alleged by MSHA to be violative of 

the regulation reads~ 

11 

The wash plant feeder which was driven by a 

chain drive attached to the tail pulley of 

the wash plant feed conveyor was not guarded 

to protect a person from contact with the 

pinch points and chain drive. The pinch 

points and chain drive were approximately 24 

,inches above ground level and approximately 9 

ft from the hopper's opening. The pinch 

points & chain drive were easily accessible 

while in operation. This condition has 

Cited in footnote 8. 

476 
existed for at least 6 days. This is an 

unwarrantable failure condition. 

In connection with this order it is uncontroverted that 

Citation No. 3630614 is the underlying D-1 citation. (Tr. 25, 

Ex. G-3). 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial reliable 

and probative evidence establishes the following: 

Findings of Fact 

1. The sand plant (also called the wash plant) was not in 

operation on March 26. It had probably last been in operation in 

late October when freezing conditions caused the company to pull 

the pump. (Tr. 129, 130). 

2. On the day of the inspection there was no power at the 

sand plant. The plant is separate from the crusher. (Tr. 25, 

117, 129, 130). 

3. The guard had been removed to clean up behind and around 

the conveyors. (Tr. 119-121). 

4. The sand plant had not been in operation from January 

1991 through March 26, 1991 because of the power disconnect. 

(Tr. 146) . 

Discussion and Further Findings 

It apparent the sand wash plant was not in operation nor 

it. have the capabil <to operate since power was not 

available. 

A plant operator and the plant electrician should know if 

this portion of the plant could function. 

In the previous 10 citations I relied on the testimony of 

MSHA"s witness 9 Mr. Renowden. Howeveru that testimony is not 

persuasive here since Mr. Renowden was not testifying as to the 

conditions at the wash plant. 

Mr. Dennehy, who issued this order stated he "never saw the 

wash plant in operation." (Tr. 55, 56). 

In addition, Randy Smith stated: "I don't know about the 

wash plant." (Tr. 69). 

Since the sand plant was not operating nor capable of 

operating there could be no moving machine parts to cause injury 

as provided in C.F.R. 56.14107. 

477 
For the above reasons Order No. 3630620 should be vacated. 

Order No. 3630646 

This Order alleges a violation of 30 C.F.R. § 56.14112(b). 12 

The condition alleged by MSHA to be violative of the regulation 

reads: 

The guard on the left side of the sand 

stacker tail pulley had been removed, 

allowing access to the fins on the self 

cleaning tail pulley. This conveyor was 

located in the wash plant. The fins were 

.approximately 1 ft above ground level and 

easily accessible while in operation. This 

condition has existed for at least 6 days. 

This is an unwarrantable failure condition. 

The previous findings of fact set forth in connection with 

Order No. 3630620 are appropriate and are incorporated herein. 

The same basic conditions exist since this machinery could 

not operated no violation of C.F.R. § 56.14112 could occur. 

Order No. 3630646 should be vacated. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

ion No. 3630511 is AFFIRMED and a 

$50 is aSSESSED. 

l penalty of 

2. Citation No. 3630517 is AFFIRMED and a civil penalty of 

$50 ASSESSED. 

12 

No. 3630518 AFFIRMED and a civil penalty of 

§ 56.14112 Construction and maintenance of guards. 

(a) Guards shall be constructed and maintained to-

(b) Guards shall be securely in place while machinery 

is being operated, except when testing or making 

adjustments which cannot be performed without removal of 

the guard. 

478 
4. Citation No. 3630648 is AFFIRMED and a civil penalty of 

$30 is ASSESSED. 

5. Citation No. 3630650 is AFFIRMED and a civil penalty of 

$30 is ASSESSED. 

6. Citation No. 3630651 is AFFIRMED and a civil penalty of 

$30 is ASSESSED. 

7. Citation No. 3630654 is AFFIRMED and a civil penalty of 

$30 is ASSESSED. 

8. Citation No. 3630614 is AFFIRMED and a civil penalty of 

$300 is ASSESSED. 

9. Order No. 3630615 is AFFIRMED and a civil penalty of 

$300 is ASSESSED. 

10. Order No. 3630617 is AFFIRMED and a civil penalty of 

$300 is ASSESSED. 

11. Order No. 3630620 is VACATED. 

12. Order No. 3630646 is VACATED. 

Law Judge 

Distribution~ 

Kristi Floydu Esqo~ Office of the Solicitor, u.s. Department of 

Labor, 1585 Federal Office Buildingu 1961 Stout Street, Denver, 

co 80294 (Certified Mail) 

Kent F. Williamson, Esq., Post Office Box 1618, 215 North Linden 

Street, Suite D, Cortez, co 81321 

(Certified Mail) 

sh 

479 
FEDERAL MINE SAFETY AND HEALTH REVIEW COJ'-iMISSION 

1244 Speer Boulevard 80 

DENVER, COLORADO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

MAR 1 6 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

' Petitioner 

v. 

CALCO INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-139-M 

.c. No. 05-02798-05518 

~-, 

CLL 2? 1a:r~t 

Appearances: Tambra Leonard, "" Off 

U.S. Department of ~acor, 

for Petitioner-; 

of the Solicitor, 

Denver, Colorado, 

Before~ 

Robert K. Murrayu 

for Respondent. 

Judge Morris 

The Secretary of Labarr 

Health Administration (MSHA} 

porated ("Calco0 ) with violating five 

promulgated under the Federal Mine Safety 

U.S.C. § 801 et. seq. (the .A.ct" 

and 

regulations 

and Health Actu 30 

Hearings were held Denver Coloradc. 

1992 9 and January Bu 1993. 

The parties waived 

expedited decision. 

and an 

At the commencement of the hearing t:he parties filed a 

written stipulation stating as follows~ 

1. Calco is engaging in mining and selling of quick- lime 

and limestone in the United States; and mining operations 

affect interstate commerce. 

480 
2. Calco is the owner and operator of Salida Plant Mine, 

MSHA I.D. No. 05-02798. 

3. Calco is subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et. ~ (the 

" Act"). 

4. .The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citation was properly served by a duly 

authorized representative of the Secretary upon an agent of 

respondent on the date and place stated therein, and may be 

admitted into evidence for the purpose of establishing its 

issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by respondent and the 

Secretary are stipulated to be authentic but no stipulation is 

made as to their relevance or the truth of the matters asserted 

therein. 

7. The operator demonstrated good faith in abating the 

violation. 

8. Calco is a MetaljNon-metal mine operator with 38,401 

tons of production in 1991. 

The five citations involved here allege violations of 30 

C.P.R. § 55.14107 a) provides: 

machine parts shall be guarded to 

persons from contacting gears, 

sprocketsr chains, drive, head, tail, and 

take-up pulleys, fly-wheels, couplings; 

shafts: fan blades, and similar moving parts 

that can cause 

BACKGROUND 

.~THOR LEE ~LLIS has been a metal/non-metal mine inspector 

for five yearso Prior to MSHA his experience was in underground 

mining, 

On August 6, 1991, Mr. Ellis inspected Calco's Salida plant. 

The plant manager, Lawrence Martinez, accompanied him on the 

inspection. 

481 
Citation No. 3905779 

The above-numbered citation reads as follows: 

A tail pulley and chain and sprock sprocket 

guard were not provided on the screen plant 

conveyor, exposing employees to the possibility of being caught in the pinch points. 

The tail pulley and chain drive was located 

under the feed hopper and approximately 6 11 

·above ground level. 

EVIDENCE 

Mr. Ell issued this citation when he found there was no 

guard on the tail pulley or chain drive under the feed hopper. 

Exhibits R-1 and R-2 are photographs of the screen plant conveyor 

and Exhibit P-2 is a schematic drawn by the inspector. Exhibit 

P-2 depicts the chain sprocket, tail and head pulleys and identifies pinch points as No. 1, No. 2, and No. 3. The area outlined in red on Exhibit P-2 shows the outside parameters of the 

side of the screen plant conveyor. 

The chain sprocket has grease fittings at the tail pulley 

and drive and the pulley itself is 12 inches above the ground. 

The pinch points are located at the bottom and at the chain drive 

sprocket. The belt, which moves material uphill, is 30 inches 

wide. The pulley moves at 60 to 70 RPM, and the sprocket moves 

a·t approximately 100 RPM. 

In the inspector's op it was reasonably l ly that an 

accident oould occurc However he agreed that the distance between the side wall of the conveyor and the pinch points was a 

narrow 18 inches. The inspector indicated that an employee would 

maintain the plant conveyor twice a shift by servicing the equipment and removing the spillingsc 

A like injury could be permanently disablingu including 

the loss of a limb. 

MSHA records indicate that 75 to 80 percent of fatalities 

caused by moving machine parts involve conveyor belts. (Ex. P-3Q 

P-9) o 

The citation was terminated by the installation of a spring 

guard placed around the pinch points and by further agreement 

that the company would not use any shovels to remove accumulations under the equipment. The grease zerts themselves were 

moved outward 18 inches to 2 feet from their present location. 

482 
To accomplish this, holes were made in the outside panel of the 

plant conveyor. It is 10 feet from the outside edge of the conveyor to the pinch points. It is 18 inches from the tail pulley 

to the chain sprocket. 

In the inspector 1 s opinion, miners would be in close proximity to shovel and remove spillage. Accidents have occurred involving the use of tools and workers have been sucked into pinch 

points and killed or disabled. The equipment the inspector had 

in mind was shovels, hoesQ and hammers. However, he had never 

seen such an injury occur. 

LAWRENCE MARTINEZ testified for Calco. He is the plant 

manager and is familiar with the citations. Mr. Martinez confirmed that the conveyor belt itself was 18 inches from the side 

of the conveyor when the conveyor is installed. (The conveyor is 

not installed in photographs R-1 and R-2.) 

No maintenance is performed on the equipment when it is 

operating as the unit has a lockout to shut down operations and 

this is the procedure used by Calco. It was Mr. Martinez's 

opinion that it was not possible for any miner to be caught in 

the pinch points. They would not crawl back in the narrow space 

to clean up any accumulations. Mr. Martinez agreed the grease 

zerts are maintained once a shift when the equipment is shut down 

and locked out. He also indicated that employees have never 

entered without a lockout. 

MICHAEL OVERSOLE is the Calco maintenance supervisor. He 

testified that no one could be caught in the pinch points. There 

is a very narrow space between the pinch points and the side 

wall. Anyone would have a ~f time in getting back there. 

when accumulat. 

loader and since 

any accumulations. 

c the conveyor is lifted with a 

is on wheels it is pushed out of the way of 

Mr. Oversole further a hole near the structure 

measuring 2 feet 2 feet marked on Exhibit P-2). It is possible to go through this hole ·co grease the zerts. This would not 

be done unless the equipment vJas locked out o However 1 it is possible to grease the zerts 'thout ·turning off the equipment. If 

a miner was greasing or adjusting the belt 1 he could be seen from 

·the outside of the conveyor o 

VIRGIL FULLER, a Calco employee, is in charge of lubrication 

and greasing the equipment and he has greased it on numerous occasions. In fact, no one else greases it. 

Mr. Fuller described in detail the disconnect and the lockout procedures. During lockout when Mr. Fuller greases the tail 

483 
pulley, it necessary for him to bend over, turn sideways and 

squeeze back into the area of the bushing. The opening is about 

15 inches. 

Mr. Fuller does not enter through the holes in the rear of 

the equipment. He enters from the open conveyor side and then 

moves into the narrow space. {Tr. 206). 

DISCUSSION AND FURTHER FINDINGS 

The disposition of this citation turns on the construction 

to be given to the cited regulation, Section 56.14107(a). Should 

the regulation require compliance in all places irrespective of 

whether a miner might contact the moving machine parts. On the 

other hand, should the scope of the regulation be limited to situations where there is a reasonable likelihood that a miner could 

contact the moving machine parts. 

The regulation stripped-of its surplusage merely states that 

"moving machine parts shall be guarded to protect persons from 

contacting ... moving parts that can cause injury." In this case 

it is uncontroverted that Calco always follows a lockout procedure. However, MSHA's regulation does not recognize lockouts as 

an exception to compliance. In short, compliance with the regulation is required. In sum, the Mine Act and the standards promulgated thereunder are to be interpreted to ensure, insofar as 

possible, safe and healthful working conditions for miners. 

Westmoreland Coal Co. v. FMSHRC, 606 F.2d 417, 419-420 (4th Cir. 

1979) . 

On the basis of the evidence presented here and for the 

foregoing reasonsp conclude that this citation should be af-

'-'irmed and a penalty assessedo 

SIGNIFICANT AND SUBSTANTIAL 

A violation properly designated as being of an S&S nature 11 , based on the particular facts surrounding that violation, 

there exists a reasonable likelihood that the hazard contributed 

to ll result an injury or illness of a reasonably serious 

nature.Qu Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

{April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984) 1 

the Commission further explained~ 

In order to establish that a violation of a 

mandatory standard is significant and substantial under National Gypsum the Secretary 

must prove: (1) the underlying violation of a 

'mandatory safety standard; (2) a discrete 

safety hazard--that is, a measure of danger 

to safety--contributed to by the violation; 

484 
(3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and 

(4} a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

6 FMSHRC at 3-4, See also Austin Power Co., v. Secretary, 

861 F.2d 99, 104-05 (5th Cir. 1988) aff'g 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathies criteria). 

The facts here establish a violation of the underlying 

guarding regulations. A measure of danger to safety was contributed to by the violation" Given the difficulty of entering 

and working on an 18 inch space coupled with the company's evidence of a lockout procedure 0 it would appear the facts fail to 

establish (3) of the Mathies formulation. However, the Commission has recently indicated that "the Mathies test requires an 

evalua·tion of the violation at .. the time of the citation including 

an examination of the risk of serious injury, given the presence 

of the violative condition in normal mining operations." Gatliff 

Coal Company, Inc., 14 FMSHRC 1982 (December 1992). 

Here it appears the equipment was unguarded and a worker 

could be seriously injured (establishing (4) of the Mathies formulation}. Normal mining operations would not involve a shutdown and lockout. Further, it is not possible for the operator 

to prevent a worker from maintaining the equipment in close 

proximity to the unguarded pinch points. 

The operator abated this violative condition by extending 

the ~nches to 2 feet through the outside panel of 

the such an abatement should protect the workers on 

s ~he s s al ions are affirmed. 

Section 2.10 

CIVIL PENALTIES 

the Act mandates consideration of six 

appropriate civil penaltieso 

Calco a small operator since it produced 38,401 tons of 

limestone anC. ime 2991. The penalties contained in the 

order are considering the operator size. 

Pena ll not cause the operator to discontinue in business. However§ evidence shows the operator's weak financial 

condition and this factor has been considered. (See sealed Ex. 

R-7.) 

The operator has a favorable history. Exhibit P-1 indicates 

the operator paid six violations in the two-year period ending 

August 5, 1991. 

485 
Calco was negligent since the violative condition of Citation No. 3905779 was open and obvious. 

If a worker became entangled in the pinch points, he would 

be seriously injured; hence, the gravity must be considered as 

high. 

Calco demonstrated statutory good faith in abating the violative conditions. 

Citation No. 3905781 

The above-numbered citation reads as follows: 

A tail pulley guard was not provided on the 

limestone feed conveyor belt, exposing employees to the possibility of being caught in 

the belt pinch points. The tail pulley was 

located about 2i above ground level. An employee passes through this area several times 

a shift. 

EVIDENCE 

Mr. Ellis issued this citation when he found exposed pinch 

points on the operator's limefeed tail pulley. Specifically, the 

pinch points were at the bottom of the tail pulley. The described area is shown slightly behind the angle iron to the front 

of the hopper as shown in Exhibit P-4. There was no guard and an 

employee that was observed in this area was cleaning up with a 

broom and shovel. can be seen on the floor of the area in 

The ley moves at 60 to 80 RPM and in constant motion. 

The pinch point is 2 inches off the ground and the inspector believed an injury could easily happen as a miner could slip and 

fall. Further 9 his clothing could be caught in the pinch point. 

In addit to cleaning around the area, it would also be necessary to grease and adjust the belt. In the inspector's opinion9 injury could include loss of a limb" 

The condition was terminated by 

on the equipment. 

instal of a guard 

The distance from the tail pulley to the angle iron is 3 to 

4 inches; it is the same distance to the pinch point. 

Mr. Martinez testified for Calco that there was no guard on 

this equipment. However, the pinch point was one foot above the 

floor and a person would have to be very low to the ground to get 

his hand into the pinch point. He would, in fact 1 have to fall 

at a perfect angle to become entangled. 

486 
The angle iron shown in Exhibit P-4 is the same as the angle 

iron on the side away from the camera. Exhibits R-3 and R-5 show 

the guards that were installed by the operator. 

The only reason anyone would be in this area would be to 

clean up or service the equipment. Workers shovel the gravel 

while the belt is moving. 

A worker could stick his hand directly into the pinch point. 

Mr. Martinez would shut off the equipment if the belt had to be 

worked on. 

The metal screens shown in Exhibits R-3 and R-5 were installed after the citation. As a result of the installation, 

no one person can reach into the pinch points. The machine is 

greased three times a week. It is necessary to clear the rubble 

every shift or every other shift. 

Mr. Oversole testified the pinch point was under the 

angle iron a foot or so off of the floor. In his opinion, the 

frame provides adequate protection from the pinch point, and it 

was his view that no one could fall into the return belt of the 

equipment.· 

Miners would be in the general area of the conveyor when it 

was running. 

VIRGIL FULLER, testifying for Calco, indicated he is familiar with the equipment in Exhibit P-4. The pinch point is at the 

bottom of the equipment about 7 inches above the floor. However! 

if a person slippedp he could not get tangled up the pinch 

point. The angle iron frame provides adequate protection from 

t:he pinch point. However 7 he would a sic that a guard be put 

there. If anyone came in contact with the pinch point, it would 

be a deliberate attempt because it would not be an inadvertent 

act. 

On cross-examination Mr. Fuller agreed that it would be 

possible to reach into the pinch point but that in his opinion 

the point was inaccessible. It is 6 to 8 inches to contact the 

pinch point. You could not get your hand in and out quickly. 

Howeverf a person could purposely put his hand into the pinch 

point. 

DISCUSSION AND FURTHER FINDINGS 

The position of the pinch point indicates from the 

that it would be difficult for a miner's body to become 

led. However, entanglement with clothing could occur. 

strict compliance imposed by Section 56.14107(a), it is 

487 

evidence 

en tangGiven the 

necessary 
for the operator to guard against the stated contingency even 

though the occurrence of that contingency might be unlikely. 

For the above reason, Citation 3905781 should be affirmed. 

SIGNIFICANT AND SUBSTANTIAL 

The formulation in Mathies and Gatliff apply here. The reocord generally meets the Mathies criteria. Following Gatliff, 

the evidence indicates a risk of serious injury exists particularly if a miner's clothing becomes entangled in the pinch point. 

Even though such entanglement is remote, workers in close proximity were exposed. 

The S&S allegations should be affirmed. 

CIVIL PENALTIES 

In connection with Citation 3905781, the operator must be 

considered as negligent since employees work in the area and the 

condition was open and obvious. 

Further 9 gravity must be considered as high since if a 

worker became entangled he could be seriously injured. 

The remaining penalty criteria have been previously 

discussed. 

Citation No. 3905782 

The above-numbered on reads as follows~ 

The guard was nc~ adequate, head 

pulley was not provided and back parportion of chain drive guard was not provided 

on the No. 2 limefeed conveyor belt, exposing 

employees to of being caught 

The tail pulley was 

located approximately 2 above cement floor 

and the head pulley and chain drive were in 

front of and above 18" to 24" from a ladder 

used by employees to check on small grizzly 

and clean rocks from grizzly which is between the ladder and head pulley (about 18 11 

to 24" wide). This is done on a regular 

basis. 

EVIDENCE 

Mr. Ellis wrote one citation for three different conditions 

on the same piece of equipment. 

488 
Concerning the tail piece, an inadequate guard, as shown in 

Exhibit P~6, was on the equipment. After abatement, the new 

guard is shown in Exhibit R-6. 

In addition to the above-described condition at the tail 

pulley, there were also pinch points at the head pulley and in 

the chain drive to its right. The condition at the head pulley 

is shown in Exhibit P-5. The pinch points are where the conveyor 

contacts the head pulley. since the material is moving uphill 

into the grizzly, the pinch point would be on the far side of the 

head pulley and away from a worker. 

Additional pinch points are shown in the chain drive which 

appears to be partially enclosed and to the right of the head 

pulley. 

These pinch points are 7 feet off the ground and only accessible by a ladder. It is necessary for employees to climb the 

ladder to pick any large rocks off of the grizzly and this cleanup occurs several times a shift. 

The head pulley moves at 60 to 80 RPM and the sprocket (to 

the right in P-5) moves at 120 RPM. 

Mr. Ellis expressed the view that if a miner on the ladder 

lost his balance 1 his clothes or part of his body could become 

entangled. He considered it reasonably likely that there could 

be a permanent disabling injury or loss of limb. 

Mr. Ellis agreed that the pinch point at the conveyor and 

t.he head l <:Jere 3~1 2 feet away from a worker on the ladder. 

In addit involved would be increased by the 18-

inch head pul He also indicated the pinch point was 2 feet 9 

inches from the face of the ladder. The limestone would be moving uphill toward the ladder. He believed a person's arm can 

reach 2 to 3 feet depending on the turn of the torso. He be- , person or his clothing could be caught in all three of 

involved here. 

1.\'lr. Martinez ·testified the manner in which he stepped on the 

second rung to throw rocks out of the grizzly. He had never been 

concerned that an employee could be hurt by slipping or falling. 

Exhibit R-6 shows the tail pulley after a guard was 

attached. The pinch point itself at the tail pulley is within 5 

inches of .the floor. Mr. Martinez believed that if a person laid 

down on the floor he could put his hand in the pinch point. 

Mr. Martinez indicated the equipment is maintained three 

times a week. Further 1 they have adjusted the belt with the 

conveyor running. 

489 
Mr. Oversole indicated a worker could not contact the pinch 

point at the bottom of the tail pulley unless he was really 

trying. 

Mr. Oversole has cleaned out the grizzly himself and it is 

only necessary to go up the ladder high enough to see the rocks. 

This is usually four rungs down from the top. The first rung is 

at chest level and there is no need to go any highero 

Mr. Fuller expressed the view that the 

tail pulley was 7 to 8 inches above ground. 

the guard that was installed at the time of 

adequate. 

pinch point on the 

He further indicated 

the inspection was 

In connection with the head pulley: a worker normally goes 

up two rurigs on the ladder and is leaning forward. It is unlikely he will fall backwards. To get tangled up in the head pulley, 

you have to go higher on the ladder. and reach around the head 

pulley to contact the conveyor belt. 

Mr. Fuller has climbed the ladder to clean out the grizzly 

on two or three occasions. He has cleaned out the grizzly when 

the conveyor was moving. In his opinion 1 you cannot reach the 

pinch point from a position of being waist high on the ladder. 

Mr. Fuller indicated he is a rank and file person with Calco 

and he has not been paid for testifying. He has been employed 

there for eight years, and the company runs a safe operation. 

DISCUSSION AND FURTHER FINDINGS 

Concerning the tail pulley~ the evidence establishes 

guard a'c t.he t.ime of t.he inspection '(,vas not adequate. E:x:hibi t 

P-6 shows the opening between the old guard and the conveyor. 

While it was claimed that the metal piece along the edge of the 

conveyor also served as a guardu it is apparent that a sufficient 

opening exists for a person to slip a hand or clothing or even a 

tool into ·the pinch point through the unguarded opening. (Cornpare Ex. P-6 and Ex. R-6r the before and aftero) 

The operator's witnesses testified as to the difficulty of 

contacting the pinch point and the necessity of reaching over the 

head pulley to make that contact" rvm not persuaded by that testimony as it is all premised on how high the employee stands on 

the ladder. The employee, if he slips, would almost automatically reach forward since he can only fall if he goes backwards. 

