AUGUST 1991 

COMMISSION DECISIONS 

08-06-91 

08-29-91 

08-30-91 

05-09-91 

Lancashire Coal Company 

Wyoming Fuel Company 

Westmoreland Coal Company 

Roy Farmer and others v. Island Creek Coal Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

08-05-91 

08-06-91 

08-06-91 

08-07-91 

08-08-91 

08-08-91 

08-08-91 

08-09-91 

08-14-91 

08-14-91 

08-14-91 

08-15-91 

08-21-91 

08-21-91 

08-21-91 

08-27-91 

08-27-91 

08-27-91 

08-27-91 

08-29-91 

08-29-91 

08-30-91 

08-30-91 

08-30-91 

Andalex Resources, Inc. 

Green River Coal Company 

Pyro Mining Company 

Sec. Labor for Amos Hicks·v~ ·Cobra Mining 

Company, et al. 

Consolidation Coal Company 

Andersen Sand & Gravel Company 

Mettiki Coal Company 

Manalapan Mining Company 

LJ'S Coal Corporation 

Consolidation Coal Company 

Consolidation Coal Company 

Arch of Kentucky, Inc. 

Peabody Coal Company 

Peabody Coal Company 

Consolidation Coal Company 

RB Coal Company, Inc. 

Jewell Smokeless Coal Corporation 

Michael E. Holland v. Consolidation Coal Co. 

Consolidation Coal Company 

Texas Utilities Mining Company 

West Elk Coal Company, Inc. 

Ronald Tolbert/Odell Maggard v. Chaney 

Creek Coal Company 

Peabody Coal Company 

Ronald Lee Shriver v. Consolidation Coal Co. 

PENN 89-147-R 

WEST 90-238-R 

VA 90-28 

VA 91-31-C 

WEST 90-213 

KENT 90-97 

KENT 91-169-R 

VA 89-72-D 

WEVA 91-27 

LAKE 91-10-M 

YORK 89..,.19-R 

KENT 91-104 

KENT 90-356 

WEVA 90-223-R 

WEVA 91-122 

KENT 91-14-R 

KENT 91-340-R 

LAKE 91-56 

WEVA 91-91 

KENT 91-193 

VA 91-60 

WEVA 90-315-D 

WEVA 91-192 

CENT 91-20 

WEST 90-365-R 

KENT 86-123-D 

KENT 86-1-D 

KENT 91-179-R 

WEVA 91-1772-D 

Pg. 1209 

Pg. 1210 

Pg. 1217 

1226 

Pg. 1235 

Pg. 1247 

Pg. 1257 

Pg. 1262 

Pg. 1264 

Pg. 1269 

Pg. 1272 

Pg:-·iz-73-

Pg. 1277 

Pg. 1289 

Pg. 1296 

Pg. 1298 

Pg. 1302 

Pg. 1308 

Pg. 1314 

Pg. 1317 

Pg. 1318 

Pg. 1324 

Pg. 1325 

1326 

Pg. 1328 

Pg. 1331 

Pg. 1332 

Pg. 1340 

AUGUST 1991 

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

Cyprus Empire Corporation v. Secretary of Labor, MSHA and United Mine 

Workers of America, Docket No. WEST 91-454-R, etc. (Judge Morris, June 27, 1991) 

Francis Marin v. ASARCO, Inc., Docket No. WEST 91-161-DM. (Judge Morris, 

July 15, 1991) 

Southern Ohio Coal Company v. Secretary of Labor, MSHA, Docket No. 

LAKE 91-650-R, 91-664-R. (Judge Weisberger, July 19, 1991) 

Energy West Mining Company v. Secretary of Labor, MSHA, Docket No. 

WEST 91-83-R. (Judge Lasher, July 22, 1991) 

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

Secretary of Labor, MSHA v. Hickory Coal Company, Docket No. PENN 90-49. 

(PDR denied as premature) 

Lancashire Coal Company v. Secretary of Labor, MSHA, Docket No. PENN 89-147-R. 

(Reconsideration of June 11, 1991 COllllllission Decision) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF lABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LANCASHIRE COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 6, 1991 

Docket Nos. PENN 89-147-R 

PENN 89-148-R 

PENN 89-149-R 

PENN 89-192-R 

PENN 89-193-R 

PENN 90-10--

Lancashire Coal Company has filed a Petition for Reconsideration 

requesting that the Commission reconsider its decision of June 11, 1991, in 

this matter, and the Secretary of Labor has filed a Response opposing the 

Petition. Upon consideration of the Petition and Response, the Petition is 

denied. 

Richard V. 

L. Clair Nelson, Commissioner 

1209 
Pllllft.AL MIMI SAFETY AN8·N&Al.TH RE·YllW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 29, 1991 

WYOMING FUEL COMPANY 

v. Docket No. WEST 90-238-R 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

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

DECISION 

BY THE COMMISSION: 

In this contest proceeding arising under the Federal Mine Safety and 

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

Wyoming Fuel Company ("WFC") seeks review of a decision by Commission 

Administrative Law Judge John J. Morris, affirming an imminent danger order 

of withdrawal issued pursuant to section 107(a) of the Mine Act. 1 The 

judge held that the section 107(a) order was validly issued when methane 

concentrations in excess of 1.5% were detected in a return entry of WFG's 

Section 107(a) of the Mine Act provides: 

If, upon any inspection or investigation of a 

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

an authorized representative of the Secretary finds 

that an imminent danger exists, such representative 

shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an 

order requiring the operator of such mine to cause 

all persons, except those referred to in section 

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

from entering, such area until an authorized 

representative of the Secretary determines that such 

imminent danger and the conditions or practices 

which caused such imminent danger no longer exist. 

The issuance of an order under this subsection shall 

not preclude the issuance of a citation.under 

section [104] or the proposing of a penalty under 

section [ 110] . 

30 U.S.C. § 817(a). 

1210 
Golden Eagle Mine. 12 FMSHRC 1664 (August 1990)(ALJ). The Commission 

granted WFC's petition for discretionary review. For the reasons that 

follow, we reverse the judge's decision. 

I. 

The essential facts are undisputed. On June 12, 1990, several 

inspectors of the Department of Labor's Mine Safety and Health Administration ("MSHA"), including Inspector Don Jordan, were conducting an 

inspection of WFC's Golden Eagle Mine, located in Weston, Colorado. This 

underground mine uses a combination of continuous miner and retreating 

longwall mining methods. 

At about 7:50 a.m., Inspector Jordan, General Mine Foreman Steve 

Salazar, and miner representative Ralph Sandoval approached the northwest 

No. 1 tailgate section of a longwall unit. As they entered the section, 

they were informed by the section mechanic, Ben Chavez, who was on his way 

to deenergize the longwall unit, that methane gas in excess of l.SX had been 

detected by foreman Rich Kretaski while Kretaski was examining the return 

entry. Kretaski had then ordered the immediate withdrawal of all personnel 

from the area and had posted the entry point of the unit to prevent the 

return of any of the withdrawn employees. 

Jordan and Salazar went to the No. 1 return entry and, using hand held 

methane detectors, measured the methane gas level at 1.7%. In the No. 4 

return, gas concentrations measured from 0.9 to 1%, and at the face, from 

0.3 to 0.8%. After leaving the face area, the two men travelled 

approximately 1,400 feet down the return entry, where further methane 

measurements ranged from 1.4 to 1.7%. Tr. 89. 

At 8:10 a.m., Inspector Jordan issued the contested section 107(a) 

order which stated: 

Methane (CH4) in excess of 1. 5% was detected with a 

permissible hand held methane detector. Was present 

in the 1 return entry of the NW #1 tail gate 

section .... Management had taken steps to correct 

the condition prior to the issuance of this order. 

The order was issued to safeguard the health and 

safety of personnel and to insure proper corrective 

action. 

At 2:30 p.m. the same day, Jordan modified the order to permit mining when 

the methane concentrations dropped below 1%. The order was terminated on 

June 21, 1990. 

At the hearing, Inspector Jordan indicated three factors supporting 

his decision to issue the imminent danger order. He stated that the mine 

was a very gassy mine and that methane concentrations can escalate rapidly. 

He also stated his belief that 30 C.F.R. § 75.309(b) requires an inspector 

1211 
to issue such order when methane reaches 1.5% in a return entry.z Tr. 25-

27. He further testified that a 1.5% concentration of methane in a return 

entry is not in itself an imminent danger. Tr. 37; He stated that he 

issued the withdrawal order because 30 C.F.R. § 75.309(b) requires him to 

withdraw miners whenever the methane level exceeds 1.5%. Id. 

In his decision, the judge first considered whether existing 

conditions constituted an imminent danger when the order was issued. He 

concluded: "On the facts presented here, it would appear that no condition 

of imminent danger existed within the ordinary meaning of section 107(~)." 

12 FMSHRC at 1670. His determination was based on the considerations that 

the methane concentrations had not reached an explosive range and that the 

inspector and mine superintendent would not have walked some 1,400 feet up 

the entry if they had believed an imminent danger existed. Id. 

Nevertheless, the judge pointed to the requirement of section 

303(i)(2) of the Mine Act that all persons "shall be withdrawn" from a 

return entry of a mine endangered by a concentration of methane of 1.5% or 

more. He opined that whether "the described methane concentrations are held 

to be a 'per se imminent danger' ... or a Congressionally mandated imminent 

danger is not critical to a resolution of the issues." 12 FMSHRC at 1670. 

He rejected WFC's argument that "the presence of 1.7% methane does not 

trigger a section 107(a) order because there can be no per .§j! imminent 

danger under the Act," stating: 

WFC's argument should be addressed to the Congress, 

not to the Commission. The statute, as stated 

above, clearly defines a 1.5 percent concentration 

methane to be an area of the mine that is 

endangered. It requires withdrawal of all miners 

from such an area. 

12 FMSHRC at 1671. 

2 30 C.F.R. § 75.309(b), a mandatory safety standard, repeats verbatim 

section 303(i)(2) of the Mine Act, which provides: 

If, when tested, a split of air returning from 

any working section contains 1.5 volume per centum 

or more of methane, all persons, except those 

persons referred to in section [104(d)] of this 

[Act], shall be withdrawn from the area of the mine 

endangered thereby to a safe area and all electric 

power shall be cut off from the endangered area of 

the mine, until the air in such split shall contain 

less than 1.0 volume per centum of methane. 

30 u.s.c. § 863(i)(2). 

1212 
The judge also stated that the proper for..un in which to seek an 

alternative method of enforcing section 75.309(b) without resort to a 

section 107(a) order is in a rulemaking proceeding. 12 FMSHRC at 1672. 

Finally, the judge rejected WFC's argument that proposed changes in the 

Secretary's ventilation regulations, which would not require the withdrawal 

of miners until the methane concentration reaches 2.0%, invalidated the 

Secretary's position. The judge stated that the case had to be decided on 

existing regulations and not on proposed changes, which might never be 

adopted. 

II. 

On review, WFC contends that the 1.5% concentration of methane in the 

return entry did not constitute an imminent danger and that, lacking a 

finding of imminent danger by the judge, the imminent danger order was 

invalidly issued. The Secretary argues that the presence of methane in 

concentrations exceeding 1.5% in a return entry constitutes an imminent 

danger, justifying the use of a section 107(a) order to require the 

withdrawal of all miners. 

We conclude that substantial evidence amply supports the judge's 

finding that "no condition of imminent danger existed within the ordinary 

meaning of section 107(a)." 12 FMSHRC at 1670. The Secretary did not 

contest this finding on review. The record clearly demonstrates that at the 

time the section 107(a) order was issued, the concentration of methane had 

not reached an explosive level, 3 mining activity had been suspended, the 

miners had been withdrawn, and electric power to the unit was being 

deenergized. Accordingly, we affirm the finding of the judge that no 

imminent danger existed at the time the order of withdrawal was issued. 

The Mine Act does not empower the Secretary to issue a section 107(a) 

order except upon the finding of an imminent danger. We reject the 

Secretary's implicit argument that section 303( (2) of the Mine Act 

authorizes the use of a section 107(a) order regardless of whether an 

imminent danger is found. The testimony of Inspector Jordan suggests that 

he was trained to issue a section 107(a) order to implement the withdrawal 

of miners required under 30 C.F.R. § 75.309. He testified that "when I 

encounter 1.5% methane regardless of the situation, if I am in fact present, 

... I am obligated to issue an imminent danger" order. Tr. 36-37. Thus, he 

issued the order, not because he found that the specific conditions in the 

mine created an imminent danger, but because he felt obligated to issue such 

an order whenever the level of methane exceeds 1.5% in return air. 

3 The highest concentrations of methane measured by Inspector Jordan were 

1.8% in the No. 1 return entry, 1.2% in the No. 4 return entry and 0.8% at the 

face. Tr. 22-25; 88-89. The inspector further testified that methane is 

explosive only when the concentration is between 5 and 15% and is most 

explosive at 9%. Tr. 45-46. The inspector did not detect an explosive 

mixture of methane at any location in the mine. 

1213 
The language of section 303(i)(2) of the Mine Act directs mine 

operators to withdraw miners and to cut off electric power when a 

concentration of methane in excess of 1.5% is detected in a return entry of 

an underground coal mine. The relevant legislative history explains the 

reason for the required withdrawal of miners from the endangered areas: 

This section requires that men be withdrawn by 

the operator or inspector, if he is present, and 

power shut off from a portion of a mine endangered 

by a split of air returning from active underground 

workings containing 1.5 percent of methane. 

The presence of 1.5 percent of methane in the 

air current returning from active underground 

working places indicates that considerably larger 

amounts of methane may be accumulating in the air at 

places in the mine through which the current of air 

in such split has passed. Safety requires that 

employees be withdrawn from the portion of the mine 

which is endangered by the possibility of an 

explosion of any such,·accumulation of methane, and 

that all electric power be cut off from such portion 

of the mine, until the cause of the high' percentage 

of methane in such returning air is ascertained and 

the quantity of methane in such returning air is 

reduced to no more than 1.0 percent. 

S. Rep. No. 411, 9lst Cong., 1st Sess. 59 (1969), reprinted in Senate 

Subcommittee on Labor of the Committee on Labor and Public Welfare, 94th 

Cong., 1st Sess., Part I Legislative History of the Federal Coal Mine Health 

and Safety Act of 1969, at 185 (1975) (Legis. Hist.). 

As the legislative history explains, Congress was concerned that a 

1.5% concentration of methane in a return entry indicates that 

"considerably larger amounts of methane in a return entry may be 

accumulating" in other areas, creating "the possibility of an explosion." 

Id. (emphasis added). Nowhere in the language of the statute or in its 

legislative history do we find support for a conclusion that a concentration 

of 1.5% of methane constitutes, by its very nature, an imminent danger as 

that term is used in the statute. 4 

1

' The Interior Board of Mine Operations Appeals, in Pittsburgh Coal 

Company, 2 IBMA 277 (1973) concluded that, under section 303(h)(2) of the Coal 

Act of 1969, the presence of 1. 5% of methane in a working place "per se 

warrants a finding of 'imminent danger'." Id. at 278. The Board's finding 

was based on the reasoning of the administrative law judge that since Congress 

required the "drastic action of withdrawal, then it must be because the 

situation was viewed as one of imminent danger." Id. at 282. We do not 

agree. Neither in Pittsburgh, nor in the case now before us, was evidence 

presented by the Secretary to support a finding that a concentration of 1.5% 

of methane in and of itself constitutes an imminent danger. 

1214 
we reject the Secretary's argument that the withdrawal of miners under 

section 303(i)(2) of the Mine Act (section 75.309(b)) warrants a finding of 

imminent danger and the issuance of a section 107(a) order of withdrawal. 

This argument superimposes, improperly we believe, the Secretary's authority 

to issue a section 107(a) order of withdrawal onto the provisions of section 

303(i)(2). Section 303(1)(2) is a mandatory safety standard; it is violated 

only when an operator fails to withdraw miners and shut off power when 

methane concentrations reach 1.5% in return air. The presence of such 

concentration is not by itself a violation of the standard. 

Further, nowhere in the language of section 303(i)(2) or its 

legislative history are the terms "imminent danger", or "imminent danger 

order of withdrawal" to be found. The statute simply states that "all 

persons ... shall be withdrawn," and the legislative history makes clear 

that the miners must be withdrawn "by the operator or inspector, if he is 

present." The Secretary's mandatory standard at 30 C.F.R. § 75.309(b) 

reiterates the statutory provision, requiring that all persons "shall be 

withdrawn." The responsibility for complying with the mandatory standard 

rests with the operator,. Unlike'sectiori 107(a), section 303(i)(2) and 

75.309(b) are directed to the operator rather than to the Secretary. A 

violation of the mandatory standard occurs if and when an operator fails to 

withdraw the miners and cut off electric power as required by the standard. 

The operator should be cited under section 104, 30 U.S.C. § 814, for such a 

failure. Then, failure to abate the violation in a timely manner would 

result in the issuance of an order of withdrawal under section 104 and the 

withdrawal of miners would thus be effected. 5 

Congress has provided the Secretary with considerable authority to 

order the withdrawal of miners to ensure their safety for other than 

imminent danger conditions. Such withdrawal may be required by an inspector 

pursuant to section 104(b) of the Act, 30 U.S.C. 814(b), when the operator 

has failed to abate a violation of a mandatory standard in a timely manner 

or pursuant to section 104(d), 30 U.S.C. § 814(d), based on a finding of 

"unwarrantable failure" on the part of an operator. Section 103(k), 30 

D.S.G. § 813(k), authorizes an inspector to issue orders requiring the 

withdrawal of miners as he deems appropriate in the event of "any - cident" 

and section 107(b)(2), 30 U.S.C. 817(b)(2), permits an inspector to order 

the withdrawal of miners under certain conditions short of imminent danger, 

after specified procedures are followed. 

Substantial evidence supports the judge's finding that the conditions 

present at the mine did not constitute an imminent danger. The language of 

the Mine Act and the legislative history establish that section 303(i)(2) is 

addressed to mine operators and requires that they remove miners and cut off 

electric power when the level of methane in the return split of air reaches 

5 Of course, if an inspector does find that conditions at the mine create 

an imminent danger, as defined in section 3 (j) , 30 U.S. C. § 802 (j) , he is 

required to issue a section 107(a) order. 

1215 
1.5%, because an explosive level of methane "may be accumulating at places 

in the mine through which the current of air in such split has passed." 

Legis. Hist. at 185. In this case, Inspector Jordan inspected the area 

through which the current of air passed and found that, in fact, explosive 

levels of methane were not accumulating at the mine. Neither section 

303(i)(2) nor section 107(a) provides that such a condition constitutes an 

imminent danger. The Secretary is not authorized to issue an imminent 

danger withdrawal order unless her authorized representative, in this case 

the inspector, finds that an imminent danger is present. 

For the foregoing reasons, we reverse the judge's decision and vacate 

the contested section 107(a) order. 

Distribution: 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Denartment of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, DC 20004-2505 

~R.hdVBkl ic ar . ac ey, Acting ~/ airman 

J 

·~t!.~ yceA:DOY'ie, CommiSSiOile 

L. Clair Nelson, Commissioner 

1216 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WESTMORELAND COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 30, 1991 

Docket No. VA 90-28 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arising under the Federal Mine Safety and 

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

involves a citation issued to Westmoreland Coal Co. ("Westmoreland") by the 

Secretary of Labor ("Secretary") for a violation of 30 C.F.R. 75.1003, a 

mandatory safety standard applicable to trolley wires in underground coal 

mines. Commission.Administrative Law Judge Avram Weisberger determined that 

Westmoreland violated the standard and that the violation was significant and 

substantial in nature. 12 FMSHRC 1782 (September 1990)(ALJ). The Commission 

granted Westmoreland's petition for discretionary review. For the reasons 

that follow, we reverse the judge's decision and vacate the citation. 

I. 

Factual and Procedural Background 

Westmoreland owns and operates the Bullitt Mine, an underground coal 

mine in Wise County, Virginia. The mine uses longwall mining systems for the 

extraction of coal, belt conveyors for coal handling, and a trolley rail 

system for the transportation of personnel and supplies. The trolley system, 

which is the subject of this contest, is comprised of three components: a 

narrow gauge track line, the rails of which are 44 inches apart; a 300-volt 

trolley wire, which is suspended from the roof, runs parallel and to the right 

of the track line, and provides power to the rail cars through a conductor 

called a pole or harp; and the rail cars themselves, which include mantrips 

for the transportation of miners. Jt. Exh. l; Tr. 21-23, 44, 66; 

12 FMSHRC at 1783. 

The area of the mine giving rise to this dispute is the intersection of 

the West Mains Entry and the Four Left Entry. The West Mains Entry contains 

the main trolley line and a belt conveyor, which run parallel to each other. 

Tha Four Left Entry is one of four entries that service the Four Left Section, 

a longwall section located approximately 300 feet inby the intersection in 

question. l2 FMSHRC at 1783-84. 

1217 
At the intersection of the two entries, a spur line of the trolley 

system branches off to the left from the West Mains trolley line and heads 

into the Four Left Entry for a distance of about 50 feet. This spur line is 

used to convey mantrips into the mouth of the Four Left Entry and also serves 

as a parking area for rail cars that have to be diverted from the West Mains 

track. Just as the spur line branches off from the West Mains Line, it passes 

underneath the West Mains No. 3 belt conveyor line. 

Tr. 27, 38. 

The West Mains Entry is 22 feet wide and the Four Left Entry is 20 feet 

wide. The height of both entries ranges from 5 to 5.5 feet. The West Mains 

belt conveyor is 4 feet wide and clearance under the belt is also 4 feet. The 

distance from the trolley wire to the roof from which it is suspended ranges 

from 1.5 to 2 feet. At the point where the Four Left Entry spur line 

intersects the West Mains belt conveyor, both the trolley wire and the track 

pass beneath the belt. Tr. 19-20, 23; Jt. Exh. No. 2. 

At the time that the disputed citation was issued, no work was being 

done in the intersection, but a crew consisting of three or four miners and a 

foreman was engaged in dismantling.the longwall system in the Four Left 

Section, 300 feet inby the intersection. Tr. 30. 