He thereby exposes himself to contacting the pinch point formed 

by the conveyor and the head pulley. 

Citation No. 3905782 should be affirmed and a penalty 

assessed. 

490 
2_JGNIFICAN'1' .AJN.D SUBSTANTIAL 

The formulation in applies here. The evidence establishes an underlying lation of 30 C.F.R. §56. 14107(a). A 

discrete measure of danger to workers was contributed to by the 

unguarded equipment. The var conditions in this citation 

indicate a reasonable likelihood existed that the hazard will 

result in an injury. ~~ also reasonable that an injury would 

be serious and possibly fatal. 

The S&S allegat be affirmed as to Citation No. 

3905782. 

The operator 1.vas 

were open and obvious. 

as these violative conditions 

The possibil 

the gravity as be 

of be cenight in pinch points results in 

considered high. 

The add ional c il penal 

viously scussed. 

criteria has been previThe above-numbered citation reads as follows: 

The head pul and tail pulley guard were 

that a person could reach 

.ouch the pulleys on ::~e:_·c ... exposing 

caught 

ley was 

:2 •· i~i.::O'lr:e c.1 cement floor and the 

6; high above a 

cemen~:. f2_o;:;~:, through 

about.: :o 

6 f e·:e"i: above 

could touch 'the 

The cha 

' 

on August 6, 1991 . 

. ":·· sma1l guard. The pulley itself 

abcv.e ·:::::~tc::: ce111en·t. loor The head pulley was 

c:~:nother conveyor. A worker 

bars welded onto it. 

were exposed. 

Mr. Ellis believed the guard was not adequate as it did not 

cover the pinch points. There was nothing covering the tail 

pulley on the back. About 8 to 10 inches were uncovered. If a 

worker was caught by the moving machine part, he would be 

injured. 

491 
Exhibit P-7 is a photograph of the head pulley and the drive 

on Conveyor No. 1. The head pulley is in the center of the 

photograph and the pinch points are at the top. 

In the inspector's opinion, the bars on the head pulley 

create additional pinch points. 

The conveyor belt moves material uphill and the pinch points 

would be on top. 

There are pinch points at the sprocket where it meets the 

chain. 

In Mr. Ellis's opinion the pinch points were not adequately 

guarded at the bottom of the tail pulley and a worker could be 

caught by the moving shaft. 

Mr. Ellis expressed the,.view that it was reasonably likely 

that an accident would occur since employees walk by this area 

and service the equipment. Workers would also clean up if a 

spill occurred. Both the tail pulley and head pulley are cleaned 

up on a daily bas At the tail pulley Mr. Ellis observed 

gravel that had been spilled. 

Mr. Ellis also believed that the loss of a hand, finger, or 

arm was possible, and he considered it easy for a worker to be 

injured if he slipped or fell into the pinch points. He had seen 

workers cleaning with a broom and shovel and the equipment could 

be pulled into the pulley. In addition, clothes could be caught. 

The head 

"the walkwayo 

the area 

ley area. 

6 feet above the ground and 2 feet from 

If a worker tripped and fellu he could only fall 

of tail pulley. He could not fall into head 

The inspector believed the company was negligent since the 

violation could be easily seen and management should have known 

about it. 

The inspector testified that workers have been injured by 

equipment of type and he identified Exhibits P-3 and P-9 as 

MSHA reports generally relating to injuries involving moving 

machine parts. He has also learned of a number of instances 

involving tools and, as a result, he marked this violation as 

possibly causing a permanent disability. 

Inspector Ellis agreed that he measured the vertical distance to the center of the head pulley. The distance was 72 

inches, plus or minus 2 inches. It was also 1-1/2 to 2 feet from 

the frame over to the conveyor. It was 7-1/2 feet to the unguarded pinch points from where Mr. Ellis was standing to make 

his vertical measurement. 

49 2 
Mr. Ellis was familiar with 30 C.F.R. § 56.14107(b), which 

provides as follows: 

Guards shall not be required where the exposed moving parts are at least 7 feet away 

from walking or working surfaces. 

It was Mr. Ellis's opinion that the guards were not 

adequate. 

LAWRENCE MARTINEZ, plant manager, testified the bars welded 

on the head pulley are 1/4 to 3/8 of an inch. The distance from 

where he was standing below the head pulley was 6 feet vertically 

and 2 feet laterallyf or a total of 8 feet. 

The company has a lock-out procedure and does not grease the 

equipment when it is running. Exhibit R-13 shows the head pulley 

of the conveyor. 

Virgil Fuller is shown in R-13. Mr. Fuller is 6 feet tall 

and to reach the pinch point he would have to reach an additional 

foot. In Mr. Martinez's opinion the pinch point in the vicinity 

of the head pulley is inaccessible. Further, the addition of the 

3/4 inch riser did not create any additional pinch point. 

Exhibit R-14 shows the feed conveyor tail pulley section. 

The tail pulley is not greased when the· machine is "on the run." 

The conveyor belt is adjacent to where people walk several 

times a day. 

shows the head pulley and Exhibit R-14 shows 

·:::.he 

MICHA~L OVERSOLE testified the parallel ribs welded on the 

head pulley were 3/8 of an inch round stock mild steel. There 

was 2 inches between each rib. There was a 1/4 inch gap. A 

~erson could not get a finger into the 3/8 inch gap. 

In Mr. Oversole 1 s opinion? the guarding on the equipment was 

adequate when the citation was issued. 

Mr. Oversole agrees that he adjusts the conveyor belts when 

they 1 re installedv and then once after they stretch for wherever 

adjustment is needed. They do not grease the head pulley area 

and they clean around the head pulley and tail pulley once a 

shift. 

Exhibit P-6 appears to show a gap but it could not be more 

than 2-1/2 inches. It would be possible to get a hand in this 

area but you still could not reach the pinch point. 

493 
VIRGIL FULLER, in addition to his other qualifications, is 

also an emergency medical technician certified by the State Board 

of Health. In addition, he is a licensed minister and preaches 

when requested. 

Mr. Fuller identified himself in Exhibit R-13 where he is 

reaching upward and standing against a conveyor belt. Even in 

that position, he is 10 to 12 inches from the pinch points. 

Mr. Fuller is 6 foot 1 inch; the vertical distance adjacent 

to the head pulley is 6 feet and the horizontal distance to the 

head pulley is 1 1/2 to 2 feet. 

Measured on a curve with a tape measure, it is 88 inches 

from the ground level to the pinch point. The measurement would 

be 7 feet .4 inches. In Mr. Fuller's opinion, it would not be 

possible to become tangled up in the conveyor, nor could a worker 

become tangled in the head pulley. 

Exhibit R-14 shows the tail pulley and it was received as an 

accurate photograph of the present guard. The opening in the 

tail pulley area is 2 1/2 to 3 inches and it is an additional 18 

inches to the pinch point. No worker at Calco could reach the 

pinch points. 

On the head pulley the welded ribs were 3/8 inch when new. 

A worker could only get his fingers between the conveyor and the 

head pulley if he did so purposely. The tail pulley pinch point 

is inside the frame and if a worker put his hand into the open 

area he would have to go an additional 8 to 10 feet to reach the 

pinch pointe and this would not be possible. 

Mr. Fuller indicated he services the equipment when it is 

operating at four grease points on the drive side and he has a 

grease tube permanently affixed to the machine. 

A pinch point could be contacted if a person had a reach of 

88 inches. Mr. Fuller could not reach the pinch point nor would 

his shirt sleeve become entangled. 

In Exhibit R-13 he is leaning as far as he could go and 

could only go an additional 1 inch. 

Mr. Martinez could reach the pinch point because he is 

taller. 

The equipment is greased once a week. There's often gravel 

on the floor near this equipment. 

On the head pulley there is a grease zert 8 to 10 inches 

outside of the guards. In.addition, there is a grease tube. 

494 
When Mr. Fuller rebuilt the guards they had to be extended. 

Exhibit P-6 shows the tail pulley guard. 

There's a 2-1/2 inch gap in the bottom of the skirting. The 

skirting is a 1/4 inch by 4 inch piece of metal and, in addition, 

a 1/2 inch by 5 inch rubber skirting. The skirting serves to 

keep the material on the belt. 

DISCUSSION AND FURTHER FINDINGS 

AMENDMENT 

This case originally commenced December 1992. At that time 

the Secretary sought to amend her citation so as to include 

therein allegations that the sprocket and chain drive guard were 

unguarded. 

Respondent claimed surprise and its motion for a continuance was granted. The case was re-set to January 8, 1993. No 

written amendment was filed, but inasmuch as the parties had 

discussed the nature of the amendment at the December hearing, 

the operator could not have been surprised by the amendment and 

the Secretary was permitted to orally amend the citation and add 

in the citation an allegation that the "sprocket and chain drive 

guard" were unguarded or not adequately guarded. 

This citation involves a question of law. 

The Ol\: .Laitl is l.Nhether moving machine 

~e guarded when those exposed moving parts are "at 

away from wall<.ing or t'>lorking surfaces 11 as contained 

56.14107 (b). 

parts should 

least 7 feet 

Section 

It is clear that the vertical measurement under the head 

pulley was at 6 foot and the horizontal distance was 1 1/2 

eto 2 feet. The Secretary argues that t.he distance involved 

should be '

1 as the crow '9 On the other hand 0 the operator 

correctly argues that even the crow could flYv he (the crow) 

could not fly through the lower conveyor belt. In Exhibit R-13 

Mr. Fuller is leaning on the lower conveyor belt and reaching 

forward in the direction of the head pulley pinch points. 

In connection with this matter, I find the operator's testimony to be credible concerning the distance involved between 

the walking or working surface and the exposed moving parts. 

That distance, as Mr. Fuller testified, was 7 feet 4 inches. By 

virtue of Section 56.14107(b) no guards are required under these 

circumstances. 

495 
I further credit the operator's testimony as to the tail 

pulley. The operator, in my view, is in a better position to 

describe the relative distances from the opening in the tail 

pulley guard to the pinch point. While I agree there is an 

opening, there is no credible evidence that any worker could 

reach to the pinch point even if he placed his hand deliberately 

in the area. 

The sprocket and chain guard drive which the Secretary 

claims was also unguarded is a greater distance from the floor 

than the head pulley is from the floor. Accordingly, the 

sprocket and chain guard drive is greater than 7 feet from the 

working surface and under § 56.14107(b) no guarding is required. 

(See Exhibits P-7 and R-13.) 

For the foregoing reasons Citation No.3905783 should be 

vacated. 

Citation No. 3905784 

The above-numbered citation reads as follows: 

A tail pulley guard was not provided on the 

Briq conveyor belt, exposing employees to the 

possibility of being caught in the belt pinch 

points. The tail pulley was of the selfcleaning type and located about 1' above 

bacement (sic) floor. Employees must pass by 

tail pulley to get to electrical switch gear. 

~THUR ELLIS issued the above citation when he observed a 

self-cleaning pulley without a guard. Workers were exposed 

to the possibility of being caught by the pinch points and this 

could cause a serious injury to a worker. 

Exhibit P-8 is a drawing purporting to show the tail pulley 

as well as a door to the motor control center. The drawing 

Mr. Ellis s best recollection of the scene. 

pinch point at the bottom of the tail pulley. In 

addition to persons being entangledp tools could also be 

entangledo 

It was a foot from the tail pulley to the ground and the 

inspector estimated that the pulley moves at 60 to 80 RPM. From 

the pulley to the door is 10 feet. 

Workers would go alongside the conveyor to get to the door. 

In rebuttal testimony Inspector Ellis stated he was in error 

on this point. He indicated there was no walkway along the side 

496 
of the briquette conveyor" Exhibits R-8 and R-11 each show a 

side of the conveyor. 

Mr. Ellis noted that in the area near the pinch points 

workers sometimes went to service the equipment. 

He believed that the violation was significant and substantial and reasonably likely to cause an injury. The most likely 

injury would be loss of a limb as a worker could trip and fall 

into the pinch point or be pulled into the equipment. 

He believed it was easy for an accident to occur as employees pass this area several times a day. 

The tail pulley was a foot off the floor. He considered the 

negligence to be moderate as management should have known of the 

condition. 

LAWRENCE MARTINEZ testifi~.d that the ceiling deck as shown 

on Exhibit R-11 is 4 feet above the briquette conveyor. Anyone 

walking in this area would necessarily stoop over. It would not 

be possible to walk alongside the conveyor without stooping down. 

Exhibit R-9 taken from the adjacent walkway with the 

camera pointing upward on the conveyor belt. 

The tail pulley has sealed bearings and no maintenance is 

required except to change the bearings. On Exhibit R-10 the 

material is transported uphill. The pinch points on the tail 

pulley are difficult to see due to the installation of guards 

after the citation was issued. 

Exhibit. R-11 shows t.he briquette conveyor with the photograph taken from underneath the platformo 

The briquetter system is only operated about 16 hours a 

month and it depends upon the requests made by the customers for 

the briquette products. The briquetter is usually operated about 

·two months. 

The function of ·the briquetter is to take powder or rock and 

briquette it much like a charcoal briquette. 

Employees walk by this area daily and the panels shown in 

the background of R-8 hold electrical switches to operate the 

equipment. 

On August 6 1 1991, there were no guards on the conveyor. 

Mr. Martinez drew a plan view of the briquetter building. 

He identified the various portions of the building as well as the 

described platform which was 4 feet above the floor. 

497 
He indicated a walkway is located at the end of the conveyor 

belt, and if you fell, you would not fall into the conveyor belt. 

A switch gear is right at the end of the walkway. 

The electrical controls shown in the back of Exhibit R-8 

were for the blower, the bag house, and related equipment. 

It is possible to turn off the blower; the bag house, and 

related electrical equipment while the briquetter is still running. It is possible to turn the machinery on and off if a 

spillage occurs. Theregs no necessity to maintain the equipment 

while the system is running. 

MICHAEL OVERSOLE, maintenance superintendent, agrees with 

Mr. Martinez's drawing in R-12. He indicated the conveyor is 

protected from an accident due to the platform. A worker could 

not become entangled even if he slipped and fell. 

If the briquetter is running, the lime will burn your eyes 

but visibility is no problem when you enter the area. 

It is necessary to walk by the end of the tail pulley to 

reach the electrical controls. 

VIRGIL FULLER handles the lubrication of equipment in the 

plant. The briquetter has sealed bearings so there is no occasion to be in the vicinity of the conveyor belt. In addition 1 a 

worker could not get tangled up in the pinch points on the belt 

and any entanglement would have to be deliberate. The briquetter 

system operates about 16 hours a month. 

unde:::-

See 

the 

Mr. Fuller goes onto the walkway he checks the 

and checks the alignment of the conveyor belt. 

:R-12 fying the walkway area and the area where 

located.) 

DISCUSSION AND FURTHER FINDINGS 

·ts R-8 ~ R-9 ~ I-.:t-10 r and R-11 are photographs of the 

In the background of R-8 are the 

control ·the briquetter. To reach these 

a workman would have to pass by the tail pulley. Exhibits 

R-8 and R-11 show spillage from the briquetter. Removal of that 

llage would require a worker to be in close proximity to the 

unguarded pitch points which were described in detail by the 

inspector" 

The operator contends there's no necessity for any workers 

to be in close proximity to the unguarded tail pulley. However, 

Exhibit R-9 clearly shows an electrical panel directly above the 

conveyoro The electrical panels, according to the evidence, 

498 
control the operation of the bag house, et cetera. These electrical panels above the tail pulley, however, do not control the 

running of the actual briquetter itself. 

I do find from Exhibit R-9 that the electrical panels are in 

quite close proximity to the tail pulley. For this reason, this 

citation should be affirmed since entanglement is a definite 

possibility. 

Citation No. 3905784 should be affirmed and a penalty 

assigned. 

SIGNIFICANT AND SUBSTANTIAL 

The formulation in Mathies applies. The evidence establishes an underlying violation of 30 CFR 56.14107(a). A discrete measure of danger to workers was contributed to by the unguarded tail pulley. It appe~rsthere is a reasonable likelihood that the hazard will result in an injury. A worker using 

the electrical panel could become entangled. If such an event 

occurred, injury could possibly be fatal. 

The S&S allegations are affirmed. 

CIVIL PENALTIES 

The operator was negligent as this condition was open and 

obvious. 

The gravity must be considered as high in view of the 

possibil of entanglement. 

Other st.atutory has been previously discussed. 

ESTOPPEL 

ROBERT MURRAYf president and counsel for Calco 9 asserts 

other MSHA inspectors have not. cited the company for the conditions observed Mr. Ell 

As a general ruleu equitable estoppel cannot be asserted 

against the Secretary. Kina Knob Coal Company, Inc. 1 3 FMSHRC 

1417u 1421-22 (June 1981). Furtheru prior non-enforcement does 

not bar the Secretary from citing violative conditions. conesville Coal Preparation Companyr 12 FMSHRC 639, 672 (April 1990.) 

For the foregoing reasons, I enter the following: 

ORDER 

1. Citation No. 3905779 is AFFIRMED and a penalty of $50 

is ASSESSED. 

499 
2. Citation No. 3905781 is AFFIRMED and a penalty of $50 

is ASSESSED. 

3. Citation no. 3905782 is AFFIRMED and a penalty of $75 

is ASSESSED. 

4. citation No. 3905783 is VACATED. 

5. Citation No. 3905784· is AFFIRMED and a penalty of $50 

is ASSESSED. 

Law Judge 

Distribution~ 

Tambra Leonard, Esq., Office of the Solicitor, u.s. Depart-ment 

of Labor 9 1585 Federal ice Buildingv 1961 Stout Street, 

Denverv co 80294 (Certified Mail) 

Robert K. Murray, Esq.u CALCO INC., P.O. Box 1520, Golden, CO 

80402-1520 (Certified Mail) 

ek 

500 
FEDERAl MINE SAFETY AND HEAlTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 1 71993 

BOBBY GENE STROUTH, 

complainant 

DISCRIMINATION PROCEEDING 

. v. 

CAVALIER MINING CORPORATION, 

Respondent 

0 

0 Docket No. VA 91·-34-D 

NORT CD 90-16 

ORDER OF DISMISSAL 

Appearances: Edward G. Stout, Esq., Bressler, Curcio & Stout, 

P.C., Bristol, Vt!"ginia, for Complainant; 

No appearance for Respondent at the hearing. 

Before: Judge Maurer 

This case came on to be heard on December 15, 1992, in 

Abingdon, Virginia. No appearance was made on behalf of 

respondent because the respondent is currently involved in 

bankruptcy. This bankruptcy, originally filed under Chapter 11 

has since been converted to a Chapter 7 bankruptcy proceeding 

from which there may or may not ever be any funds left over for 

distribution. In the meantime, section 362 of the Bankruptcy 

Code (11 u.s.c. § 362) provides for a stay that effectively 

prohibits this discrimination action from proceeding to judgment. 

In consideration of these circumstances, the complainant has 

filed a motion to withdraw his complaint in this matter, without 

prejudice to him refiling , at his option, within 90 days after 

respondent is discharged from its bankruptcy proceeding. The 

respondent does not object to the grant of this motion. 

In light of the foregoing circumstancesu the complainant 6 s 

motion to withdraw his complaint and dismiss this caseu without 

prejudice 7 is GRANTED. 

hereby ORDERED that this case be DISMISSED without 

prejudice to the complainant refiling it with this commission, at 

his optionq within 90 days after respondent is discharged from 

its bankruptcy proceeding. 

aurer 

rative Law Judge 

50 l 
Distribution: 

Timothy w. Gresham, Esq., Penn, Stuart, Eskridge & Jones, 

208 E. Main Street, P. o. Box 2288, Abingdon, VA 24210 (Certified 

Mail) 

Edward G. Stout, Esq., Bressler, Curcie & Stout, 600 Cumberland 

street, P. o. Box 1478, Bristol, VA 24203 (Certified Mail) 

dcp 

502 
FEDERAL MINE SAFETY AND JJEAT.TH REVIEw COMMISSION 

OFFICE OF ADMINISTRATIVE LA~ JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 1 81993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GATLIFF COAL COMPANY 1 INC. 

Respondent 

GATLIFF COAL COMPANY 1 INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

'- .. •· 

. 

50 3 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 90-100 

A.C. No. 15-04322-03530 

Docket No. KENT 90-215 

A.C. No. 15-04322-03531 

Gatliff No. 1 Mine 

NOTICES OF CONTEST 

Docket No. KENT 89-242-R 

Citation No. 3178703; 8/3/89 

Docket No. KENT 89-243-R 

Citation No. 3178704; 8/3/89 

Docket No. KENT 89-244-R 

Citation No. 3178706; 8/3/89 

Docket No. KENT 89-245-R 

Citation No. 3178707; 8/3/89 

Docket No" KENT 89-246-R 

No. 3178708; 8/3/89 

Docke·t No. KENT 89-247-R 

Citation No. 3178709; 8/3/89 

Docket No. KENT 89-248-R 

No. 3178710~ 8/3/89 

Docket No. KENT 89-249-R 

Citation No. 3178711; 8/3/89 

Docket No. KENT 89-250-R 

Citation No. 3178712; 8/3/89 

Docket No. KENT 89-251-R 

Citation No. 3178713; 8/3/89 

Docket No. KENT 89-252-R 

Citation No. 3178714; 8/3/89 

Gatliff No. 1 Mine 

Mine ID No. 15-04322 
DECISION APPROVING SETTLEMENT 

Before: Judge Melick 

The captioned cases were remanded by the Commission on 

December 7, 1992, for reassessment of civil penalties for 

Citation No. 3178705 in Docket No. KENT 90-100 under Section 

110(i) of the Federal Mine Safety and Health Act of 1977 

(the Act). Petitioner thereafter filed a motion to approve 

a settlement agreement as to this citation. A reduction in 

penalty from $4,000 to $500 is proposed. I have considered 

the fact that following trial and appeals to this Commission, 

the original Section 104(d) order was modified to a Section 

104(a) citation without "unwarrantable failuren findings. 

I have also considered the trial transcript and evidence in 

this case and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section 110(i) 

of the Act. 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that Respondent pay a,penalty 

of $500 within 30 days of this order for the vio ation 

charged in Citation No. 3178705. 

Distribution~ 

I 

I 

i 

I 

rlry Mel ck 

Jld:minist ative 

f 

Judge 

Anne T. Knauff, Esq.u Office of the Solicitor, 

u.s. Department of Labor, 2002 Richard Jones Road, 

B-201, Nashville, TN 37215 (Certified Mail) 

Robert Io Cusick, Esq., Wyatt, Tarrant and Combs, 

2600 Citizens Plaza, Louisville, KY 40202 (Certified Mail) 

lh 

504 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

M ,, ,., (• ··.· ' .. 1 f.\ 3 ;P,f( i:'/;:1, 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY 

Respondent 

Docket No. WEVA 92-799 

A.C. No. 46-01968-03982 

Docket No. WEVA 92-800 

A.C. No. 46-01968-03983 

Docket No. WEVA 92-801 

A.C. No. 46-01968-03986 

Blacksville No. 2 

DEC.ISION .. 

Appearances: Caryl Casden, Esq., u.s. Department of Labor, 

Office of the Solicitor, Arlington, Virginia 

for Petitioner; 

Before: 

Daniel Rogers, Esq., Consolidation 

Coal Companyu Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Feldman 

These single citation proceedings are before me as a result 

of petitions for civil penalty filed by the Secretary of Labor 

~ursuant to Section 105 d) of the Federal Mine Safety and Health 

Act of l977!i 30 u.s.c. §801 et §§!;L..u The Act). This matter was 

heard Iviorgan·town" ttlest Virginia on November 17 1992 p at which 

time Richard McDorman testified on behalf of the Secretary and 

Kenneth Ryan and David Lemley testified on behalf of the 

respondent. At the hearing 1 the petitioner moved to settle 

Docket No. WEVA 92-799 which involves a $20 proposed assessment 

Citation No. 3718465 for an leged non-significant and 

substantial violation of 30 C.F.R. §75.517. This citation 

alleges a damaged cable jacket on the trailing cable of a loading 

machine" The proposed settlement involves the respondent 0 s 

agreement to pay the penalty as assessed. The petitioner 0 s 

motion for approval of settlement was granted at the hearing and 

will be incorporated as part of this decision. 

The remaining dockets each involve 104(d) (2) orders for 

violations designated as significant and substantial which 

allegedly occurred as a result of the respondent 1 s unwarrantable 

failure. The parties' post-hearing briefs and their stipulations 

concerning the pertinent jurisdictional issues and the relevant 

civil penalty criteria found in Section 110(i) of the Act are of 

record. 

505 
PRELIMINARY FINDINGS OF FACT 

Docket No. WEVA 92-800 

Richard McDorman has been a Mine Inspector for approximately 

four years. He also has fifteen years experience in the mining 

industry including employment as a mine foreman. His educational 

background includes a Bachelor of Science Degree in Mine 

Engineering from West Virginia University. (Tr. 22-23). 

On July 9, 1991, McDorman conducted a preinspection 

conference at the Blacksville No. 2 Mine with the respondent's 

management personnel. (Tr. 50). At this conference, the 

importance of having conventional firefighting hose for each 

working section was discussed. As an alternative to standard 

1 1/2 inch diameter firehose, McDorman advised management that 

the 1 1/4 inch diameter waterline attached to the continuous 

miner could be used as a firehose. This could be accomplished if 

the operator obtained a fitting adapter that would enable a 1 1/2 

inch firefighting nozzle to be connected to the end of the 1 1/4 

inch waterline. In accordance with McDorman's suggestion, the 

respondent obtained the requisite fitting adapter and special 

wrenches. (Tr. 51). 

On November 6, 1991, McDorman inspected the firefighting 

equipment in the No. 6 South Section of the Blacksville No. 2 

Mine. McDorman was accompanied by company representative David 

Lemley and Bill Keechal, the miner's representative. The No. 6 

South Section is a continuous miner section with seven entries. 

In this section the water supply outlet for the fire suppression 

system was located at the loading point. 1 McDorman noted that 

the firehose located near the loading point, for use in the event 

of at a working face, was 500 feet in length. (Tr. 29,31-

2). To determine if this hose length was adequate, McDorman 

used the foreman 9 s section map to determine the distances between 

the water supply at the loading point and the working faces of 

each entry. McDorman ascertained that the distance from the 

water supply t.o the No. 7 working face, the entry in which the 

continuous mining machine was then located, was 486 feet and 

within reach of the hose. (Tr. 30,72}. However, the 500 foot 

hose was inadequate for the No. 1 and No. 2 working faces which 

were 660 and 580 feet from the water supply line, respectively. 

(Tr. 33,34). Although McDorman did not witness the continuous 

mining operations in the No. 1 and No. 2 entries, McDorman and 

respondent witnesses Kenneth Ryan and David Lemley testified that 

1 The loading point is the location at which coal is brought 

in shuttle cars from the working face and loaded onto a conveyor 

belt for transportation outby. (Tr.76). 

506 
the water supply and section loading point location had not been 

moved since the No. 1 and 2 entries were mined approximately one 

week before. (Tr. 97,122,135-136). 

After determining that the conventional firehose could not 

reach the No. 1 and No. 2 faces when they were being mined, 

McDorman inspected the waterline at the continuous miner to 

determine whether it could be adapted for use as a firehose. 2 

(Tr. 38). As noted by McDorman at the preinspection conference, 

such adaptation requires a standard 1 1/2 inch nozzle and a 

special fitting to plumb the nozzle to the 1 1/4 inch continuous 

miner waterline. Although a nozzle was present in the section, 

it took. approximately 45 minutes to locate the necessary fitting. 

McDorman testified that three mine personnel on the section, as 

well as Section Foreman Kenneth Ryan, were all unfamiliar with 

the procedure for plumbing the nozzle to the waterline at the 

continuous miner. (Tr. 46,48). 3 

As a result of his inspecti,qJ1, McDorman issued Order No. 

3716493 for an alleged significant and substantial violation of 

30 C.F.R. §75.1100-2(a) (1). This mandatory safety standard 

requiresv in pertinent part, that"··· waterlines shall extend to 

each section loading point and be equipped with enough firehose 

to reach each working face ...• n 4 

FACT OF OCCURRENCE 

Docket No. WEVA 92-800 

The respondent, in its brief, argues that the Secretary 

should not prevail because the No. 7 entry observed by McDorman 

during continuous miner operations was less than 500 feet from 

t.he 'tvater supply at the loading pointo Alternatively, the 

respondent asserts that the subject order is defective because it 

concerns an alleged failure to train personnel in the use of the 

2 This water hose is used to supply water to the continuous 

machine for the purpose of dust suppression and for a fire 

suppression system in the event the continuous miner catches fire. 

(Tr.34)o This water hose is not considered adequate as a firehose 

because has no nozzle to project water. (Tr. 35-36,39). 

3 The Mine Safety and Health Administration's Program Policy 

Manual allows the waterline on the continuous miner to be used as 

a firefighting hose if it is equipped with a standard firefighting 

nozzle. (Tr. 35-36, Ex. P2). 

4 Section 75.1100-2(a)(l) provides three exceptions to the 

requirement of sufficient firehose for reaching each working face 

which were not present and are not relevant in this case. 

(Tr. 41). 

507 
special fitting hardware for the continuous miner water supply 

line rather than a substantive violation of the cited mandatory 

safety standard in section 75.1100-2(a) (1). 

The essential facts are not in dispute. The 500 foot length 

of hose in the No. 6 South Section could not reach the working 

faces in the No. 1 and No. 2 entries. Although these were idle 

faces at the time of McDorman's November 6, 1991, inspection, 

these entries were mined the previous week. It is undisputed 

that this hose could not reach these working faces at that 

time. 5 The testimony also reflects that the water supply line 

to the continuous miner could not be adapted for firefighting 

purposes. Although the No. 1 and No. 2 entry faces were idle at 

the time of McDormanQs inspection, his observations, given the 

fact that the water supply had not been recently moved, provided 

an adequate basis for his conclusion that a violation had 

occurred. 6 Therefore, the order citing a violation of Section 

75.1100-2(a) (1) was properly_ issued and will be affirmed. 

Docket No. WEVA 92-801 

At the hearing, the respondent stipulated to the occurrence 

of the violation cited in Order No. 3314602 of the mandatory 

safety standard contained in 30 C.F.R. §75.807. Section 75.807 

requires, in pertinent part, that all underground high-voltage 

transmission cables must be installed or placed so as to afford 

protection against damage, and that these cables must be guarded 

where miners regularly work. In addition, these cables must be 

securely anchored, and properly placed to prevent contact with 

trolley wires. 

In of the respondent~s stipulationv the facts 

surrounding issuance of Order No 3314602 can be briefly 

summarized. On September 16 1991 8 Mine Inspector McDorman 

inspected the No. 6 North supply track of the respondent's 

Blacksville No. 2 Mine. At approximately 3:15a.m., McDorman 

noticed a 7u200 volt high voltage cable lying on the mine floor 

3 Respondent witnesses Ryan and ey testified about an 

additional 500 foot firehose in a barrel approximately 1,200 feet 

from the loading point in the No.6 South Main Haulage Section. 

(Tro 112 ll5p 131) o As this hose was in the Main Haulage Section 

rather than the No. 6 South Sectionv it was not available as a 

firehose for the No. 1 and No. 2 working face entries. In 

addition, McDorman testified that no one told him about this 

additional hose at the time of his inspection. (Tr. 137-138). 

6 A citation need not be based on the issuing inspector's 

direct observations if there is a basis for concluding that the 

cited violation has occurred. See Emerald Mines Company v. FMSHRC, 

863 F.2d 51, 63 (D.C. Cir. 1988). 

508 
for a distance of approximately 250 feet, 15 feet inby block 30. 

(Tr. 146,151,230). one block further inby McDorman noticed an 

additional section of high-voltage cable on the floor for a 

distance of 25 feet. (Tr.l51). The cable was lying only three to 

five feet from one side of the track. (Tr. 146). In another area 

of the mine, near the Orndorff shaft, McDorman observed highvoltage cable contacting the DC feeder wire. (Tr. 151). He 

noticed that there were grooves in this cable where it had been 

rubbed by the trolley feeder wire. (Tr. 147). 

The subject high-voltage cable was described as 2 1/2 inches 

in diameter surrounded by an exterior rubber jacket insulation. 

(Tr. 148,158,259). This cable is shielded with a metal sheathing 

around the wires embedded inside the cable. The purpose of this 

shielding is to contain a high-voltage charge inside the cable 

and to trip a circuit breaker in the event that the cable is 

damaged. (Tr. 192-193). The high-voltage cable is normally hung 

from the mine roof with spads and wire placed approximately ten 

to twenty feet apart. (Tr. 190-191). 

With regard to the fallen cable, McDorman expressed his 

concern for mine personnel riding in a mantrip or jeep which 

could derail and damage the cable. In such an event, the 

occupants could sustain shock, electrical burn or electrocution. 

McDorman also testified that the cable observed rubbing against 

the trolley feeder wire was a potential ignition source if the 

insulation was penetrated. (Tr. 155,178-179). 

FURTHER FINDINGS AND CONCLUSIONS 

~ignificant and Substantial 

next issues for determination are whether the firehose 

and high-voltage cable violations cited by McDorman were properly 

designated as significant and substantial. The Commission has 

held that a violation is "significant and substantial" if, based 

on the particular facts surrounding that violationc there exists 

uaa, reasonable likelihood that the hazard contributed to will 

result an injury or illness of a reasonably serious nature. 10 

Cement Division, National Gypsum Co., 3 FMSHRC 822 1 825 (April 

1981) o In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission further explained~ 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard -- that is, a 

measure of danger to safety -- contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

509 
contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

Docket No. WEVA 92-800 

Applying the Mathies test, it is clear that the first 

element is satisfied as a result of the respondent 9 s failure to 

provide adequate firehose as required by Section 75.1100-2(a) (1}. 

The second and third elements in Mathies must be viewed in the 

context of safety standards that are intended to prevent or 

minimize injury in the event of an emergency. Violations of such 

standards create discrete safety hazards that are fundamental 

contributing causes to injuries although they may not be the 

proximate cause of such injuries. For example, the failure to 

have adequate escapeways in a mine would be a fundamental cause 

of serious or fatal injuries should a fire occur although it may 

not be considered the proximate cause. Likewise, the failure to 

have an adequate length of firehose that will reach the working 

face is the functional equivalent of having no firehose at all. 

This creates a discrete and continuing safety hazard which 

impedes mine personnel from defending against the persistent 

danger of a fire in an underground mine. 

It is inconceivable, given the remedial nature of the Mine 

Act, particularly in this case involving a mine meeting the 

criteria of section 103(i} of the Act, that Congress contemplated 

that the inability to fight fire could be construed as a nonsignificant and substantial hazard. Thus, I conclude that the 

absence of firehose that could reach the working faces is a 

that results a discrete safety hazard, and, is 

reasonably 1 that the continued existence of this hazard 

material contribute serious or fatal uries when 

viewed the context continued mining operations" 7 

This conclusion cons~s·cen·t with 'che Court of Appeals' 

discussion of respirable dust exposure, whereinu it recognized that 

a presumption that a violation is significant and substantial is 

consistent .with Congressional intent where the violation exposes 

miners to the cumulative effects of a fundamental hazard. See 

Consolidation Coal v. FMSHRC, 824 F.2d 1011, 1085-1086 (D.C. Cir. 

1987)o I construe the continuing inability to fight fire, which 

has not been adequately rebutted by the respondent, as a 

fundamental hazard constituting a significant and substantial 

violation. 

510 
Therefore, the violation was properly characterized as 

significant and substantial without addressing the issue of the 

likelihood of fire. 8 

Docket No. WEVA 92-801 

As noted above, a significant and substantial violation 

requires a finding of a reasonable likelihood that the hazard 

contributed to by the violation will result in an injury or 

illness of a serious nature. In this case, the respondent has 

conceded that the high-voltage cable exposed on the mine floor 

next to the supply track and the cable exposed to the trolley 

feeder wire constitute violations of Section 75.807. It is clear 

that the exposure of this high-voltage cable to possible 

derailment and to the moving trolley feeder wire creates a 

discrete safety hazard associated with the possibility of 

electric shock injury or fire. 

However, I am not convinced that the evidence of record 

demonstrates a reasonable likelihood that this hazard will result 

in serious injury. In this regard, the risk of injury is 

diminished by the number of events which must occur. 

Specifically, there must be (1) a derailment of a vehicle 

carrying mine personnel; (2) the derailment must occur in an area 

where the 275 feet of cable is exposed in this mine which 

contains approximately 15 miles of track (tr.242); (3) the 

vehicle must derail on the side of the track where the cable is 

exposed (tr.236); (4) the derailed vehicle must come into contact 

with the cable and penetrate the rubber jacket insulation; (5) 

the metal shielding must fail to trip the circuit breaker and 

prevent serious injury~ and (6) the disconnecting devices 

intended to immediately de-energize the voltage cable in the 

event of damage must also fail (trol54-156)o Given this series 

events which must occur before mine personnel are exposed to 

the risk of serious injuryu I am unable to conclude that the 

cable in proximity to the supply track created a reasonable 

likelihood of such injuryo With regard to the cable exposed to 

the trolley feeder wirev McDorman admitted that this conditionp 

alonep should not be viewed as a significant and substantial 

violationo (Tro 194) o Consequentlyv I am removing the 

significant and substantial designation from Order Noo 3314602o 

8 While I am not specifically addressing this issue, I wish to 

note that the excessive quantities of methane liberated by this 

Section 103(i) mine, and, the potential ignition sources described 

by McDorman, provide a basis for concluding that it is reasonably 

likely that fire and resultant serious injuries could occur. (Tr. 

101-104). 

511 
unwarrantable Failure 

The remaining issue concerns whether the subject violations 

are attributable to the respondent's unwarrantable fai The 

commission has noted that unwarrantable failure u&aggravated 

conduct, constituting more than ordinary negligence, a mine 

operator in relation to a violation of the Act. u; E:mery Mining 

Corporation, 9 FMSHRC 1977 (December 1987): Youghiogheny & Ohio 

Coal Company, supra; Secretary of Labor v. Rushton Mining 

Company, 10 FMSHRC 249 (March 1988)o The Commission has held 

that "unwarrantable failuren requires conduC't t:hat: not: 

justifiable or behavior that inexcusable" 

more than ordinary negligence characterized 11 thoughtlessness 11 and 11 inattentionGs. 

9 FMSHRC at 2001, 2010. 

Docket No. WEVA 92-800 

McDorman 1 s op1n1on that' ·the inadequate a result 

of the respondent's unwarrantable failure is by 

McDorman's own testimony. Significantly, in response ·to 

McDorman's suggestion at the preinspection conference, the 

respondent did obtain the fittings and ·the special T,vre.nch 

necessary to convert the waterline on the cont. 

firehose. The fact that this hardware could net be 

located contributes to the fact of the violation. However, as 

the respondent took the trouble to acquire this , its 

unknown whereabouts is more appropriately attributable to 

ordinary negligence manifested by inadvertence than 

aggravated conduct requiring a conscious disregard or 

indifference to the risk associated 

equipmento With regard the 

McDormanus testimony that 

determine the distances to the 

distances were not obvious and these 

change. Therefore, distances greater 

overlooked as a result of ordinary 

am modifying McDorman°s 104(d) 2', 

104(a) citationo 

Docket No. WEVA 92-801 

The record supports an unwarrantable 

respect to the respondentus violation 

threshold matter, the 275 feet fal was 

the 6 

concHtion 

in 

clearly visible from the jeeps and mantrips traversing 

North supply track. (Tr. 183-184,266)" Moreoverp this 

was well known to management in that it \vas repeatedly 

the preshift examination book prior to the afternoon 

starting at 4:00p.m., on September 15, 1991, and 

midnight shift on September 16, 1991. In factv 

respondent's safety escort, testified that the 

'to the 

Lemley, the 

ft foreman told 

512 
him at the beginning of the midnight shift that he had sent 

wiremen to rehang the cable. (Tr. 243-244). However, the cable 

was not reinstalled at 3:15 a.m. when McDorman issued Order No. 

3314602 to Lemley Thusp the condition was not corrected even 

though it had been noted in the preshift examination book 

approximately 12 hours before. 9 Finally, at the hearing the 

respondent stipulated to the fact that it received seven previous 

citations for violation of the same mandatory safety standard 

pertaining to high-voltage cable during the proceeding 24 month 

period. (Tr. 171,184,185). 

The failure of the respondent to correct the condition 

despite repeated reference in the preshift examination book, 

particularly when viewed in the context of its history of similar 

violations evidences a conscious disregard of the risk 

associated tvith the downed cable. lUthough I have concluded that 

this violation was not ficant and substantial in nature, the 

condition posed a risl<. of serious electric shock injury or 

electrocu·tion lvhich 1tJarranted the respondent 1 s immediate 

attention. Thus, I conclude that the petitioner has met its 

burden of es·tablishing an um·Jarrantable failure on the part of 

the respondent. 

ULTIMATE CONCLUSIONS 

As noted above, I am removing the unwarrantable failure 

component of Order No. 3716493 in Docket No. WEVA 92-800. 

Consequently t.his order is modified to a 104 (a) citation. The 

gravity of this violation serious and the underlying 

negligence associated ~rith this violation is moderate. In view 

and the il penalty criteria contained ~he Act, I am assess a penalty of $750. 

I'Tc. 33lt.\ 602 Docket No. WEVA 92-801, 

associated with this violation to be 

electrocutiono However I have removed 

designation. r find that the r despit.e .it:.s repeated entry in 

of ar violations, 

proposed penalty. 

of the .Act, I am 

J:::.t: , t.he respondent claimed that it \1'as prevented from 

::r:ehanging the high-voltage cable because it t>~as required to abate 

another viola·tion cited by McDorman for an unguarded trolley 

switch. I find Lemley 1 s testimony in this regard to be lacking in 

credibility. (Tr. 250-256). Moreover, this testimony was rebutted 

by McDorman. (Tr. 203-206). 

513 
Finally, I am incorporating the $20 settlement for Citation 

No. 3718465 in Docket No. WEVA 92-799. My decision in this 

regard is consistent with the statutory criteria and is supported 

by the Secretary 1 s presentation in support of the settlement 

motion at trial. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, it IS ORDERED that: 

(1) Order No. 3716493 is modified to a citation issued 

under Section 104(a) of the Act and IS AFFIRMED as 

modified. 

(2) Order No. 3314602 IS AFFIRMED and the 

significant and substantial designation for 

the underlying violation IS DELETED. 

(3) The proposed settlement agreement concerning 

Citation No. 3718465 IS APPROVED. 

(4) The respondent SHALL PAY a total civil 

penalty of $1,670 within 30 days of the date 

of this decision. Upon receipt of payment, 

these matters ARE DISMISSED. 