On January 17, 1990, MSHA inspector Gary Jessee was conducting a section 

103(i) spot inspection (required for mines with excessive quantities of 

methane). He was accompanied by Westmoreland's assistant general mine 

foreman, John Yorke. Tr. 14. Upon arriving at the intersection of the West 

Mains Entry and the Four Left Entry, he found that the guard installed around 

the trolley wire where it passed under the West Mains belt conveyor had come 

loose so that one end was still attached and the other end was resting on the 

mine floor. 

Inspector Jessee issued to Westmoreland a citation alleging a violation 

of 30 C.F.R. § 75.1003. 1 The citation reads as follows: 

30 C F.R. § 75.1003 provides: 

Trolley wires, trolley feeder wires, and bare 

signal wires shall be insulated adequately where they 

pass through doors and stoppings, and where they cross 

other power wires and cables. Trolley wires and 

trolley feeder wires shall be guarded adequately: 

(a) At all points where men are required to work or 

pass regularly under the wires; 

(b) On both sides of all doors and stoppings; and 

(c) At man-trip stations. 

The Secretary or his authorized representatives shall 

specify other conditions where trolley wires and 

trolley feeder wires shall be adequately protected to 

prev,ent contact by any person, or shall require the 

use of improved methods to prevent such contact. 

Temporary guards shall be provided where trackmen and 

1218 
The energized trolley wire was not mechanically 

guarded at the mouth of the 4 left section track 

heading where wire crosses under the West Mains No. 3 

conveyor belt. 

The citation was timely abated by reattaching the loose end of the 

guard. On January 25, 1990, Inspector Jessee issued the following 

modification to the citation: 

Citation No. 3352277 is modified to show the 

additional information in the body of the citation, 

distances of the energized trolley wire from the two 

bottom rollers, West Mains No. 3 conveyor belt was 

11.5, 2nd roller inby was 8.5 inches, approximate 

distance from conveyor belt to wire was 4.5 inches, 

and from support ropes (steel cables) and belt 

structures, distance was approximately 8.5 inches. 

The citation was issμed pursuant to·section 104(a) of the Mine Act, 30 

U.S.C. 814(a), was designated as significant and substantial in nature, and 

was characterized as being caused by Westmoreland's moderate negligence. The 

Secretary proposed a penalty of $105, and a hearing on the merits was held on 

June 25, 1990. 

In arriving at his decision, the judge framed the issue in these terms: 

Jessee issued a Citation alleging a violation of 30 

C.F.R. § 75.1003, which, as pertinent, provides that 

trolley wires ... " shall be guarded adequately: (a) at 

all points where the men are required to work or pass 

regularly under the wires .... " Thus, in order for 

there to be found a violation herein it must be 

established that there existed an unguarded point at 

which men are either: 1. required to work; or 2. pass 

regularly under the wire. 

12 FMSHRC at 1784. 

The judge first noted that various weekly, pre-shift and belt 

examinations were conducted on foot in the area and that assistant general 

foreman Yorke had testified that two or three times a year miners would be 

assigned to clean up spillage on the West Mains side of the belt but were not 

required to go beneath the belt or under the unguarded wire. The judge went 

on to conclude that such evidence was "insufficient to establish that persons 

are required to work at a point under the unguarded wires." 

12 FMSHRC at 1784 n.2. 

other persons work in proximity to trolley wires and 

trolley feeder wires. 

1219 
The judge then turned to the issue of whether miners were required to 

"pass regularly under the wire." The judge found that despite there being 

four access routes to the Four Left Section where the longwall was being 

dismantled, the Four Left Entry was the primary route from the area out of the 

mine and that travel from the Four Left Entry was generally by trolley-powered 

mantrip rather than by foot. 12 FMSHRC at 1784. 

The judge further found that the mantrip extended more than 1 foot on 

either side of the trolley tracks and that the trolley wire was 1.5 feet in a 

lateral direction beyond the track. The judge deduced that "there is support 

for the testimony of Jessee that a person sitting on the driver's side of the 

mantrip would be an inch from the unguarded energized wire." 12 FMSHRC at 

1785. 

Finally, the judge noted that Jessee had indicated that he had observed 

full mantrips in the area of the unguarded wire in question. Accordingly, the 

judge concluded that, when riding a mantrip to and from the Four Left Entry, 

"miners do regularly pass at a point where the trolley wire was unguarded, and 

as such, Respondent herein did violate Section 75.1003(a)." 12 FMSHRC at 

1785. The judge went on to reject as unduly restrictive what he deemed to be 

Westmoreland's argument that the standard is not violated when miners in a 

mantrip (as opposed to miners on foot) pass under an unguarded trolley wire. 

12 FMSHRC at 1785 n. 3. 

Turning to the issue of whether the citation was significant and 

substantial, the judge held that, in light of his finding that persons sitting 

on the driver's side of the mantrip would be one inch from an unguarded wire 

energized at 300 volts, those persons would be exposed to the hazards of being 

burned or electrocuted. He further credited Jessee's testimony that persons 

riding in the inby end of the mantrip could come in contact with the wire by 

being jostled or thrown against it due to a sudden stop caused by a wreck or 

irregularities in the track. 12 FMSHRC 1785-86. Accordingly, he determined 

that the violation was significant and substantial in nature. 

with respect to assessing a civil penalty, the judge, citing the 

Commission's decision in U.S. Steel Mining Company, Inc., 7 FMSHRC 865, 867 

(June 1985), noted strong Congressional concerns with hazards posed by bare 

trolley wires and, accordingly, found a high level of gravity associated with 

the violation. 12 FMSHRC at 1786. Concerning the degree of negligence 

surrounding the violation, the judge found that the violation was readily 

noticeable but also noted that Yorke had testified that the guard had been in 

place the night before. He thus concluded that the violation resulted from 

westmoreland's moderate negligence. In consideration of the above findings, 

and the other statutory assessment criteria, the judge assessed a civil 

penalty of $400. 12 FMSHRC at 1787. 

1220 
II. 

Disposition of Issues 

On review, Westmoreland seeks reversal of the judge's decision on both 

procedural and substantive grounds. We address the procedural challenge 

first. 

The operator contends that the citation should be vacated as invalid 

because it fails to charge with particularity a violation of section 75.1003, 

as required by section 104(a) of the Mine Act, 30 U.S.C. § 814(a). Citing the 

Commission's decision in Mid-Continent Resources, Inc., 11 FMSHRC 505, 510 

(April 1989)("Section 104(a) thus mandates that the operator be given fair 

notice in the citation of the violation it is required to correct"), 

Westmoreland contends that the citation and its modification address only the 

fact that the trolley wire was not guarded where it passed beneath the 

conveyor belt, but not whether miners regularly worked or passed under the 

unguarded wire at that location in violation of section 75.1003(a), as found 

by the judge. 

The operator also argues that since the inspector cited section 75.1003 

generally rather than the specific provision contained in section 75.1003(a), 

the citation must be vacated. Westmoreland contends that the Secretary is 

obliged to defend the citation as written, and that it was improper for the 

judge to rectify deficiencies in the original citation by allowing the hearing 

to proceed on the basis of a violation of section 75.1003(a) and in light of 

conditions not set forth in the citation or the modification thereto. 

The Secretary responds by arguing that the citation on its face clearly 

sets forth the conditions constituting the violation. She further avers that 

at no time prior to, during or after the hearing did Westmoreland indicate 

that it did not understand the nature of the violation charged. The Secretary 

notes that in its post-hearing brief Westmoreland acknowledged that a 

violation of section 75.1003(a) was at issue when it stated, "the Secretary's 

arguments have lost sight of the issue in this case -- whether miners were 

required to work or pass regularly under the trolley wire in the area in 

question." Sec. Br. at 7. Citing section 113(d)(2)(A)(iii) of the Act, 30 

U.S.C. § 823(d)(2)(A)( , the Secretary further contends that Westmoreland's 

arguments regarding a prejudicial lack of notice as to the violation charged 

were not presented to the judge and therefore cannot now be presented to the 

Commission without the judge's having had the opportunity to consider and rule 

on the issue. 

It is clear from the record that counsel for Westmoreland made no 

objection at trial with respect to the Secretary's or the judge's 

clarification of the charges against it. In the absence of such objection, it 

would appear that Westmoreland gave at least implied consent to what it now 

objects to as defects in the citations. Cf. Fed. R. Civ. P. 15(b). See A.H. 

5 FMSHRC 13, 16 n. 5 (January 1983). Furthermore, the 

Secretary is correct in arguing that given the constraints on review in 

section 113(d)(2)(A)(iii)("Except for good cause shown, no assignment of error 

by any party shall rely on any question of fact or law upon which the 

administrative law judge had not been afforded an opportunity to pass"), we 

1221 
cannot entertain Westmoreland's challenge to the underlying validity of the 

citation at this juncture. 

Westmoreland also challenges the judge's decision on the grounds that 

certain material findings of fact relied upon by the judge in concluding that 

a violation occurred are clearly erroneous. Accordingly, the operator argues, 

the judge's findings are not supported by substantial evidence and his 

decision must be reversed. 

Westmoreland points to the judge's finding on the basis of his reading 

of the evidence that "there is support for the testimony of Jessee that a 

person sitting on the driver's side of the mantrip would be an inch from the 

unguarded trolley wire." 12 FMSHRC at 1785. Westmoreland contends that there 

is no such testimony by Jessee or any other witness. Rather, Jessee testified 

that a person "sitting in the passenger side of the mantrip [would] [p]robably 

[be] a foot or less" from the trolley wire in the cited area or that the 

trolley wire was within "arm's reach" or "about a foot from somebody's head." 

Tr. 42-45; W. Br. at 9. 

Westmoreland also argues that the judge's conclusion regarding the 

proximity of the trolley wire t~"Persons sitting in the mantrip is 

contradicted by Jt. Exns. 2, 3 and 4, which show that beneath the belt, the 

lateral distances between the trolley wire and the track on the trolley wire 

side ranged from 2 feet to 2 feet, 3.75 inches. Even allowing for Jessee's 

testimony and the judge's conclusion that the mantrip extended "more than a 

foot" on either side beyond the tracks, Westmoreland argues that the evidence 

does not support a finding that persons in a mantrip would be sitting "an inch 

from the trolley wire." 2 

Westmoreland further notes that the judge's finding of a violation was 

predicated on the presence of a fully loaded mantrip passing beneath the belt 

causing those persons seated on the trolley wire side of the mantrip (what the 

judge called the "driver's side") to be situated closer to the trolley wire. 

The operator contends however that the hazards of a fully loaded mantrip 

alleged by Jessee and accepted the judge would obtain throughout the entire 

length of the trolley system, not just under the conveyor belt, since whatever 

differences exist between the trolley wire under the belt and the trolley wire 

elsewhere in the system involve vertical as opposed to horizontal clearances. 

Westmoreland further argues that the judge misconstrued the standard in 

finding a violation under the factual circumstances presented. Noting that 

there is no material difference between the area cited and areas where 

mantrips traverse the trolley system, Westmoreland asserts that the judge's 

decision would require the guarding of trolley wires throughout the mine, 

particularly since he concluded that "when riding a mantrip, on the way to and 

from the Four Left entry from the West Mains entry, miners do regularly pass 

2 Westmoreland points 

extent of the overhang of 

"Probably, at least, a foot. 

closer." Tr. ~21; W. Br. at 

out that the inspector's only testimony on the 

the mantrip beyond the track is as follows: 

It would be a foot on either side. It could be 

7 n. 7, 8-9. 

1222 
at a point where the trolley wire was unguarded, and as such, [Westmoreland] 

did violate section 75.1003(a)." W. Br. at 11-12. 

With respect to Westmoreland's argument that substantial evidence does 

not support the judge's finding of violation, we conclude that the operator 

has established sufficient grounds to require reversal of the judge's 

decision. 

Westmoreland is correct in asserting that there is no evidence in the 

record to support the judge's conclusion (which he attributed to the testimony 

of Inspector Jessee) that miners travelling in the mantrip would be one inch 

away from the unguarded trolley wire. In fact, Jessee testified that the 

distance was "about a foot" or "within an arm's reach" of the miners. Tr. 42-

45. Moreover, the judge refers to miners on the "driver's side" of the 

mantrip as being closer to the trolley wire. Again, there is no testimony 

with respect to the "driver's side" of the vehicle, and Westmoreland points 

out in its brief that the driver sits in the middle of the mantrip. 

W. Br. at 8. 

Most importantly, the judge's· conclusion is directly at odds with Jt. 

Exhs. 2, 3, and 4. Jt. Exhs. 2 and 3 are engineer's drawings that portray the 

trolley wire in relation to both the conveyor belt and the rail on the trolley 

wire side of the Four Left spur line. They were prepared jointly and cosigned by representatives of both Westmoreland and the Secretary. Jt. Exh. 4 

is an accompanying legend setting forth the various measurements taken at key 

locations in the cited area. The exhibits establish that the lateral 

distances between the trolley wire and the rail on the trolley wire side were 

widest where the trolley wire crossed beneath the belt and where the guard 

would have been installed (between 2 feet and 2 feet, 3.75 inches as opposed 

to between 1 foot, 6 inches and 1 foot, 11 inches at those locations where the 

guard would not have been installed). 

On the other hand, the exhibits show that the vertical clearances 

between the trolley wire and the rail are lower at some locations under the 

belt than elsewhere (between 3 feet, 9.75 inches and 3 feet, 11.5 inches as 

opposed to 4 feet, 8.5 inches). However, Jt. Exh. 3 indicates that the 

vertical clearances at two points under the belt are virtually identical to 

another point away from the belt where the guard was not installed. 3 

The other factor that needs to be considered is the reduction in lateral 

clearance owing to the extension of the mantrip on either side of tracks. The 

judge found this overhang to be "more than a foot" but, as Westmoreland points 

out, his conclusion is based on very equivocal testimony by the inspector. 

("Probably, at least a foot. It would be a foot on either side. It could be 

closer." Tr. 121). Unfortunately, Jt. Exhs. 2, 3 and 4 do not clear up this 

discrepancy. However, both parties agree on review that the overhang was 

approximately a foot. W. Br. at 7; Sec. Br. at 10. In any event, the trolley 

3 The various vertical measurements in Jt. Exh. No. 3 are not 

uniform in that, some are taken between the trolley wire and the mine floor 

while others are taken between the trolley wire and the top of the rail. 

1223 
wire at the cited location was further away horizontally from the mantrip than 

it was at points where a guard was neither provided nor required by the 

inspector. Thus, the overhang of the mantrip, whatever its distance, would 

bring miners closer to the wire at those points along the trolley wire, 

identified in Jt. Exh. 2, where the guard would not have been provided or 

required. 

The standard requires a guard where miners regularly pass under the 

trolley wire, i.e., where miners would break the plane created by the trolley 

wire and a parallel line running along the mine floor. While the evidence may 

show that miners passed close to the trolley wire when the mantrip travelled 

beneath the belt, it does not establish that they travelled under the wire. 

The stipulated drawings and measurements in Jt. Exhs. 2, 3, and 4 clearly 

indicate that the trolley wire ran slightly higher and to the side of the 

miners travelling in mantrips beneath the belt conveyor, a position not 

markedly different from other locations along the trolley system. 4 

We are mindful of the close clearances presented by the trolley system 

passing beneath the conveyor belt'in the cited area and the potential hazards 

presented by a bare, energized trolley wire carrying 300 volts of current. As 

the record clearly indicates, however, those conditions arise throughout the 

trolley system in the Bullitt Mine. 30 C.F.R. § 75.1003(a) explicitly applies 

to miners being required to travel under unguarded trolley wires, not in 

proximity to the unguarded trolley wires, as the Secretary argues. Here, the 

record shows that, although miners in the mantrips passed in proximity to the 

trolley wire, they did not travel under it within the meaning of the standard. 

If the Secretary or her inspectors determine that certain clearances are 

insufficient to protect miners from contact with energized trolley wires, the 

standard provides a remedy: 

"The Secretary or [her] authorized representatives 

shall specify other conditions where trolley wires 

shall be adequately protected to prevent contact by 

any person, or shall require the use of improved 

methods to prevent such contact. Temporary guards 

shall be provided where trackmen and other persons 

work in proximity to trolley wires .... 

4 It would appear that the inspector was strongly influenced by his 

perception that "the clearance is vastly reduced from the main heading into 

that area by reason of the conveyor belt crossing over at that point." 

Tr. 42. However, as noted above, the vertical clearance under the belt was 

the same as the vertical clearance under at least one other point outside the 

area covered by the dislodged guard. 

1224 
Since the evidence submitted jointly by the parties convincingly 

establishes that the miners in this case did not regularly pass under the 

trolley wire, Westmoreland did not violate subsection 75.1003(a) as the judge 

concluded. In view of this conclusion, we need not address the judge's 

significant and substantial findings. Accordingly, the judge's decision is 

reversed and the citation is vacated. 

Distribution 

Thomas C. Means, Esq. 

Claire S. Brier, Esq. 

CROWELL & MORING 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Richard A. Backley, Acting Chai'Ptnan 

Arlene Holen, o issioner 

'&~ 1 L. C . 1 c . . air Ne son, ommissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1225 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ROY FARl'lER AND OTHERS 

v. 

ISLAND CREEK COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 9, 1991 

Docket No. VA 91-31-C 

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

DECISION 

BY THE COMMISSION: 

This compensation proceeding arises under the Federal Mine Safety and 

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

December 20, 1990, Commission Administrative Law Judge James A. Broderick 

issued an Order of Dismissal dismissing the pro se compensation complaint 

filed in this matter by Roy Farmer on his own behalf and on behalf of some 

275 other miners at the Virginia Pocahontas No. 3 Mine of Island Creek Coal 

Company ("Island Creek"). 12 FMSHRC 2641 (December l990)(ALJ). Granting a 

motion to dismiss filed by respondent Island Creek, the judge found that the 

compensation complaint had been filed late and that complainants had not 

advanced any explanation for the late filing. Complainants filed a pro se 

Petition for Review of the judge's order. We also received a Supplement to 

'-'etition for Review from the United Mine Workers of America ("UMWA") and an 

Opposition to Petition for.Review from Island Creek. On January 29, 1991, 

we issued a Direction for Review and stayed briefing in this matter. For 

the reasons explained below, we vacate the judge's dismissal order and 

remand this matter to the judge in order to afford complainants the 

opportunity to present to the judge the reasons for their late filing 

a.sserted in their petition for review. The judge shall determine whether 

those reasons excuse the late filing of the compensation complaint. 1 

we briefly summarize the relevant procedural history. It appears from 

the record that on April 17, 1990, the Department of Labor's Mine Safety and 

Health Administration ("MSHA") issued Island Creek an imminent danger 

withdrawal order alleging the presence of a dangerous concentration of 

methane in the Pocahontas Mine. The order states that the affected area was 

the "entire mine." On the same date, MSHA also issued Island Creek a 

citation alleging that various conditions contributing to the buildup of 

methane constituted a violation of the operator's ventilation plan and, 

1 The papers already filed with the Commission on review adequately 

discuss the legal issues raised by complainants' petition and, accordingly, 

we continue the briefing stay provided in our Direction for Review and 

decide this matter without additional briefing. 

1226 
hence, of 30 C.F.R. § 75.316. 

By letter dated October 29, 1990, and received by the Commission on 

November 2, 1990, Roy Farmer filed a "Request for compensation per section 

111 of Coal Mine Safety and Health Act of 1977." Among other things, the 

letter states that Island Creek, in violation of section 111 of the Mine 

Act, 30 U.S.C. § 821, had refused to compensate its employees who were idled 

by the imminent danger order during the period April 17 through 20, 1990. 

The letter notes the issuance of the citation accompanying the imminent 

danger order. Attached to the letter is a list of some 275 Island Creek 

miners allegedly idled by the withdrawal order. The letter asserts that all 

such employees lost three 8-hour shifts due to the idlement and asks that 

Island Creek "be ordered to immediately compensate all employees idled." 

Complaint at 1. Mr. Farmer identifies himself as a miner's representative. 

Commission Procedural Rule 35, 29 C.F.R. § 2700.35 ("Rule 35"), 

provides: 

A complaint for compensation under section 111 

of the Act, ~O U.S.C. --s·21, shall be filed within 90 

days after the commencement of the period the 

complainants are idled or would have been idled as a 

result of the order which gives rise to the claim. 

Farmer's Complaint, submitted to the Commission more than six months after 

the issuance of the imminent danger order, is silent as to reasons for the 

late filing. 

On November 28, 1990, Island Creek filed its Answer to the 

compensation complaint. (See 29 C.F.R. § 2700.37.) As an affirmative 

defense, the Answer states that "the Complaint must be dismissed because it 

was not filed within the period required by Commission Rule 35." Answer at 

2 (~ 6). Island Creek al~o asserts that it did not violate any mandatory 

standard in connection with any idlement alleged in the Complaint and notes 

that it contested the citation, which, at the time, was the subject of a 

civil penalty proceeding pending before the Commission. 

On November 30, 1990, Island Creek filed a Motion to Dismiss 

Compensation Complaint. The Motion argues that the Complaint was late-filed 

and that no excuse was offered for the untimeliness and that, accordingly, 

the proceeding ought to be dismissed. On December 5, 1990, the matter was 

assigned to Judge Broderick. The official file contains no response from 

the complainants to the dismissal motion. 2 

2 Under Commission procedures, a party has 10 days after date of service, 

plus five additional days for documents served by mail, to file a statement 

in opposition to a motion. 29 C.F.R. §§ 2700.8(b) & .lO(b). In this 

instance, complainants' 15-day period for filing a response ended on 

December 17, 1990. 

1227 
On December 20, 1990, Judge Broderick issued his Order of Dismissal. 

The judge noted that the motion to dismiss argues for dismissal because the 

complaint was filed 198 days after the date of the alleged entitlement and 

Rule 35 requires filing within 90 days after entitlement. 12 FMSHRC at 

2641. Referencing the late filing and complainants' failure to respond to 

the motion or to offer any justification for the late filing, the judge 

granted the motion and dismissed the proceeding. 12 FMSHRC at 2641-42. 

On January 4, 1991, Farmer filed with the Commission a pro se Petition 

for Review. The Petition, which is signed by Fanner and is unsworn, alleges 

essentially that the miners were misinformed by both Island Creek and 

government officials as to their compensation rights and the time limit for 

filing a compensation complaint. Pet. at 1-2. Among other things, the 

Petition asserts that government officials whom the miners contacted 

informed them that any applicable time limit would run from the date of the 

resolution of the related civil penalty proceeding. 3 The Petition 

does not provide details concerning the dates, circumstances, or individuals 

involved in the alleged contacts with company and government officials. In 

conclusion, Farmer states: 

Pet. at 2. 

So due to the above set of facts, our local 

union's financial inability to retain legal counsel, 

and our local union's representatives' inabilities 

and lack of knowledge in these procedural matters, 

we respectfully request a review and reversal of 

[the judge's] decision to dismiss our claim for 

compensation. 

On January 9, 1991, the UMWA filed a Supplement to Petition for 

Review. The DrfWA asserts ·that the complainants have alleged several 

explanations that would justify late filing, including a representation that 

"Island Creek officials misled complainants and contributed to the in 

3 In connection with this alleged assurance regarding filing time limits, 

Farmer states that unnamed government officials referred the miners to 

section 111 of the Act, a copy of which is highlighted and attached to the 

Petition. Pet. at 1 (~ 2). The highlighted portion is the third sentence, 

which deals with "one-week compensation." Apparently Farmer's reference is 

to the in that sentence stating that any required compensation is 

to oe "after" the compensation-triggering withdrawal order is "final. ll 

30 U.S.C. § 821 (third sentence). The language addresses the procedural 

requirement that compensation itself may not be awarded until the underlying 

withdrawal order is deemed to be final, whether through the operator's 

failure to contest it or through a separate judicial determination of its 

validity. See generally Loe. U. 1810, UM.WA v. Nacco Mining Co., 11 FMSHRC 

1231, 1239 (July 1989). This language does not, however, prescribe any time 

limit for the filing of a miner's complaint for compensation. As noted 

below, section 111 does pot address the subject of such a time limit. 

1228 
filing." UMWA Supp. at 2. The UMWA states that the complainants were "not 

sleeping on their rights" but, rather, contacted government officials for 

advice on how to proceed and relied upon "erroneous information" provided by 

the latter. Id. The UMWA asks the Commission to review the case for the 

purpose of remanding it to the judge in order to allow complainants to 

present to him their reasons for the late filing. The UMWA notes that the 

Commission has afforded pro se mine operators relief from default orders 

where their failures to respond to judges' orders were due to inadvertence 

or mistake. UMWA Supp. at 3. 

Also on January 9, 1991, Island Creek filed an Opposition to Petition 

for Review. Island Creek relies mainly on the review limitation in section 

ll3(d)(2)(A)(iii) of the Act: "Except for good cause shown, no assignment of 

error ... shall rely on any question of fact or law upon which the ... judge 

had not been afforded an opportunity to pass." 30 U.S.C. 

§ 823(d)(2)(A)(iii). Island Creek contends that review should be denied 

because the basis of complainants' petition was not first presented to the 

judge and good cause has not been shown for the failure to do so. I.C. Opp. 

at 1-2. Island Creek also argues that the filing delay involved here was 

"particularly egregious," that compl.e.inantsfailed to advance any 

justification to the judg& for the late filing, and that their present 

explanations for the delay are "plainly not believable." LC. Opp. at 1-2. 

This case presents two issues on review: whether the late filing of 

the compensation complaint precludes the compensation claim, and whether 

complainants' failure to present to the judge their explanations for the 

late filing bars Commission consideration of those issues on review. We 

address first the issue of the effects of th~ late filing. 

Section 111 does not provide any time limit for the filing of a 

compensation complaint. In relevant part, section 111 merely states: 

The Commission shall have authority to order 

compensation due under this section upon the filing 

of a complaint by a miner or his representative and 

after opportunity for hearing subject to section 554 

of title 5. 

30 U.S.C. § 821 (fifth sentence). Neither the legislative history of the 

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. 

(1976) (amended 1977), nor that of the Mine Act addresses time periods for 

the of compensation complaints. 

As referenced above, however, the Commission's Rule 35 does deal with 

the subject and establishes a 90-day period for the filing of compensation 

claims. As Island Creek appropriately points out (I.C. Opp. at 2), this is 

a generous period, larger than other filing periods in the Commission's 

Procedural Rules. However, particularly in view of the statutory silence on 

the subject, this time limit is not jurisdictional in nature. 

In Loe. U. 5429 UMWA v. Consolidation Coal Co., 1 FMSHRC 1300 

(September 1979)("Consol"), the Commission held that the 30-day filing 

1229 
period in former Commission Interim Procedural Rule 29, 43 Fed. Reg. 10320, 

10324 (March 10, 1978) ("Interim Rule 29"), for filing compensation 

complaints could be extended in "appropriate circumstances." In that case, 

a UMWA Local had filed a compensation complaint late but had attempted to 

seek timely relief in other ways and was apparently confused as to 

applicable procedural requirements. The Commission noted that section 111 

itself does not contain a time limit and that its Interim Procedural Rules 

"shed little light" on the issue. 1 FMSHRC at 1302. Accordingly, the 

Commission interpreted the rule in a manner consistent with the remedial 

nature of the statute in general and·of section 111 in particular. 1 FMSHRC 

at 1302-03. The Commission relied in part on the Mine Act's legislative 

history, which indicates that the time limits for filing discrimination 

complaints under section 105(c) of the Act, 30 U.S.C. § 815(c), may be 

extended in justifiable circumstances. 1 FMSHRC at 1303, citing S. Rep. No. 

181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on 

Labor, Committee on Human Resources, Legislative History of Federal Mine 

Safety and Health Act of 1977, at 624-25 (1978). Determining that sections 

lOS(c) and 111 are similar remedial provisions, the Commission concluded 

that the filing limit in Interim·Rule 29could be extended in "appropriate 

circumstances," just as could the time limits in section 105(c). 1 FMSHRC 

at 1303. 

Turning to the question of whether the UMWA's late-filed complaint 

should be entertained, the Commission stated that the "primary purpose" of a 

limitations period is "to ensure fairness to the parties against whom claims 

are brought." 1 FMSHRC at 1304, citing Burnett v. N.Y. Cent. R.R., 380 U.S. 

424, 428 (1965). The Commission indicated, however, that to be "balanced 

against this policy of repose ... are considerations of whether 'the 

interests of justice require vindication of the plaintiff's rights' in a 

particular case." 1 FMSHRC at 1305, quoting Burnett, 380 U.S. at 428. The 

Commission determined that the UM.WA "did not sleep on its rights," and had 

taken other timely steps to secure relief. Id. The Commission emphasized 

that the operator did "not argue, and the record [did] not indicate, that it 

any manner relied on the policy of repose embodied in Interim Rule 2[9] 

or was otherwise prejudiced." Id. The Commission accordingly excused 

the late filing. 

Consol is largely dispositive of the issue presented here. Although 

Consol construed former Interim Rule 29, the principles announced in that 

decision are so fundamental that they apply with equal appropriateness to 

similar timeliness problems under present Rule 35. Accordingly, the 

Commission may excuse the late filing of compensation complaints in 

appropriate circumstances." Such excusable circumstances could include 

situations where a miner is misinformed or misled as to his compensation 

rights and procedural responsibilities, or has taken some timely, although 

incorrect, action to vindicate those rights, or presents some other 

potentially justifiable excuse for late filing. However, the Commission 

expects a showing of good cause to explain any such delay. If a miner has 

knowingly slumbered on his rights, those rights may be lost. David 

Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 25 (January 1984), aff'd 

mem., 750 F.2d 1093 (D.C. Cir. 1984)(ta~'e). If serious delay has 

prejudiced the respondent's right to dt~,, process in an adversarial 

1230 
proceeding, the policies of judicial repose may override the opportunity for 

vindication of the complainant's rights. 

As noted, Consol relied on the Mine Act's analogous discrimination 

scheme. Since the time of that decision, the Commission has further 

clarified the principles applicable to the late filing of discrimination 

complaints. In Hollis, 6 FMSFIRC at 24, the Commission indicated, as a 

preliminary guiding proposition, that "[t]imeliness questions must be 

resolved on a case-by-case basis, taking into account the unique 

circumstances of each situation." The Commission has held that a miner's 

genuine ignorance of applicable time limits may excuse a late-filed 

discrimination complaint. Walter A. Schulte v. Lizza Indus., Inc., 6 FMSHRC 

8, 13 (January 1984). The Commission's decisions make clear, however, that 

even if there is an adequate excuse for late filing, a serious delay causing 

legal prejudice to the respondent may require dismissal: "The fair hearing 

process envisioned by the Mine Act does not allow us to ignore serious delay 

... in filing a discrimination complaint if such delay prejudicially 

deprives a respondent of a meaninEful opportunity to defend against the 

claim." Secretary on behalf of Donald R. ·Hale v. 4-A Coal Co. , 8 FMSHRC 

905, 908 (June 1986)(emphasis added). The Commission has noted that legally 

recognizable prejudice must be "material" -- i.e., affect issues necessary 

to a meaningful opportunity to defend. Hale, supra. The Commission also 

has explained that material legal prejudice means more than merely being 

required to defend a case that could have been avoided if failure to file on 

time were treated as a jurisdictional defect: 

While the expenditure of time and money involved in 

litigation should not be discounted, neither should 

it be overstated. [The operator] has not 

demonstrated ... the kind of legal prejudice [that 

we are prepared to recognize], namely, tangible 

evidence that has since disappeared, faded memories, 

or missing witnesses. 

6 Fl1SHRG at 13. Given Consol's orientation, the foregoing 

discrimination principles are correspondingly valid in the compens, ~,n 

complaint context. 

In evaluating the adequacy of explanations for failure to comply on 

requirements, the Commission also may appropriately consult 

of mistake, inadvertence, and excusable neglect that it has 

pursuant to Fed. R. Giv. P. 60(b)(l) to determine whether to grant 

;:elief (usually to pro se parties) from defaults and other final judgments. 

e.g., M.M. Sundt Constr. Co., 8 FMSH..~C 1269, 1271 (September 1986), and 

authorities cited. 

Here, complainants have alleged that they discussed their possible 

compensation entitlement with representatives of the operator and government 

and, essentially, were misinformed as to their compensation rights and 

responsibilities. In particular, they claim that they were informed 

mistakenly -- that any time limit would run from the final resolution of 

the related civil penalty proceeding. They assert a general lack of 

1231 
knowledge as to applicable procedure and note financial inability to retain 

counsel. If true, those allegations could possibly establish adequate 

explanation or justification for the late filing. However, the Petition is 

unsworn and provides no details as to the relevant dates and persons 

involved. We cannot make a determination concerning this issue on the 

present record. Given the possibly exculpatory nature of these 

explanations, a remand to the judge to allow him to assess the merits of 

these allegations is appropriate. 

Island Creek also argues that the Commission is barred from 

considering these issues because of complainants' failure to raise them 

before the judge. Like timeliness questions, determinations regarding the 

"opportunity to pass" review restriction "must be decided on a case-by-case 

basis." Richard E. Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 1417 

(June 1984). There is no dispute that complainants did not present to the 

judge the excuses for late filing now raised on review. The question 

presented is whether "good cause" has been shown for this failure. 

Island Creek correctly observes that there is no express attempt in 

the Pe ti ti on to make a showing of,'! good cause. " However, in our opinion, 

this depiction of complainants' position takes too narrow a view of the 

procedural history and the Petition. Given complainants' silence below in 

the face of the operator's motion to dismiss, this case arrives at the 

Commission in virtually the same posture as a default. As in any default 

case, the defaulted party has failed to speak at some crucial juncture. The 

nature of the justification offered for late filing also impliedly suggests 

a reason for the failure to respond to the motion to dismiss: a pro se 

party's general lack of understanding of appropriate Mine Act and Commission 

procedure. The UMWA, in its Supplement, argues as much by asking the 

Commission to afford relief from the judgment below pursuant to the settled 

principles it has applied in default cases. See UMWA Supp. at 3. 

we conclude that good cause has been shown to the extent that, in the 

interests of justice, the matter should be remanded to the judge so that 

complainants' explanations can be placed before him for his resolution. At 

that time, the operator will have the opportunity to present evidence of the 

material legal prejudice, if any, resulting from such delay. 

1232 
Accordingly, we vacate the judge's dismissal order and remand this 

matter so that the judge may determine whether appropriate circumstances 

exist to excuse the late filing of the compensation complainant and to allow 

this matter to go forward. 

Distribution 

Roy Farmer 

Island Creek Coal Company 

P.O. Box 53 

Swords Creek, Virginia 24649 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th Street, N.w. 

Washington, D.C. 20005 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

~-c---cu~~-1-i, ~ Richard V. Backley, Acting Chairm~P' 