Distribution~ 

~~~~~ ~==ld Feldman 

Administrative Law Judge 

caryl L. Casden, Esq., Office of ~ne Solicitorr u.s. Department 

of Laboru 4015 Wilson Boulevardp Room 516, Arlingtonu Virginia 

22203 (Certified Mail) 

Daniel E. Rogers, Esq.c Consolidation Coal Company, 1800 

Washington Road, Pittsburgh? PA 15241 (Certified Mail) 

514 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAU JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

M~;; 1 8 1993 

SECRETARY OF LABOR 1 CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BROKEN HILL MINING COMPANY, 

INCORPORATED, 

Respondent 

: Docket No. KENT 92-610 

A.C. No. 15-15637-03539 

Docket No. KENT 92-700 

A.C. No. 15-15637-03540 

No. 1 Mine 

DEFAULT DECISION 

Appearances: Mary Sue Taylor". E:sq., u.s. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee 

for Petitioner; 

Before~ Judge Feldman 

These cases are before me based upon petitions for 

assessment of civil penalties filed by the Secretary against the 

respondent corporation. This matter was heard on January 21, 

1993, in Huntington, West Virginia. At the hearing, the 

Secretary presented his direct case through the testimony of Mine 

Inspectors John Church and Buster Stewart. Although being duly 

served with Notices of Hearing dated November 18 1 1992, and 

January 13, 1993, the respondent failed to appear at the 

scheduled hearingo For the reasons noted below, I find the 

respondent has defaulted in this matter" Consequently, I am 

issuing the following default judgment in accordance with 

commission Rule 63(b), 29 C.F.R. §2700.63(b). 

As noted at trial, Hobart Andersonu President of the ~espondent corporation 9 has had ample notice of this proceeding. 

on the day of the hearing I directed counsel for the petitioner 

call Mr. Anderson's office at 9~00 a.m., to determine why he 

hacl not arrived at the hearing. Mr. Anderson 9 s office is only a 

few minutes from the hearing location. Mr. Anderson 1 s secretary 

was advised that a default decision would be issued if he did not 

appear at the hearing by 10 a.m. Although Mr. Anderson 1 s 

secretary stated that she would contact him by beeper, 

Mr. Anderson failed to appear. 

On January 22, 1993, Mr. Anderson called me to apologize for 

his failure to participate in the hearing. On January 28, 1993, 

I issued an Order to Show Cause directing Mr. Anderson to explain 

why a default decision should not be issued. Mr. Anderson 

515 
replied on February 18, 1993. In his response, Mr. Anderson 

apologized and stated that, "There was confusion on my part as to 

the date of hearing. I did not realize that the hearing was on 

for that date." Mr. Anderson's "confusion" does not constitute 

an adequate justification for his failure to appear. 

Despite Mr. Anderson's failure to attend, I required the 

Secretary to present its direct case to support the 104(a) 

citations and 104(b) orders issued in these proceedings. The 

testimony of Inspectors Church and Stewart concerning the 

occurrence of the violations as alleged and the significant and 

substantial nature of these violation is of record and need not 

be repeated. Therefore, I am affirming the citations for the 

specified violations as issued. 

Howeveru I am troubled by the rationale provided by 

Inspector Stewart for the issuance of the 104(b) orders. The 

respondent apparently mining its No. 1 Mine on a contract 

basis. Mining operations were suspended approximately January 1, 

1992, when Island Creek Coal Company sold its ownership interest 

in the No. 1 Mine to A. T. Massey. During this change in the 

underlying ownership of the mine, the respondent's coal 

production activity was temporarily suspended and the mine was 

placed in non-productive status. (Tr.40-41). Inspector Stewart 

testified that the 104(b) orders associated with the citations 

noted below were issued to ensure that the cited violations would 

be abated prior to the respondent's resumption of coal 

production. In this regard, Inspector Stewart testified that: 

I issued the [104(b) orders] because compliance and 

noncompliance could not be determined, you know, there 

'i,vas no one at the mines (sic). You didn 1 t know whether 

or whether they wasn 1 t fixed (sic). And 

extended them all the time that I felt was 

necessary and justified. (Tr. 46). 

!nsoector Stewart further testified that he did not intend 

the l04(b) orders. However, he stated that he could not 

find anvone a·t the mine in order to determine if the violations 

been ~batedc (Tr.81-82). Finally, Inspector Stewart 

fied that it was his belief that the 104(b) orders increased 

the proposed pena for the underlying citations. (Tr. 94)o 

Section 104(b) of the Mine Act authorizes the issuance of 

withdrawal orders for failure to abate a citation. Section 

104(a) of the Act, however, requires that the operator be 

afforded a reasonable abatement period to correct a violative 

condition. In the current case, the abatement orders were issued 

because the mine was idle and the inspector was unable to 

determine if the violation was terminated. It is the failure to 

abate rather than the inspector's inability to determine if 

abatement has occurred which provides the basis for the 

516 
imposition of sanctions under Section 104. 1 The Secretary has 

failed to establish that the pertinent violations were not abated 

at the time of the March 13r 1992, issuance of the subject 

orderso Accordingly, the 104(b) orders must be vacated. 

In view of the above, I am vacating the l04(b) orders shown 

below and I am reducing the assessed penalties for the underlying 

violations associated with these .orders. My decision with 

respect to the citations and orders in issue is as follows: 

Docket No, KENT 92-610 

Citation or Date 

Or«5\er Noo 

3814394 

3814395 

3805841 

3806378 

805842 

3806379 

3805843 

3805845 

80634,2 

9/25/91 

9/25/91 

12/12/91 

3/13/92 

12/12/91 

3/13/92 

12/12/91 

12/12/91 

3/13/92 

0" 

~r ..!~ 

::; 2 5,/9 J~ 

,n .. 3/92 

2 91 

/! .. 3/92 

."rYPe of Action 

104 (a) c 

104 (a) c 

104 (a) c 

104 (b) 0 

104 (a) c 

104 (b) 0 

104 (a) c 

104 (a) c 

104 (b) 0 

104 a) I"' ,_ 

104 b 

l04. (a) r" 

2.04 (b) 0 

lOLl, (a) C 

104 (b) 0 

30 C.P.R. Proposed 

section Penalty: 

75.523-3 $112 

75.523-3 $112 

75.1722A $240 

75.523-2(c) $240 

75.503 $ 85 

75.523-2(c) $240 

75a400 $325 

$305 

75.523-3 $305 

Assessed 

Penalty: 

$112 

$112 

$160 

vacated 

$160 

vacated 

$ 85 

$160 

vacated 

$218 

vacated 

$204 

vacated 

$204 

vacated 

1 Although the operator is obliged to keep the inspector 

informed concerning its progress in its abatement efforts, 

imposition of this obligation presupposes active mining 

operationso 

517 
3805844 

3806341 

3805847 

3806344 

12/12/91 

3/13/92 

12/12/91 

3/13/92 

104 (a) c 

104 (b) 0 

104 (a) c 

104 (b) 0 

ORDER 

75.503 $240 

75.316 $325 

$160 

vacated 

$218 

vacated 

ACCORDINGLY, a Default Judgement IS ENTERED in favor of the 

Petitioner, and the Respondent IS ORDERED to pay a civil penalty 

of $1,793 in satisfaction of the violations in issue. Payment is 

to be made within (30) days of the date of this decision. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S" Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail} 

Mr. Hobart w. Anderson, President, Broken Hill Mining Co., Inc., 

P.O. Box 989v Ashland, KY 41105 (Certified Mail) 

518 
I 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMiNISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 1. 91993 

~ECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 92-543 

A. C. No. 15-11620-03531 

v. : 

Hall No. 2 Mine PYRP~ID MININGQ INCORPORATED, 

Respondent 

Appearances: 

DECISION 

Darren L. Courtney, Esq., u.s. Department of 

Labor, Office of· 'the Solicitor, 2002 Richard Jones 

Road, Nashville, Tennessee, for Petitioner; 

Frank Stainback, Esq., Holbrook, Wible, Sullivan, 

& Mountjoy, P.S.c., owensboro, Kentucky for 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

At issue in this civil penalty proceeding is whether the 

operator (Respondent) violated 30 C.F.R § 48.27(a) as alleged by 

MSHA inspector Darrel No Gamblin in an order he issued under 

section 104(g) (1 of the Federal Mine Safety and Health Act of 

1977 °

0t.he Act 00 y o Pursuant to notice v a hearing in this mat·ter 

1

In the 104(g) (1) Order (Order No. 3416888g Government 

Exhibit No. lv Page l}u Gambling referred to a Citation issued 

the same date alleging a violation of 30 C.P.R. § 48.27" Subsequentlyf on December 23p 1991p the order was amended to delete 

this reference and in its placeu an addition to the order was 

made indicating a violation of 30 C.F.R. § 48.7. At the hearing 

in this matter on December 8, 1992f Petitioner served the Respondent with a written modification of the original 104(g) (1) order 

amending it to indicate a violation of 30 C.F.R. § 4B.27f rather 

than 30 C.F.R. § 48.7. Respondent 9 s counsel accepted service, but 

argued that this modification "comes to late". However, Respondent's counsel indicated, in essence, that he was not alleging 

prejudice if this modification were to be allowed. He also stated 

that he was not surprised by the amendment. Also, at the hearing, 

evidence presented by both parties pertained to the issue of a 

violation under Section 48.27 supra rather than Section 48.7 

supra. 

519 
was held in Evansville, Indiana, on December 8, 1992. 

Darryl N. Gamblin testified for Petitioner and Ricky Stone, 

Curtis J. Bryant and Mike Hollis testified for Respondent. On 

February 17, 1993, Respondent's brief was received. Petitioner's 

Proposed Findings of Fact and Post Hearing Brief was received on 

february 22, 1993. Respondent's Reply Brief was received 

,ebruary 25, 1993. on February 29, 1993i Petitioner's Reply ~rief was received. 

Findings of Fact and Discussion 

The auger m~n~ng site at issue is operated by Westlo, Inc., 

("Westlo") under contract with Respondent. On May 29, 1993, at 

7:00a.m., Respondent instructed one of its employees, Ricky 

stone, to go and work at the subject site. stone arrived at the 

site at approximate 7:10 a.m-. He was assigned to operate a 

bulldozer that had been modified with a conveyor ("stacker"). 

Prior to that time, Stone had never operated a stacker although 

he had 12 years experience operating heavy equipment including 

bulldozers. 

Gamblin asked stone if he had received any type of training, 

and Stone indicated that he had not. Gamblin also asked Curtis 

J. Bryant, the Westlo on-site supervisor, about training. Bryant 

told him that he was showing Stone around. According to Gamblin, 

Bryant did not indicate that Stone was being task trained. There 

was no record of Stone having been task trained for this piece of 

equipmentu and Stone did not have any certificate regarding task '\,.,. ~ 0 \ ... ra1.n1.ng. 

Gamblin issued an order requiring the withdrawal of Stone 

pursuant to Section 104(g)(l) of the Act on the ground that he 

had not received task training. Gamblin explained that the prime 

hazard of operating a stacker is getting caught between the 

conveyor system and the rollerso 

Gamblin indicated that subsequent to the issuance of the 

orderu he discussed the order with Charles KennedyQ Respondent's 

mine superintendentu and the latter did not indicate that Stone 

was task trained. Alsov Gamblin spoke to Mike Hollisv 

Respondentas safety directoru over the telephone regarding the 

order. According to Gamblin, Hollisu did not indicate that Stone 

was task trained, but indicated that he had been trained on a 

bulldozer. 

Stone testified that before he operated the stacker at 

issue, curtis J. Bryant, the Westlo supervisor on the site, 

520 
showed him how to operate the stacker. He said that Bryant 

showed how to e•kickv' the conveyor in and out of gear, how to move 

it, and how back it under the auger. He said that Bryant spent 

about one hour providing the training. 

According to Stonef when Gamblin asked him if he had task ~raining, he did not know what Gamblin was talking about, and 

\said "what is task training" (Tr. 71). stone indicated that 

Gamblin did not respond, but started to write the citation. 

Bryant testified that when Stone arrived on May 29, 1991, 

the first day of operations: he took him to the stacker, and 

explained the function of each lever on the equipment. Bryant 

said that he showed Stone how to hook the stacker to the 

conveyorff and Stone then did this procedure 2 or 3 times while 

Bryant stood there to see that Stone was operating the stacker 

properly. According to Bryant, he then spent about an hour 

working with Stone showing him the operation of the stacker. 

Bryant remained approximately 30to 4D feet away when Stone 

operated the equipment. Bryant explained that when Gamblin 

issued the 104(g) withdrawal order on May 29, 1991, he had not 

yet filled out the paper work on Stone's training, and that he 

still had to train Stone on some additional matters. Bryant 

explained that he still had to train stone in further operations 

such as aligning the Yi·tail piece of the stacker underneath your 

conveyor on your the auger correctly". (Tr. 103) [sic]. He also 

had to train Stone to direct the alignment of coal trucks under 

the stacker. 

According to Stone, on June 4v 1991, he returned to the 

premises and in front of Gamblin Bryant showed him the same 

things before on May 29. He said this 

minutes v and t.he order was 'chen 

abatedL He ved a certificate" 

The Commissionu in Southern Ohio Coal Co. 9 14 FMSHRC 1781, 

1785 0 {November 23 1992) set forth the following with regard to 

the burden OY proof regarding the violation of a safety standard 

as follows imposes on Secretary the burden of 

proving a of a safety standard. See Garden Creek 

Pocahontas Companye 11 FMSHRC 2148u 2152 (November 1989); 

Consolidation Coal Comoanvc 11 FMSHRC 966 9 973 {June 1989). 19 

Hence 2 in order for the challenged 104(g} (1) order to be 

sustainedu the Secretary must establishu a violation by 

Respondent of 30 C.FcR. § 48.27 supra whichv in essence, requires 

the following tasJc training; 

a. Instruction in the health and safety aspects and 

safe operating procedures related to stacker operation 

given in an on the job environment (30 C.F.R. § 

4 8. 2 7 (a) ( 1) ) ; and 

b. Supervised practice during non-production (30 

c . F • R. § 4 8 • 2 7 (a) ( 2 ) ( i) ) ; or 

521 
c. Supervised opera~lon during production (30 C.F.Ro § 

48o27(a) (2) (ii)) o 

It is incumbent upon the Secretary to establish that Stone 

did not receive such training. There is no record of Stone 

~aving received such training. Stone was not given a certificate 

pertifying that he had-received such trainingu and neither Bryant 

~or Stone indicated to Gamblin that Stone had received "task 

trainingn. Howeveru I observed the demeanor of Stone and Bryant, 

and found their testimony credible that Bryant had in fact, prior 

to Gamblin°s arrival, provided Stone with approximately an hour 

.of instruction and supervision regarding the operation of the 

stacker. (c.fo 9 L.J 0 s Corporation 9 14 FMSHRC 1278 (1992)). 

Howeveru the training was not complete, as Bryant still had to 

train Stone to line up the stacker and the auger; and to direct 

the alignment of coal trucks under the stacker. Nonetheless, 

Stone operated the stacker until the transmission hung 19 between 

two gears and it became inoperativeo (Tr.69) Section 48.27 

supra providesv in this connectionv that a miner shall not 

perform new work tasks until,.training 91 has been completed. g' 

Since Stone operated the stacker before training was completed, 

Section 48.27 supra was violated by Respondent" 2 

Gamblinv in his orderv indicated that the violation herein 

was significant and substantialo Howeverf no testimony was 

offered in support of this conclusion. In Mathies Coal co., 

6 FMSHRC 1 (January 1984)v The Commission set forth the elements 

of a "significant and substantial" violation as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gvpsum the Secretary of 

Labor must: prove~ · :'..); t.h·e underlyinq v]_olct"tion of a 

mandatory safety standard~ \2) a discrete safety 

hazard--that 2s, a measure f danger to safety--

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and, 4) a reasonable likelihood that 

the injury in question-will be of a reasonable serious 

naturec 6 FMSHRC, supra, c:rt 3-4,ol; 

2I do not find that Respondent was still in the process of 

training Stone when citedo -Once Stone began to operate the 

loader after the one hour instructionv there is no evidence that 

Bryant provided any further instruction. Bryant remained in the 

areaf and had told Stone that 91 if he had was having any problems 

or did not understand anything just holler at me" (Tr. 91) o 

However 1 there is no evidence that Bryant took any action to 

actively direct or observe Stone operating the stacker.-

522 
In United sta"i::es Steel Mining company, Inc. , 7 FMSHRC 1125, 

1129 (August 1985)u the Commission stated further as follows: 

We have further that the third element of the 

Mathies formula requires that the Secretary establish 

a reasonable lihood that the hazard contributed to 

will result an event in 'lt..rbich there is an injury". 

U.S •. Steel J:>iining Co. f 6 FMSHRC 1834, 1336 

(August. 1984) ., 

Although can result from lack of training in 

operating a stack~en: t:.he record is devoid of any proof that there 

was a reasonable .;;. ihood of the occurrence of an injury of a 

reasonably S(""r ~'i::lture that was contributed to as a result of 

the violation (Seer !,Yathies Coal Co., 6 FMSHRC 1, 3-4 

(January 198,!l, o u the record indicates that Stone 

had .12 years operating heavy equipment including 

bulldozers. , ·the testimony of Bryant and Stone 

credible regarding ~he extent of training provided to Stone. I 

also accep~: Q based ·on observations of their 

demeanor, that on June 4, approximately five minutes of training 

was provided to Sb:me Hh.i.ch was accepted by Gamblin in abating 

the order at: also indicated that this training did 

not include the training previously given 

on May 29 (I \r!hen c:'_·t.ed" that Respondent was in 

substan'tia·l it.h 48o27 supra when cited. For 

all these reasons I conclude that the violation was not 

significant and subs·tant.ia1. For the same reasons I conclude 

that the violat tvas of a low level of gravity, and that 

Respondent to a slight degree in connection 

t'\l'ith the Considering all remaining factors set forth 

Distribution~ 

Actc ~ f that a penalty of $20 is 

ls~~~r found herein. 

Nco 341688 he amended to indicate a 

substantial. It is further 

30 , as a civil 

¥ 

fi I) /J 

l~~ Avram Weisberger 

Administrative Law Judge 

Darren Lo Courtney ., Office of the Solicitor, u.s. 

Department of Laboru 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 {Certified Mail) 

l<'rank Stainbacku Esq., Holbrook, Wible, Sullivan, & Mountjoy, 

~.S.C., 100 St. Ann Street, P.O. Box 727, Owensboro, KY 42302-

0727 (Certified Mail) 

nb 523 
FEDERAL l!IIRE SAFE'fi' AtiD BEAilPH REviEW COIIIIISSIOII 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CHICO CRUSHED STONE 

PARTNERSHIP, 

Respondent 

. . 

0 

0 

0 

0 

Docket No. CENT 92-136-M 

A.C. No. 41-00076-05537 

Chico Plant No. 57 

DECISION 

Appearances: Daniel curran,,.Esq. 1 Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

Petitioner; 

Before~ 

c. Gregory Ruffennach, Esq., Smith, Heenan 

and Althen, Washington, D.C., for Respondent 

Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 801, 

et seg., the "Act," charging Chico Crushed Stone Partnership 

(Chico) in a citation issued pursuant to section 104(d)(l) of 

the Act with one violation of the mandatory standard at 30 C.F.R. 

(5 56. 3200" 1 Secretary also issued Order No. 3899014 under 

Section 104(d)(l) of the Act provides as follows: 

uu u upon any inspection of a coal or other mine u 

an authorized representative of the Secretary finds 

that there been a violation of any mandatory health 

or safety standardu and if he also finds that, while 

the conditions created by such violation do not cause 

imminent dangeru such violation is of such nature as 

could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health 

hazard, and he finds such violation to be caused by an 

unwarrantable failure of such operator to comply with such 

mandatory health or safety standards, he shall include 

such finding in any citation given to the operator under 

this Act. If, during the same inspection or any subsequent 

inspection of such mine within 90 days after the issuance 

of such citation, an authorized representative of the 

Secretary finds another violation of any mandatory health 

or safety standard and finds such violation to be also 

524 
Section 104(b) of the Act for Chico's alleged failure to abate 

the violation charged in the citation. 2 

The general issue before me is whether Chico violated 

the cited regulatory standard andv if so; whether the violation 

was "significant and substantial, 8 whether the violation was 

the result of the operator 8 s nunwarrantable failure," whether 

the subsequent order of withdrawal was properly issued 

pursuant to Section 104(b) of the Act and the appropriate 

civil penalty to be assessed" · 

The citation at. bar, No" 3899013 r alleges a violation of 

the mandatory standard at. 30 CaF oRo § 56 o 3200 and charges as follows~ 

[~~u] been scaled 

Findings~ The b [sic] west highwall at the Jones 

Property had loose material" hanging from it. 

The highwall is app. 100 feet high and employees 

are required in the area at various times" The 

fno 1 (continued) 

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 fromo and to be prohibited from entering, 

such area until an authorized representative of the Secretary 

det.er:m.ines that such. has been abateClo "' 

Section 104(b) of the Act provides as followsg 

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

other mineo an authorized representative of the Secretary 

finds { 1} 'chat a violation described a citation issued ~ursuant subsection a) has not been totally abated 

the period time as original fixed therein or 

as subsequently extended, and (2) that the period of time 

the abatement should not be further extendedp he shall ae~ermine extent of the area affected by the violation ~hall promptly issue an order requiring the operator of 

such mine or his agent immediately cause all personsu 

except those persons referred to in subsection (c} 9 to be 

withdrawn from, and to be prohibited from enteringv such 

area until an authorized representative of the Secretary 

determines that such violation has been abated.n 

525 
last shot was shot on 5/3 and the walls had not 

been scaled. 3 

This is an unwarrantable failure. 

The cited standard provides as follows: 

Ground conditions that create a hazard to persons 

shall be taken down or supported before other 

work or travel is permitted in the affected area. 

Until corrective work is completed, the area shall 

be posted with a warning against entry and, when 

left unattendedc a barrier shall be installed to 

impede unauthorized entryo 

In May 1991 the pit area of Chico Plant No. 57 located 

on the nJones Property" had adjacent highwalls on the north, 

south and west sides. On May 6, 1991, only the northern 

200 feet of the 400 foot west highwall was actively being 

mined for its limestone product. The west highwall was 

80 to 100 feet high in the area being actively mined {see 

Exhibit No. P-2). The mining cycle consisted of drilling 

and firing explosive shots from the top of the highwall, 

examining the area for unfired shots and hanging material, 

removing the blasted limestone product (muck) from the pit 

and cleaning the top for the next shot. 

It is undisputed that at the time Citation No. 3899013 

was issued on May 6 1 1991, muck or debris consisting of 

varying sized limestone rocks that had recently been blasted 

off the northern half of the west highwall lay at the base 

of highwall some 20 to 50 feet high and extended into 

<:Che to abou·t 150 feet from t:.he base of the highwall o 

credible testimony of blaster Donny Lee Ruddick supports 

finding that debrisp apparently overburden consisting of 

soil and rocks blasted from the topu also lay at the base 

of the highwall around the ggpoint" (see Exhibit No. P-2) -- the only other area identified by the Secretary as being 

the scope of the citation at baro According to Ruddickfs 

testimony, supported by the blasting records (Exhibits R-3 

through R-5)u this material remained following blasting on 

April 26 and May 1 1991 v and ii:Tas 35 ·t.o 50 feet high at the 

base the highwall and extended at a 37 degree angle of 

3 At hearing the cited area of the west highwall was 

further delineated on Exhibit P-2 as the area outlined in red. 

526 
repose to about 75 feet from the base. It is noted that 

MSHA Inspector Kirk also acknowledged that there were in 

fact bc:>ulders in this area up to 24 inches by 24 inches in 

size. He could not, however, recall that the material was 

piled at the dimensions described by Ruddicke 

According to Inspector Kirk, at the time he issued 

the citation, the muck at the base of the highwall provided 

a sufficient barrier so that the loose material on the highwall presented no hazard to persons. Indeed, he testified 

that there would in fact be no hazard to persons from loose 

material on the highwall unless and until the muck was cleared 

to within 10 feet of the highwall. Kirk testified, however, 

that it is MSHA .. s policy to nevertheless charge the mine 

operator with a violation under the cited standard even 

though no present hazard exists if men are in the process 

of ren1oving the muck -- apparently based on the possibility 

that at some time in the future persons might become exposed 

to the~ hazard if the muck was cleared to within 10 feet of 

the highwall face and no action',was taken to scale the loose 

material off the highwall. 

~rhe Secretary's position is however untenable. It 

is a l>asic premise of our system of jurisprudence that one 

may not be penalized for a violation that may or may not be 

commi t:ted in the future. In any event, the cited standard 

protects only against existing hazardous conditions, not future~ possibly hazardous conditions. Moreover, since the 

Secre1:.ary concedes in this case that "ground conditions" 

on thE~ highwall did not "create hazards to persons" at 

the t:ime the citation was issued, there clearly could be 

no vir:>lation of the cited standard" The citation would 

also on the basis that the 00 affected area 00 involving 

hazard was, according to the Secretaryu only within 

10 the highwall and there no evidence that any tvork or travel ov occurred within that affected area. 

Under the circumstances the Secretary has failed to 

sustain her burden of proving that a violation has occurred" 

Citation Noo 3899013 and Order Noo 3899014 9 issued under 

Section 104(b) of the Act and premised upon that citation, 

must accordingly be vacated" 

527 
ORDER 

Citation No. 3899013 and Order No. 3899014 are 

hereby vacated and this civil penalty proceeding is 

DISMISSED. 

Distribution: 

ary Me. ick 

Adminis~rative 

70 3-7 56~ 6261 

Daniel T. Curran, Esq., Office of the Solicitor, 

u.s. Department of Labor, 525 ?outh Griffin Street, 

Suite 501, Dallas, TX 7520~ .~rtified Mail) 

Michael Heenan, Esq., Smith 1 Heenan and Althen, 

1110 Vermont Avenue, N.W., Suite 400, Washington, D.C. 

20005-3593 (Certified Mail) 

/lh 

528 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 4 1993 

MONTEREY 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. 

MONTEREY COAL COMPANY, 

Respondent 

: CONTEST PROCEEDING 

. . , ·0· 

Docket No. LAKE 92-216-R 

Citation No. 3842177; 1/24/92 

No. 1 Mine 

Mine ID 11-00726 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 92-252 

A.C. No. 11-00726-03701 

No. 1 Mine 

DECISION 

Appearances~ Miguel J. Carmona, Esq., U.S. Department of Labor, 

Office of the Solicitoru Chicago, Illinois, for 

the Secretary of Laborv 

Thomas c. Meansp Esq.v Crowell & Moringu 

Washingtonr D.C.r for Monterey Coal Company. 

Before~ Judge Weisberger 

Statement of the Case 

At issue in these consolidated cases is the validity of a 

citation issued on January 24u 1992v by MSHA inspector Jimmy Ray 

Lee alleging a violation of 30 C.F.R. § 75.606 as follows: "The 

trailing cable supplying power to the number 1332 ratio feeder 

was not protected to prevent damage from mobile equipment. The 

cable had tire tracks on it for a distance of eight feet and was 

pushed into the mine floor 2 inches." Section 75.606 supra 

provides as follows: "Trailing cables shall be adequately 

protected to prevent damage by mobile equipment." 

Pursuant to notice, the cases were scheduled for hearing, 

and were heard in st. Louis, Missouri, on December 15, and 16, 

1992. At the hearing, Jimmy Ray Lee, Jerry Collier, and Lonnie 

Conner, testified for Petitioner. Raymond Houlihan, Floyd w. 

529 
Johnson, Paul Mihalek, Robert Whitmore, Allan Silkwood, and 

Richard Mottershaw, testified for Respondent. Subsequent to the 

hearing, Respondent filed a post-hearing brief on January 27, 

1993. on January 29, 19~3, the Secretary filed a post-trial 

briefo On February 5, 1993, Respondent filed a reply brief. 

I. Findings of Fact 

1. The floor of the entry in question is 18 feet wide. A 

roadway in the entry is 10 feet wide with loose material on 

either side. The widest vehicle that travels the roadway in this 

area is nine feet wide. 

2. On January 24, 1992u a cableu which was attached to a feeder 

and was not energized, was lying not in the floor of the entry 

but was approximately three feet from the rib in loose material 

that had accumulated from sloughage off the rib. The cable was 

close to the demarcation between this material and the roadway, 

but it was not in the roadway-~ The cable was not in the normal 

path of the vehicles that travel the entry in question. 1 

3. An eight foot long section of the cable had rubber tire 

track marks on it indicating that it was run over, for 

approximately an eight foot distance, by either a rubber-tired 

battery or diesel mobile vehicle. MSHA inspector Jimmy Ray Lee 

issued a citation alleging a violation of Section 75.606 supra. 

4. The cable had been pushed approximately two inches into the 

material by the vehicle that had run over it. 

no evidence in record as to why and exactly 

run overc 

of the into which the cable had 

been when was run over was clay mixed with rock dust. 

There were also pieces of crushed stone in the material. There 

is no measurement of the depth of the loose materialu or 

However 7 underneath the 

clay Has 

1

According Allan Sil1cvroodff the safety superintendent of 

~he subject mineu employees are instructed to drive toward the 

right side inbyv in order to avoid the cables and other equipment 

that are placed along the left side inby. Thus, there appears to 

be corroboration for the opinion of Floyd w. Johnson, the 

construction coordinator at the mine, that a vehicle travelling 

the normal path would not have hit the cable in issue and run 

over it. However, it appears not to be controverted that, in 

fact, a vehicle did run over the cable in question for a distance 

of eight feet. 

530 
7. Lee examined the cable visually and by touch. No damage to 

the outer insulation was noted. Nor was any abnormality detected 

upon this examination which would indicate the existence of 

internal damage. Also, a megger test was performed which 

indicated a reading of infinity. This reading exceeded the 

requirements for a determination that the inner insulation around 

the three power conductor and two ground wires was not broken. 

After these examinations, Lee moved the cable to within a few 

inches of the rib, and abated the citation. 

8. Jerry Collier, a supervisory electrical engineer employed by 

MSHA, opined that had the cable not been moved in abatement, it 

could have been run over again, and its insulation could have 

been punctured by a sharp object laying on the floor. He also 

indicated that in the process of being run over, the cable could 

be crushed, which could cause a conductor to act as a knife, and 

cut another conductor or ground cable, causing an electrical 

short and possible arcing. He indicated that if the cable were 

to be repeatedly being run over and crushed, the inner conductors 

would be bared. 

Floyd w. Johnson, Respondent's construction coordinator, 

testified, in essence, that he never encountered a megger test 

indicating a fault with insulation as a consequence of a cable 

being run over by a vehicle with rubber tires. He opined that, 

accordingly, even if vehicles would continue to run over the 

cable, it would not be further damaged, as it was "smashed into 

the ground. No longer was anything coming in contact with it" 

(Tr. 172). In contrast, Collier indicated that there can be 

internal damage to the conductors even if there is no such 

indication in the megger test. In this connection, Robert 

Whitmore 7 a staff electrical engineer for Respondentu agreed that 

it. possible <that internal damage would not show up a :megger 

test. Thus 7 accept Collier 9 s opinion and find that 

possible that there was internal damage to the conductors. Since 

there is no evidence why and exactly when the cable was run over, 

I cannot find that had the cable not been repositioned in 

abatement it would not have been run over again given continued 

ruining operations. 

II. Discussion 

A. Violation of Section 75.606 supra 

As correctly argued by Respondentu Section 75.606 1 supra 

imposes a standard regarding the adequacy of protection against 

damage. It is essentially Respondent's position that because the 

cable was not in fact damaged, as established by visual 

inspection, inspection by touch, and megger testing, it must be 

concluded that the standard was not violated, as the cable was 

adequately protected. Respondent also refers to the protective 

aspects of the construction of the cable, the placement of the 

531 
cable outside the roadway on loose gob where it was cushioned, 

the lack of evidence that it was run over more than once, and the 

agreement of the witnesses that it was run over by a vehicle with 

rubber tires. Respondent also argues that had Congress intended 

to require the placement of the cable ~o afford protection 

against damage it would have done so, as it so specified in other 

sections of the Act. 2 I do not accept Respondent's arguments for 

the reason that followo 

In analyzing the scope to be accorded the wording of Section 

75.606, supra ~ reference is made to the Legislative History of 

Section 207(f) of the Federal Coal Mine, Health and Safety Act of 

1969 (~The 1969 Act") (Public Law 91-173). The Senate Report 

indicates as follows regarding its analysis of Section 306(f) of 

the Senate Bill (S.2917), whose language was continued in Section 

206(f} supra of the 1969 Act as follows: "Trailing cables must 

also be protected against damage from other mobile equipment. As 

the wheels or tread links of mining machines pass over trailing 

cables, the insulation is torn from the cables causing shock 

hazards and short circuits which can easily result in a mine 

fire. In 1968 two mine fires were caused by not protecting 

cables from damage by mobile equipment." (S. Rept. 91-411, 91st 

Congress, 1st Sess., September 1969, at 71 1 (Reprinted, in 

Legislative Historv of Federal Coal Mine Health and Safety Act of 

(Public Law 91-173), ("Legislative History"), at 197. 

Hence, in enacting section 306(f) supra, Congress was concerned 

with the recognized hazard of insulation being torn from cables 

as a result of being run over by wheels of mining machines. 

Clearly, exposure to this hazard can result from the cable's 

location, as well as from inadequate insulation. In other words, 

can be protected from damage by its construction, as 

c improper placement of the 

we~l as , can expose the cable to 

torn frora it as a result of being 

run over. Congressiona1 concern would be thwarted if the 

protection mandated by Section 306(f) supra of the 1969 Act 

lbe interpreted narrowly to include the location of a 

~he ~ne record tends to establish that the 

Cl~ed, was not damaged. However, an analysis must be 

of t.he condition at the time 

cited, but continuation of mining 

2

Respondent citest in this regard, 30 u.s.c. § 868(h), and 

30 UoS.C. § 870. 

3

The wording of Section 306 (f) supra, was incorporated by 

reference in the Federal Coal Mine Health and Safety and Health 

Act of 1977, ("the 1977 Act") set forth as a regulatory safety 

standard in Section 75.606 supra. 

532 
operations must be taken into account. In this connection, I 

take into account the following factors: the presence of pieces 

of crushed stone in the material where the cable was lying, the 

presence of a hard limestone floor underneath the loose material 

and clay, the location of the cable in the material close to the 

demarcation between the loose material and the roadway, the 

relative narrow tolerance between the 9-foot wide vehicles that 

travel the roadway and the 10-foot wide roadway, the fact that 

the cable was indeed run over at least once4 , the lack of an 

explanation to indicate that the incident in question in which a 

vehicle ran over the cable was a one-time-only event, and the 

possibility that there may have been internal damage to the 

conductors in the cable in spite of the megger test. Within this 

framework I conclude that had the cable not been moved, there was 

a possibility of additional incidents of it being run over, 

leading possibly to damage to the insulation of the cable, or to 

the interior conductors. Hence, I conclude it has been 

established that the cable was not adequately protected to 

prevent damage by mobile equipment4 I find that Respondent did 

violate Section 75.606 supra as alleged. 

B. Significant and Substantial 

The law is well established with regard to the requisites in 

establishing that a violation is significant and substantial as 

alleged herein by Lee. 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.FoR § 814(d (l)o A violation properly designated 

ignificant and substantial " based upon the particular facts 

surrounding the there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co.c 3 FMSHRC 822, 825 (April 1981). 

4Seef u.s. Steel Mining Co.~ 6 FMSHRC 155 (January 1984) 

Judge MelicJc) (violation of Section 15.606 supra upheld where a 

cable was found under a tire) ; See also, National King Coal 

13 FMSHRC 33 9 38 (January 1991) (Judge Cetti) (violation of 75.306 

supra established where a cable was damaged by mobile equipment. 

As dictum, it was noted that MSHA does not have to prove that a 

cable was damaged in order to sustain a finding of a violation of 

Section 75.606). For the reasons set forth above, I choose not 

to follow u.s. Steel Mining co., 6 FMSHRC 1664 (Sept 1984) (Judge 

Koutras) (citation alleging a violation of Section 75.606 supra, 

was ordered vacated, where the cable that had been run over was 

not damaged). 

533 
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula g'requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury. 00 U.S. Steel Mining Co. 9 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

: have already found a violation herein of a safety 

standard. ~lsoJ = ~ound that the violation herein contributed to 

the hazard cf damage to the insulation of the cable and inner 

wires. Should this occur, an electrical shock could result to a 

person handling the cable. Arcing or an electrical short could 

also resultc triggering a fire. Henceu I find that the first two 

elements of Mathies u supra·' have been met. Thus, the issue for 

resolution is whether ·there t.vas a reasonable likelihood of the 

occurrence of an injury producing event ioe. electric shock to a 

minerr or a short or arcing causing a fire or an explosion. 

At 'the t.ime the condition was cited u the cable was not 

energizedo Howeverr Lee testified that immediately prior to the 

issuance of the citation he observed two miners walking from the 

coal feeder 5 to which the cable was attached, toward the power 

5

The feeder is used solely in connection with coal 

production. When cited, the area in question was devoted to 

construction and not coal production. 

534 
center. These employees told him that they were going to 

energize the cable. 6 

In essence, according to Lee, once power would have been 

restored to the cableu injuries would likely have resulted. In 

this connectionu he said that miners handle the cable when the 

feeder is moved to another location, and hence could come in 

contact with a damaged cable, leading to electrical shock, burns, 

or even a fatality. Collier cited statistics indicating 21 

electrocutions between 1970 and 1987 as a result of mishandling 

cables, 132 non-fatal injuries between 1983 and 1987 due to 

damaged cables resulting in a loss of 1,675 workdaysv 40 

accidents involving persons handling cables and contacting bare 

cables, and seven fatalities resulting when persons handled 

cables and touched bare conductors. 

Collier opined that there was a reasonable likelihood that 

the cable in question was damaged. He indicated that there can 

be internal damage to the cable j:;l'lat d.oes not show up in a megger 

test. In this connection, he testified that even a little damage 

can set up a hazardous condition. He cited a fatal accident that 

occurred in 1981 where only a pinhole in a cable (as a result of 

carbon tracking) led to a loss of insulation on the interior bare 

wires which resulted in a fatality. He also opined that should 

the violative condition have continued, there was a reasonable 

likelihood that a serious accident would have resulted. He 

indicated, in essence, that when mobile equipment runs over a 

cable, it has "a crushing effect" (Tr. 79). He also indicated 

that contact with a sharp object on the floor when the cable is 

run overu could lead to a puncture which could result in a real 

hazard. He also indicated that when the cable s run over 9 the 

conductors eventual be damaged ~~ven 

immediate: ·-

!t is undisput.ed tha'c order for an fire, or 

explosion to occuru there first must be some damage to the cable. 

Although the cable was run overp an examination by visually 

inspecting it. and touching , did no"c raveal damage to the 

cable's outer jacke"co While ·the cable have been ect to 

additional incidents of being run over, it would appear that the 

likelihood of damage was mitigated by the fact that the one-andthree-auarter inch diameter cable had been pushed approximately 

t.:wo inches :material upon '>:Jhich h::. t<Jas :resting¢ 

6

Raymond Houlihanu the construction foremanu was asked 

whether men were assigned to work on the feeder the day the 

citation was issued, and he indicated that he could not recall. 

I find this testimony is not sufficient to rebut Leeus specific 

testimony that men told him that they were going to energize the 

cable. 

535 
material was described as soft, and on top of a layer of fire 

clay that also was described as soft. Further, mobile equipment 

in the area that could possibly run over the cable all had rubber 

tires. In addition, the cable was not in the roadway itself 

where vehicles travel, but on soft material adjacent thereto. 

Although Collier testified regarding the numbers of injuries 

occasioned by contact with exposed cables, these figures do not 

indicate how many incidents occurred as a result of a cable 

having been run over. Nor do these statistics indicate whether 

the exposed cables had been previously visually inspected or 

subject to a megger test. In this connection, according to 

Johnson, over a 13 year period he had inspected "a lot" of cables 

that had been run over by rubber-tired equipment, and never saw 

or found a damaged cable. He also said "I have never megged one 

thatus showed bad" (Tr. 165) [sic]. Richard Mottershaw, 

Respondentvs Safety Regulatory Compliance Specialist, testified 

in the same fashion. 7 Respondent's statistics indicate that from 

1970 through 1992 there have not been any incidents of reportable 

electrical shock accidents from trailing cables. Also, the cable 

at issue is described by its manufacture as having rope-laystranded conductors which " •.• insure excellent flexibility and 

resistance to wire breakage", and, "An extra-heavy-duty jacket 

is reinforced with webbing to provide maximum protection from 

mechanical damage, the cause of most portable cable failures." 

(Exhibit C-1) 

It is possible that internal damage could have existed and 

yet not have been revealed in the megger test. However, Robert 

Whitmore, Respondent's staff electrical engineer, testified that 

in the absence of damage to the outer jacket of the cable, any 

internal damage not revealed by the megger test, would not result 

in any danger to minersv especially if the conductors are tested 

one phase c:"c a t:ime. He indicated that this was the manner in 

which the cable in question was tested. His testimony in this 

regard has not been rebutted or impeached by Petitioner. 

Thereforeu for all the above reasons, I conclude that it has 

not been established that there was a reasonable likelihood of an 

injury producing event as a consequence of the violation herein. 

Hence it is concluded that the violation was not significant and 

substantial. 

7

Robert Whitmore, employed by Respondent in a staff 

electrical engineering position, testified that the No. 1 Mine's 

electrical supervisor told him that in the eleven months 

subsequent to the issuance of the citation in issue, the cable 

has remained in service, and there have not been any accidents, 

injuries, or maintenance trouble with this cable. 

536 
c. Penalty 

L Negligence 

Lee indicated that he had issued 3 or 4 citations covering 

the same violation. However, there is no specific evidence as to 

how long the cable in issue had been lying near the edge of the 

demarcation between the loose material and the roadway before it 

was cited on January 24. Whitmore indicated that the cable was 

not in that position when he left the area the previous day. 

According to Houlihan, the cable had been in the area for about 

two months and had not been run over before the accident at issue 

occurred. According to Mottershaw, the cable had been used for 

several months without injury. 

It is Respondentws policyf as set forth in the testimony of 

Houlihan, that a cable must be inspected visually by walking 

around it before it is energized. Also, once it has been 

ascertained that a cable has been run over, it is Respondent's 

policy to visually check it, andperform a megger test before it 

is energized. Based on all the above, I conclude that Respondent 

was negligent herein only to a slight degree. 

2. Gravity 

Should the violative condition have resulted in a breach of 

the cable 1 s insulation, it could have led to either an electrical 

shock, electrocution, fire, or explosion. However, as discussed 

above, infra, the possibilities of this occurring are somewhat 

remote. Considering these factors, as well as the remaining 

statutory criteria, set forth in Section llO(i) of the Act, as 

stipulated to by the parties at the hearingu I find that a 

penalty $125 appropriate for violation. 

It is ORDERED that 

the fact that it is not 

further ORDERED that 

':Ji thin 3 0 days of 'this 

ORDER 

the citation herein be amended to reflect 

significant and substantial. It is 

Respondent pa1 a civil penalty of $125 

decision. /1 

I 

&

/ l ) h ! 

~~ c 

sb~ger ~dministrative Law Judge 

537 
Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, u.s. Department 

of Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Thomas c. Means, Esq., Glenn D. Grant, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, NW, Washington, DC 20004-2505 

(Certified Mail) 

nb 

538 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

BUCK MOUNTAIN COAL COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

0 

. 

Docket No. PENN 93-221-R 

Order No. 3082392, 3/05/93 

Buck Mountain Slope Mine 

Mine I.D. No. 36-02053 

DECISION 

Appearances: Richard Kocher, Buck Mountain Coal Company, R.D.4, 

Pine Grove, Pennsylvania, for Contestant; 

Gretchen Lucken, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia 

for Respondent. 

Before~ Judge Barbour 

This proceeding concerns a Notice of Contest filed by Buck 

Mountain Coal Company ("Buck Mountain") pursuant to Section 105 

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

§ 801 et seg" (1988) (the "Mine Act" or "Act 11 ) 9 challenging the 

propriety of an order of withdrawal, issued pursuant to section 

103 ) of the Act 30 u.s.c. S 813(k), at its Buck Mountain Slope 

Mine on March 5, 1993. The notice of contest was received by the 

Commission shortly before the close of business, Friday, 

March 12, 1993. In addition to contesting the order of 

withdrawal, Buck Mountain requested that the contest be heard on 

an expedited basis. Pursuant to that request a hearing was 

convened on Thursday, March 18, 1993, in Tremont, Pennsylvania. 1 

It is appropriate to note that the hearing could not have been held 

on such short notice without the complet'e cooperation of counsel for the 

Secretary and the representative of Buck Mountain and without the assistance of 

the representatives of the Pennsylvania Department of Environmental Resources, 

Bureau of Deep Mine Safety, who went out of their way to accommodate the parties 

and the Commission by making space available for the hearing at the Department's 

office in Tremont. 

It is also appropriate to note that due to the need for expedited 

resolution of the case, this decision has been prepared without the benefit of 

the transcript. 

539 
BACKGROUND OF THE CONTEST 

Buck Mountain Slope Mine is an anthracite coal mine located 

in eastern Pennsylvania, approximately 70 miles north and eas;t of 

Harrisburg. The mine employs five to six miners who work a 

single shift. The mine is owned and operated by Buck Mountain, a 

partnership composed of three partners. 

On the morning of March 5, 1993, a methane explosion 

occurred in the underground portion of the mine, on the No. 4 

Level East Gangway Section. Three miners were burned and taken 

to the hospital. (As of the date of the hearing, one miner 

remained hospitalized.) The accident was immediately reporttad 

and a MSHA rescue and investigation team was sent to the min•a. 

To insure the safety of persons in the mine and to control the 

situation while MSHA conducted its accident investigation, MSHA 

issued the section 103(k) order that is the subject of this 

proceeding. The order states: 

The mine has experienced a three (3) miner 

non-fatal ignition accident in the 

underground No. 4 Level East Gangway Section. 

This order is to assure the safety of any 

person in the coal mine. An investigation 

will be conducted to determine the safety of 

the mine. Only those persons selected from 

company officials, the Pennsylvania State 

Officials, miners representatives, and others 

deemed by MSHA to have information relevant 

to the investigation may enter or remain in 

the affected area. 

The order was issued at 9~35 a.m. 0 

entire underground portion of the mine. 

was modified as follows~ 

and it affected the 

Forty minutes later it 

The 103(k) Order No. 3082392 0 dated 3-5-93f 

modified to ensure ·that there no 

misunderstanding of the following 

requirements associated with the order. 

They are~ 

(1) ventilation facilities and fan 

operations will not be altered and changed 

without prior approval; (2) the plans to 

restore the mine to normal operation must be 

approved by MSHA prior to this investigation; 

(3) relocation or changing of mine equipment 

material or facilities must be approved by 

MSHA prior to their init[i]ation(;] 

540 
(4) relocation or changing of mine equipment 

material or facilities must be approved by 

MSHA prior to implementation. 

G. Exh .. 3 at 3. 

Following issuance and modification of the order, the MSHA 

accident investigation commenced. As of the hearing date, the 

immediate investigation had been completed, although a report of 

the in\restigation and its findings had not been issued. In 

addition, John Shutack, District Manager of MSHA District No. 1, 

the district in which the mine is located, testified that he and 

District No. 1 personnel still must conduct a review and 

evaluation of the entire ventilation system at the mine. 

On March 11, 1993u Shutack sent to Buck Mountain three (3) 

letters, each advising Buck Mountain that portions of its 

ventilation plan had been revoked in conjunction with the 

investigation. The first letter revoked a portion of the plan 

which had been granted on January ··11, 1988, and which allowed 

Buck Mountain a waiver from the requirement that its mine fan be 

continuously in operation. See G. Exh. 4 at 1; G. Exh. 1 at 1. 

Under regulations in effect when the waiver was granted, an MSHA 

District Manager could waive the requirement that a main mine fan 

be kept in continuous operation if he was satisfied that the 

waiver would provide no less than the same measure of protection 

to miners. See 30 CFR §§§ 75.300, 75.3001-1, 75.300-3 (1988) • 2 