oyceA:D<.;y le ' conlilliSs=\1er 

,,Arlene Holen, Commissioner 

L. 

~~~; Clair Nelson, Commissioner 

Administrative Law Judge James A. Broderick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1233 
1234 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

1091. Iv, i 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ANDA LEX RESOURCES, INC. / 

Respondent 

Docket No. WEST 90-213 

A.C. No. 42-01474-03549 

Docket No. WEST 90-214 

A.C. No. 42-01474-03550 

Docket No. WEST 90-256 

A.C. No. 42-01474-03551 

Pinnacle Mine 

Docket No. WEST 91-126 

A.C. No. 42-01750-03513 

·Apex Mine 

DECISION 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

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

for Petitioner; 

Thomas R. May, Safety Director, Andalex Resources, 

Inc., Price, Utah, 

pro se. 

ore~ Judge Morris 

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

Heal th Administration ( "MSHA") u alleges Respondent Anda lex Resourcesr Ince ( 0 Andalex") u violated safety regulations promulgated under the authority of the Federal Mine Safety and Health 

Act, 30 U.S.C. § 801, et~ (the "Act"). 

A hearing on the merits was held on April 16, 1991, in Salt 

Lake ty9 Utaho The parties filed post-trial briefs. 

STIPULATION 

At the hearingy the parties stipulated as follows: 

lo Andalex is engaged in mining and selling bituminous coal 

in the United States, and its mining operations affect interstate 

commerce. 

2. Andalex is the ovmer and operator of Pinnacle Mine, MSHA 

I.D. No~ 42-01474. 

3. Andalex is subject to the jurisdiction of the Federal 

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

1235 
4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations were properly served by a duly 

authorized representative of the Secretary upon an agent of 

~ndalex on the dates stated therein, and may be admitted into 

evidence for the purpose of establishing their issuance, and not 

for the truthfulness or relevancy of any statements asserted 

therein. 

6. The exhibits to be offered by Anda lex 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 proposed penalties will not affect Andalex's ability 

to continue in business. 

8. The operator demonstrated good faith in abating the 

violation. 

9. A.ndalex is a large mine operator with 4,037,818 tons of 

production in 1989. 

10. 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. 

Docket No. WEST 90-213 

In Citation No. 3414458, the Secretary originally cited Andalex for a violation of 30 C.F.R. § 75.1100-3. However, prior 

to the hearing, the Secretary alleged a violation of 30 C.F.R. 

§ 77.11100 l 

l The regulation allegedly violated reads as follows: 

§ 77.1110 Examination and maintenance of firefighting equipment. 

Firefighting equipment shall be continously 

maintained in a usable and operative condition. 

Fire extinguishers shall be examined at least 

once every 6 months and the date of such examination shall be recorded on a permanent tag attached 

to the extinguisher. 

1236 
MSHA Inspector William Taylor, a person experienced in mining, found that the actuator for the chemical fire suppression 

system was inoperative because of a lack of batteries. The d~ 

fective suppression system was located above ground at the No. 1 

belt line, which was also a secondary designated escapeway. 

Andalex admits the fire suppression system was inoperative 

but denies the "significant and substantial" (S&S) designation. 

Inspector Taylor believed the inoperative system was S&S as 

it affected any miner who might be required to put out a fire 

above ground in the area of the discharge roller. In his opinion, the S&S designation did not extend underground into the 

nearby belt line. This was because any smoke from a fire entering the portal would be removed by the ventilation system at the 

first crosscut. 

The Commission-has set the parameters of an S&S violation. 

A violation is S&S if, based on the particular facts surrounding 

the violation, there exists a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a 

reasonably serious nature. Cement Division, National Gypsum Co., 

3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 

3-4 (January 1984), the Commission explained: 

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 

violationu (3) a reasonable likelihood that the hazard contributed to will result in an injury 0 and 

(4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. 

See also Austin Power Co. v. Secretaryp 861 F.2d 99u 103-104 (5th 

Cir. 1988)u affRgu 9 FMSHRC 2015u 2021 (December 1987) (approving 

Mathies criteria). The question of whether any specific violation is S&S must be based on the particular facts surrounding the 

violation. Texasgulf, Inc., 10 FMSHRC 498, 500-01 (April 1988) 0 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-2012 (December 

1987) 0 

In the instant case, a violation of 30 C.F.R. § 77.1110 

exists. A measure of danger exists as the discharge belt could 

overheat. If so, a fire could result and the fire suppression 

device would not function. A miner is not ordinarily stationed 

at this location. Injuries can and do occur when miners are 

1237 
fighting fires. Final , it is reasonable to expect that the injury would be reasonably serious. While this fire suppression 

device is not underground, photographs R-1 through R-6 show that 

some of the areas in the immediately vicinity are not reasonably 

accessible. 

The testimony of Inspector Taylor is clear as to the like1 ihood a miner would be in danger of suffering a serious injury. 

He stated: 

Further, 

But I do believe, that the person who had to 

try and go up and fight this fire after it had 

been allowed to exist without being suppressed 

by the automatic fire suppression sys tern, that 

his life would be in danger. (Tr. 23). 

The hazard here would be to the man who had to 

extinguish this fire. It's not reasonable to 

believe that any mine operator would allow a 

fire to exist that was in close proximity to a 

very large coal stock pile without attempting 

to extinguish that. And i.t's reasonable to believe that the first person who was made aware 

that there was a fire would attempt to extinguish that fire rather than to continue to allow other men who are on the property to be endangered. (Tr. 23, 24). 

It is true that MSHA does not reg:uire an automatic fire 

suppression device at this location. However, once installedv 

§ 77 .1110 reg:uires that it "shall be continuously maintained in 

a usable and operative condition." 

Andalexv in its post-trial brief 

Initiallyff the operator asserts its 

or explosions. 

raises various issues. 

has no history of fires 

The lack of fires or explosions at the mine is fortunate, 

but not necessarily indicative of whether a fire might occur. 

Anda lex further argues that no ignition sources were present 

at the #1 drive. 

I disagree. Inspector Taylor was questioned on this issue. 

The transcript at pages 21-22 reflects the following testimony: 

1238 
Q. Were there any--were there any sources of ignition near 

this belt drive of e,'{traneous materials that may contribute to a fire? 

A. Well, this particular belt drive dumps where it dumps 

its stock pile of coal where you have thousands of tons 

of coal that are stockpiled until the coal trucks can 

remove the coal from the area. 

Q. Now, how close would these stock piles of coal be to the 

belt drive itself? 

A. If the trucks have been down, for one reason or another, 

the stockpile could build up to just below the roller 

of the belt. In most cases, the level is probably lower 

than that because the coal trucks run on a continuing 

basis. 

Q. Let's assume that the pile is at its maximum, how close 

would it be to the belt drive itself, the one we're 

talking about? 

A. It would be in close proximity to the belt drive roller. 

Further, Andalex argues that the fire suppression system 

stopped the belt as required by 30 C.F.R. § 75.1102. Thus, no 

coals or belt material would be carried into the mine. 

This may be true, but the fire suppression system was 

nevertheless inoperative at the No. 1 belt line. 

Andalex further contends that an employee is not regularly 

at the No" l belt drive. 'Iherefore, miners responding could 

fight any fire from a safe location or such fire-fighting miners 

could escape by walking out in either direction. 

I r ect Andalex's arguments. First of all, a fire should 

not occur if the suppression device is operative. Without the 

suppression device, the fire would have a "head start." Andalex's bri rebuts its own argument by stating (Brief pg. 5, ~6) 

that 11 [s]pontaneous combustion fires ••• are commonplace in the 

surface coal stockpile. 11 'lhe lack of a fire suppression device 

could easily result in an injury of a serious nature. 

Citation No. 3414458 should be affirmed. 

1239 
Docket Nos. WEST 90-214 and WEST 90-256 

These cases involve violations of 30 C.F.R. § 75.1704. 2 

Since they are related, they will be considered together. 

On March 5, 1990, in Docket No. 90-214, MSHA Inspector 

Taylor issued citation No. 3414454. 

On that occasion, in the area of the double doors, it was 

readily apparent that something was wrong as Inspector 'Iaylor 

could feel air flowing towards the belt. He took readings at the 

top, bottom, and middle of the homemade doors. 'Ihe doors meet in 

the middle and each side of the door measured six feet by five 

feet. 

At the hearing, the Inspector reaffirmed his citation which 

read as follows: 

2 

Two separate and distinct travelable passageways, 

designated as escapeways, were not maintained for 

the 1st left active working section in that 625 

§ 75.1704 Escapeways. 

[Statutory Provisions] 

Except as provided in §§ 75.1705 and 75.1706, 

at least two separate and distinct travelable 

passageways which are maintained to insure passage at all times of any person, including disabled persons, and which are to be designated as 

escapeways, at least one of which is ventilated 

with intake air, shall be provided from each working section continuous to the surface escape drift 

opening, or continuous to the escape shaft or slope 

facilities to the surface, as appropriate, shall be 

maintained in a safe condition and properly marked. 

Mine openings shall be adequately protected to prevent the entrance into the underground area of the 

mine of surface fires, fumes, smoke, and floodwater. 

Escape facilities approved by the Secretary or his 

authorized representative, properly maintained and 

frequently tested, shall be present at or in each 

escape shaft or slope to allow all persons, including disabled persons, to escape quickly to the surface in the event of an emergency. 

1240 
fpm of air flowed from the designated intake escapeway into the No. 7 belt entry through holes 

around and in the drive-through doors at crosscut 

22. The No. 7 belt entry is the designated secondary escapeway for the 1st left active working 

section. 

Subsequently, on March 28, 1990, the inspector issued Citation No. 3415061. 1he citation, restated at the hearing, reads 

as follows: 

Two separate and distinct travelable passagewaysf 

designated as escapeways, were not maintained for 

the 1st tr 2nd East and 1st North active working 

sections in that a man was observed driving an Isuzu 

pickup into the No. 1 belt entry through the metal 

drive-thru doors at crosscut No. 1. As measured 

with an anemometer, 15,000 cfm of air flowed from 

the in e entry to the belt entry with the metal 

doors open. When the doors were closed, 5 50 fpm of 

air flowed from the intake entry to the belt entry. 

Also, holes around the bottom of the metal drivethru doors at the No. 4 belt drive permitted 850 

fpm of air to flow from the intake escapeway to the 

secondary escapeway. Also, the metal drive-thru 

doors along the No. 4 belt line at crosscuts 78 

and 82 permitted 760 fpm and 610 fpm of r to flow 

from the designated primary intake escapeway to 

the designated No. 5 belt secondary escapeway. 

Inspector Taylor issued the later citation as an S&S violation because three working sections were affected. Further, it 

had 23 days ce the initial related citation had been 

ssued. Accordinglyu he felt the operator should have corrected 

the later condition. 

In the inspector's opinion, the hazard directly affected the 

in i of the escapeways. TI1ere were sources of ignition in 

the mine including power lines, rollers, and belt drives. 

JACK .MATEKOVICr an MSHA supervisor, had discussed leaky 

ventilation th Andalex management before these citations were 

issued 

Andalex 1 s defense focuses on the argument that the drive--

through doors were reasonably airtight. 

Andalex's evidence shows that Mine Manager KENT PILLING 

took readings six hours after the inspector on the M3.rch 1990 

1241 
tation. Mr. Pilling also had an engineering drawing prepared. 

The drawing showed only minimal defects in the equipment doors. 

(See Ex. R-9) • 

Further, on April 15, 1991, Andalex Safety Representative 

JED GIACOLETTO took as air reading at the last open cross-cut 

right after the second citation was written. His typed notes 

read as follows: 

On April 15, 1991, at 4 pm, an air reading was 

taken in the last open crosscut of the Main North 

Section. The reading was taken by Jed Giacoletto. 

The results of the reading were: 

Area: 7.5 X 20 = 150 square feet 

Velocity: 113 + correction factor of 7 = 120 

150_ square X 120 feet per minute = 

18000 cubic feet per minute. 

After the reading was taken, three man-doors and a 

material door were opened along the section intake 

which divides the intake entry from the belt line 

entry. 

Another air reading was taken in the Main North section last open crosscut after the doors were opened. 

The results of the reading were: 

Area~ 7"5 X 20 = 150 square feet 

Velocityg 103 + correction factor 

feet per minute 

7 = 110 

150 square feet X 110 feet per minute = 

16500 cubic feet per minute. 

The issue presented is whether Andalex maintained at least 

two distinct travelways" If the separation at the metal drivethrough doors was reasonably airtight 6 then no violation existed, 

since two distinct travelways were maintained. 

In connection with these citationsv I credit Inspector 

Taylor's expertise and testimony that he could feel the flow of 

air when opposite the double doors. He further described his 

findings as to the doors and the related leakage. In addition, 

at the time of Mr. Taylor's inspections, Andalex representatives 

1242 
did not in any manner di e the Inspector's findings. Andalex' s evidence is not persuasiveo At best, it shows some leakage 

existedo 

Andalex also disputes the S&S designations as to Citation Noo 

3415061 o The applicable law as to S&S has been discussed above. 

In this factual scenario, which deals with one of the most important underground regulations for coal mines, there was a violation 30 C.FoRo § 75.1704, a measure of danger--somewhat substant 1--contributed to by the violation. There was a reasonable likelihood that the hazard would result in an injury. Spef ically Q smoke in either escapeway would cause both escapeways 

to be contamina In shortv there would not be two separate 

and distinct travelable passageways. The likelihood of injury in 

a smoke-·filled environment well documented. 

Andalexe s exten e post-trial brief raises several issues: 

The opera tor contends' the doors were reasonably airtight and, accordingly v no violation stedo This is a credibility issue 

previously discussedo As indicated, I have credited the inspectori s viewso He further explained the separate and distinct requirement of the regulation: 

Q" (Mro May): Okay. What is separate and distinct? 

Ao Separate and distinct means. that if I have an entry that 

starts on the surface; that you have to maintain that 

through ventilation devices from the surface portal all 

the wa.y to t::he ·working section separate from another 

en 

accomplished? 

In other " those two entries cannot be cornmonf they 

cannot be common at any porto 

The amount cf aiz::, recorded and manually observed, was exs:essive., This was due to a ck proper maintenance of the 

so 25 feet o:E e per minute was not "reasonably 

airtight " 

Anda asserts the tations were not issued because of 

hazardous conditions but because the operator resisted MSHA's 

verba 1 policy to install double airlock. material doors. 

1243 
The testimony of witness MATKOVIC is conflicting as to 

whether MSHA, as a policy, required double airlock doors at the 

time of this inspection. (Tr. 96, 98). But even such a policy 

would not excuse the operator if the facts oth se establish a 

violation of the escapeway regulations. 

Andalex asserts the theory of separate and distinct escapeways exists only in the regulations since all doors leak air. 

The extent of the leak is the critical matter and the facts establish the leak was excessive. Andalex says MSHA's non S&S Citation No. 3414454 is inconsistent with the subsequent citation 

(designated as S&S) relating to the same subject. On this issue, 

I credit Inspector Taylor's explanation. 

Q. CMr. Murphy): ••• can you justify the issuance of an S&S 

citation just on the facts of the last citation? 

A. Yes ... even though no citation had been previously issued, the conditions in the second Citation, 3415062, 

are definitely significant and substantial because of 

the number of people affected and because of the repea ted violations of separate different belt lines because there are three belt lines involved on this violation. And, in my opinion, it is reasonably likely 

that if these conditions were not corrected, they would 

result in a reasonably serious injury at this mine. 

(Tr. 91) • 

The operator argues that if the belt 

designated as the secondary escapeway, then 

be invalid since the doors are shown on the 

therefore part of the approved ventilation 

had not been 

the ons would 

approved map and are 

It is the operator who designates the escapeways. MSHAis 

function is to approve them. 'Ihe operator 1 s position is 

rejected. 

Andale.x further argues that previous MSHA inspectors had not 

issued similar citationso The Commission and the appellate 

courts have rejected the doctrine. King Knob Coal Company, Inc., 

3 FMSHRC 1417 (1981)¥ the Supreme Court of the United States has 

ruled that the doctrine does not apply against the f government. Federal Crop Insurance Corporation v. Merrill, 332 U.S. 

380, 383-386 {1947); Utah Power and Light co. v. United States, 

243 U.S. 389, 408-411 (1927). 

1244 
I have reviewed the briefs filed by the parties. To the 

extent they are inconsistent with this decision, they are 

rejected. 

Citation Nos. 3414454 and 3415061 should be affirmed. 

Docket No. WEST 91-126 

In this case, Petitioner filed a written settlement motion. 

In the motion, Petitioner moved to vacate Citation No. 3409636. 

For good cause shown, the motion should be granted. 

Andalex further agreed to withdraw its contest as to Citation Nos. 3415076 and 3415077 and to pay the related penalties of 

$20 for each such violation. 

The settlament motion'·contains information relating to the 

assessment of civil penalties as required by Section llOCi) of 

the Act. 

The settlament agreement is approved and disposition is 

incorporated in the order herein. 

CIVIL PENALTIES 

The statutory criteria for assessing civil penalties is 

contained in 30 u.s.c. § 820(i). 

Joint Exhibit 2 shows Andalex has an average adverse history. 

Anda lex pa id 91 violations in the two years prior to Ma.rch 2 7 u 

19900 Before March 28, 1988Q the operator paid 78 violationso 

Andalex is a large operator and the proposed penalties will 

not affect the company's ability to continue in business 

( Stipulation) • 

The operator was negligent in that a company representative 

could have detected the flow of air through and around the doors. 

The gravity has been discussed; further, the operator demonstrated good faith in abating the violations. 

Considering the statutory criteria, I believe the penalties 

assessed in the order of this decision are appropriate. 

Based on the foregoing findings of fact and conclusions of 

law, I enter the following: 

1245 
ORDER 

Docket No. ~"'EST 90-213 

1. Citation No. 3414458 is AFFIRMED and a penalty of 

$100 is ASSESSED. 

Docket No. WEST 90-214 

2. Citation No. 3414454 is AFFIRMED and a penalty of 

$20 is ASSESSED. 

3. Citation No. 3415061 is AFFIRMED and a penalty of 

$200 is ASSESSED. 

Docket No. WEST 91-126 

4. Citation No.- 3409636 and all penalties are VACATED. 

5. Citation No. 3415076 and the proposed penalty of $20 are 

AFFIRMED. 

6. Citation No. 3415077 and the proposed penalty of $20 are 

AFFIRMED. 

stribution~ 

Robert J. Murphyu Esq.; Office of the Solicitorv U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Streetu 

Denver, CO 80294 (Certified Mail) 

Mr. Thomas R. May, Safety Director, Mr. Kent Pilling, ANDALEX 

RESOURCES, INC., P.O. Box 902, Price, UT 84501 (Certified Mail) 

ek 

1246 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.!-\ ''PG .) 6 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREEN RIVER COAL COMPANY, 

INC. I 

Respcmdent 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 90-97 

A. C. No. 15-13469-03730 

Docket No. KENT 90-120 

A. C. No. 15-13469-03737 

Docket No. KENT 90-444 

A. C. No. 15-13469-03756 

No. 9 Mine 

DECISION 

Appearances: 

Before~ 

w. F. Taylor, Esq., 

Solicitor, u. s. 

Labor, Nashville, 

Petitioner; 

Office of the 

Department of 

TN, for the 

B. R. Paxton, Esq., Central 

KY, for the Respondent. 

City, 

Judge Fauver: 

The Secretary of Labor seeks civil penalties for alleged 

safety violations in these consolidated cases, under the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~ 

Respondent moved to strike the Secretary's posthearing brief 

on the ground that government counsel failed to include references 

to the transcript. The Secretary was allowed time to add such 

references. Counsel for the Secretary did so, and the motion to 

strike DENIED. 

In a new brief with references to the transcript, the 

Secretary's counsel stated in the cover letter that "we find that 

[the procedural regulations and the Act] do not require transcript 

references in briefs filed with the Commissions Judges. *** [M]any, 

many, times, because of budget constraints, this office is 

prohibited from purchasing trial transcripts and the post-trial 

briefs are, therefore, written based upon the attorney's trial 

notes." · 

I find counsel's position to be in error. The professionalism 

required of an attorney to submit page references to the transcript 

1247 
does not need a procedural rule. This judge expects attorneys to 

submit professionally prepared briefs, not to be based on guesswork 

or surmise and not to cause the other parties and the trial judge 

to search the hearing record for support for the counsel's 

recollection or 11 notes" as to what was said at the trial. The 

Mine Act is a very important piece of legislation. It authorizes 

the Commission to adjudicate very serious and complicated matters 

involving safety and health in the mines and the due process rights 

of parties, including allowing a mine to remain closed for 

violations or to be reopened, determination of violations, 

assessment of civil penalties with a limit of $50, ooo for each 

violation, reinstatement of miners with substantial awards of pack 

pay, attorney fees and other litigation costs, etc. Litigation 

under this statute is not be reduced to the government's guesswork 

as to ~hat was proved or disproved in a formal, accusatory 

hearing. 1 

If, in the future, the government does not choose to obtain a 

transcript, it may us~ the Commission's public reading room to read 

the transcript and make references to it. 

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 

and further findings in the Discussion below: 

FINDINGS OF FACT 

Citation No. 3420966 

1. Al all relevant times Respondent operated an underground 

;:;oc:.1 mine known as Green River Coal #9, which produced coal for 

sale or use or affecting interstate commerceo 

2o Federal coal Mine Inspector Bobby Clark inspected the 

mine on May 9, 1990, accompanied by Respondent's Safety Director, 

Mike McGregor, and the miners' representative, Ron Nelson. As the 

men walked inby (toward the working section) at the SA seals, the 

;::.larm on Inspector Clark 1 s methane detector sounded, showing a 

;;iresence of l. 4 percent methane. He was in front of the No. 4 

seal" Inspector Clark checked each seal as he passed it and the 

methane gas reading remained 1.4 percent. He checked the return 

entry, about 100 feet inby the first seal, and the methane gas 

accumulation was still 1. 4 percent. Inspector Clark inspected each 

seal and determined that no leaks were present. He concluded that 

the methane was in the return airsplit from the No. 2 working 

section, and told McGregor that he was issuing a citation under 30 

1 A different situation exists when the parties present oral 

arguments before a transcript is prepared. Such is not the case 

here. 

1248 
C.F.R. § 75.309(a), which provides in pertinent part: 

If, when tested, a split of air returning from 

any working section contains 1. o volume per 

centum or more of methane, changes or 

adjustments shall be made at once in the 

ventilation in the mine so that such returning 

air shall contain less that 1. O volume per 

centum of methane. * * * 

3. Later in the day, after Inspector Clark returned to the 

surface, he observed that the fire boss who examined the area on 

May 8, 1990, had recorded in the examiner's book on that date the 

presence of 1.5 percent methane gas all across the area in front of 

the 8A seals and his report was countersigned by Foremen Cates and 

Whitfield. He then determined that the citation should be issued 

under§ 104(d) (1) of the Act, charging an unwarrantable violation. 

citation No. 3420800 

4. Inspector George w. Siria inspected the mine on December 

13, 1989, accompanied by Respondent's Safety Director McGregor and 

miners' representative Nelson. Before they arrived at the working 

section, they were told there was no power on the section and a 

roof fall may have struck the power transmission cable. 

5. When he reached the section, Inspector Siria examined the 

roof, took an air reading and started making methane checks. He 

found methane in excess of 1.0 percent in nine locations, which he 

pointed out to McGregor. He issued § 104(a) citation No. 3420800 

charging a violation of 30 C.F.R. § 75.302, which provides: 

(a) Properly installed and adequately 

maintained line brattice or other approved 

devices shall be continuously used from the 

last open crosscut of an entry or room of each 

working section to provide adequate 

ventilation to the working faces for the 

miners and to remove flammable, explosive, and 

noxious gases, dust, and explosive fumes, 

unless the Secretary or his authorized 

representative permits an exception to this 

requirement, where such exception will not 

pose a hazard to the miners. When damaged by 

falls or otherwise, such line brattice or 

other devices shall be repaired immediately. 

(b) The space between the line brattice or 

other approved device and the rib shall be 

large enough to permit the flow of a 

sufficient volume and velocity of air to keep 

the working face clear of flammable, 

1249 
explosive, and noxious gases, 

explosive fumes. 

dust and 

(c) Brattice cloth used underground shall be 

of flame-resistant material. 

Citation No. 3421762 

6. Inspector Siria observed accumulations of coal dust and 

loose coal in the same section where he found excessive methane. 

Based on these observations, he issued § 104{d) (1) Citation No. 

3421762, charging a violation of 30 C.F.R. § 75.400, which 

provides: 

Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other 

combustible materials, shall be cleaned up and 

not be permitted to accumulate in active 

workings, or on electric equipment therein. 

DISCUSSION WITH FURTHER FINDINGS 

Citation No. 3420966 

The key issue is whether the one percent methane level of 30 

C. F .R. § 75. 309 (a) or the two percent level of § 75. 312-2 (d) 

applies to the place where Inspector found 1.4 per cent methane 

inby the BA seals. 

The government contends that the inspector found 1.4 percent 

methane in a split of air returning from No. 2 working section inby 

the first seal, and therefore 30 C.F.R. § 75.309(a) applies. That 

section provides: 

If, when tested, a split of air returning from 

any working section contains 1. 0 volume per 

centum or more of methane, changes or 

adjustments shall be made at once in the 

ventilation in the mine so that such returning 

air shall contain less than Lo volume per 

centum of methane. Tests under this § 75.309 

shall be made at 4-hour intervals during each 

shift by a qualified person designated by he 

operator of the mine. In making such tests, 

such person shall use means approved by the 

Secretary for detecting methane. 

1250 
Respondent contends that the methane was being liberated from 

an abandoned area inby the 8A seals, and therefore 30 C.F.R. 

§ 75.312-2(d) and § 75.309-2 apply. These sections provide: 

30 C.F.R. § 75.312-2(d) 

The methane content in any return aircourse 

other than an aircourse returning the split of 

air from a working section (as provided in § § 

75.309 and 75.310) should not exceed 2.0 

volume per centum. 

30 C.F.R. § 75.309-2 

The methane content in a split of air 

returning from any working section shall be 

measured at such point or points where methane 

may be present in the air current in such 

split between he last working place of the 

working section ventilated by the split and 

the junction of 'such split with another 

airsplit or the location at which such split 

is used to ventilate seals or abandoned areas. 

The focus thus sharpens to the question whether the area 

contended by Respondent to be an abandoned area (see Exhibit R-1, 

area marked from "X" to "Y") was an abandoned area within the 

meaning of § 75.309-2. 

"Abandoned area" is defined in 30 C.F.R. § 30.75.2(h) as 

follows: 

11Abandoned areas" means sections, panels, and 

other areas that are not ventilated and 

examined in the manner required for working 

places under Subpart D of this Part 750 

If an operator contends that an area is abandoned, or is to 

become abandoned, § 75.330 provides that the operator must follow 

a nplan 000 approved by the Secretary and adopted by such operator 

so that, as each working section of the mine is abandoned, it can 

be isolated from the active workings of the mine with explosionproof seals or bulkheads.n 

Respondent's Safety Director testified that an abandoned area 

existed about 2500 feet outby the No. 2 working section, and inby 

the place where Inspector Clark reported methane. He described it 

as an area where 11we had either roof falls or the condition of the 

roof was such that we couldn't go in and make these safe and we 

couldn't mine them safely." Tr. 77. He further stated "the 

examiner was making his weekly exam staying in the timber walkway." 

Id. The examination books reported that this area was being 

examined weekly. 

1251 
When the citation was issued by Inspector Clark, Respondent 

did not say that this was an abandoned area, so that he could 

investigate the claim. Nor did it offer proof at the hearing that 

it was following an approved plan for designating this area as 

abandoned and sealing it from active workings. In addition, the 

return airway was clearly an "active working" within the meaning of 

30 C.F.R. § 75.2(g) (4), which provides: 11 1 [a]ctive workings' means 

any place in a coal mine where miners are normally required to work 

or travel. 11 I find that the area Respondent claims to be abandoned 

was not "abandoned" within the meaning of the Act or regulations. 

The area cited by the inspector was an airsplit returning air from 

a working section and inby the first sealed or abandoned area 

within the meaning of § 75. 309-2. The Secretary proved a violation 

of§ 75.309(a), because 1.5 per cent methane had been detected by 

the operator on May 8, 1990, and the operator had not complied 

with § 75. 309 (a) by making changes so that the "returning air 

shall contain less than 1.0 volume per centum of methane. 11 

-Unwarrantable Violation 

The Commission has held that an "unwarrantable" failure to 

comply means 11 aggravated conduct constituting more than ordinary 

negligence. 11 Emery Mining corp., 9 FMSHRC 1997, 2004 (1987); 

Youghiogheny & Ohio Coal Co .• 9 FMSHRC 2007 I 2010 (1987). As 

defined in the legislative history, an "unwarrantable" failure is 01 failure of an operator to abate a violation he knew or should have 

known existed, or the failure to abate a violation because of a 

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

reasonable care on the operator's part. 11 senate Com.mi ttee on Labor 

and Public Welfare, 94th Cong., 1st Sess., Part I Legislative 

History of the Federal Coal Mine Health and Safety Act of 1969, at 

1512 (1975); see also id., at 1602; and see: Senate Subcommittee 

::Jr Labor, Committee on Human Resources, 95th Cong., 2nd Sess., 

~egislative History of the Federal Mine Safety and Health Act of 

at 620 (1978). 

After Inspector Clark returned to the surface, he discovered 

that the fire boss who examined the area on May 8, 1990, recorded 

in the examiner• s book on that date the presence of 1. 5 percent 

methane gas all across the area in front of the 8A seals, and this 

report was countersigned by two Green River supervisors, Foremen 

Cates and Whitfield. He determined that the citation should be 

issued under § 104(d) (i) of the Act, charging an unwarrantable 

violation. 

Respondent's Safety Director, McGregor, testified that his 

inquiries indicated the foremen signed the examiner's book on May 

8, 1990, before it was completed for that date and they did not see 

the entry reporting 1.5 percent methane. Tr. 87-88. The foremen, 

Whitfield and Cates, did not testify at the hearing. 

I do not credit the Safety Director's hearsay testimony as 

1252 
reliable evidence of an explanation for Respondent's failure to 

heed the examiner's report of 1.5 percent methane. Respondent is 

accountable for the information provided in the examiner's book, 

and its supervisors are required to read the examiner's report and 

countersign it. Absent the testimony of the supervisors as to 

their reasons for not taking action as required by§ 75.309(a), 

with the opportunity of government counsel to cross-examine, I find 

that the examiner 1 s report is imputable to Respondent. The methane 

was being liberated from an unsealed area where roof falls could 

build up methane to an explosive level. Prompt action was 

required. Respondent's failure to heed the report of excessive 

methane was aggravated conduct, sustaining the inspector's finding 

of an unwarrantable violation. 

A Significant and substantial Violation 

The Commission has held that a violation is "significant and 

substantial" if there is 11 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 

(1985); Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation 

is made in terms of "continued normal mining operations." U. s. 

Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (1984). 

Analysis of the statutory language and the commission's 

decisions indicates that the test of an S&S violation is a 

practical and realistic question whether, assuming continued mining 

operations, the violation presents a substantial possibility of 

resulting in injury or disease, not a requirement that the 

Secretary of Labor prove that it is more probable than not that 

injury or disease will result. See my decision in Consolidation 

Coal Company, 4 FMSHRC 748-752 (1991). The statute, which does 

not use the phrase nreasonably 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 Act1 emphasis added). Also, under the statute, (1) an 

i

1 imminent danger" is defined as 11 any condition or practice " . o 

which could reasonably be expected to cause death or serious 

physical harm before [it] can be abated, 11 2 and (2} an S&S 

violation is less than an imminent danger. 3 It follows that the 

Commission 1 s use of the phrase "reasonably likely to occur" or 11 reasonable likelihood" does not preclude an S&S finding where a 

2 Section 3(j) of the 1969 Mine Act, unchanged by the Federal 

Mine Safety and Health Act of 1977; emphasis added. 

3 Section 104(d} (1) limits S&S violations to conditions that 

"do not cause imminent danger . . . " 

1253 
substantial possibility of injury or disease is shown by the 

evidence, even though the proof may not show that injury or disease 

more probable than not. 

As stated above, the methane was coming from an unsealed area 

where roof falls could build up methane to an explosive level. 

Under continued mining conditions, sources of ignition would be 

present. The violation presented a substantial possibility of 

resulting in a mine explosion or fire caused by methane ignition. 

It was therefore a significant and substantial violation. 

Section 104(b) Order 

When Inspector Clark issued Citation No. 3420966, he believed 

a reasonable time to reduce the methane level to below one percent 

was 24 hours. However, his supervisor directed him to allow only 

two hours for abatement. Respondent began immediate abatement work 

when Inspector Clark first told McGregor that he found 1.4 percent 

methane and would be issuing a citation. Respondent reduced the 

methane level by building eight seals and four concrete blocks 

across the area later claimed to be abandoned. This was done by 

6:00 p.m. on the following day, well within the 24 hours expected 

by the inspector. When the inspector returned three hours after 

he issued the citation, abatement work was in progress, but the 

inspector did not extend the abatement period. Instead, he issued 

§ 104{b) Order No. 3420967, for failure to abate within the time 

provided in the citation. 

I find that Respondent demonstrated good faith and reasonable 

speed in abating the methane condition after the inspector brought 

it to Respondent's attention. 

In the absence of a finding of imminent danger, which was not 

the case here, was arbitrary for Inspector Clark's supervisor to 

direct him to allow Respondent only two hours to abate the 

condition cited in the citation. The order shall be vacated. 

Considering all the criteria for a civil penalty in § llO(i) 

of the act, I find that a penalty of $1 1 200 is appropriate for the 

violation proved under Citation No. 3420966. 

Citation Nao 3420800 

On December 13, 1989, Inspector George w. Siria issued 

§ 104(a) Citation No. 3420800, which charged: 

Properly installed and adequately maintained 

line brattice or other approved devices were 

not continuously used from the last open 

crosscut to provide adequate ventilation to 

the working section. There was CH4 present in 

the following places when checked one foot 

1254 
from roof, face & rib, No. 1. = 1. 0%, 2. = 

1.2%, 2xL = 1.0%, 6 = 1.1%, and 6xR 1.0% this 

was on the No. 2 unit, ID. 007. 

The citation charges a violation of 30 C.F.R. § 75.302, which 

provides in pertinent part: 

Properly installed and adequately maintained 

line brattices or other approved devices shall 

be continuously used from the last onen 

crosscut of an entry or room of each working 

section to provide adequate ventilation to the 

working faces for the miners and to remove 

flammable, explosive, and noxious gases, dust, 

and explosive fumes .••• [Emphasis added.] 

At the hearing, the inspector acknowledged that the brattices 

were properly installed and .. maintained (Tr. 120, 123) • The 

ventilation problem was that someone had left a man door open some 

distance outby the last open crosscut. After the door was closed, 

in two hours or so the methane level was reduced below one percent. 

since the problem was an improperly opened man door outby the 

last open crosscut, and not line brattice or other ventilation 

devices inby the last open crosscut, I find that the secretary did 

not prove a violation of § 75.302, which applies only "from the 

last open crosscut" toward the working face. 

Citation No. 3421762 

On December 13, 1989, Inspector Siria issued § 104(d) (1) 

Citation No. 3421762, for a violation of 30 C.F.R. § 75.400. There 

were accumulations of loose coal and coal dust 6 to 12 inches deep 

along the ribs in the Nos. 1 through 8 entries to a point about 75 

feet outby the working faces, a large coal spillage in the crosscut 

in No. 7 entry, loose coal and coal dust around the belt, and cribs 

constructed on loose coal. These accumulations were obvious, 

substantialf and should have been prevented from developing. 

Respondent contends that the accumulations were not dangerous 

because the power was off. However, the gravity of conditions 

observed by an inspector is evaluated by assuming continued normal 

mining operations. Assuming. continued mining operations, the 

accumulations of coal dust and loose coal presented a substantial 

possibility of resulting in or propagating a mine fire. This is 

sufficient to establish a "significant and substantial~ violation, 

as discussed above. The testimony of the Respondent's Safety 

Director that the coal dust was wet, and most of it was "mud" (Tr. 

139), does not disprove an S&S violation. Loose coal is not "mud" 

and can propagate a mine fire. Once a fire spreads, the heat can 

rapidly dry loose coal or coal dust and further propagate a fire. 

A mine fire one of the principal dangers in underground coal 

1255 
mining. Permitting substantial accumulations of fuel for a fire 

underground is a "significant and substantial" violation. Given 

the obvious conditions involved here, the extensive amount of 

accumulations, and the danger to the miners, the evidence shows 

aggravated conduct, sustaining the inspector's finding of an 

unwarrantable violation. 

Considering all the criteria for a civil penalty is § llO(i) 

of the Act, I find that a penalty of $1,000 is appropriate for the 

violation proved under Citation No. 3421762. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. Respondent violated 30 C.F.R. § 75.309 as alleged in 

Citation No. 3420966. 

3. Respondent' violated 30 C.F.R. § 75.400 as alleged in 

citation No. 3421762. 

4. The Secretary failed to prove a violation of 30 C.F.R. § 

75.302 as alleged in Citation No. 3420800. 

5. Order No. 3420967 is invalid as being arbitrary and 

unreasonable. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Order No. 3420967 is VACATED. 

2. Citation No. 3420800 is VACATED. 

3. Citation Nos. 3420966 and 3421762 are AFFIRMED. 

4. Respondent shall pay civil penalties of $2, 200 within 30 

from the date of decision. 

t)~~~Vi William 

Administrative 

Fauver 

Law 

~ Judge 

Distribution: 

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) 

B. R. Paxton, Esq., 213 East Broad Street, Central city, KY 42330-

0655 (Certified Mail) 

fas 

1256 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 6 

PYRO MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

1991 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. KENT 91-169-R 

Citation No. 3550463; 

2/11/91 

Pyre No. 9 Wheatcroft 

Mine ID 15-13920 

Appearances: Robert I. Cusick, Esq., Wyatt, Tarrant & Combs, 

Louisville, Kentucky, for contestant; 

w. F. Taylor, Esq., U. s. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, for 

the Secretary. 

Before: Judge Maurer 

This contest proceeding is before me pursuant to 

Section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(d), challenging the legality of a single Section 

104(a) citation issued by an MSHA mine inspector. The issue is 

whether the contestant violated the cited mandatory safety 

standard; or more specifically, whether Pyre Mining Company 

failed to comply with its approved ventilation plan. 

Pursuant to notice, a hearing was held in this case on 

May 9~ 199lp in Owensboro, Kentucky. The parties have both filed 

post-trial briefs, which I have duly considered in making the 

following decision. 

Section 104(a) Citation No. 3550463, issued on February 11, 

1991, by MSHA Inspector James E. Franks, cites an alleged 

violation of mandatory safety standard 30 C.F.R. § 75.316, and 

the cited condition or practice is described as follows: 

The approved Ventilation Plan (approved 11/29/90 

see page 3) was not being followed in that crosscuts 

had not been positioned at or near the face of the 

Nos. 1 thru 16 rooms in the 2nd North panel. The 

mining conditions in these areas were good. 

1257 
Pyre Mining Company is charged with a failure to follow one 

of the provisions of its approved ventilation plan. Any 

violation of an approved plan provision would constitute a 

violation of mandatory safety standard 30 C.F.R. § 75.316, which 

provides as follows: 

A ventilation system and methane and dust control 

plan and revisions thereof suitable to the conditions 

and the mining system of the coal mine and approved by 

the Secretary shall be adopted by the operator and set 

out in printed form on or before June 28, 1970. The 

plan shall show the type and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

Secretary may require, the quantity and velocity of air 

reaching each working face, and such other information 

as the Secretary may require. such plan shall be 

reviewed by the operator and the Secretary at least 

every 6 months. 

The applicable ventilation plan provision in question is 

found on page 3 of Pyre's approved plan dated November 29, 1990, 

and it states as follows: 

All dead end places shall be ventilated. When 

practical, crosscuts will be positioned at or near the 

face of each entry or room before it is abandoned. 

Otherwise, line curtains will be installed as needed. 

The facts of the case are straightforward. During the 

·course of a regular quarterly inspection of Pyre's No. 9 

Wheatcroft Mine, Inspector Franks observed that Pyre had failed 

to cut and position crosscuts at or near the face of the 

abandoned rooms in the second North panel, identified as rooms 

numbered l through 16. Inspector Franks also noted that 

ventilation curtains were in place and there was no evidence of 

methane in the area. He further observed that the roof in the 

area was good, no water was present and in fact, he opined there 

were no adverse mining conditions present which would have 

prevented the operator, from a purely safety standpoint, from 

making the crosscuts at or near the face of the aforementioned 

rooms. 

Basically 1 it is the Secretary's position that the plan 

requires crosscuts be provided if it can be safely done. To the 

Secretary, the phraseology, "when practical" means in this 

context that the operator must position crosscuts at or near the 

face of abandoned rooms, unless because of safety considerations, 

it would be more dangerous to do so than to place line curtains. 

The inspector testified that the working definition of 

"practical" at least in District 10 is that the only excuses the 

operator would have for not putting the crosscuts through is if 

1258 
they had bad top or water in the area, i.e., unsafe conditions. 

Pyro, however, does not agree that these are the only two 

allowable considerations of practicability. I have to concur 

that this limitation is not clearly apparent from the approved 

ventilation plan. 

If "impractical" can be used as the antonym of "practical," 

then the Secretary would define "impractical" for the purposes of 

this case as an act which is impossible to safely perform given 

the conditions at hand, i.e., water or bad roof. But the 

ventilation plan does not state "when possible 11 ; it states "when 

practical" which implies that a fuller range of circumstances 

could be considered. The inspector,himself acknowledged that if 

we disregard for a moment the very restrictive definition of 

"practical" that District 10 has devised, then there are many 

other considerations that could go into determining what is 

"practical." 

There are certainly imaginable situations where it would be 

possible to make these crosscuts safely, but it would not be 

practical. Pyro believes that their mining procedure is one such 

instance. Typically, the first and second shifts work coal 

production. They try to move out of a set of rooms at the end of 

the second shift. Then the third shift crew is responsible for 

the moving of the equipment to position it for the next day's 

work. Therefore, Pyro•s position is 'that when they abandon a 

room, they take all operational factors into account (safety 

factors as well as economic factors) in determining whether it is 

.Practical to place crosscuts. If not, line curtain is hung to 

ensure proper ventilation. In years past, this has been an 

acceptable interpretation of this provision of the ventilation 

plan. Pyro has not previously received a citation for a 

violation of this portion of the plan even though their mining 

methods have remained unchanged until the instant citation was 

issued. 

The Secretary points out that 30 C.F.R. § 75.316-2 which 

provides criteria for approval of ventilation plans states that: 

A crosscut should be provided at or near the face 

of each entry or room before the place is abandoned. 

However, that section also provides in pertinent part that: 

A ventilation system and dust control plan not 

conforming to these criteria may be approved, providing 

the operator can satisfy the District Manager that the 

results of such ventilation system and dust control 

plan will provide no less than the same measure of 

protection to the miners. 

1259 
Pyre's plan did not strictly conform to that particular 

criteria. The District Manager approved the plan with a somewhat 

less than mandatory requirement for crosscuts. It is clear that 

crosscuts are preferred (when practical) but line curtain, as 

needed, is an alternative albeit less desirable means of 

compliance. The inspector testified that what this provision 

really means is that crosscuts are required except in two 

instances (bad roof or water in the area). Even so, this still 

does not absolutely incorporate the suggested criteria. The 

District Manager has allowed for alternative compliance~ the only 

dispute is when is the alternative permissible. 

Essentially, the answer to that query is whenever the 

District Manager says it is. But the important feature to make 

his intention enforceable is to put it clearly into the approved 

plan. As it now stands, the inspector's interpretation, which he 

claims is the District's interpretation, is not to be found in 

the document. That is the key. The language contained in the 

plan does not support the ,allegation that Pyro is not in 

compliance. -

Apparently for years, "practical" in this context was 

interpreted broadly enough to include all relevant considerations 

and Pyre's mining practices under the approved plan passed 

muster. Now a new "unwritten rule" is in effect, without prior 

notice to the operator and most importantly, without amendment to 

the plan. Pyre complains that this does not comport with 

standards of basic fairness, let alone give the operator notice 

or an opportunity to be heard concerning the changed enforcement 

procedure. I agree. If the District Manager wishes to make a 

change to the operator's ventilation plan, he may certainly do so 

as part of the approval process, but it is not too much to ask 

that he clearly state what the provisions are to be in writing. 

I also take note and it should be clear herein that the 

inspector found that adequate line curtain was installed and all 

dead end places were sufficiently ventilated in the affected 

areas. 

Under the circumstances, I find that the Secretary has 

failed to establish a violation of the cited ventilation plan 

provision and therefore the citation at bar will be vacated. 

1260 
ORDER 

On the basis of the foregoing findings and conclusions, IT 

IS ORDERED THAT Section 104(a) Citation No. 3550463, citing an 

alleged violation of 30 C.F.R. § 75.316, IS VACATED, and Pyro 

Mining Company's contest IS GRANTED. 

Law Judge 

Distribution: 

Robert I. Cusick, Esq., Wyatt, Tarrant & Combs, 2600 Citizens 

Plaza, Louisville, KY 40202 (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 

1261 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 7 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

AMOS HICKS, 

complainant 

v. 

COBRA MINING, INC., 

JERRY K. LESTER and 

CARTER MESSER, 

Respondents 

Before~ Judge Weisberger 

DISCRIMINATION PROCEEDING 

Docket No. VA 89-72-D 

MSHA Case No. NORT CD-89-18 

DECISION 

on June 4, 1991, a Decision on Remand was issued which, 

intra alia directed Complainant to file a statement indicating 

the specific relief requested, and allowed Respondent to file a 

reply 20 days from the date of service upon it of Complainant's 

statement. On June 24, 1991, Complainant filed his statement of 

requested relief, and Respondent filed their response on 

July 15f 1991. 

In his statement complainant seeks back wages of $5 1 111.59 1 

along with interest in the amount of $1,024.85. He also seeks 

telephone charges of $57.18, mileage of $319.18, medical bills of 

$490.91, lost wages for trial attendance of $100 and hotel costs 

for trial attendance of $47, all of which are essentially alleged 

to be costs incurred as a consequence of Respondents discriminatory discharge of him. complainant also seeks $95.39, for 

wor1c boots which he alleges are required in the State where he 

obtained new employment. Complainant also asserts further that 

subsequent to his discharge by Respondent he did not have any 

income, and could make payments on his truck which was 

repossessed and resold causing him to loose his equity in the 

truck totally $4,818.80. He thus seeks that amount plus 

$5,042.20, the amount still owned by him after the repossession. 

Also the secretary seeks a civil penalty of $1,500. 

Respondents' reply contains an objection only to 

Complainant's request for consequential damages arising out of 

the loss of his truck. As such, I conclude that, inasmuch as 

Respondents have not specifically objected to any other item of 

1262 
Complainant's request for damages, that they be allowed. 

In resolving the issue of Respondents' liability for 

consequential damages arising out of the repossession of 

Complainant's truck, I note that the legislative history of the 

Federal Mine Safety and Health Act of 1977 ("the Act") reveals an 

intent to require that the scope of relief provided shall 

encompass 11 ••• all relief that is necessary to make the 

complaining Party whole •••. " (Senate Report on the Act, s. Rep. 

No. 181, 95 Cong., 1st sess., at 37 (1977), reprinted in 

Legislative History of the Federal Mine Safety and Health Act of 

1977, "Legislative History") at 625 (1978)). Thus it is 

Respondents' obligation to put Complainant in the position he 

would be in if there had not been a discriminatory discharge in 

violation of the Act. (Secretary on behalf E. Bruce Nolan v. Luck 

Quarries, 2 FMSHRC 954 (1980) (ALJ Merlin}). I thus find that 

the lost of equity in the truck occurred as a direct consequence 