The letter states, "This is to advise you that your 

request for waiver from continuously operation of the main fan, 

approved on January 11 1 1988, for your Buck Mountain Slope Mine, 

has been reviewed in conjunction with the investigation of the 

explosion of methane gas accident that occurred on March 5~ 1993~ 

and hereby revokecL 00 Go Exh. 4, at L Similarly worded 

letters revokad Buck Mounta 1 s "request for waiver from line 

brattice maintained within 10 feet of the face" and Buck 

Mountain 9 s 91waiver to equip your fan with a manometer [rather 

than with a pressure-reading gage.] uo Id. at 2-3" (See 30 CFR 

§ 7 5 o 3 3 0 (b) ( 2 j ( 19 8 8 ) 3 0 CFR § 7 5 • 3 7 1 ( 1 ) ( 19 9 2 ) v 3 0 CFR 

75.300-2(a) 3 (1988) 30 CFR § 75.310(a) (4) (1992) .) 

Buck Mountain was adamantly opposed to the revocations. 

BucJ( Mountain personnel expressed to MSHA District 1 personnel 1 

including Shutack 9 their opposition to any requirements to 

continuously operate the main mine fan; install line brattice to 

within 10 feet of the face and equip the fan with a 

2 The regulation was subsequently revised, and the regulation currently 

in effect states in pertinent part, "[m] ain mine fans shall be continuously 

operated, except as otherwise approved in the ventilation plan." 30 CFR § 75.311 

(1992). 

541 
pressure-reading gage rather than a manometer. Buck Mountain, 

which had not resumed mining since the accident, believed that if 

it turned on the fan in order to begin again to mine, it would 

signal its acceptance of the waivers and be unable to turn it off 

without being in violation of its ventilation plan. It had 

similar concerns regarding the other two revocations. 

When Buck Mountain was unable to persuade Shutack to rescind 

the revocations, Richard Kocher, the foreman at Buck Mountain, 

filed the notice of contest on Buck Mountain's behalf. The 

pleading states in pertinent part: 

Main fan stoppage plan had a waiver to shut 

fan off after men are out of coal mine. The 

Arlington Inv[estigation] Team shut down all 

ventilation • • . now they want to run fan 24 

hrs .... There is not any reason to operate 

fan 24 hrs. a day(,] 7 days a week. 

The same reasons I have stated go on the line 

brattice petition and waiver to equip fan 

with a manometer. 

The fan operated like this for 7 years, 

starting 1 hr. before preshift, and never had 

any methane trouble. 

Notice of Contest. 

At the commencement of the hearin~, Richard Kocher, stated 

that he would represent Buck Mountain. The Secretary was 

represented by Gretchen Luckenv who called Shutack and MSHA 

Inspector Clyde Turner 'co ·testify on MSHA 9 s behalf. At the close 

of the hearing the parties orally presented their positions and 

waived briefing of the issues. 

THE EVIDENCE 

Manager Shutack was the first to testify. Shutack 

1987 Buck Mountain had applied for the waivers 

the center of the current controversy, and he 

identified copies of Buck Mountainws applications. G. Exh. 2. 

Shutack explained that the applications were investigated and 

3 Also present at the hearing to advise or consult with Kocher were 

David Williams, a certified mining engineer, and Ronald Lickman, owner of the 

Buck Mountain coal rights and of the land on which the mine is situated. With 

the agreement of counsel for the Secretary, Williams and Lickman were permitted 

to not only consult with Kocher, but also to cross-examine the Secretary's 

witnesses and to make statements on Buck Mountain's behalf. 

542 
that as a result of the investigations, he approved the waivers. 

G. Exh. 1. Shutack noted the language in the letters of approval 

that the approvals "may be modified or terminated if warranted by 

subsequent changing conditions or in the event an inspection or 

investigation reveals . [non]compliance with ••• [the 

waivers']. provisions." Id. 

With regard to the waiver of the requirement to operate the 

fan continuously, Shutack stated that the assertion on Buck 

Mountain's application that in the five years prior to applying 

for the waiver the mine had an average methane percentage of "O 

percent" was checked against MSHA inspection· records and was 

found to be accurate. G. Exh. 2 at 2. (In other words, prior to 

granting the waiver, MSHA was satisfied that there was no history 

of methane at the mine.) 

Shutack, then described the events of March 5, 1993, how he 

was advised of the explosion and how he immediately went to the 

mine where the section 103(k) order was issued. MSHA's 

investigation of the accident followed, during which MSHA sought 

to re-establish ventilation in the mine in order to thoroughly 

examine the mine in search of the cause of the explosion. 

Shutack explained that during the course of the investigation, it 

was determined that the mine was subject to erratic liberations 

of methane, ranging from 1 percent to 5 percent or higher. 4 

According to Shutack, it was also determined that Buck Mountain 

was not maintaining line brattice to within 20 feet of the face, 

as required under its waiver and that the mine map was not 

accurate. 5 This latter finding was disturbing to Shutack in that 

the map showed seals existing in the intake air slope which were 

notv in factu in existence. Shutack feared that methane or 

carbon monoxide could seep into the mine from the unsealed and 

worked-out-areaso Shutack stated that without accurate knowledge 

the conditions potentially affecting ventilation he could not 

be certain the mine was adequately ventilated and could not 

consider any waivers from the mandatory ventilation requirements. 

Shutack agreedu howeveru that during the course of the 

investigation the main mine fan was not run continuously and that 

there even were times on March 6 when electrical problems caused 

Methane. presents an explosion hazard when found in concentrations 

between 5 percent and 15 percent. See Wyoming Fuel Co., 13 FMSHRC 1210, 1213 

n. 3 (August 1991). 

s Although citations were issued alleging violations of mandatory 

safety standards by Buck Mountain due to these and other conditions, the merits 

of the alleged violations are not at issue in this proceeding. 

543 
the fan to be-shut off while MSHA inspection personnel were 

underground. However, Shutack maintained that MSHA personnel 

were specially trained for underground investigative work and 

were alert to the dangers of inadequate ventilation. 

Shutack was asked about air samples taken during the course 

of the inspection. He stated that on March 6 very little methane 

had been found. (See G. Exh. 6 at 1). However, immediately 

after the explosion, explosive methane levels and higher were 

found in the chute and gangway near the explosion area. (Bottle 

sample No. !6765 revealed 13.3 percent methane in the No. 6 Chute 

and bottle sample No. F3032 revealed 22.86 percent methane in the 

No. 4 Level Gangway - No. 6 Chute. Id. at 3-4.) Shutack did not 

know, however, if any samples were taken to establish whether the 

methane that was detected had come from the unsealed, worked-out 

areas of the mine, and he admitted that he could not say for 

certain that these areas were a source for methane or other air 

contaminants. In fact, he did not know the source of the methane 

that had exploded and that continued to be found in the mine. 

Finally, Shutack testified that the area where the explosion 

had occurred was a "blind area," a dead end which was difficult 

to ventilate. He agreed that if the No. 5 and No. 6 Chutes were 

connected, ventilation would be improved greatly and methane 

would be much less likely to accumulate. 

Shutack testified that the immediate post-accident 

investigation revealed the need for a survey and evaluation of 

the entire ventilation system at the mine to make certain 

methane was being diluted, rendered harmless and carried away. 

He had determined that the section 103{k) order could not be 

modified or terminated and the survey could not begin until Buck 

Mountain agreed to run continuously the main mine fan (under 

the waiver the company had been allowed to start it one-half hour 

before the mine ~as preshifted)u to install line brattice to 

within 10 feet of the face (rather than to within 20 feet 

as allowed under the waiver) and to install a main fan 

pressure-reading gage (rather than to use a manometer as allowed 

under the waiver)o 

Shutack further stated that he orally informed Kocher of 

these conditions and formally advised the company of them by the 

letter dated March 11, 1993u G. Exh. 4. 6 If Buck Mountain 

complied with these conditions, a review of the entire 

ventilation system of the mine could commence. In addition, Buck 

Mountain would be required to submit a new ventilation plan. 

6 In addition to representing conditions for the lifting or 

modification of the Section 103(k) order, the letters are also understood by the 

parties to constitute revocation of part of the mine's ventilation plan. 

544 
on cross-examination, Shutack agreed there were potential 

hazards to the miners from the fan running continuously. In the 

winter the slope could ice-up and the buggy could derail. 

Furtheru there was little, if any, clearance along the slope from 

which men could work to remove ice. 

Shutack testified, that he was not forever wedded to the 

revocation of the waivers and that he was not precluding the 

approval of similar waivers in the future. However, given the 

accident and the information currently at his disposal, he 

believed he had to insist that Buck Mountain accept revocation of 

the waivers before the section 103(k) order could be terminated. 

CLYDE TURNER 

MSHA Inspector Clyde Turner testified that he was a member 

of the MSHA team that investigated the accident. Turner 

described that part of the investigation in which he 

participated. According to Turner, on March 10, 1993, the main 

mine fan was started at 6:00 a~m., prior to the investigation 

team entering the mine. The team went underground and around 

11:45 a.m.u turned off the underground auxiliary fans and air 

movers. Team personnel were stationed at various spots and 

instructed to monitor methane levels. Turner testified that 

after approximately 30 minutes, .2 percent methane was detected 

in the gangway. At the face of the No. 5 Chute methane was found 

to be .5 percent and in the No. 6 Chute methane was found at 

levels of up to 1 percent. Turner believed that if the main mine 

fan had been stopped methane would have accumulated to the 

explosive range in two and one-half to three hours. 

Turner also believed that the problem with not having the 

::Can continuously tvas that methane could build up to 

,.eveLs; above explosive range while the fan was shut off. 

'Jnce t.he fan started the levels would begin to decrease, which -~'lfould result in methane in the explosive range spreading through 

·the mine as the ventilation moved the methane around and 

out of the mine" Turner could think of no 

tmder which i·t would be safe to allow methane 

andv as he stated~ the first and most 

defense to methane was to ventilate it, which was why 

fan operation was required unless specifically 

the ventilation plan. Turner believed that unless 

continuous operation was~requiredQ the explosion of March 5, 

t-.rould recur sooner or later" 

Turner was asked his opinion why the mine, which had been 

virtually free of methane, had begun to experience methane 

liberations. He stated that the depth at which mining was taking 

place could be a factor in that methane was more likely to be 

released at greater depths. Further, he stated that methane was 

known to be liberated in "pockets" and Buck Mountain might be 

545 
mining through such a pocket. He admitted that as mining 

progressed it was possible the area currently liberating methane 

could be by-passed and the mine could again be virtually 

methane-free. However 6 he did not expect that this would be the 

case. He stated ·that in his experience once methane was 

encountered the problem persisted. 

Under questioning from Kocheru Turner agreed that on March 

7, the day mine ventilation was restored, all methane in the mine 

had been rendered harmless and carried away within one hour. (On 

March 7 the fan had not run continuously.) He also agreed that 

if the fan ran continuously there was a good possibility of 

winter ice building up on the slope. Men would have to chop the 

ice to remove it and in so doing could fall and injure 

themselves. He further agreed that because operation of the fan 

would prevent closure of the door at the slope portal, there was 

a potential fire hazard in that a brush fire in the area of the 

mine could enter the mine through the portal door opening. 

However, Turner was quick to~note that these hazards were 

speculative, whereas the hazard about which he was concerned 

methane -- was actually present. 7 

RICHARD :KOCHER 

Buck Mountain 1 s case was presented through cross-examination 

of the Secretary 1 s witnesses and through the statements of 

Kocher. Kocher presented as evidence and read into the record 

two statements explaining why, in Buck Mountain's viewv the main 

mine fan does not have to be run continuously to remove methane 

from the mine. See c. Exhs. 1 and 2. Kocher pointed out that 

during his preshift examinations of March 6 and 7 before 

amount 

at .2. 

found 

• 2: or 

was re=established affected area he found 

methane highest 

4.8 percent on March the No" 6 Chute, c. Exh. 1 

Howeverv after ventilation was re-established the most 

was .9 percent and most tests revealed much less -- either 

1 percent or no methane at 1. • at 3-4 . 

Further 8 Kocher contended that :methane found MSHl\ 

officials was in the Qublind~Q No. 6 Chuter "the chute where 

ventilation ll greatly enhanced when the chute is cut 

·through t.o ;che No. 5 Chute. c. . 2 L contention 7 

however P fl in t.he face of the MSHA bottle sample results 

which showed traces of methane inby main fan before 

ventilation was restored. Go Exh. 6 at 1 and 2:o Further, 

Kocher contended that during MSHAus investigation on March 5-11 1 

when the fan was shut off all nightu no methane was found in the 

mine. c. Exh. 2 at 1. (This contention, however, is 

7 At the close of Turner's testimony; the Secretary rested. Buck 

Mountain, through Lickman, moved for a directed verdict. I denied the motion. 

546 
contradicted by Turner's uncontested testimony concerning the 

results of his in-mine methane tests on March 10.) Kocher, also 

noted that ventilation at the last open cross-cut in the mine was 

12,000 cubic feet per minute, more than twice the 5,000 cubic 

feet per minute required by the regulations. Id. (MSHA does not 

dispute this contention.) 

Kocher emphasized that for the past 7 years, with the 

exception of the March 5 accident, there had been no accident at 

the mine. He maintained that since the mine has been in 

operation the fan has been started in the morning and has been 

shut off after work; and that given the dedication to safety at 

the mine and the fact that no methane was found at the mine prior 

to March 5, there is no reason to change the ventilation plan 

because nwith the ventilation plan we already have & the large 

quantity of air flow that [the] fan produces[,] [the methane] is 

proven controllable." c. Exh. 2. 

RONALD LICKMAN 

In his closing statement, Lickman summed up Buck Mountain's 

position: That the Secretary had not proven the existence of 

methane in such dangerous quantities that the fan should be run 

around-the-clock, especially when continuous operation of the fan 

could lead to other hazards endangering miners. 

THE VALIDITY OF THE ORDER 

Section 103(k) of the Act, the section under which the 

contested order was issued, states: 

In the event of any accident occurring in a 

coal or other miner an authorized 

representative of the Secretaryu when 

presentu may issue such orders as he deems 

appropriate to insure the safety of any 

person in the coal or other mine, and the 

operator of such mine shall obtain the 

approval of such representativeu in 

consultation with appropriate State 

representatives, when feasible, of any plan 

to recover any person in such mine or to 

recover the coal or other mine or return 

affected areas of such mine to normal. 

The section gives MSHA plenary power to make post-accident 

orders for the protection and safety of all persons. Miller 

Mining Company, Inc. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 

1983). Section 3(k) of the Act, 30 u.s.c. § 802(k), includes an 

explosion within the statutory definition of "accident", as does 

54 7 
the Secretary's regulatory definition of "accident", found at 30 

CFR § 50.2(h) (5). Thus 1 there can be no doubt the explosion of 

March 5, 1993, was the type of occurrence that properly could 

trigger a section 103(k) order to insure the safety of persons in 

the mine. 

It is likewise clear that given the issuance of the order, 

Buck Mountain cannot resume mining without the approval of MSHA, 

provided MSHA's conditions for the· resumption of mining are 

reasonably related to insuring the safety of persons in the mine. 

The testimony establishes that MSHA is ready and willing to 

approve such a resumption provided Buck Mountain accepts the 

conditions upon which MSHA insists. There is no suggestion that 

the conditions are incapable of being carried out. Moreover, I 

am persuaded that under the present circumstances, they are both 

reasonable and necessary to insure safety. 

The explosion of March 5 is a calamity that overshadows this 

proceeding. The distress a~? concern of Buck Mountain's 

representative and consultants over what has occurred was readily 

apparent at the hearing. The only thing fortunate about the 

accident is that the three miners involved were injured, rather 

than killed, which is cold comfort indeed. 

The thrust of Shutack's testimony is that he believes Buck 

Mountain should be required to continuously operate the fan, 

advance line brattice within 10 feet of the face and install a 

manometer at least until there has been a complete review of the 

mine's ventilation system. Shutack credibly testified that 

without the institution of these procedures, he will be unable to 

initiate and complete that review. 

The evidence suggests that at this time implementation of 

·the provis enhance; not diminish, the effectiveness of the 

mine ventilation system's ability to dilute, render harmless and 

carry away methane. Given the fact methane is being liberated 

now in potentially dangerous quantities, as graphically 

established by the explosion; the fact that the source of the 

meL.nane F at this point, uncertain; and given the fact the old, 

\ifor]<ed-out areas are not effectively sealed off from the intake, 

as MSHA had supposed, it seems the height of responsibility and 

reason ceo ins upon Buck Mountain 1 s acceptance of the 

provis prior to modifying or terminating the order. 

It afterall, the Secretary's duty systematically to 

evaluate the conditions and practices at the mine and keep the 

section 103(k) order in effect until he can determine the hazards 

that caused the explosion have been corrected and will not recur. 

In light of the current conditions at the Buck Mountain Slope 

Mine, I conclude that, to make such a determination, the 

Secretary may insist that Buck Mountain implement the three 

provisions at issue. 

548 
Thereforev I find Order No. 3082392 was properly issued and 

is valid. 

THE SECTION 103(K) ORDER 

AND 

THE MINE VENTILATION PLAN 

There is an aspect of this case that deserves further 

comment. As the parties recognize and as the record reveals the 

three provisions MSHA insists be implemented before MSHA will 

terminate or modify the section 103(k) order are contrary to 

provisions in Buck Mountain's current ventilation plan. Should 

Buck Mountain choose to implement the provisions in order to 

allow MSHA to terminate or modify the section 103(k) order while 

MSHA conducts its complete review of the miner's ventilation 

system1 Buck Mountain will not, in my view, be signaling the 

acceptance of the provisions as a permanent part of its 

ventilation plan. Rather, the effect of Buck Mountain's 

acceptance would be temporarily to suspend the provisions of the 

ventilation plan while MSHA initiates and completes its review of 

the ventilation system. When the review is finished, the 

suspension will no longer be in effect, and MSHA must then advise 

Buck Mountain regarding the results of its studies and regarding 

any changes proposes in the existing ventilation plan. 

It will be at this point that the well recognized principles 

of Secretarial approval and operator adoption of a ventilation 

plan come into effect. If differences then exist between the 

Secretary and Buck Mountain concerning the provisions, the 

Secretary and Buck Mountain must negotiate in good faith and for 

a reasonable period concerning the dispute. If they remain at 

:;dds, raay be ob·tained by Buck Mountain refusing to adopt 

or provisionsr thus triggering litigation 

Commiss o See Carbon County Coal Co., 7 FMSHRC 1367u ~3 1 September 1985). 

It must be emphasized that the validity of the provisions 

dispute as a part of Buck Mountain 9 s ventilation 

not. a'::: issued in this caseu and it would be improper to 

that regard. Because there is no 

Elllegation by Secretary that Buck Mountain is in violation of 

2:ts lation planq the plan is not before me. Rather, the 

issue ~he validity of the section 103(k) order. To rule 

en the merits of the ventilation plan would be to express the 

of declaratory judgement the Commission has cautioned is 

unwarranted under the Mine Act. Kaiser Coal Corp., 10 FMSHRC 

1165, 1170-117.1 (September 1988). 

549 
ORDER 

In view of the foregoing, Buck Mountain's contest is DENIED 

and Section 103(k) Order No. 3082392 is AFFIRMED. 

Distribution: 

Yw; df. &?t-1tDurt.-

David F. Barbour 

Administrative Law Judge 

(703) 756-5232 

Gretchen Lucken, Esq., Office of the Solicitor, u.s. Department 

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

(Certified Mail) 

Richard Kocher, Partner, Buck Mountain Coal company No. 2, 

R.D. 4, Pine Grove, PA 17963 (Certified Mail} 

Richard Lickman, 101 N. Centre street, Suite 309, 

Pottsville, PA 17901 (Certified Mail) 

Jepy 

sso 
FEDERAl MINE SAFETY ANO HEAlTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 26, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND.HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 92-715 

A. C. No. 36-04281-03782 

Dilworth Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER .. TO PAY 

Before: Judge Merlin 

The above-captioned case was the subject of an extensive 

conference call between the undersigned and counsel for both 

parties on January 28, 1993. On March l, 1993, the Solicitor 

filed a motion to approve settlement of the four violations 

involved in this case. The originally assessed penalties were 

$1,086 and the proposed settlements are for $937. 

In accordance with the conference call discussionu the 

Solicitor advises that the operator has agreed to pay the originally assessed penalty for two of the violationsv Citation Nos. 

3699761 and 3679100. The Solicitor requests that the penalties 

for citation Nos. 3691011 and 3691019 be reduced and the 

tions be modified. 

Citation No. 3691011 was issued for a violation of 30 C.F.R. 

§ 75.509 because the operator did not danger and tag a plug for a 

power circuit which was being worked on. The originally assessed 

penalty was $506 and the proposed settlement is $425. The 

Solicitor also requested that the citation be modified by reducing the type of injury from fatal to permanently disabling 

because the voltage was not as great as originally thought. The 

agreed upon settlement was reached at the January 28 conference 

call wherein the reasons for the modification and reduction were 

discussed and approved by the undersigned. 

Citation 3691019 was issued for violation of 30 C.F.R. 

75.1722 because a crossunder provided for the No. 1 belt was not 

guarded. The originally assessed penalty was $168 and the 

proposed settlement is $100. The Solicitor also requested that 

the citation be modified by deleting the significant and substantial designation. The Solicitor advised that the reason for 

551 
the modification is foot traffic underneath the belt was unlikely 

when the belt was moving. 

I have considered the representations and documentation 

submitted in this case along with the discussions on January 28, 

and I conclude that the proffered settlements are appropriate 

under the criteria set forth in section 110(i) of the Act. 

In light of the foregoing, the motion for approval of 

settlements is GRANTED. 

It is ORDERED that Citation No. 3691011 be MODIFIED to 

reduce the type of injury from fatal to permanently disabling. 

It is further ORDERED that Citation No. 3691019 be MODIFIED 

to delete the significant and substantial designation. 

It is further ORDERED that J:he operator pay a penalty of 

$937 within 30 days of the date of.this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Nancy F. Koppleman, Esq., Office of the Solicitor, U. s. Department of Labor, 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 

Daniel E. Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington Roadu Pittsburgh, PA 15241 

/gl 

552 
FEDERAl MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Harch 26, 1993 

SECRETARY OF LABOR; CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

Docket No. PENN 92-814 

A. C. No. 36-04281-03790 

v. 

Dilworth Mine 

CONSOLIDATION COAL COMPANYv 

Respondent 

DECISION APPROVING SET~LEMENT 

ORDER.TO PAY 

ORDER OF DISMISSAL 

Appearances~ Anita Eve Wright, Esq., Office of the Solicitor, 

Before:; 

UoSo Department of Laboru Philade1phiau Pennsylvania, 

~or the PetitionerJ 

Daniel Eo Rogers, Esq~Q Consolidation Coal 

companyu Pittsburgh, Pennsylvaniau for the 

Respondent~ 

Judge Merlin 

matter ·~v-as ·the 

<:he 

ect 

ci 

of a calendar call on March 16" 

this docket were 

Settlements were reached of the eleven violations in 

approved on the record pursu110 of the Act. Four of the 

3690659, 3702375 and 3690660, 

this casec These settlements were 

ant to the requirements of section 

~a Nos. 3702400: 

i0Jere previously contained in PENN 91-

1462 and tJer·s icated case. A partial 

sett.lement. dec on February 11 8 1993p for Citation 

remaining viola-tion which was not 

702203? is being removed from this docketp 

created docket and assigned for hearing on the 

A separa'ce order to "cha·t effect is being issued. 

NO. 37D2372o 

settled; 

placed 