of Complainant's have discharge and hence, to make Complainant 

whole Respondents have the obligation of replacing the lost 

equity in the truck (Nolan supra at 961). However, the amount 

still owning on the loan constit.utes complainant's obligation 

under the loan, and does not appear to be related to his having 

lost his employment. Accordingly, Respondents are not obligated 

to pay him that sum. 

It is hereby ORDERED that, within 30 days of this decision, 

Respondents shall pay Complainant the following amount: 

Lost Equity in the Truck 

Back wages 

Interest on Back wages 

Telephone charges 

Work Boots 

Automobile mileage 

Medical Bills 

Lost wages for trial attendance 

Hotel Cost for trial attendance 

$4,818.80 

5, 111. 59 

1,024.85 

57.18 

95.39 

319.18 

490.91 

100.00 

47.00 

It is further ORDERED within 30 days of this Decision 

Respondent shall pay a civil penalty of $1,500. 

It is further ORDERED that the Decision issued June 4 1 1991 

now finalo Ii 

A:Vram 

/ l0( •' Weis~ u.,, b 

rger ~ 

Administrative Law Judge 

Distribution~ 

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

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Kurt J. Pomrenke, Esq., White, Elliott & Bundy, P.O. Box 8400, 

Bristol, VA 24203-8400 (Certified Mail) 

nb 1263 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION · 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 8 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY 

Respondent 

'DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-27 

A. C. No. 46-01867-03864 

Blacksville No. l Mine 

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

u. s. Department of Labor, Arlington, Virginia, 

for the Secretary of Labor (Secretary); 

Walter J. Scheller III, Esq., Pittsburgh, 

Pennsylvania, for Consolidation Coal Company 

(Consol) . 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for three alleged 

'riolations of mandatory safety standards alleged in three 

citations issued on August 3lv 1990. Pursuant to notice, the 

case was called for hearing in Morgantown, West Virginia, on 

April 17-18, 1991. At the hearing, the Secretary proposed a 

settlement with respect to one of the alleged violations. After 

the close of the hearing she submitted a settlement motion with 

respect to a second alleged violation. With respect to the other 

oney Federal Coal Mine Inspector Joseph Migaiolo testified on 

behalf of the Secretary. John Morrison and Craig G. Yanak 

testif on behalf of Consol. Both parties have filed 

Posthearing Briefs. I have considered the entire record and the 

contentions of the parties in making the following decision. 

SETTLEMENT MOTION CITATION NO. 3314114 

This citation alleged a violation of 30 C.F.R. § 75.400 

because an accumulation of loose coal and float coal dust had 

been deposited on the P-8 longwall roof support shield and other 

parts of the longwall. The violation was alleged to be significant and substantial, and caused by Consol's moderate negligence. 

1264 
It was assessed at $500. The motion proposes a reduction to $350 

on the ground that the negligence should be reduced to low negligence. I have considered the motion in the light of the criteria 

in section llO(i) of the Act, and conclude that it should be 

approved. 1, 

SETTLEMENT MOTION CITATION NO. 3314113 

on August 5, 1991, the Secretary filed a motion for approval 

of a settlement whereby Consol agreed to pay the amount 

originally assessed, $276. The citation alleged a violation of 

30 c.F.R. § 75.305 because Consol failed to conduct an adequate 

weekly examination in that it failed to report a hazardous roof 

condition in the intake escapeway. .I have considered the motion 

in the light of the criteria in Section llO(i) of the Act, and 

conclude that it should be approved. 

FINDINGS OF FACT 

Consol was at all pertin~~t times the owner and operator of 

an underground coal mine in Monongalia County, West Virginia, 

known as the Blacksville No. 1 Mine. Consol is a large operator. 

The imposition of penalties in this case will not affect its 

ability to continue in business. The subject mine has an average 

history of prior violations for a mine of its size, and any penalties imposed herein will not be increased or decreased because 

of that history. The violations involved in this case were 

abated timely and in good faith. 

CITATION NO. 3314111 

On August 31, 1990, there was an accumulation of hydraulic 

pump fluid covered with fine coal and coal dust on a hydraulic 

pump sled inby the mantrip station along an active travelway in 

':he subject mine" The material measured from 1/8 to 1/4 inch in 

The extent of the accumulation was such that it would 

have taken several working shifts to develop. The pump has a 440 

volt AC motor. A 104(d) (2) Order was issued for a violat~ n of 

30 C.F.R. § 75.400. That Order is not before me in this proceeding, which only involves an alleged violation of 30 C.F.R. 

J 75"3GJ(a)" The hydraulic fluid consists of a white emulsion 

ion of oil and water. In the material on the sled, the 

water had partially evaporated leaving a yellow sticky residue 

which the inspector believed to be combustible. No sample o.f the 

material was taken to test its combustibility. Craig Yanak, 

Consol 1 s Supervisor of dust, noise control, and hazardous chemicals: testified that the hydraulic fluid was 95 percent water and 

5 percent concentrate. The concentrate is itself only 5 percent 

petroleum. Based on Yanak's discussion with the manufacturer, he 

believed the product would not be combustible under normal mining 

conditions. Consol submitted a letter from the manufacturer 

1265 
stating that once the product is mixed with water, the water cannot evaporate sufficiently to make the residue combustible. 

(Operator's Ex 1). The August 31, 1990, preshift examiner's 

report did not refer to the accumulation on the pump sled. 

Inspector Migaiolo issued the contested citation charging a 

violation of. 30 c. F. R. § 75. 303 (a) because he believed that the 

failure to note-tne condition showed that an adequate preshift 

examination was not performed. __ 

I find that the accumulation on the pump sled was 

combustible'regardl~ss of the .combustibility of the hydraulic 

fluid itself; sirice it contained coal, coal dust, and float coal 

dust. The accumulation was clearly visible. Therefore, it 

should have been seen by the mine examiner and reported in the 

examiner's book. 

The pump sled motor constituted an ignition source. If a 

fire broke out it would travel directly to the longwall face 

where miners were working. The citation was terminated 

September 6, 1990. ,The inspector determined that adequate 

preshift examinations were being conducted as of that date. 

REGULATIONS 

30 C.F.R. § 75.303(a) provides as follows: 

(a) within 3 hours immediately preceding the 

beginning of any shift, and before any miner in s~ch 

shift enters the active workings of a coal mine, 

certified persons designated by the operator of the 

mine shall examine such workings and any other underground area of the mine designated by the Secretary or 

his authorized representative. Each such examiner 

shall examine every working section in such workings 

and shall make tests in each such working section for 

accumulations of methane with means approved by the 

Secretary for detecting methane, and shall make tests 

for oxygen deficiency with a permissible flame safety 

lamp or other means approved by the Secretary; examine 

seals and doors to determine whether they are functioning properly? examine and test roof, face, and rib 

conditions in such working section; examine active 

roadways, travelways, and belt conveyors on which men 

are carried, approaches to abandoned areas, and accessible falls in such section for hazards; test by means 

of an anemometer or other device approved by the 

Secretary to determine whether the air in each split is 

traveling in its proper course and in normal volume and 

velocity; and examine for such other hazards and 

violations of the mandatory health or safety standards, 

as an authorized· representative of the Secretary may 

from time to time require. Belt conveyors on which 

1266 
coal is carried shall be examined after each coalproducing shift has begun. Such mine examiner shall 

place his initials and the date and time at all places 

he examines. If such mine examiner finds a condition 

which constitutes a violation of a mandatory health or 

safety standard or any condition which is hazardous to 

persons who many enter or be in such area, he shall 

indicate such hazardous place by posting a "danger" 

sign conspicuously at all points which persons entering 

such hazardous place would be required to pass, and 

shall notify the operator of the mine. No person, 

other than an authorized representative of the 

Secretary or a State mine inspector or persons authorized by the operator to enter .such place for the 

purpose of eliminating the hazardous condition therein, 

shall enter such place while such sign is so posted. 

Upon completing his examination, such mine examiner 

shall report the results of his examination to a 

person, designated by the operator to receive such 

reports at a designated station on the surface of the 

mine, before other persons enter the underground areas 

of such mine to work in such shift. Each such mine 

examiner shall also record the results of his examination with ink or indelible pencil on a book approved by 

the Secretary kept for such purpose in an area on the 

surface of the mine chosen by the operator to minimize 

the danger of destruction by fire or other hazard, and 

the record shall be open for inspection by interested 

persons. 

ISSUES 

lo Whether the evidence establishes that the cited 

violation occurred? 

2. If so, was the violation significant and substantial? 

3. If so, what is the appropriate penalty? 

CONCLUSIONS OF LAW 

Consol is subject to the provisions of the Mine Act in the 

operation of the Blacksville No. 1 Mine. I have jurisdiction 

over the parties and subject matter of this proceeding. 

CITATION NO. 3314111 

I have found as a fact that the accumulation on the hydrau1 ic pump sled was combustible. It was evident and created a 

hazard. Therefore, the mine examiner should have reported and 

recorded it in the preshift examination book. His failure to do 

so constituted a violation of 30 C.F.R. § 75.303(a). Because 

1267 
there was an ignition source at the area of combustible accumulation, the condition created a hazard and failure to note it would 

permit it to go uncorrected. A fire could result and cause 

injury to miners. The violation was reasonably likely to result 

in such injuries and was therefore significant and substantial. 

See Mathies coal Co., 6 FMSHRC 1 (1984). It was a serious violation, and resulted from Consol's negligence since the condition 

was obvious to visual observation. Based on the criteria in 

Section llO(i) of the Act, I conclude that $400 is an appropriate 

penalty for the violation. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation No. 3314111, including its designation of the 

violation as significant and substantial, is AFFIRMED. 

2. Citation No. 3314113, including its designation of the 

violation as significant and substantial, is AFFIRMED. 

3. Consol shall, within 30 days of the date of this 

Decision, pay the following civil penalties: 

CITATION 

3314111 

3314113 

3314114 

Distribution~ 

TOTAL 

AMOUNT 

$400 

$276 

$350 

$1026 

n 

/, . 1P· /.'/~ './ :',t 4 t{.Z) 1.;-T) r Vw.<:/~ 7..6 f C 

.? 

/ James A. Broderick 

Administrative Law Judge 

Page H. Jackson, Esq., Office of the Solicitor, U. s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified 

Mail) 

dcp 

1268 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 8 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ANDERSEN SAND & GRAVEL 

COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-10-M 

A. C. No. 20-00667-05511 

Leix Road Dredge and Mill 

Appearances: Christine M. Kassak, Esq., Office of the Solicitor, 

U. S. Department of Labor, Chicago, Illinois, for 

the Secretary of Labor (Secretary); 

Frank M. Andersen, President and Owner, Andersen 

Sand & Gravel Company (Andersen), for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for an alleged violation 

of the mandatory safety standard in 30 C.F.R. 56.9300(a) at 

Andersen's Leix Road Dredge and Mill. The violation was charged 

in a 104(d) (1) citation because of the unwarrantable failure of 

Andersen to comply with the regulation. Pursuant to notice, the 

case was called for hearing in Bay City, Michigan on July 23, 

1991. Federal Mine Inspector Victor w. Chicky testified on 

behalf of the Secretary 1 and the Secretary called Charles Corl, 

Supervisor of the subject plant as a witness. Andersen crossexamined both witnesses, but did not call any additional 

witnesses. Both parties waived their right to file post-hearing 

briefs and argued their respective positions on the record. I 

have considered the entire record and the contentions of the 

parties in making the following decision. 

FINDINGS OF FACT 

1. Andersen is the owner and operator of a sand and gravel 

pit in Tuscola County, Michigan, known as the Leix Road Dredge 

and Mill. Its operations affect interstate commerce. 

1269 
2. The plant is a small operation, which produces sand and 

gravel seasonally. It has one full time and one part time 

employee. In 1989, it produced and sold 45,889 tons of material. 

During the year, prior to the violation alleged herein, 

3789 production hours were worked. 

3. Andersen's history of prior violations is not such that 

a penalty otherwise appropriate should be either increased or 

decreased because of it. 

4. The imposition of a penalty in this proceeding will not 

affect Andersen's ability to continue in business. 

5. The subject operation involves the dredging of gravel 

from a lake or pond and transporting it by conveyor to a mill 

where it is screened, crushed, sized, washed, and distributed to 

customers. 

6. In approximately November 1989, Andersen's Supervisor 

Charles Corl removed a berm which had been constructed at the 

dredging area of the plant in order to work on machinery involved 

in the floating dredge. 

7. Between November 1989, and late March 1990, the dredging 

operation was shut down, although gravel continued to be sold to 

customers. 

8. From the time the operation began in late March 1990, 

until May 2, 1990, Corl was involved in producing 2s sand which 

was needed by a customer. He knew the berm was missing, but had 

not gotten around to replacing it. 

9 .. On May 3 f 1990 9 a berm between 10 and 50 feet wide was 

missing from the dredging area at the lake. The vertical drop to 

the lake was about 12 feet. 

10. The water in the lake was between 4 and 10 feet deep, 

shallower at the edge. 

11. Corl was operating a front-end loader in the area. The 

loader was about 22 feet long and weighed 18 tons. Tracks were 

seen approaching 8 to 10 feet from the vertical drop off. 

12. On May 3, 1990, Inspector Chicky issued a citation under 

Section 104(a) charging a violation of 30 C.F.R. § 56.9300(a). 

It was modified on May 7, 1990, to a 104(d) (1) citation because 

of the unwarrantable failure of Andersen to comply with the 

standard. 

13. The condition was abated immediately and the citation 

was terminated 20 minutes after it was issued. 

1270 
REGULATION 

30 C.F.R. § 56.9300(a) provides as follows: 

Berms on guard rails shall be provided and 

maintained on the banks of roadways where a drop-off 

exists of sufficient grade or depth to cause a vehicle 

to overturn or endanger persons in equipment. 

ISSUES 

1. Whether the evidence establishes a violation of the 

safety standard requiring berms? 

2. If so, what is the appropriate penalty? 

CONCLUSIONS OF LAW 

1. Andersen is subject tothe provisions of the Mine Act in 

the operation of the subject facility, and I have jurisdiction 

over the parties and subject matter of this proceeding. 

2. Andersen failed to have a berm or guardrail on 

10 to 50 feet of the bank of a roadway where a drop off of 

12 feet existeq. This is a violation of 30 C.F.R. § 56.9300(a). 

3. The violation was serious. It could have resulted in 

the front-end loader overturning, and the operator being severely 

injured or even drowned. 

4. Andersen was aware of the violation, and the failure to 

~amply with the standard was an unwarrantable failure. 

5. Based on the criteria in Section llO(i} of the Act, I 

conclude that an appropriate penalty for the violation is $500. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT JCS ORDERED~ 

lo Citation No. 3444340 is AFFIRMED. 

2. Respondent shall, within 30 days of the date of this 

decision, pay to the Secretary a civil penalty in the amount of 

$500 far the violation found herein. 

·I 

. 7 w' ./... /-- t: ..• /. ;//':t•),, .,, &' .· \., t. ~ (..i? .5 ./ !/ t '(J.;1..'· l ,-;,_ C- ,,,.( 

~I James A. Broderick --

./ Administrative Law Judge 

1271 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 8 1991 

METTIKI COAL COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent . . . 

Docket No. YORK 89-19-R 

A. C. No. 3110337; 11/30/88 

Docket No. YORK 89-20-R 

A. C. No. 3110339; 11/30/88 

Mettiki General Prep Plant 

Mine ID 18-00671 

FINAL ORDER ON REMAND 

A penalty settlement of the two citations involved in these 

proceedings was approved on July 12, 1991, in Docket No. YORK 89-

42. Accordingly, all proceedings in the above cases are CONCLUDED. 

11)~ ·~ ~f::' Fauver ""-b? 

Administrative Law Judge 

Distribution~ 

l:Viatthew Rieder, Esq., Office of the Solicitor, U. S. Department of 

Lanor, suite 14480-Gateway Building, 3535 Market street, 

Philadelphia, PA 19104 (Certified Mail) 

Susan Chetlin, Esq., Crowell and Moring, 1001 Pennsylvania Avenue, 

N. w. Washington, D.C. 20004-2505 (Certified Mail) 

/fas 

1272 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 9 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 91-104 

A. C. No. 15-05423-03653 

v. Mine No. 1 

MANALAPAN MINING COMPANY, INC., 

Respo~dent 

DECISION 

Appearances: G. Elaine Smith, Esq., Office of the 

Solicitor, U. S. Department of 

Labor, Nashville, TN, for the 

Petitioner; 

Before: 

Susan c. Lawson, Esq., Harlan, KY, 

for the Respondent. 

Judge Fauver 

The Secretary brought this case for civil penalties for two 

alleged violations of safety standards, under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~ 

One of the citations (No. 99877861) was settled at the 

hearing, and Respondent was ordered to pay a penalty of $157. The 

other citation went to hearing on the merits. 

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 

and further findings in the Discussion below: 

FINDINGS OF FACT 

1. At all relevant times, Respondent operated an underground 

coal mine, known as Mine No. 1, which produced coal for sale or use 

in or affecting interstate commerce. 

2. 

issued § 

On July 23, 1990, Federal Mine Inspector Larry Bush 

104 (d) (1) Citation No. 3383894 to Respondent, for a 

1273 
violation of 30 C.F.R. § 75.312, 1 alleging that the ventilating 

current for 004 working section was passing through a gob area 

(where pillars had been removed) . Inspector Bush found that air 

from the gob area was passing into the intake course through 

nine ventilation curtains hung along the intake air entry. He 

checked the movement of air in front of the curtains by using a 

smoke tube and by feeling the movement of the air. He did not 

check behind the curtains before issuing the citation. 

3. Foreman Charles Polly was unsure how to abate the cited 

condition, because the nine curtains appeared to him to be snug and 

free of leaks. He took men to the bleeder system, and put up 

additional curtains there. He did not adjust, repair, or change 

the nine curtains observed by Inspector Bush. 

4. The citation allowed 47 minutes to abate the cited 

condition. After that time passed, Inspector Bush issued § 104(b) 

Order No. 3383897. 

5. After Forema~ Polly 1hstalled curtains in the bleeder 

system, he returned and Inspector Bush told him he issued the § 

104(b) order because air was still coming through the nine 

curtains. Foreman Polly asked the inspector to check the air with 

him before any miners were withdrawn under the § 104 (b) order. The 

inspector agreed to do so. 

6. Inspector Bush and Foreman Polly then went to the front 

of one of the nine curtains near the gob area. They could feel air 

coming around the curtain and Inspector Bush confirmed the flow of 

air with a smoke test. They then went behind the curtain and the 

inspector conducted another smoke test, which showed that the air 

behind the curtain was moving slightly but it was moving back into 

the gob area, not through the curtain. They checked behind three 

other curtains in the same wayr and the results were the same. As 

a result of these tests, Inspector Bush terminated the § 104 (b) 

ordero 

Section 75.312 provides~ 

that has passed through an abandoned area or an area 

which is inaccessible or unsafe for inspection shall not 

be used to ventilate any working place in any mine. No 

air which has been used to ventilate an area from which 

the pillars have been removed shall be used to ventilate 

any working place in a mine, except that such , if it 

does not contain o. 25 volume per centum or more of 

methane, may be used to ventilate enough advancing 

working places immediately adjacent to the line of 

retreat to maintain an orderly sequence of pillar 

recovery on a set of entries. 

1274 
7. The nine curtains along the intake course were a few feet 

outside the gob area. 

8. On July 23, 1990, about 56,000 cfm of air was ventilating 

004 section. This high rate of air movement created a swirling 

effect in the air in front of the nine curtains, giving the 

impression that air was passing from the gob area through the 

curtains. In fact, as the tests by Inspector Bush and Foreman 

Polly later showed, the air was not coming from the gob area. 

9. Respondent 1 s ventilation plan required concrete blocks or 

permanent type brattice at the place where the nine curtains were 

installed. On July 5, 1990, Respondent had applied to MSHA for 

approval of a supplemental plan that would permit the use of 

curtains. The application was denied by MSHA on July 23, 1990. 

10. After termination of the citation and order, Respondent 

replaced the nine curtains wi tl1 permanent type brattice. 

11. On at at least one prior occasion, curtains like the 

nine curtains inspected by Inspector Bush had been approved by MSHA 

at Mine No. 1 to prevent air movement from a pillared-out area into 

an intake air course. 

DISCUSSION WITH FURTHER FINDINGS 

On July 23, 1990, when Citation ·No. 3383894 was issued by 

Inspector Bush, the air in front of the nine curtains was swirling 

because of a high volume of air rapidly moving in the intake 

c.ourse. It gave the impression to Inspector Bush that it was 

coming from the gob (pillared-out area), but it was not. 

At the location where the citation was issued, the ventilation 

plan required concrete blocks or permanent type brattice, instead 

of curtains, to keep air in the gob area from moving into the 

intake course. A pending application by Respondent to MSHA, to 

approve curtains, was denied on the date of this inspection, but 

that decision was not known by Inspector Bush or Foreman Polly at 

the timeo 

The evidence does not show that the air condition in front of 

the nine curtains was any different when Inspector Bush issued the 

citation compared to when he terminated it. The only factual 

difference is that, to check abatement of the citation, he went 

behind the curtains (for the first time) and made air tests. These 

showed that the air movement behind the curtains was going into the 

gob and not through the curtains into the intake air course. 

Respondent had not adjusted, repaired, or changed the nine curtains 

to abate the cited condition. The evidence thus raises a 

reasonable inference that the air condition behind the nine 

curtains was the same when the citation was issued and when it was 

terminated. The Inspector's finding of air moving from the gob 

1275 
through the curtains into the intake air course may be explained by 

the swirling effect in front of the curtains, caused by 56,000 cfm 

of air moving through the intake air course, and not air moving 

from the gob into the intake air course. On balance, the 

government has not shown by a preponderance of the evidence that 

the ventilation air in 004 working section was passing through the 

gob area. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. The secretary failed to prove a violation of 30 C.F.R. § 

75.312 as alleged in Citation No. 3383894. 

ORDER 

WHEREFORE IT IS ORDERED that Citation No. 3383894 and Order 

No.3383897 are VACATED and this proceeding is DISMISSED. 

Distribution: 

{);J!L~ 1-PW\V~ William Fauver 

Administrative Law Judge 

G. Elaine Smith, Esq., Office of the Solicitor, U. s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 {Certified Mail) 

!Yfr. Richard D. Cohelia, Safety Director, Manalapan Mining Company, 

Inc.~ P. o. Box 311, Brookside, KY 40801-0311 (Certified Mail) 

Susan c. Lawson, Forester, Buttermore, Turner & Lawson, P. o. Box 

935, Harlan, KY 40831 (Certified Mail) 

/fas 

1276 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 14 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

IJ'S COAL CORPORATION, 

Respondent 

DECISION 

Docket No. KENT 90-356 

A. C. Na. 15-16477-03526 

Docket No. KENT 90-399 

A. C. Na. 15-16477-03528 

Docket No. KENT 90-400 

A.C. No. 15-16637-03529 

No. 3 Mine 

Docket No. KENT 90-401 

A.C. No. 16-16637-03505 

No. 4 Mine 

Appearances: W. F. Taylor, Esq., Office of the Solicitor, U. S. 

Department of Labor, Nashville, Tennessee for the 

Petitioner; 

Before: 

Carl E. McAfee, Esq., IJ's Coal Corporation, 

St. Charles, Virginia, for the Respondent. 

Judge Weisberger 

These cases are before me based upon petitions for 

assessment of civil penalty filed by the Secretary (Petitioner) , 

al violations of various mandatory standards set forth in 

Volume 30 of the Code of Federal Regulations. Pursuant to a 

notice of hearing, issued on November 16, 1990, these cases were 

scheduled for hearing on December 18, 1990. On December 11, 

1990, a message was received from counsel for Petitioner, 

indicat that the parties settled these cases. On January 14, 

1991, Pet ioner filed a joint motion to approve settlement. on 

January 18, 1991, in a conference call I initiated between 

counsel for both parties, it was explained that, inasmuch as the 

motion did not contain sufficient facts to support the proposed 

settlements, could not be granted. On February 4, 1991, the 

parties led a supplement to the motion to approve settlement. 

On February 25, 1991, an order was issued denying the motion to 

1277 
approve settlement on the ground that neither the motion nor the 

supplement provided any facts in support of the appropriateness 

of the proposed penalties. Subsequent to notice, these cases 

were scheduled for hearing, and were subsequently heard in 

Tazewell, Tennessee, on June 18, and 19, 1991. Robert W. Rhea, 

Robert E. Jones, and ah Myers, testified for Petitioner. The 

operator (Respondent) did not call any witnesses, nor did it 

offer any documentary evidence. 

Findings of Fact and Discussion 

I. Docket No. KENT 91-356 

Order No. 3377046 

On January 18, 1990, a section 104(d) (1) order was issued to 

Respondent, alleging a violation of a mandatory standard at its 