meritso 

Tn accordance with the conclusions reached on the record at 

tne calendar call, it ORDERED that total settlements be 

APPROVED in the designated amount of $599. 

553 
It is further ORDERED that the operator PAY $599 within 30 

days of the date of this decision. 

It is further ORDERED that Citations Nos. 3702400, 3690659, 

3702375 and 3690660 be DISMISSED. 

----...--/ Law Judge 

Distribution: 

Anita Eve Wright, Esq., Office of the Solicitor, U. S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Daniel Rogers, Esq., Consol Inc., 1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Robert H. Stropp, Jr., Esq., UMWA, 900 15th Street, NW., Washington, DC 20005 (Certified Ma ) 

jgl 

554 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

GARY L. DAY, 

Complainant 

v. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 61993 

DISCRIMINATION PROCEEDING 

Docket No. KENT 92-547-D 

BARB CD 92-15 

ADENA FUELS, INCORPORATED, 

Respondent 

Diamond No. 1 Mine 

ORDER OF DiSMISSAL 

counsel for the parties have agreed to settle this matter, 

and counsel have moved jointly to dismiss Complainant's 

discrimination complaint on the' ·basis of the settlement 

agreement. The record reveals no reason why their motion should 

not be granted. ACCORDINGLY, this matter is DISMISSED. 1 

Distribution~ 

J[2~cfi~~ David~~our Administrative Law Judge 

{703} 756-6200 

Tony Oppegardu Esq.u Mine Safety Project of the Appalachian 

Research and Defense Fund of Kentucky, Inc., 630 Maxwelton Court, 

Lexingtonu KY 40508 (Certified Mail) 

Mr. Gary Lee Day, HC 65 0 Box 494, Similax, KY 41764 (Certified 

Mail} 

Jerry Wayne Sloneu Esq.u Weinberg & Campbell, Adena Fuels, Inc. 1 

P.O. Box 727u Main Streetu Hindman, KY 41822 (Certified Mail) 

\epy 

The settlement agreement is confidential and the parties have 

requested that it not be made part of the record of this proceeding. 

Therefore, with the concurrence of counsel, the agreement has been placed 

under seal in the official file. 

555 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NAR 2 91993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

MOUNTAINTOP RESTORATION, INC., 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 92-897 

A. C. No. 15-15684-03541 R 

Docket No. KENT 92-898 

A. C. No. 15-15684-03542 R 

Mountaintop Restoration 

No. 2 

DECISION APPROVING SETTLEMENT 

Appearances: Darren L. Courtney, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for the Secretary; 

Danny Patton, Safety Director, Mountaintop 

Restoration, Inc., Paintsville, Kentucky, for 

Respondent. 

Before: Judge Maurer 

These cases are before me upon a petition for assessment of 

l penalty under section 105(d) of the Federal Mine Safety and 

Act of 1977 (the Act)o At the hearingv the parties 

moved to settle these cases based primarily on the 

plight of the respondent on the following basis: 

PROPOSED PROPOSED 

CITATION NOo ASSESSMENT SETTLEMENT 

3512086 $ 371 $ 371 

3512087 434 434 

3512088 434 434 

3512089 434 150 

3512090 434 434 

3512091 241 20 

3512092 434 434 

3512093 241 20 

3512095 371 100 

3512096 371 371 

3512097 434 434 

3512098 241 20 

3512341 371 371 

3512342 241 20 

556 
TOTAL 

3512351 

3512352 

3512353 

3512354 

3512355 

3512356 

3817171 

3817172 

3817179 

3817181 

3817182 

3817184 

3817186 

3817187 

3817196 

3517775 

9875791 

371 

434 

371 

434 

371 

294 

227 

147 

147 

241 

276 

119 

147 

119 

227 

1785 

192 

10954 

371 

434 

371 

434 

371 

294 

50 

50 

*1 

241 

276 

50 

50 

50 

227 

750 

50 

7732 

I have considered the representations and documentation submitted 

in these cases, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in section 110(i) of the 

Act. 

WHEREFORE, respondent shall pay a total penalty of 

$7732 in 18 equal monthly installments of $429.56 each, beginning 

within 30 days of this order, and continuing until paid in full. 

Upon payment in fullv these cases are DISMISSEDo 

Law Judge 

1

/ citation No. 3817179 was actually issued to an 

independent contractor, a trucking company, and clearly marked as 

such. But somehow or other it was included with this group of 

citations that was assessed against this respondent. It simply 

does not apply to this respondent and I have ignored it in 

approving the settlement of these cases. 

557 
Distribution: 

Darren L. Courtney, Esq., Office of the Solicitor, 

u. s. Department of Labor, 2002 Richard Jones Road, suite B-201, 

Nashville, TN 37215 (Certified Mail) 

Mr. Danny Patton, Safety Director, Mountaintop Restoration, Inc., 

P. o. Box 940, Paintsville, KY 41240 (Certified Mail) 

dcp 

558 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

v. 

MARTIN SALES & PROCESSINGu 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 92-1008 

A.C. No. 46-02208-03595 

Docket No. WEVA 92-1096 

A.C. No. 46-02208-03597 R 

Docket No. WEVA 92-1097 

: A~C. No. 46-02208-03598 R 

~ Docket No. WEVA 92-1108 

A.C. No. 46-02208-03599 R 

Mine No. 1 

SUMMARY DEFAULT DECISION~ 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

filed the petitioner against the respondent pursuant 

110 a) t:he Mine Safety and Health Act of 

1977 0 30 u.s.c. 820(a), seeking civil penalty assessments for 

fifty-one (51) 9 alleged violations of certain mandatory safety 

and health standards found Parts 70 0 75 9 and 77 9 Title 30 1 

Code of Federal Regulations. The respondentu through counselu 

filed answers to the proposals and "'three of the cases were 

consolidated for hearing in Charlestonv West Virginiau on 

Wednesday 9 February 10 0 1993. The hearing was continued at the 

request the respondent, and after the addition of another 

caseu a consolidated hearing was scheduled in Charleston, West 

Virginia, on Friday 5 March 19, 1993o The hearing was 

subsequently cancelled on February 24, 1993, and an Order to Show 

Cause was issued by me after the petitioner filed a Motion for 

Summary Order of Default because of the failure by the respondent 

to respond to its pre-trial discovery requests. 

The petitioner initiated timely discovery in these matters 

pursuant to the Commission's applicable Rules found at Part 2700, 

Title 29, Code of Federal Regulations, and served the respondent 

with interrogatories, requests for admissions, and requests for 

the production of documents. Of particular interest to the 

559 
petitioner was the apparent position taken by the respondent that 

it is financially unable to pay any of the proposed civil penalty 

assessments. This position was stated in a January 24, 1993, 

letter from the respondent's counsel to the petitioner's counsel, 

with two attachments itemizing the respondent's debts. The 

letter states as follows: 

Pursuant to our previous discussions, I have enclosed a 

copy of financial information from my client's bank, 

Bank of Mingo. Additionally, as you are aware, my 

client is no longer operating the mine. As a result of 

this idle status of the mine, my client has no income 

to pay any debts at this time. If additional 

information is required regarding the ability of my 

client to pay, please contact me at your convenience. 

on January 5, 1993, I issued an Order compelling the 

respondent to answer the petitioner's discovery requests and I 

took note of the fact that the petitioner's requests to the 

respondent were timely filed, and the respondent had ample time 

to respond and advanced no objections or excuses for failing to 

fully respond. Thereafter, on January 11, 1993, I issued another 

Order directing the respenr"ent to respond to the petitioner's 

second request for production of documents. 

The petitioner's counsel states that she has repeatly 

attempted to contact the respondent's counsel regarding these 

cases, and has sent counsel letter asking him to respond to her 

discovery requests, all to no avail. The only response from the 

respondent 1 s counsel appears to be the aforementioned letter 

dated January 24r 1993" With regard to that letter, petitioner•s 

counsel states that she received letter on March 5, 1993, and 

the attachments post-date the cover letter. Petitioner 1 s 

counsel further states the letter and attachments merely 

show that the respondent has outstanding debts, do not answer the 

bulk of her discovery requests, and do not establish that the 

respondent does not have the means to pay the assessments. 

In of the respondent's failure respond to its 

discovery requests, the petitioner filed a motion for summary 

order of default on February 25, 1993. That same day, I issued 

an Order directing the responden·t to show cause as to why it 

should not be held in default and immediately ordered to pay the 

proposed civil penalty assessments because of its failure to 

respond to the petitioner 9 s discovery requests and for its 

failure to comply with my previously issued orders directing it 

to reply to those requests. The respondent has not replied to my 

Order. 

560 
Discussion 

Commission Rule 63, 29 C.F.R. § 2700.63, provides for the 

summary disposition of proceedings, and it states as follows: 

(a) Generally. When a party fails to comply with an 

order of a judge or these rules, an order to show cause 

shall be directed to the party before the entry of any 

order of default or dismissal. 

(b) Penalty proceedings. When the Judge finds the 

respondent in default in a civil penalty proceeding, 

the Judge shall also enter a summary order assessing 

the proposed penalties as final, and directing that 

such penalties be paid. 

The respondent has failed to respond to my Order to Show 

Cause of February 25, 1993. It has also failed to adequately 

respond to my previous orders compelling it to respond to the 

discovery requests filed by the petitioner. Under all of these 

circumstances, I conclude and find that the respondent is in 

default and the petitioner's motion fr--: summary decision IS 

GRANTED. 

ORDER 

Summary default judgment is entered in favor of the 

petitioner, and the respondent IS ORDERED to immediately pay to 

the petitioner (MSHA), the following proposed civil penalty 

assessments as the final civil penalty assessments for the 

contested violations in these proceedings: 

Docket No. WEVA 92-1008 

Order No. Date 

3578142 2/10/92 

Docket No. WEVA 92-1096 

CitationL 

Order No. Date 

2743723 5/2/91 

2743724 5/2/91 

2743725 5/2/91 

2743726 5/2/91 

2743727 5/2/91 

2743728 5/2/91 

2743729 5/2/91 

2743731 5/2/91 

30 C.F.R. 

Section 

75.1704 

30 C.F.R. 

Section 

75.1721(a) 

75.321 

75.1721(b) (6) 

75.1721(b) (7) 

75.1721(b) (8) 

75.1721(c) (1) 

75.1721(b) (9) 

49.2(a)(1) 

561 

Assessment 

$3 1 500 

Assessment 

$300 

$600 

$600 

$600 

$600 

$800 

$600 

$600 
citation/ 

Order No. 

2743732 

2743733 

2743735 

2743736 

2743737 

2743738 

2743739 

2743740 

3757415 

3757119 

2723528 

2723531 

5/2/91 

5/2/91 

5/2/91 

5/2/91 

5/2/91 

5/2/91 

5/2/91 

5/2/91 

6/19/91 

9/24/91 

10/9/91 

10/10/91 

Docket No. WEVA 92-1097 

Citation/ 

Order No. 

2723533 

9921772 

3742612 

3742614 

3753662 

3753664 

3753665 

3753666 

3742626 

5751Ll,l 

5751L17 

5751.48 

575149 

3742640 

3754206 

3754207 

2754208 

3575152 

3575153 

3575154 

11/19/91 

1/09/92 

1/21/92 

1/21/92 

1/21/92 

1/21/92 

1/21/92 

1/21/92 

1/23/92 

10/92 

0/92 

92 

10/92 

2/10/92 

10/92 

1 2 

l 

11/92 

11/92 

'l ~;g~ ..... .L ~ 

Docket No. WEVA 92-1108 

Citation/ 

Order No. 

3575155 

3754209 

3754210 

3754211 

3754212 

2/11/92 

2/11/92 

2/11/92 

2/11/92 

2/11/92 

30 C.F.R. 

Section Assessment 

75.1200 

75.508 

75.300 

75.305 

75.306 

75.512 

75.1704-2(c) {1) 

77.800-1(a) 

70.400 

75.212(c) 

75.900 

75.901 

30 C.F.R. 

Section 

75.503 

70.207(a) 

75.1725(a) 

75.220(a) (1) 

75.316 

75.400 

75.2030 

75.204(f) (7) 

75.1106-5(a) 

75.523-2(a) (2) 

75.516 

75.1100-2(e) (2) 

75. 22(a) 

75.503 

75.400 

75.1722(b) 

75.1722{b) 

75.1100-2(a) (1} 

75.900 

75.316 

30 C.F.R. 

Section 

75.1403 

75.515 

75.1103-4(a) (3) 

75.400 

75.1722(a) 

562 

$600 

$600 

$600 

$800 

$600 

$600 

$600 

$600 

$200 

$ 90 

$800 

$800 

Assessment 

$78 

$119 

$655 

$1,000 

$850 

$1,071 

$1,071 

$714 

$560 

$445 

$445 

$112 

$560 

$445 

$714 

$714 

$213 

$655 

$259 

$655 

Assessment 

$445 

$259 

$572 

$168 

$714 
CitationL 30 C.F.R. 

Order No. Date Section Assessment 

3575157 2/12/92 75.523-3(b) (2) $445 

3575159 2/12/92 75.513-1(a) (1) $168 

3575160 2/18/92 75.305 $470 

3754213 2/18/92 75.220(a) (1) $1,357 

3754214 2/18/92 75.208 $1,143 

~~ Administrative Law Judge 

Distribution: 

Carol B. Feinberg, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

J. Thomas Hardin, Esq., Hardin Law Offices, Main Street, P.O. 

Box 1416, Inez, KY 41224 (Certified Mail) 

Winford Davis, President, Martin Sales & Processing, P.O. 

Box 728, Kermit, WV 25674 (Certified Mail) 

jml 

563 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 91993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANYu 

Respondent 

. 

0 

0 

0 Docket No~ WEVA 92-1016 

A.C. No. 46-01453-04017 

Docket No. WEVA 92-1017 

A.C. No. 46-01453-04019 

0 

.. Docket No. WEVA 92-1065 

: A.C. No. 46-01453-04027 0 

.. 

: Docket No. WEVA 92-1095 

: A.C. No. 46-01453-04030 0 

0 

0 

" 

. . 

Humphrey No .. 7 

Docket No. WEVA 92-1166 

A.C. No. 46-01452-03883-R 

Arkwright No. 1 

DECISION 

Appearances~ Charles Jackson Esq. 0 U.So Department Laboru 

Office Solicitoru Arlingtonu Virginia 

for Petitioner; 

Daniel Rogers, Esq. 8 Consolidation 

Coal Companyv Pittsburgh Pennsylvania 9 

for Respondent. 

Before~ Judge Feldman 

The above proceedings are before me as a result of petitions 

for civil penalty filed by the Secretary of Labor pursuant to 

Section 105(d) of the Federal Mine Safety and Health Act of 1977v 

30 u.s.c. §801 et 1 (The Act). These matters were scheduled 

for hearing in Morgantown, West Virginia. 

At the hearing, the parties moved to settle the citations 

associated with Docket Nos. WEVA 92-1016, WEVA 92-1017, and WEVA 

92-1065 in their entirety. With respect to Docket No. WEVA 92-

1095, the Secretary presented his direct case for Order No. 

3108895 and Citation No. 3108433. After the Secretary's 

presentation I expressed my concern regardi~g certain factual 

issues. I urged the parties to confer during a recess to discuss 

564 
settlemento The parties did ultimately reach an accord with 

respect to this order and citation. The remaining citation in 

Docket No~ WEVA 92-1095 was incorporated in the parties' 

settlement motion presented at the hearing. Thusu Docket Nos. 

WEVA 92-1016u WEVA 92-1017 0 WEVA 92-1065 and WEVA 92-1095 have 

all been disposed of through the settlement process. 

With regard to the remaining docketu the parties reached 

settlement on 12 of the 13 citations contained in Docket No. 

WEVA 92-1166. The settlement motion proffered by the parties 

concerning all of these dockets was granted on the record and 

will be incorporated as part of this decision. The motion was 

supported by information that was provided that pertained to the 

penalty assessment criteria set forth in Section llO(i) of the 

Acto 

The only matter heard was Citation No. 3313118 in Docket No. 

WEVA 92-1166. Spencer A. Shriver testified on behalf of the 

Secretary and William Lafferty and Robert Gross were called upon 

to testify on behalf of the respondento The parties stipulated 

to my jurisdicti_on in this matter. At the conclusion of the 

hearing, the parties elected to make closing statements in lieu 

of filing post-hearing briefs. This decision formalizes the 

bench decision I rendered at the conclusion of the partiesv 

closing presentations. 

The essential facts are not in dispute and can be briefly 

stated. Spencer Ao Shriver has been a mine inspector for 

15 years. He has a Masters Degree in electrical engineering and 

he is a certified mine electrician and registered professional 

engineer in West Virginia. (Tr.115-l16). 

L 199lr inspected the rescondent 5 s 

J. I'iine accordance - Section 103 · ) the Act -~ comolaint. recedved concernina the opera•cing 

respondentus jeeps and mantrips. Shriver was 

by company representative Fred Morgan. Upon 

inspecting the No. 9 Jeepu Shriver noted ~ damaged fuse holder ~videnced by several wraps of tape around the outer 10erimeter~ of t.he fuse holder o The fuse holder is l between ~ne eep motor and conductor coming down from the trolley 

v:::Yire through the trolley pol eo ~Tr o 118 ~ The fuse holder 

contains a fuse that designed stop the flow current ~blow) in the event conductor on the jeep became short 

circuited to the frarneo The fuse holder is comprised of a 

phenolic plastic material that is designed to withstand heat 

resulting from arcing and ultimate fuse failure. (Tr.llS-212). 

Upon removing the tape, Shriver observed that the end cap of 

the fuse holder had broken away. He proceeded to open the fuse 

holder and noticed evidence of black soot which indicated the 

presence of electrical arcing. He also observed a l/8 inch hole 

that had burned through the metal end of the fuse which also 

indicated that arcing had occurred. Based~~n the fact that the 

565 
No. 9 Jeep was on the track parked in the mantrip spur, from 

which jeeps are routinely taken back into the mine at the 

beginning of each shift, Shriver concluded that the jeep was in 

service. (Tr.120). Consistent with this conclusion, Shriver 

testified that he did not recall anyone alleging that the jeep 

was out of service. (Tr.l2l). 

Based upon these observations, Shriver issued Citation No. 

3313118 citing a violation of the mandatory safety standard 

specified in section 75.1725(a). 1 The citation stated: 

On wells bottom, Noo 9 Jeep has fuse holder broken 

on trolley poleo Fuse is taped into place but is not 

making efficient electrical contact into end sockets. 

A 1/8 inch hole has been burned in end of fuse from 

arcing. A catastrophic failure of the fuse is 

reasonably likely if the fuse remains in service. 

Persons riding near the pole would be exposed to flash 

burns and physical burns. Also 8 vehicle would be 

disabled if fuse blew, and could result in wreck on 

main lineG · 

The subject citation characterized the alleged violation as 

significant substantial. In support of his S&S designation, 

Shriver testified that believed that there were two hazards 

associated with the defective fuse holder& The first hazard 

concerned the possibility of injuries sustained to occupants of 

the jeer in the event of a catastrophic failure of the fuse 

holder. In such event, passengers of the jeep could sustain 

flash burns to the eyes, actual physical burns to the head and 

bodyr and ible shrapnel wounds. (Tr.l31 133~134)o The second 

hazard 'tvas a. :.oss o:c fuse failure which could result 

l:Jrec]r;: by another "=.rack vehicle, 

provided conflicting testimony regarding the 

significant and substantial nature of these two hazards. For 

example" Shriver testified that it was possible for the fuse to 

j causing an interruption of the flow 

consequences. (Tr. 196-197)o 

·~estified <that. he could not remember any signs 

fuse holder. o202)" In addition, Shriver 

f w-ere vent. h.oles on each end of the fuse 

holder which the conductor passed through. Thus, Shriver 

Section 75.1725(a) provides~ 

80Mobile 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.n 

2 Shriver equated a ncatastrophic failure" with an explosion 

and disintegration of the fuse holder. (Tr. 133-134). 

566 
conceded that the fuse holder was not airtight further minimizing 

the chances of catastrophic failure due to heat or pressure 

buildup. (Tr.l90,194,226). Significantly, Shriver stated that, 

with the exception of a fuse holder failure created by 

overloading the fuse contained therein by two hundred to three 

hundred percent in a laboratory setting, Shriver has never known 

of a catastrophic failure of a jeep fuse holder. (Tr. 212,216). 

In fact, Shriver admitted that this laboratory test was not 

analogous to the routine current flowing through a jeep fuse. 

(Tr.218)o Finally, Shriver testified that it was unlikely from a 

"statistical standpoint" that a catastrophic failure would occur. 

(Tr.l99-200). 

William Lafferty and Robert Gross, employees of the 

respondent, testified that in over 25 years of their combined 

mine experience, they had never heard of a catastrophic failure 

of a fuse holder. Gross also testified that he had contacted an 

applications engineer of the fuse manufacturer who was also 

unaware of any past catastroph~c fuse holder failure. (Tr.241). 

As noted i~ my bench decision, I credit Shriver's testimony that something udramatic" such as popping or sparking might have 

occurred given the continued operation of the jeep (Tr.202). 

However 0 the testimony, when considered in its entirety, does not 

provide an adequate basis for concluding that catastrophic 

failure of the fuse holder with resultant serious injury was 

likely to occur. 

Shriver's testimony regarding the likelihood of a wreck was 

also contradictory. In this regard, he stated that, assuming the 

jeep lost power and was stranded on the track, the engineer of a 

locomotive 0 if alertu could ~'probably see [the jeep] and probably could stop o cg o 155} o Shriver also indicated that headlights on 

locomotive ect approximately 200 feeto (Tr.l56). While a ~t:.alled. 'c:racJc contributes a potential wrecku one must 

assume that the operators of other vehicles are alert and in 

control of such vehicles. Thus, I conclude that this hazard was 

also not significant and substantial in nature. 

As a result of the trial record 0 I issued the following 

bench decision which is edited with non-substantive changes: 

The first issue is the fact of occurrence. Section 

75.1725(a) provides that mobile equipment shall be 

maintained in safe operating condition or be removed 

from service. There is no indication that this jeep 

was removed from service at the time of the inspection. 

There was no such allegation at the time of the 

inspection by Mr. Morgan and Mr. Morgan isn't here to 

testify. So I conclude that the jeep was in service. 

567 
The issue of the safe operation of the jeep is 

dependent upon the condition of the fuse holder. I 

believe that the testimony is unrebutted that the fuse 

holder was damaged. It resulted in a loose connection 

which caused arcing and would have ultimately resulted 

in failure of the fuse. 

Therefore, I believe it was a violation of the 

regulation in that it was not safe to be in a vehicle 

in which the fuse could fail at any moment. In such an 

event, power could not be restored until the fuse was 

replaced. Restoration of power could be further 

delayed if replacement of the fuse holder was 

necessary. This would expose the jeep to a possible 

wreck and establishes that the jeep was not being 

operated in a safe condition. 

Having established the fact of occurrence, the second 

issue is the significantand substantial question. I 

find that a vehicle de-energized and exposed on a track 

creates a hazard. However, it is a hazard that can be 

mitigated by the person operating another vehicle on 

the track. Thus, I presume the attentiveness of the 

other operator and the ability of that operator to 

control the vehicle and avoid an accident. 

I now turn to the second hazard concerning catastrophic 

failure which was really the thrust of Mr. Shriver's 

testimony. I acknowledge Mr. Shriver's expertise in 

the area of electrical engineering. However, I am 

called upon to concludeu if I were to accept the 

Secretary's arguments 0 that there is a reasonable 

likelihood that damage to the fuse holder would result 

catastrophic failure. In analyzing this issue. I am 

being called upon to conclude that something is 

reasonably likely to happen that has never happened 

before with the exception of a laboratory experiment 

that tripled the normal current to determine how much 

abuse a fuse holder could withstand. I do not equate 

this laboratory experiment with routine operation of a 

jeep a 

Moreoveru even if I were to conclude that such a 

catastrophic failure could occur although it has not 

been shown to have previously occurred in the course of 

regular mining operations, I am asked to conclude that 

it would occur at a time when passengers would be so 

close to the fuse holder that they would sustain 

serious injuries. I am unable to conclude that such an 

event was likely to occur. 

568 
Therefore, I conclude that this was a violation of 

75.1725(a). However, I am modifying the 104(a) citation to 

reflect that this violation was not significant and 

substantial in nature. 3 Consequently, I am assessing a 

$105 penalty. (Tr.266-273). 

In view of the above, I have removed the significant and 

substantial designation from Citation No. 3313118. As a result, 

I have reduced the proposed assessment from $157 to $105. The 

penalty assessment for this citation and for the other citations 

that have been settled in all of these docket proceedings is as 

follows: 

Docket No. WEVA 92-1166 

Citation or Proposed Assessed Modified from . Order No .. Penalty Penalty S&S to Non S&S 

3715568 $213 $128 * 

3715569 $213 $213 

3715570 $213 $128 * 

3715571 $213 $128 * 

3715572 $213 $128 * 

3716074 $105 $105 

3715580 $ 98 $ 98 

3 At trial, the Secretary cited Consolidation coal Company, 

12 FMSHRC 2643 (December 1990} for the proposition that a 

violation resulting in the loss of power a trolley car 

constitutes a significant and substantial violation" Although 

Judge Weisberger did conclude in that contest proceeding that a 

disabled trolley creates a hazardq he did not address the issue 

of significant and substantialc Thereforeu the Consolidation 

case is not disposit.i ve of this issue. It is Q however u 

dispositive of the issue of fact of occurrence. In 

Consolidation, in contesting an alleged violation of Section 

75.511, the respondent argued that a stalled trolley car 

constitutes a hazard justifying the replacement of a fuse by a 

non-qualified electrician. Thus, I find that the respondent is 

collaterally estopped from its attempt at trial to deny that loss 

of power of a trolley creates a discrete safety hazard. (See Tr. 

169-183). 

569 
33131183 $157 $105 * 

3715582 $213 $128 * 

3716295 $213 $128 * 

3716298 $213 $213 

3715583 $213 $128 * 

3715584 $213 $128 * 

Docket Noo WEVA 92-1016 

3108483 $267 $267 

Docket No. WEVA 92-1017 

3108778 $30'9 $ 50 * 

3108881 $ 50 $ 50 

Docket No. WEVA 92-1065 

3108775 $206 $206 

pocket No. WEVA 92-1095 

3108892 $267 $ so * 

31088954 $1,500 $267 

3108433 $267 $267 

3 As reflected in this decision, the significant and 