No. 3 Mine. There were no intervening clean inspections between 

January 18, 1990 and March 8, 1990. 

On March a, 1990,- Robert w. Rhea, an MSHA Inspector, 

inspected the belt at the 001 section at Respondent's No. 3 Mine. 

He testified that there was no guard on the tail piece of the 

roller. According to Rhea, the roller in question is 24 inches 

in diameter and holds the belt down to the tail piece. He 

indicated that production was in process, and a scoop was dumping 

coal on the belt when he arrived. He observed a metal structure 

against a rib. The section foreman, Dwayne Nicely, informed him 

that this structure was the guard. 

Rhea observed one employee breaking rock with a sledge 

hammer approximately 10 feet from the tail roller. He indicated 

that the height of the coal seam, being between 42 and 48 inches, 

and the fact that the floor in the area in question contained 

loose coal and rock, made it difficult to move around. In 

essence, was his opinion that a person working in the area 

might come in contact with the moving roller, causing a serious 

injury. Rhea issued a section 104(d) (1) order, alleging a 

violation of 30 C.F.R. § 75.1722. 

As pertinent,. section 75.1722, suora, provides that, in 

essence, exposed moving machine parts which may be contacted by 

persons and which may cause injury shall be guarded, and that 

guards shall be securely in ace while the machinery is being 

operated. 

Respondent not proffe~ any witnesses or documentary 

evidence. Based upon the testimony of Rhea, I conclude that t:.he 

tail roller in question, was not guarded, and this condition 

exposed moving parts that might be contacted by persons working 

in the area, especially considering the low height of the seam, 

1278 
and the uneven surface of the floor. Accordingly, it has been 

established that Respondent violated section 75.1722, supra. 

According to Rhea, any loose clothing, gloves, tools, or 

battery light cord, worn by a miner, coming in contact with the 

unguarded belt, would cause the miner to be pulled into the 

roller, causing dismemberment or death. Considering the 

proximity of the miners working in the area to the unguarded tail 

roller, and the low height of the roof, and the surface of the 

floor containing loose coal and rocks, I conclude that it has 

been established that there was a reasonable likelihood of a 

hazard of contact with the moving tail roller, and a reasonable 

likelihood that such a hazard would have resulted in an injury of 

a reasonably serious nature. Hence,. I conclude that it has been 

established that the violation herein was significant and 

substantial. (See, Mathies Coal Company, 6 FMSHRC 1, 3-4 

(1984)). 

According to Rhea, on "numerous occasions," he had cited the 

same violation and discussed it"withthe section foreman, Dwayne 

Nicely (Tr. 37,38). He-said that during two or three inspections 

between January 18, 1990, and March 8, 1990, he talked with 

Nicely about the guarding of the tail piece. He indicated that 

when he issued the citation on March 8, 1990, he asked a miner at 

the tail roller whether he was aware of the roller and whether he 

thought that it needed a guarding, and the miner indicated in the 

affirmative and stated that the guarding was at the rib. Hence, 

I find that Respondent was aware of the need for the guarding at 

the location in issue, and was also aware that the guarding was 

not in place. There are no facts to explain why Respondent did 

not replace the guard. I conclude thus that the violation 

resulted from Respondent's aggravated conduct. Accordingly, I 

f that the violation herein to be the result of Respondent's 

unwarrantable failure" (See, Emery Mining Corp", 9 FMSHRC 1997 

1987) 

Considering the gravity of the violation, and its degree of 

negligence, as testified to my Rhea, and considering the 

remaining statutory factors, I conclude that a penalty herein of 

$800 is appropriate. 

Rhea testified, in essence, that on March 8 1 1990, he 

observed a cavity in the roof of the last open crosscut in the 

No. 3 entry. He described the cavity as 20 to 30 feet wide, 20 

to 30 feet long, and approximately 20 feet in depth. He said 

that such a cavity was evidence that a rock fall had occurred. 

According to Rhea, Nicely indicated to him that a roof fall had 

occurred that week i.e., the week of March 8th, which had 

entrapped a roof bolting mahcine. Rhea said that Nicely told him 

that the roof fall had·not been reported. Rhea issued a citation 

alleging a violation of 30 C.F.R. § 50.10 which in essence 

1279 
requires an operator to "immediately" contact MSHA 11 if an 

accident occurs." 30 C.F.R. § 50.2(h) (a) defines accident, as 

pertinent, as 11 ••• an unplanned roof or rib fall in active 

workings that impairs ventilation or impedes passage;" "active 

workings 11 is a term defined in 30 C.F.R. § 75.2(g) (4) as "any 

place in a coal mine where miners are normally required to work 

or travel". 

Based on the testimony of Rhea that has not been rebutted or 

impeached, I find that a roof fall had occurred which was not 

reported. There is no evidence that this roof fall was planned, 

and since it entrapped a roof-bolting machine, I conclude that it 

occurred in a area where miners were required to work and did 

impede passage. Accordingly, since this roof fall had not been 

reported, I conclude that Respondent did violate section 50.10, 

supra. 

Taking into account the significant amount of the rock fall 

as evidenced by the cavity in the. roof observed by Rhea, and the 

fact that Respondent' had knowledge of the roof fall as evidenced 

by Nicely's statement to Rhea that efforts had been made to 

remove a bolter entrapped by the roof fall, and the fact that no 

evidence was adduced by Respondent in order to mitigate its 

negligence, I conclude that the level of its negligence in regard 

to the violation herein was high. Rhea testified to the hazards 

miners were exposed to occasioned by their having to work to 

retrieve the entrapped bolter under an area without roof 

supports. However, Petitioner did not adduce evidence through 

Rhea or any other witness or document, with regard to the gravity 

of the violation herein, i.~., failure to report a roof fall as 

opposed to hazards attendant upon the roof fall itself. I find 

that a penalty of $400 is appropriate for the violation. 

Orders Nos, 3377049, 3277050, 3377051, and 3377052 

According to Rhea, when he examined the No. 1 entry on 

March 8, 1990, he observed hillseams approximately 50 to 75 feet 

from the coal face, and covering an area of the roof of 

approximately 30 by 25 feet. Rhea stated that the width of the 

t:.ilJ. seam varied from a "crack, 11 to, up to 3 to 4 inches (Tr. 

128}. In this connection, he said that three of the hillseams 

were 3 to 4 inches wide. Rhea defined hillseams as vertical 

fractures in the roof. 

According to Rhea1 the area in question was supported only 

by bolts. There were no cross bars, steel straps, or cribs. 

Rhea issued an order alleging a violation of the roof control 

plan ("the plan"). 

In the No. 2 entry Rhea observed more than two hillseams in 

the last open crosscut. He said they were approximately the same 

type and width as those he testified to in the No. 1 entry, 

1280 
(Order No. 3377049, infra). He indicated that the only roof 

supports were roof bolts. 

Rhea also observed an area of a hillseam 8 feet wide by 20 

feet in the No. 2 entry that was totally unsupported. This area 

was located one crosscut inby the section dumping point, and was 

100 feet outby the hillseams he had observed at the last open 

crosscut. 

Rhea said he also observed hill seams in the No. 4 entry 

inby the last open crosscut, and their condition was the same as 

in entries one and two. Rhea issued separate orders for failure 

to follow the roof plan in entries 1, 2, 1 and 4 respectively. 

Paragraph 3 of page 5 of the plan (Government Exhibit 5), 

specifically provides that when "hillseams" are encountered, 

cross beams or steel straps are to be used. Inasmuch as Rhea's 

testimony that there were no 0 beams. or straps in areas of 

hillseams, has not been impeached or rebutted, I conclude that 

Respondent herein did violate its roof-control plan in entries 1, 

2, and 4. 

According to the uncontradicted testimony of Rhea, all 

haulage has to go through the area in question in order to get to 

the face, and, hence, miners are required to travel in the area 

in question. He said that there was a danger of a roof failure 

where the hillseams intersect, and an injury was reasonably 

likely to occur, considering the fact that there was a roof fall 

in the No. 3 entry, and the fact that the hillseams were 

"numerous, 11 (Tr. 123) and the fact that the roof conditions 

stretched across the last open crosscut. Rhea also said that the 

combination of hillseams across all the entries increased the 

danger of a roof fall especially considering that only 50 feet 

separated the entries. Should a roof fall occur, there would be 

a reasonable likelihood of a injury of a reasonable serious 

nature due to the fact that, at a any one time, according to 

Rhea, four miners are present in the area. Inasmuch as Rhea's 

testimony has not been contradicted or rebutted I conclude, that 

establishes that the violations herein are significant and 

substantial (See, Mathies, supra). 

R..~ea indicated that the hillseams were obvious and that 

water was dripping out of them. Rhea related that he discussed 

the condition with Nicely who indicated that he was aware of what 

was required in the ventilation plan, and acknowledged that he 

had hillseam problems in all areas of the section. Rhea 

testified that Nicely was sure the section was going to be moved 

within the next few days, due to the massive roof fall that had 

occurred in entry No. 3 over the weekend. There is no evidence, 

1

Two locations separated by approximately 100 feet. 

1281 
however, that Respondent abandoned these entries and that they 

were no longer working sections. Taking into account the extent 

of the hillseams, their width, and the fact that water was 

dripping out of them, I conclude that Respondent was negligent to 

a high degree in not having complied the terms its roof plan, 

requiring the provision of additional support to the area in 

question. This is especially true inasmuch as Respondent did not 

adduce any facts which would tend to mitigate its negligence. 

Due to the fact that the hillseams were not supported in the 

fashion required by the roof control plan, which could result in 

a roof fall causing serious injuries to miners, I conclude that 

the violations herein were of a high level of gravity. I find 

that a renalty of $800 is proper for each violation found 

herein. 

d. Citation No. 3391846 

MSHA Inspector Robert E. !T.ones, testified that on March 20, 

1990, he inspected the, elevated roadway, on the surface of 

Respondent's No. 3 Mine. He testified that this roadway, which 

is the only access to the mine, is 6 miles in length, and that 

3 miles of this road, go up a steep grade which he estimated as 

being more than 15 percent "in places" (Tr. 209). He said that 

he observed truck traffic on the road. 

Jones testified that he observed.no berms at "intermittent" 

(Tr. 213) locations. He said that in narrow places where the 

road had been washed out, there were no berms or guard rails. He 

said that the road bed is flat, and that as it travels up to the 

mine there is a ditch on the right side of the road, and a "outer 

bank or the hill side" on the left side that slopes down 

(Tro 217) o Jones issued a citation alleging a violation of 30 

C.F.R. § 77ol605(k)p which provides as pertinent, that berms or 

guards shall be provided on the outer bank of elevated roadways. 

Based on Jones' testimony that had been neither rebutted nor 

contradicted, I find that Respondent herein did violate section 

77.1605(k), supra. 

Essentially, according to Jones, as a consequence of the 

J..ac}~ of berms, an accident reasonably likely to occur due to 

the grade of the road and steep banks. He said that if a 

truck left the roadway due to the absence of berms, and went over 

the s of the hill, '~there wouldn 1 t be any hopeu (Tr. 215). In 

this connection he indicated that he also took into account the 

width of the road bed which he indicated averaged about 15 feet, 

but that in some it was not more than 10 to 12 feet wide. 

2

The cited violative conditions were in four distinct 

separate areas, and hence four citatinos were properly issued. 

1282 
Jones, in his testimony, did not specifically indicate the 

location of the areas that did not have a berm. Nor did he 

describe their location with reference to any drop off from the 

roadway. Nor did his testimony specify the extent and length of 

any area in the roadway that did not have a berm. Accordingly, I 

conclude that it has not been established that the violation 

herein was significant and substantial. 

Taking into account that the violation herein might lead to 

a truck running off road and seriously injuring personnel inside, 

I find that the violation was of a moderate level of gravity. I 

find Respondent slightly negligent in that Rhea conceded that 

Respondent did a good job with the berm and that due to the 

weather the berms are hard to maintain, although "it could be 

done 11 {Tr. 219). I conclude that a penalty of $100 is appropriate 

for this violation. 

II. Docket .... No. KENT 90-399 

a. Order No. 3377161 

On April 12, 1990, Jones issued Order No. 3377161 alleging, 

in essence, that the deluge water spray system on the No. 2 belt 

would not operate properly when tested, and hence was in 

violation of section 75.1100-3 which provides that all 

firefighting equipment shall be maintained in a usable and 

operative condition. 3 

The system at issue contains sprays located approximately 8 

feet apart, which are activated only by exposure to heat, and can 

only be tested in that fashion. Water pressure is supplied by 

way of a pump which is located outside the mine. 

Jones indicated that a plug, 1-inch in diameter, had been 

removed from the bar connecting the spray system "together", 

(Tr. 236) and water was coming out of the hole where the plug had 

been removed. Jones concluded that accordingly, pressure was 

weakened all along the line. However, on cross-examination, 

Jones indicated that there was pressure in the system. He 

conceded that the only way to know whether the system works, 

to open the valve at the end of the 50 foot line. He indicated 

that he did not open this valve, nor were the sprays tested by 

applying heat. 

Hence, although it is possible that as a consequence of the 

plug having being removed there was weakened pressure, I find 

that it has not been established that the system was in an 

3

The order, which -0n its face alleges a violation of section 

75.1101, was modified on April 3, 1990, to show instead a 

violation of section 75.1100-3, supra. 

1283 
inoperative condition and was not usable. Hence, I conclude that 

it has not been established that the Respondent herein violated 

section 75.1100-3. 

b. Citation No. 3377351 

Jones testified, in essence, that an update of Respondent's 

dust-control plan was due to be submitted April 6, 1990. He said 

but that the MSHA mine file for the subject mine was checked by 

him on May 30, 1990, and the record did not indicate that such a 

plan was submitted. Respondent did not assert or adduce any 

evidence that such a plan was submitted. 

30 C.F.R. § 75.316, provides that a dust-control plan "· •. 

shall be reviewed by the operator and the Secretary at least 

every 6 months." on the record before me, I conclude that the 

operator did not submit an updated plan at the 6-month due date. 

Accordingly, it was not possible fol'.:' the Secretary to review such 

a plan with the operator, and hence, the operator herein violated 

section 75.316. 

Jones indicated, however, that Respondent herein did have a 

valid plan with projections extending 6-months beyond May, 1990 

and that the plan indicated good ventilation. Also on crossexamination, it was elicited that at the date the citation was 

issued, Respondent was in the process of mining out, and that on 

June 22, 1990, the mine was sealed. Taking these factors into 

account, I conclude that a penalty of $20 is appropriate for this 

violation. 

III. Docket No. KENT 90-400 (Order No. 3376874) 

In the 001 section of Respondent 1 s No. 3 Mine, coal 

:,::amoved by way of pillar extraction. The sequence in which coal 

is mined by taking a 10 by 20 foot cut out of a 40 by 40 foot 

pillar, illustrated in Government Exhibit 16. According to 

Rhea, an operator using such a system is permitted to either cut 

in sequences from right to left as illustrated on Government 

Exhibit 16, or from left to right. The roof-control plan, (the 

plan11 ) states that, veall pillars will be mined from the same 

direction11 (Government Exhibit 5, page 13). The plan illustrates 

two parallel rows, each containing four breaker pillars, along 

with four posts in a diagonal line, all to be placed in the last 

open crosscut, outby the left split of a pillar that is being 

mined, In this connection, the plan provides as follows "breaker 

timbers to be installed before mining of corresponding mining 

sequence number." (Exhibit P.13, 

On April 17, 1990, when the section was inspected by Rhea, 

production was in process, the first in the series of cuts had 

already been taken from the four pillars in the section, and 

breaker timbers had been installed outby the left sided split of 

1284 
blocks one and four as depicted in the plan (Exhibit 5, page 13, 

supra). There were no breaker timbers installed in the last open 

crosscut outby the left side split of pillars one and three in 

the position depicted in the plan, i.g., outby the left side 

split with the row of timbers furthest to the left in a line with 

the left side of the left split. However, the same number of 

post called for in the plan, had been installed in the last open 

crosscut, outby the right split of pillars one and three, · 

respectively. Rhea also observed haulage traffic going in an 

outby direction, down entries two and four. 

Rhea issued an order alleging a violation of the plan, 11 ••• in that the No. 1 & 2 pillar block (sic) and the No. 4 & 5 

pillar blocks were being mined from one roadway. 11 In this 

connection, the order further alleges, with regard to the plan, 

that it "· .• stipulates in sketch No. 8, page 13, that one 

pillar split shall be mined from one roadway only. 11 

--. ..•.. __ - . 

Page 13 of the plan (Exhibit 5, supra) does not contain any 

language specifically stipulating that a split shall be mined 

from one roadway only. Indeed there is no language specifically 

relating mining from a pillar to any specific roadway. The only 

language in the plan with regard to the direction in which the 

pillars are to be mined consists of the stipulation on Page 13, 

supra, that the pillars can be mined from either side and that 

"all pillars will be mined from the same direction." (Emphasis 

added) Rhea indicated the path to be taken by a miner, in cutting 

pillars one, two, three, and four, going from right to left, and 

utilizing breaker tinlbers as illustrated in the plan (see the 

arrows on Government Exhibit 16). However, he did not testify to 

having observed the direction in which of the pillars were 

cut" Indeed, he did not testify to having observed the direction 

which any of the pillars were being cuto Also, his testimony 

did not set forth any explanation which would tend to indicate 

that, by virtue of the placement of post in the areas observed 

outby blocks one and three, as opposed to their placement in the 

area depicted in the plan, all pillars would then be mined not 

from the same direction. 

According to sketch 8, of the plan (Exhibit 5 supra) the 

breaker timbers that are to be installed, are to be placed in the 

last open crosscut, outby the side it. As observed by 

Rhea, only the timbers set at pillars two and four were in the 

area illustrated on the plan, and the timbers installed at 

pillars one and three were outby the right side split rather than 

the left. Accordingly, I conclude that Respondent did violate 

the plan as alleged. 

According to Rhea, the breaker timbers placed by Respondent 

at the pillars one and three, did not provide "maximum" (Tr. 349) 

support especially in the intersections between pillars one and 

two, and three and four, respectively. According to Rhea, the 

1285 
lack of support in an intersection results in a weakened roof, 

and a greater danger of roof fall in the intersection. There is 

no allegation by Petitioner that the breaker timbers installed by 

Respondent were improperly installed, or were of a lesser 

quantity or covered a lesser area than that stipulated to by the 

ventilation plan. It also would appear that the pillars 

installed by Respondent, outby the right split of pillar No. 1 

provided support to the intersection between the last open 

crosscut and Entry No. 5. similarly, it would appear that the 

timbers installed outby the right split of pillar No. 3 provided 

additional support to the intersection between the last open 

crosscut and Entry No. 3. I thus find the evidence insufficient 

to establish that the violation was significant and substantial. 

Rhea indicated in essence that in a discussion with Nicely, 

he asked him if he understood the plan and he said "absolutely." 

(Tr. 338). Rhea said that he asked Nicely why he pulled the 

breaker timbers from the No. 2 and No. 4 entries, and Nicely told 

him that he {Nicely) had stored or dumped loose materials 

consisting of rocks, mud and coa.l in the No. 1 and No. 5 entries. 

Accordingly, Rhea's testimony indicates that Respondent's action 

in not following the plan was taken intentionally, and in spite 

of its understanding of the requirements of the plan. Respondent 

did not adduce any testimony or documentary evidence to mitigate 

its negligence, or to contradict or impeach Rhea's testimony. 

Accordingly1 I find that the violation herein was as a result of 

Respondent's unwarrantable failure (See, Emery 

Inasmuch as Rhea's testimony has indicated that failure to 

provide maximum roof support can lead to a roof fall, and since 

the intersection between the last open crosscut, and entries two 

and four had not received the maximum support stipulated by the 

plan, I conclude that the gravity of the violation is moderately 

higho Further, I find that Respondent's negligence was highr and 

that a penalty of $950 is appropriate for this violation. 

IV. Docket No. KENT 90-401 

On April 30, 1990, Elijah Myers, an MSHA electrical 

specialist inspected the electrical systems of Respondent's No. 4 

Mine. He inspected a 480-volt three-phase generator and observed 

that there wa~ neither a ground field nor a grounding 

installed. He observed that although there was a neutral , 

ended when the lead came out of the generator. He said that 

it was "very evident!i (Tr. 385} that a cable from the bolter was 

attached to a wire from the generator. He also said that a 

ground wire did not go to the roof bolter, and a pilot was 

not hooked up going to the bolter. Myers issued Citation No. 

3384008, alleging a violation of 30 C.F.R. § 75.901. 

Section 75.901, supra, provides in essence, that "Low and 

medium voltage three phase alternating current circuits used 

1286 
underground shall contain either a direct or derived neutral 

which shall be grounded through a suitable resistor at the power 

center, and a grounding circuit, .... " Myers testified that 

the three phase circuit herein, was being used to power a 

roof-bolting machine, and there was no grounding i.g., neither a 

ground field nor a ground resistor was provided. This testimony 

was not inpeached or contradicted. Accordingly, I conclude that 

Respondent herein did violate section 75.901, supra. 

According to Myers, the absence of a ground field leads to a 

hazard of electrocution, inasmuch as the amount of current is not 

dissipated, and accordingly, a person coming in contact with the 

bolter, could contact 277 volts and be electrocuted. I hence 

find the violation to be significant:and substantial (See, 

Mathies, supra). 

Myers indicated that Gary Williams, Respondent's certified 

electrical person, told him that he had operated the roof-bolting 

machine and had installed the generator. According to Myers 

Williams said he knew that the generator was not installed right, 

and, "knew all this stuff had to be on it." (Tr. 389). This 

testimony has been neither rebutted nor impeached. I thus find 

Respondent to have been highly negligent in connection with the 

violation herein. Further, considering the gravity of this 

violation, as contributing to the hazard of an electrocution, I 

find that a penalty of $500 is appropriate. 

Inasmuch as there was no breaker observed by Myers, he also 

issued a section 104(a) citation, alleging a violation of 

30 C.F.R~ § 750900, which in essence, provides for the protection 

by circuit breakers of power circuits serving three phase 

alternating current equipment. Myers• testimony that a circuit 

~reaker was not present 1 was not contradicted or impeached. 

Hence, it must be concluded that Respondent did violate section 

7 S· o 900 suora ~ 

Myers explained that in the absence of a circuit breaker, in 

the event of a overload, power would continue to flow, creating a 

danger of electrocution. He indicated that if the roof bolter 

would. run over t:he cable, it would short out and put 277 volts on 

of the frame cf the bolter. He said that the bolter would be 

touched, the one touching it would be electrocuted. I conclude 

~hat the violation was significant and substantial. The 

appropriate penalty for this violation, considering its gravity, 

and the negligence of the Respondent as set forth above, 

-'-S $500. 

The testimony of Myers, which was not impeached or 

contradicted, establishes that a ground monitor, to monitor the 

ground wire to make sure it was not separated or broken, was not 

~n existence. Hence, I find that the citation in this regard 

issued by Myers, alleging a violation of 30 C.F.R. § 75.902, was 

1287 
properly issued, as it has been established that there was no 

fail safe ground check in violation of secti.on 75.902, supra. 

Essentially, for the reasons I set forth above, infra, I conclude 

that the violation herein was significant and substantial. 

Considering the gravity of this violation and the Respondent's 

negligence as set forth above, infra, I conclude that a penalty 

of $500 is appropriate. 

ORDER 

It is ORDERED that: 

(1) Citation No. 3391846 and Order No. 3376874 be amended to 

reflect the fact that the violations·. set forth therein are not 

significant and substantial. 

(2) Order No. 3377161 be DISMISSED. 

(3) Respondent pay within 30 days of the date of this 

decision $6,970 as a civil penalty for the violations found 

herein. 

Distribution: 

/ 

vram Weisberger 

Administrative Law Judge 

w. F. Taylor, Esq., Office of the Solicitor, u. S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

·:::·!']. E, McAfee,, Esq., LJ's Coal Corporation, P. o. Box M; 

·:harles? VA 24282 (Certified Mail) 

1288 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 14 1991 

CONSOLIDATION COAL COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. Docket No. WEVA 90-223-R 

Citation No. 3312467; 5/30/90 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Robinson Run No. 95 Mine 

Mine ID 46-01318 

Appearances: 

Before: 