substantial designation has been deleted from this citation. 

4 The parties• motion to modify this citation from a 

l04(d) (2) order to 104(a) citation was granted on the record. 

The significant and substantial designation for the underlying 

violation remains in effect. 

570 
ORDER 

ACCORDINGLY the citations as noted in the settlement motion 

as well as Citation No. 3313118 addressed in this decision ARE 

HEREBY AFFIRMED. Consequently, the respondent IS ORDERED TO PAY 

•a total civil penalty in the amount of $2915 in satisfaction of 

the violations in issue. Payment is to be made within (30) days 

of the date of this decision, and upon receipt of payment of this 

matter IS DISMISSED. 

Distribution~ 

Jerold Feldman 

Administrative Law Judge 

Charles Jackson, Esq. 0 u.s. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Daniel E. Rogers, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

571 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 91993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MAPLE MEADOW MINING COMPANYu 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-1025 

A.C. No. 46-03374-03732 

Maple Meadow Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section 110(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), seeking a 

civil penalty assessment of $4,200, for an alleged violation of 

mandatory safety standard 30 C.F.R. § 75.400, as stated in a 

section 104(a) significant and substantial (S&S) Citation No. 

3731402 0 issued on April 14 7 1992. 

The respondent filed a timely answer and contest, and the 

case was scheduled for hearing in Charlestonu West Virginia~ on 

March 17, 1993. However, the parties agreed to settle the 

matter, and the petitioner has filed a motion pursuant to 

Commission rule 30, 29 C.F.R. § 2700.30, seeking approval of the 

proposed settlement. The respondent has agreed to pay a penalty 

assessment of $2,000u settlement of the violation. 

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 penalty. 

The petitioner states that the citation was issued because 

of accumulations of loose coal and coal dust in various locations 

inby the section dumping point and along the pillar lines in 

crosscuts in the area. The inspector found a moderate degree of 

negligence on the part of the respondent, and because of the 

extent of the accumulations he dete1nined that it was highly 

likely that a fatality would occur. 

572 
Although the respondent does not contest the fact of 

violation, it disputes that the conditions were highly likely to 

cause a fatality because there was no mining being conducted in 

the area at the time, there was no measurable amount of methane 

in the area that the time or for the preceding twenty-four hours, 

there were no adverse roof conditions which could lead to 

friction or cause an ignition, and the area had been rock dusted. 

Under the circumstances, the petitioner believes that the 

evidence at trial may not establish that the violation was highly 

likely to cause a fatality, and it proposes to settle the 

violation upon the entry of an order which modifies the gravity 

finding of "highly likely'* to "reasonably likely". Petitioner 

concludes that the payment of $2,000, to settle the violation 

will serve to effect the intent and purpose of the Act. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

IT IS ORDERED THAT: 

1. The contested section 104(a) "S&S11 Citation 

No. 3731402 April 14 2 1992u citing a violation of 

o C.F.R. § 75.400, is modified to reflect a gravity 

finding of "Reasonably likely", and as modified, IT 

IS AFFIRMED. 

2. The respondent shall pay a civil penalty assessment 

of $2,000, in satisfaction of the violation. Payment 

is to be made t:o the petitioner (MSHA) within thirty 

30) days of the date of this decision and order, and 

upon receipt of payment, this matter is dismissed. 

#. t:f:l~~ ~~~. Kou{;-:;v~ Administrative Law Judge 

573 
Distribution: 

Patrick L. DePace, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston, 

WV 25322 (Certified Mail) 

/ml 

574 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 3 0 1993 

NOLICHUCKEY SAND COMPANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

NOLICHUCKEY SAND COMPANY, INC., 

Respondent 

. 

···-· 

DECISION 

CONTEST PROCEEDING 

Docket No. SE 92-361-RM 

Citation/Order No. 4088642; 

6/16/92 

Tusculum Plant 

Mine ID 40-03054 

CIVIL PENALTY PROCEEDING 

Docket No. SE 92-397-M 

A. C. No. 40-03054-05501 

Tusculum Plant 

Appearances: Tom Bewley, President, Nolichuckey Sand Company, 

Inc., Greeneville, Tennessee, for Contestant/ 

Respondent; 

Wo Fo Taylorv Esqou Office of the Solicitor, 

Uo So Department of Labor Nashville Tennessee, 

for the Secretary of Labor. 

Before~ Judge Maurer 

At issue in this consolidated contest and civil penalty 

proceeding are the validity of an order issued pursuant to 

section 107(a} of the Federal Mine Safety and Health Act of 1977 1 

(the uuAct") and a citation alleging a violation of 30 C.F,R. 

§ 56.15020o Pursuant to notice 1 a hearing was held in 

Greeneville Tennessee on December lOv 1992o 

Subsequent to the hearing, my office was notified by the 

court reporter that all the hearing exhibits were "lost in the 

mail. aB An effort has been made to reconstruct the record by 

soliciting duplicate copies of the exhibits from the parties. 

This, however, has not been entirely successful. We have managed 

to obtain copies of all the government's trial exhibits, save 

Government Exhibit No. 2. And another copy of the respondent's 

only exhibit, a video tape, is likewise unavailable. This sorry 

state of the record is unfortunate, but at this point, I intend 

to proceed to judgment based on what I have before me. 

575 
section 107(a)/104(a) Order/Citation No. 4088642, issued on 

June 16, 1992, by MSHA Inspector Dana Haynes, cites an al.leged 

imminent danger as well as an alleged violation of the mandatory 

safety standard found at 30 C.F.R. § 56.15020, 1 and the cited 

condition or practice states as follows: 

An employee had traversed the river from the 

dredge to the shore without wearing an approved 

personal floatation device (life jacket). The jon boat 

used to access the dredge was moored at the dredge and 

a hazard of falling into the water at that transition 

point was apparent. Life jackets were available and 

the employees had been instructed to wear them. The 

lead man was not aware of the failure to wear the 

jacket until this witnessing. The employee was 

instructed not to return to the dredge until another 

life jacket was found and worn. 

In a nutshell, the inspector observed one of the operator's 

employees, one Mr. Reed, get into a 14-foot long flat-bottom jon 

boat that was tied up to a sand dredge out in the Nolichuckey 

River and motor ashore. It is undisputed that this employee did 

not have a life jacket or life belt on his person, nor were 

either available to him in the boat at the time. 

I agree with the Secretary that any time you are transiting 

into or out of the boat to or from the dredge or when you are 

underway in the boat on the river there is at least "some" danger 

present both of falling into the water and from falling into the 

watero 

The preponderance of the evidence relating to the depth of 

the river over the approximately 100-150 feet that the employee 

traversed that day from the dredge to the riverbank is that it 

was 3 feet deepQ and that is my finding on that point. 

I also find and conclude that the evidence in the record is 

sufficient to prove up a simple violation that the employee, 

Mr. Reed 0 made the trip from the dredge to the shore without 

benefit of a life jacket or life belt. Moreover, it is not hard 

to imagine a possible scenari~~here the boat would rock, the 

employee could fall out, hit his head, lose consciousness and 

drown, even in 3 feet of water. I therefore find a violation of 

the cited standard stands proven. 

1/ 30 C.F.R. § 15020 provides: Life jackets or belts shall 

be worn where there is danger from falling into water. 

576 
The tougher issues concerning "imminent dangern and 

nsignificant and substantial!' findings are more prob;temat-ical for 

the Secretary. 

Section 3(j) of the Act defines an imminent danger as "the 

existence of any condition or practice in a coal or other mine 

which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated." 

30 u.s.c. § 802(j). In Rochester & Pittsburgh Coal Co., 

11 FMSHRC 2159, 2163 (November 1989), the Commission noted that 

nthe u.s. Courts of Appeals have eschewed a narrow construction 

and have refused to limit the concept of imminent danger to 

hazards that pose an immediate danger." (citations omitted). 

The Commission noted further that the courts have held that "an 

imminent danger exists when the condition or practice observed 

could reasonably be expected to·cause death or serious physical 

harm to a miner if normal mining operations were permitted to 

proceed in the area before the dangerous condition is 

eliminated. 11 Id., quoting Eastern Associated Coal Corp. v. 

Interior Bd. of Mine Op. App., 491 F.2d 277, 278 (4th Cir. 1974). 

The Commission also adopted the Seventh Circuit's holding that an 

inspector 8 s finding of an imminent danger must be supported 01 unless there is evidence that he has abused his discretion or 

authority.n 11 FMSHRC at 2164 quoting Old Ben Coal Corp. v. 

Interior Bd. of Mine Op. App., 523 F.2d 25, 31 (7th Cir. 1975). 

In Utah Power & Light Co., 13 FMSHRC 1617, 1627 (October 

1991} u the Commission reaffirmed that an MSHA inspector has 

considerable discretion in determining whether an imminent danger 

HoweverJ the Commission held in this case that there 

mus·i: be some degree imminence to support an imminent danger 

and noted t.ha'c the word go imminent" is defined as "ready to 

take place[;] near at hand(;] impending ••• [;] hanging 

t:hreat.eningly over one us head [;] menacingly near. n 13 FMSHRC 

at 1621 (ci'cation omitted). The Commission determined that the 

:Legisla·tive of t:he imminent danger provision supported a 

conclus "chat '

9the hazard to be protected against by the 

'Jdthdrawal order must be impending so as to require the immediate 

lfJi t.hdrawal of miners. 0

' Id. Finally, the Commission held that an 

inspector abuses his discretion, in the sense of making a 

decision that is not in accordance with law, if he issues a 

section 107(a) order without determining that the condition or 

practice presents an impending hazard requiring the immediate 

withdrawal of miners. 13 FMSHRC at 1622-23. 

In the instant case, when the inspector issued the imminent 

danger order, Mr. Reed was at that time standing on dry land. 

The danger, to the extent it had previously existed, was past. 

It was no longer imminent. It was not impending, and pursuant to 

577 
the rationale enunciated in Utah Power and Light, supra, cannot 

justify the issuance of an imminent danger order. Accordingly, 

the order portion of Order/Citation No. 4088642 will be vacated 

herein. 

Also without merit is the Secretary's position that the 

subject violation is 91 significant and substantial." 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard.n 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if based upon the particular facts 

surrounding the violation the.re exists a reasonable likelihood 

that the hazard contributed to will result in an injury o~ 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 825 (April 1981). 

In Mathies Coal Co.v 6 FMSHRC 1v 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that isf a measure of danger to safety--

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature" 

In United States Steel Mining Company, Inc.v 7 FMSHRC 1125v 

1129 (August 1985)v the Commission stated further as follows: 

We have explained further that the third element of the 

Mathies formula ij'requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." 

U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance with the 

language of section 104(d) (1), it is the contribution 

of a violation to the cause and effect of a hazard that 

578 
must be significant and substantial. U. s. Steel 

Mining Company. Inc., 6 FMSHRC 1866, 1868 (August - 1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The first element of the Mathies test is satisfied. There 

was a violation proven. The second element is likewise satisfied 

in that should something untoward have happened to Mr. Reed to 

cause him to become incapacitated, the absence of the required 

life-saving equipment would have presented a discrete safety 

hazard. The fourth element is also satisfied because the injury 

if it occurred would be reasonably likely to be serious. 

However, it is the third prong of the Mathies test, a reasonable 

likelihood that the hazard contributed to will result in a 

injury, where the Secretary fa~!sto meet his burden of proof. 

Since the water was only 3 feet deep over the route traversed by 

Reed that day, simply falling into the water would not be 

sufficient to cause Reed any particular injury. A serious 

injury, such as a drowning, as argued by the Secretary, would 

require that Reed be incapacitated and unable to help himself, 

and while I have earlier in this decision found that to be a ~ssibility, it would be quite a stretch of the record evidence 

to raise that "possibility" to the level of a "reasonable 

likelihood." That being the case, I cannot find that the 

Secretary has proven that there was a reasonable likelihood that 

the hazard would result in an injury. Accordingly, I am going to 

delete the inspector's S&S finding. 

account of the civil penalty assessment 

section llO(i} of the Actv I conclude and find ~na~ a penalty of $50 for the violation in question is reasonable 

and appropriate and it will be so ordered. 

ORDER 

I~c is ORDERED that the findings of ue imminent danger 11 and 

"significant and substantial" for Order/Citation No. 4088642 be 

'VACATED" 

is further ORDERED that Order/Citation No. 4088642 be 

MFFIRMED as a non S&S section 104(a) citation. 

579 
It is further ORDERED that Nolichuckey Sand Company, Inc. 

pay a penalty of $50 within 30 days of this order. 

Law Judge 

Distribution: 

Mr. Tom Bewley, President, Nolichuckey Sand Company, Inc., 

Route 9u Box 290, Greeneville, TN 37743 (Certified Mail) 

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} 

dcp 

580 
OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HA· r- ') 1 199·3 · . K. v -1. 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSP~)u 

Petitioner 

Docket No. KENT 92-651 ~ A.Co No. 15-08357-03702 

Camp No. 11 

PEABODY COAL COMPANY 0 

Respondent 

DECISION 

Appearances~ William F. Taylor, Esq., u.s. Department of Labor, 

Office of the Solicitoru Nashvilleu Tennessee, 

Before~ 

the Petitioner; 

David Ro Joest; Esq., Peabody Coal Company, 

Henderson, Kentucky, for the Respondent. 

Judge Feldman 

The captioned proceeding is before me as a result of a 

?etition for v penalty filed by the Secretary of Labor 

of "che Federal I:<Iine Safety and Health 

801 sea., (the Act)o This case was 

Owensboro, Kentucky on March 3, 1993. 

concerns & 104(g) (1) and a 107(a) order and four 10~1 a} cit.at.ions t:hat were issued as a result of an investigation 

fatal accident that occurred in the respondent 1 s Camp 11 

2 6 - :_ 9 9 L The total assessed penalty proposed 

A:;:: ·;:be commencemen"c of the hearing c the parties moved to se~tle the orders and citations issue for a total penalty of 

S28 ~SOD 0 The >#as supported bv t:he t.estimonv of Mine 

Elnd Heal·ch J:~dmin.istration (MSHA) conference'· Officer Robert 

and Sa.m Spears u an electrician employed by the 

respondento These individuals described the accident and 

provided information concerning the results of MSHA's subsequent 

investigation? As noted belowp the partiesg settlement motion 

was granted on the record. 

581 
BACKGROUND 

This case involves fatal injuries sustained by Raymond Brown 

during the course of his remote control operation of a SimmonsRand scoop. This scoop is used to remove loose coal that has 

fallen between the ribs after continuous miner operations. 

(Tr. 42). The scoop can be operated manually from the control 

deck. In the alternative, the scoop can be operated remotely by 

means of a hand held joystick. (Tr. 16,39). The advantage of 

operating in the remote control mode is that it allows the scoop 

to operate under unsupported roof before roof bolting occurs, 

without exposing the scoop operator to danger. (Tr. 43-44). 

Remote control of a scoop is a relatively new technological 

development in the mining industry. (Tr~ 23). 

The mechanical operation of the scoop~s braking system is 

dependent upon whether it is being operated in the manual or 

remote control mode. If the scoop is operated in the manual 

mode, the operator controls'"the scoop from the operator 1 s deck. 

To stop the scoop, the operator uses a foot pedal that is located 

on the floor of the deck. Operation of the foot pedal applies 

pressure to the service brakes. (Tr. 37-38). 

Remote operation of the scoop is accomplished by the 

operator holding a remote station joystick while positioned 

behind the scoop. Movement of the scoop is achieved by holding 

down the plunger on the joystick. To apply t.he service brakes in 

the remote mode of operation, the operator must release the 

joystick. This activates the hydraulic function of the service 

brake system by sending oil through a flow control valve" The 

then transported through a pressure intensifier which 

creates the hydraul pressure that activates the se~Jice brakes 

and stops scoop. (Tr. 7-39 . 

On February 26v 1991, Raymond Brown 1 an individual with 

approximately 15 years of mining experienceu was operating a 

scoop by remote control in the crosscut between the No. 3 and 

:No. 0 entries t:o orovide a clean Y.;JorJdnq area for <the :::::-oof 

bolting machine operator. At approximatelyf 1~30 .ill. the 

continuous miner had completed a 34 four foot cut No. 3 

entry and had moved to the Noo 2 entry. Roof bolting was 

completed in the crosscut between the No. 3 and No, 4 entries. 

Brown was in the process of cleaning the No. 3 l:'lOrking face by 

remotely controlling the scoopo The roof bolter was parked in a 

crosscut adjacent from the area where Brown was cleaning the 

face. As the scoop retreated from the faceu the service brake 

failed to engage pinning Brown between the rear of the scoop and 

the front of the roof bolter. A roof bolter operator who 

witnessed the accident de-energized the scoop with the panic bar 

located in the deck of the scoop. Brown sustained fatal chest 

injuries and expired shortly after being brought to the surface. 

582 
An MSHA investigation conducted at the scene cited an 

inoperative service brake as a result of a closed hydraulic flow 

valve as the proximate cause of this fatal accident. However, 

the investigation revealed that it was not until after the 

accident that Simmons-Rand, the manufacturer of the scoop, 

informed the respondent of the function of the flow valve and the 

importance of it being kept in the open position. In this 

regard, Sam sears, the chief electrician at the respondent's Camp 

11 Mine, testified that the existence or maintenance of a flow 

control valve is not noted in the Simmons-Rand scoop service 

manual. (Tr. 40). As a result of this accident, MSHA Conference 

Officer Robert Phillips testified that a nationwide alert was 

issued to all mine operators warning of the potential flow valve 

problem and requiring appropriate training for operators of such 

scoops in the remote control mode. (Tr. 30-32, GOV. Ex.7). 

As noted above, as a result of this accident and the 

subsequent investigation, three c~-t:ations and an imminent danger 

order were issued for alleged violations concerning the scoop's 

braking system. In addition, the respondent received a 104(g) 

order and a citation for allegedly failing to provide adequate 

task training for remote scoop operators. 

Citation No. 3550636 and imminent danger Order No. 3550634 

were issued for violation of the mandatory safety standard 

contained in section 75.1725(a) 1 as a result of the closed flow 

control valve which disabled the remote operation of the service 

brake system. 2 At the hearing, the parties moved to settle this 

citation and order indicating that the respondent has agreed to 

pay the $15,000 proposed assessed penalty. 

Citation Nos" 3550635 and 3550637 were issued for defects in 

scoop's emergency parking brake and for worn disc brake pads 

on 'l:he scoop 0 s service brakes" The proposed assessment for each 

of these citations was $9,000. At the hearing, the parties 

agreed to settle each citation for $6,550. The reduction in the 

This mandatory safety standard requires that mobile 

equipment must be maintained in a safe operating condition or be 

removed from service immediately. 

" 2 The subject scoop was repaired on February 6 and again on 

the day prior to the accident on February 25, 1991, for brake 

problems associated with manual operation. At those times, the 

brakes were checked and determined to be operating properly in the 

manual mode. The brakes were not checked in the remote ooerational 

mode. The flow control valve is located under a panel and is not 

easily accessible. The investigation failed to establish when or 

why the control valve was closed. (Tr. 49-53). The flow control 

valve was ultimately removed to prevent a reoccurrence of brake 

failure. (Tr. 41). 

583 
proposed assessments was supported by the fact that the 

investigation ultimately determined that the condition of the 

scoop's parking brake and service brake did not contribute to Mr. 

Brown's death. (Tr.66-67,69). 

_ Citation No. 3550565 and Order No. 3550566 were issued as a 

result of the respondent's failure to provide adequate task 

training as required by Section 48.7(a) (3). The citation was 

issued with respect to the training provided to Raymond Brown and 

the 104(g) (1) order was issued in connection with the training 

provided to Gary Woods. 3 The penalty initially proposed for 

each of these alleged violations was $12,000. At trial, the 

parties moved to reduce the proposed assessment to $200 for each 

violation. This substantial reduction in penalties was supported 

by the testimony of Mr. Phillips indicating that the operator had 

no advance knowledge of the existence or significance of the flow 

control valve. Therefore, Phillips opined that even extensive 

training could not have prevented Mr. Brown's death. (Tr. 23-24). 

Although the investigation.revealed that additional emphasis 

should have been placed on remote control training, counsel for 

the Secretary characterized the training provided as 

"substantially adequate" quantifying the training as a 9 on a 

scale of 1 to 10. (Tr. 16). 

In view of the above, I accepted the parties' settlement 

agreement as proffered on the record because it is consistent 

with the criteria set forth in section llO(i) of the Act. By way 

of summary 1 the respondent has agreed to pay an assessed penalty 

of $15,000 for Citation No. 3550636 and Imminent Danger Order No. 

3550634; $6,550 for Citation No. 3550635; $6,550 for Citation No. 

3550637u $200 for Citation No. 3550565; and $200 for Order No. 

3550566. The settlement incorporates the gravity and negligence 

findings charged in these citations and orders. 

ORDER 

Accordinglyv the citations and orders noted above ARE HEREBY ~FIRMED. Consequentlyv the respondent IS ORDERED TO PAY a total 

civil penalty in the amount of $28v500 in satisfaction of the 

violations in issue. Payment is to be made within 30 days of the 

date of this decisionv andv upon receipt of paymentv this matter ~~ DISMISSED. 

Ow ,:iQ, 

~:rold ~eldman Administrative Law Judge 

703-756-5233 

3 This order also cited Michael Grigg as not receiving 

adequate training. However, reference to Grigg was deleted when it 

was determined that Grigg was not a scoop operator. (Tr. 16). 

584 

ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH fLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASARCO INCORPORATEDu 

Respondent 

March 11, 1993 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 93-259-M 

A. C. No. 24-01467-05565 

Troy Unit 

ORDER OF CONTINUANCE 

The above-captioned case is a petition for assessment of a 

civil penalty filed by the Secretary of Labor against Asarco Inc. 

The operator has now filed its answer. It has also filed a 

motion to consolidate this case with the corresponding notice of 

contest which is presently pending before the Commission in 

Docket No. WEST 92-624-RM. 

Since the penalty aspect of this matter has not been heard 

or adjudicated at the trial level, consolidation with the contest 

now on appeal would not be appropriate. The Commission has 

consisently held that where, on appeal, it decides certain issues 

but the amount of penalty remains to be determined; the matter 

must be remanded to the administrative law judge for that purpose. , 14 FMSHRC 1982, 1989-90 (Dec. 

1992); Mar-Land Industrial Contractor, Inc., 14 FMSHRC 754, 760 

(May 1992); Mettiki Coal Corp., 13 FMSHRC 760, 773 (May 1991); 

Rochester & Pittsburgh Coalu 13 FMSHRC 189, 199 (Feb. 1991). 

Alsou the Commission always has refused to consider on appeal 

issues that have not been raised at the trial level. Shamrock 

Coal Company, Inc., 14 FMSHRC 1300, 1302-1304 (August 1992)~ 

Shamrock Coal Company" Inc., 14 FMSHRC 1306, 1312-1314 (August 

1992)c Beech Fork Processing Inc., 14 FMSHRC 1316, 1319-1321 

(August 1992). Therefore, the operatoris motion to consolidate 

here cannot be granted. The proper procedure is to put this case 

on stay pending the Commission 1 s decision on the notice of 

contest. 

585 
Accordingly, it is ORDERED that the operator's motion to 

consolidate be DENIED, that this case be STAYED until issuance of 

the Commission's decision in WEST 92-624-RM, and that· the parties 

ADVISE the undersigned when the Commission's decision is issued. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Robert Murphy, Esq., Office of the Solicitor, U. S. Department of 

Labor, 1585 Federal Office Building, 1961 Stout Street, Denver, 

co 80294 (Certified Mail) 

Tana M. Adde, Esq., Office of the Solicitor, U. s. Department of 

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

(Certified Mail) 

Henry Chajet, Esq., Nancy Boudrot, Esq., Jackson & Kelly, Suite 

400, 2401 Pennsylvania Avenue, NW., Washington, DC 20037 

(Certified Mail) 

Mr. Douglas Miller, Miner's Representative, Asarco Inc., Box 868, 

Troy, MT 59935 (Certified Mail) 

jgl 

'~U.S. GOV!RNMENT PlUNT!NC OFFICE.: 1 9 9 3- 3 ~ 2 < ~ 3 1 a 3 3 7 e 

586