,DECISION 

Walter J. Scheller III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Contestant; 

Wanda M. Johnson, Esq., Office of the Solicitor, 

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

the Respondent. 

Judge Weisberger 

Statement of the Case 

This case is before me based upon an application for review 

filed by Consolidation Coal Company (Operator) on June 22, 1990, 

challenging the issuance of a section 104(b) withdrawal order. 

On July 6, 1990, the Secretary (Respondent), filed an answer and 

the motion for continuance. The motion for continuance was not 

objected to by Contestant and a stay order was issued on July 27, 

1990, staying proceedings in this case pending the filing of the 

corresponding civil penalty petition. Subsequently, Respondent 

filed a statement on March 5, 1991, indicating that no civil 

penalty would be proposed for the violation set forth in the 

section 104(b} order. The statement further indicates that the 

issues involved in the underlying section 104(a) citation had 

been settled by the parties, and the settlement was approved in a 

decision issued by Commission Chief Judge Paul Merlin on 

February 13, 1991, (Docket No. WEVA 91-25). subsequently, in a 

telephone conference call with both parties, Contestant indicated 

its intention to litigate the issues raised by the 104(b} order 

in issue. 

Pursuant to notice the case was heard in Morgantown, West 

Virginia, on May 14, 1991. At the hearing, James A. Young, 

Robert Toth, Robert L. Kniesely, and Philip Edward Morgan, 

testified for Respondent. Timothy T. Underwood, Denver A. 

1289 
Johnson, and Philip Edward Morgan, testified for Contestant. The 

parties were granted time to file post hearing briefs. On 

August 5, 1990, the parties filed posthearing briefs containing 

proposed findings of fact. 

Upon review of the transcript of the hearing, counsel for 

both parties agreed that two corrections should be made to the 

transcript. I agree. It is ORDERED that the transcript of the 

hearing be amended as follows: 

1. Page 126 at line 15 should be amended to read as 

follows: 

"The trollev wire was six inches outby, approximately 

outby the rail." 

2. Page 16 at line 22 should be amended to read as follows: 

19 • • • would you please tel.l us the name of the mine in 

which you were? 11 

Findings of Fact and Discussion 

I. 

on May 22, 1990, MSHA Inspector James A. Young inspected the 

coal haulage track located in the main north area of Operator 1 s 

Robinson Run No. 95 Mine. Young indicated that from a point 

outby block No. 124 and continuing approximately 600 feet to 

block No. 129, the haulage track was sunk in mud. He indicated 

that the track had shifted to the wire side and, as a 

consequence 1 the trolley wire at the 127 block, which should have 

been between the rail and the rib on the right sidep was located 

over the center of a motor and two cars which were in that area. 

He further indicated that while walking the ditch side of the 

track, water reached the top of his 12 inch boots, and that the 

water was at a depth of 4 to 5 inches in the middle and on the 

walk side of the track. Young also noted that the rail joints 

and f plates of the track were loose, and there were belts 

Young issued a section 104(a) citation which states as 

follows~ 

The loaded track side on the coal haulage track, 

located on main north from 129 blk. outby to 123 blk. 

and including the 124 blk. switch and around the curve 

to the tail truck switch was not being safely 

maintained. The truck has low/loose joints mud, water, 

and debris on the sides and middle of the truck to the 

point that haulage equipment is being raised off the 

rail. Coal haulage cars in one place are actually 

rubbing the rib on a turn. The truck sinks below the 

mud and water level that present. 

1290 
Young discussed with one of the Operator's safety officers, 

Richard Moats, the time to be allowed for the Operator to abate 

the violative conditions. Moats indicated that he would need 5 

days, and Young set the abatement for 0900 on May 29, 1990. On 

May 30, 1990, Young returned to the area in question and 

indicated that the conditions were the same, but that some areas 

were worse. He issued a section 104(b) order which states in 

part as follows: 

On this day a [sic] area 30 feet in length on 127 block 

side loaded track has been raised, but has since 

deteriorated to almost its original condition. One 

other area approximately 6 ties in length was raised. 

The close clearance has become worse since the area was 

cited. Motors were observed orily inches from striking 

the rib and rolling track equipment including loaded 

coal cars have packed the debris even higher. Loads 

are still badly rubbing the rib, and no mud and water 

has been removed. (sic}.,. 

The Commission, in Mid-Continent Resources, Inc., 11 FMSHRC 

505, at 509, held that when an operator challenges the validity 

of a section 104(b) order, "· .• it is the Secretary, as the 

proponent of the order, who bears the burden of proving that the 

violation described in the underlying citation has not been 

abated within the time period originally fixed or as subsequently 

extended. We hold, therefore, that the Secretary establishes a 

prima facie case that a section 104(b) order is valid by proving 

by a preponderance of the evidence that the violation described 

in the underlying section 104(a} citation existed at the time the 

·section 104(b) withdrawal order was issued. The operator may 

rebut the prima facie case, by showing, for example, that the 

violative condition described in the section 104(a) citation had 

been abated within the time period fixed in the citation, but had 

recurred. 00 

II. The Secretary's prima facie case 

As set forth by the Commission in Mid-Continent Resources, 

supra, at 509, the Secretary has the burden of proving that the 

violation described in the underlying citation has not been 

abated within the time period originally fixed, or as 

subsequently extended. 11 The 11 violation described" in the 

underlying citation is that the track in the area in question 

nwas not being safely maintained. 11 (Secy. Ex. 1). According to 

Young, on May 22, he observed mud and water in the track and 

ditch, and these were still present in the area on May 29, except 

for a 60 foot long area of the track that was dry. He also 

indicated that the debris that he had observed on May 30, looked 

identical to that seen by him on May 22. He further indicated 

that on both May 22 and May 29, he straddled the rail in order to 

observe the location of the trolley wire, and on both times, the 

1291 
wire was located between the rails, rather than between the rail 

and the rib on the right side, indicating that the track had not 

been removed to its original position from where it had shifted. 

He also indicated that on May 22, he made notches with his hammer 

on one of the broken ties, and he observed these notches on the 

same tie on May 30. 

Robert Toth, a bolter who accompanied Young on May 22, and 

May 30 essentially corroborated the testimony of Young with 

regard to his observations on May 22. Toth indicated that he 

observed the same situation on May 30, as he had seen on May 22, 

with the exception of a 30 to 40 foot area in length around block 

127 that had been jacked and blocked. 

The Operator did not offer the ·testimony of any witnesses to 

compare the conditions that existed on May 30, with those that 

had existed on May 22. Denver Johnson, the Operator's superintendent, and Philip Edward Morgan, one of the Operator's mine 

escorts, observed the area in question on May 30. The gravamen 

of their testimony is that on May 30, the conditions on the track 

with regard to mud, were worse, and also that had been braces 

were torn out, and pump lines were damaged. However, their 

testimony did not contradict the specifics of Young's testimony 

with regard to what he had observed on May 30. Specifically, the 

citation alleges that the track has "low/loose joints, mud, water 

and debris. 11 Young testified that on May 30, mud was still 

present, the debris packed against the rib was higher, water was 

still 4 to 5 inches deep, and at the 124 switch at the curve, the 

track had sunk down farther. He also indicated that the first of 

the fish plates was loose. 

The citation alleges that coal cars "in one place are 

actually rubbing the rib on a turn. 11 In this connection, Young 

fied that on May 22 1 nr could take my hand and put it 

0etween the 50 ton and the edge of the rib, 11 (Tr. 26) (sic) 

'.vhereas on May 30, he could not get his hand between them. He 

sa that the track had moved closer to the wire side on May 30. 

Accordingly, I find that the Secretary has established a 

prima facie case, in that the evidence establishes that the 

violations described in the original citation existed on May 30, 

when the citation 104(b) order was issued. 

III. The Operator 1 s Rebuttal 

Essentially, it is the Operator's position that, in the time 

period set for abatement, the violative conditions cited on 

May 22, had been abated, but, due to intervening circumstances, 

had recurred by May 30. Underwood testified as follows, with 

regard to abating the violative conditions cited on the day 

shift: "And on the afternoon shift we started working on this 

particular violation. We talked to the shift foreman, told him 

1292 
exactly what we wanted done in the area, how to attack the 

problem, then he put his people on the violation. 11 {Tr. 71) 

It is a practice for the Operator 1 s foremen to make daily 

entries in a "construction book," setting forth the work 

performed by miners on their sections during each shift. The 

entries for the various shifts in the time period between May 22 

and May 25, indicate that at various locations in the area in 

question, the track was blocked, cleaned, raised, and shovelled. 

No testimony was proffered by the Operator from any witness who 

had personal knowledge as to specifically what work had been 

performed, and more importantly, whether such work cured the 

violative conditions described in the underlying citation. 

Underwood stated that he went through the area prior to May 26, 

and in his opinion, the area "was ready for abatement" (Tr. 116). 1 

Not much weight was accorded his conclusion with regard to the 

conditions on May 25, as his testimony did not describe in any 

detail the conditions that h~ ... had observed. Further, the only 

work that he observed in connection with the abatement was at 

either block 128 or 129 where he saw three persons jacking and 

blocking the track. Johnson testified that when he was in the 

area on May 25, there was not any water above the rails. He said 

that although the area was a little wet, "it wasn 1 t real bad" 

(Tr. 126). On cross-examination, he testified that there was not 

any water on the tracks, but there was water in the ditches and 

the sumps. He further said that the area was only a "little11 

muddy, but that the pumps were pumping {Tr. 126). He said that 

the track was blocked and braced and that there was a brace at 

the 124 block between the rib and the rail. He also said that 

there were new wood ties. In his opinion, on May 25, the area 

was "ready for abatement" (Tr. 138). 

According to Underwood, a train derailment occurred some 

~ime during the midnight shift, on Friday, May 26. However, he 

did not observe the accident, and when he was at work in the area 

the following day, the wreckage had already been removed. No 

evidence was presented from any witnesses who observed the 

derailment. Nor was there any specific evidence adduced as to 

the specific damage that the derailment had caused. Underwood 

testified that a derailment could tear out blocking that had 

already been installed. He also said that cars that have been 

derailed would cover the ditch alongside the track, causing water 

to go on the tracks. 

Morgan was in the area for the first time before noon on 

May 29. He indicated that there was "no problem" from the tail 

track to the empty track switch (Tr. 144). According to Morgan, 

1 In earlier testimony on direct examination, Underwood was 

unable to indicate when he was in the area subsequent to May 22, 

but that he was not there on May 29 and May 30. 

1293 
a 50 foot area at the 124 switch had to be cleaned, and a pump 

needed to be changed. He also said that there was mud and debris 

in the same areas, but he did not observe any broken tracks, 

loose joints, or loose fish plates (Tr.65}. When Morgan visited 

the site again on May 30, he said that the 124 block switch 

"looked worse, much worse" (Tr. 149). He said that there was 

more mud, the pavement had torn at the 124 switch, and that a 

brace bar at block 126, which had been in place on the day 

before, was torn out. In the same fashion, Johnson testified 

that the conditions on May 30, were generally worse. He stated 

that the ditches were full of mud, a pump line was broken, and 

braces were torn out. He opined that these conditions occurred 

as a consequence of a wreck that had taken place on May 27. 

For the reasons that follow, I conclude that the Operator 

has failed to rebut the prima facie case. Johnson's testimony 

indicates that on May 25, the track was blocked and braced, there 

was a new wood tie at 124, there was no water above the rails, 

and the track was replaced in_its original position with the 

trolley wire being 6-inches outby the rail. (Tr. 126). However, 

there is no evidence that the violative conditions of debris and 

loose joints noted in the citation were abated. Further, 

although Johnson indicated that there was no water above the 

rails, and that the area was a little muddy, he noted that there 

was water in the ditches and the sumps. Also, he did not 

specifically indicate that the tracks were no longer below the 

mud as described in the citation. 

Johnson indicated that on May 30, the conditions were worse 

and that the braces were torn out, the pipeline had broken, and 

the ditches were full of mud. He opined that the damage occurred 

as a consequence of a derailment, which, according to Underwood's 

·testimony r had occurred during the midnight shift of May 26 o On 

the other hand, Morgan indicated that on May 30, the switch 

looked worse than it had the day before. He also said there was 

more mud, pavement had been "torn up 11 {Tr. 149) and a brace bar 

had been torn. 

The record does not contain testimony from witnesses who 

have personal knowledge as to what caused these conditions 

between May 29 and May 300 I find the opinion testimony as to 

the cause of the conditions to be too speculative to be relied 

upon~ especially in light of the absence of testimony from 

persons who actual observed the train wreck on May 270 

Based on all the above, I conclude that Contestant has not 

adduced sufficient evidence to establish that it had abated all 

the violative conditions described in the citation. Nor has it 

established that the conditions observed by Jones on May 30, 

constituted a recurrence. Hence, I conclude that the section 

104(b) withdrawal order is valid. 

1294 
It is ORDERED that the 

Distribution: 

ORDER 

contest be dismissed. 

Avram Weis erger 

Administrative Law Judge 

Walter J. Scheller III, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail) 

Wanda M. Johnson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

nb 

1295 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMiNISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 14 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 91-122 

A.C. No. 46-01453-03940 

Humphrey No. 7 Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Wanda M. Johnson, Esq. 1 U.S. Department of Labor, 

Office_of the Solicitor, Arlington, Virginia, 

for Petitioner; 

Walter J. Scheller, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania for Respondent. 

Before~ Judge Weisberger 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Pursuant to Notice, the case was 

scheduled for hearing on May 14, 1991. At the hearing, after the 

MSHA inspector testified , the parties conferred and indicated 

they had reached a settlement. The hearing was adjourned and the 

narties were allowed one week subsequent to receipt of the 

:~~anscript of the hearing to file a Motion to Approve Settlement. 

on August 5, 1991, Petitioner filed a motion to approve a 

settlement agreement. A reduction in penalty from $1,600 to $200 

is proposed. I have considered the representations and 

documentation submitted in this case, along with the testimony 

and I conclude that the proffered settlement is appropriate under 

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

'WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty of $200 within 

30 days of this order. It is further ORDERED that Order 

No. 3113874 be modified to a Section 104(a) citation alleging a 

violation that is not significant £)substantial. 

~blier- Administrative Law Judge 

1296 
Distribution: 

Wanda M. Johnson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Ballston Towers #3, .4015' Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail} · 

Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol 

Plaza, Pittsb urgh, PA 15241-1421 (Certified Mail} 

nb 

1297 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

AUG 15 1991 

ARCH OF KENTUCKY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ARCH OF KENTUCKY, INC., 

Respondent 

~ .•. . 

CONTEST PROCEEDINGS 

Docket No. KENT 91-14-R 

Order No. 3384420; 9/10/90 

Docket No. KENT 91-15-R 

Citation No. 3388902; 9/12/90 

Mine No. 37 

Mine ID 15-04670 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-155 

A.C. No. 15-04670-03633 

No. 37 Mine 

DECISIONS 

Appearances: Mary Sue Taylor, Office of the Solicitor, 

Before: 

U.S. Department of Labor, Nashville, Tennessee, 

for the Respondent/Petitioner; 

Marco M. Rajkovich, Esq., Wyatt, Tarrant & Combs, 

Lexingtonr Kentucky, for the Contestant/Respondent 

Judge Koutras 

statement of the Proceedings 

These consolidated proceedings concern a proposal for 

assessment of civil penalty filed by the Secretary of Labor 

(MSHA) against the respondent mine operator (Arch of Kentucky, 

Inc.), pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977 1 30 u.s.c. 820(a), seeking a civil penalty 

assessment of $390, for an alleged violation of mandatory safety 

standard 30 C.F.R. § 75.202 (Docket No. KENT 91-155). Docket 

No. KENT 91-15-R, concerns a Notice of Contest filed by Arch 

challenging the legality and propriety of the citation, and 

Docket No. KENT 91-14-R, concerns a Notice of Contest filed by 

Arch challenging an imminent danger order issued by the inspector 

following the issuance of the contested citation. 

1298 
The contested citation and order were consolidated for 

hearing in Pikeville, Kentucky, on July 24, 1991, with two 

additional cases involving these same parties. The parties 

appeared and presented testimony and evidence with respect to 

these additional two cases. With regard to the instant dockets, 

the parties informed me of their mutually agreed upon settlement 

disposition of the cases without the necessity of a full hearing, 

and their arguments were heard on the record. 

Stipulations 

The parties stipulated in relevant part as follows 

(Tr. 5-6): 

1. The contestant/respondent is a large mine 

operator. 

2. The contestant/respondent is subject to the 

jurisdiction of the Act and the presiding 

administrati v,e law judge. . 

3. Payment of the proposed civil penalty 

assessment will not adversely affect the 

respondent's ability to continue in business. 

Discussion 

KENT 91-155 and KENT 91-15-R 

The contested section 104(a) "S&S" Citation No. 3388902, 

issued by MSHA Inspector Daniel L. Johnson at 10:50 a.m., on 

September 12, 1990, cites an alleged violation of mandatory 

safety standard 30 C.F.R. § 75.202, and the cited condition or 

practice is described as follows: 

The mine roof is not adequately supported on the empty 

track entry starting 50 feet outby the seventh crosscut 

and extending inby approximately 400 feet. An 

unintentional roof fall has occurred in the 

intersection of the seventh crosscut and the mine roof 

has broken and sagged along the left rib for a distance 

of approximately 220 feet on the inby side. The mine 

roof has also broken down the right rib for a distance 

of approximately 200 feet inby the left rib break. 

This citation is issued as a contributing factor to 

107-A Order No. 3384420. Therefore no termination time 

is set. 

1299 
KENT 91-14-R 

The contested section 107{a) Imminent Danger Order 

No. 3384420, issued by Inspector Johnson at 4:50 p.m., on 

September 12, 1990, states in relevant part as follows: 

An unintentional roof fall has occurred in the main 

empty track entry approximately seven-hundred and 

twenty feet inby the portal. 

The following conditions constitute an imminent danger. 

The mine roof, for a distance of approximately two 

hundred feet inby the fall area has cut down the left 

rib and is sagging. The right rib has also cut 

approximately the same distance but is not sagging. 

The operator does intend to recover the area. This 

order is issued to insuxe only those persons referred 

to in section 104-c of the Mine Act may work or travel 

in the area until the roof has been stabilized. 

MSHA's counsel stated that after further consideration of 

all of the evidence in this case, including consultation with 

Inspector Johnson, who was present in the courtroom and available 

for testimony, MSHA has decided to vacate and modify the 

contested section 107{a) danger order to a section 103(k) order, 

and that Arch has agreed to withdraw its Notice of Contest 

challenging the section 107(a) order (Docket No. KENT 91-14-R). 

With regard to the contested section 104(a) citation, MSHA's 

counsel asserted that MSHA has decided to vacate the citation, 

and counsel moved to withdraw its proposal for assessment of 

penalty, and Arch agreed to withdraw its contests. 

In support of the motions for the aforementioned proposed 

dispositions of these cases, MSHA's counsel stated that the cited 

roof conditions resulted from an unintentional roof fall which 

occurred through no fault of the mine operator. Counsel pointed 

out that the operator barricaded the fall area and took immediate 

precautionary and corrective action, including the withdrawal of 

all mine personnel from the affected area. Counsel asserted 

f~rther that under all of these circumstances, the inspector 

should have issued a section 103(k) control order rather than a 

section 107(a) imminent danger order, and that a violation of 

section 75.202, cannot be supported. Counsel confirmed that the 

proposed dispositions were made in consultation with the 

inspector and that he agreed that they were reasonable and proper 

in the circumstances (Tr. 6-8). 

1300 
Conclusion 

After careful review of the pleadings, and the arguments 

presented by MSHA's counsel, and taking into account the 

concurrence of the inspector who issued the contested citation 

and order, the proposed settlement disposition of these cases was 

approved from the bench. My bench decision is herein reaffirmed 

and I conclude and find that the dispositions made and approved 

are in the public interest. 

ORDER 

IT IS ORDERED THAT: 

1. Docket No. KENT 91-14-R. The contested 

section 107(a) Order No. 3384420, September 12, 

1990, IS VACATED AND MODIFIED to a section 103(k) 

order. The contestant's notice of contest is 

withdrawn and this case is dismissed. 

2. Docket No. KENT 91-155. The contested section 104(a) 

"S&S" Citation No. 3388902, September 12, 1990, 

30 C.F.R. § 75.202, IS VACATED, the proposed civil 

penalty assessment is withdrawn, and this case is 

dismissed. 

3. Docket No. KENT 91-15-R. The contestant's notice of 

contest is withdrawn and this case is dismissed. 

~ Administrative {!;,~ Law Judge 

Distribution: 

Marco Mo Rajkovich, Jr~u Esq.u Wyatt, Tarrant & Combs, 

1700 Lexington Financial Center, 250 West Main Street, Lexington, 

KY 40507 (Certified Mail) 

Mary Sue Taylor 1 Esq.r Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN 

37215 (Certified Mail) 

/ml 

1301 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 21 1991 

PEABODY COAL COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

v. Docket No. KENT 91-340-R 

Citation No. 3416696; 4/15/91 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. KENT 91-341-R 

Citation No. 3416751; 4/16/91 

Appearances: 

Be:Cc.re ~ 

Docket No. KENT 91-342-R 

Citation No. 3416752; 4/17/91 

Martwick UG 

Mine ID 15-14074 

DECISION 

David R. Joest, Esq., Peabody Coal Company, 

Henderson, Kentucky, for the Contestant; 

W. F. Taylor, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, for the 

Respondent. 

Meli cl: 

These ted Contest Proceedings were filed by the 

Peabody Coal Company (Peabody)r pursuant to section 105(d) of the 

Federal Mine and Health Act of 1977, 30 U.S.C § 801 

et ,, the "Act," to challenge three citations issued by the 

Secretary of Labor alleging violations of section 103(f) of the 

Act, ~ The citations resulted from Peabody's refusal to pay all 

- The citations are set forth in the Appendix hereto. 

Section 103(f) reads as follows: 

HSubject to regulations issued by the Secretary, a 

representative of the operator and a representative authorized by 

miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

inspection of any coal or other mine made pursuant to the 

provisions of subsection (a), for the purpose of aiding such 

inspection and to participate in pre- or post-inspection 

conferences held at the mine. Where there is no authorized miner 

representative, the Secretary or his authorized representative 

shall consult with a reasonable number of miners concerning 

matters of health and safety in such mine. such representative 

1302 
of the miners' representatives who accompanied separate Mine 

Safety and Health Administration ("MSHA") inspection teams on 

regular inspections conducted on March 7, 1991 and March 19, 

1991, at its Martwick Underground Mine. There is no dispute that 

a different miners' representative accompanied each of five 

separate MSHA inspection teams on March 7, 1991, and a different 

miners' representative accompanied each of four separate MSHA 

inspection teams on March 19, 1991, but that Peabody paid 

walkaround pay to only one such representative on each date. The 

issue is whether the other miners' representatives are also 

entitled to walkaround pay. 

More particularly the evidence shows that on March 7, 1991, 

five federal inspectors arrived at Peabody's Martwick Mine to 

conduct a "regular" inspection mandated by section 103(a) of the 

Act. This inspection and the one conducted on March 19, 1991, 

were made during the latter portion of the January through March 

quarterly inspection period. 'l'J1ese areas, Unit Nos. · 1 and 4, 

had not been previously inspected during this inspection period. 

The federal inspectors on the March 7 inspection, A. J. 

Parks (MSHA supervisor), William G. Branson (electrical inspect), 

Terry Cullen (roof control specialist), Darold Gamblin 

(Martwick's regular inspector), and Sam Martin, arrived at the 

mine at approximately 7:10 a.m. At about 7:30 a.m., MSHA 

supervisor Parks made individual inspection team assignments. 

The mine records were reviewed by the inspectors and miners' 

representatives, company representatives, and one state inspector 

entered the mine. With the exception of Electrical Inspector 

·Branson, who traveled directly to the No. 4 Unit in a separate 

mantrip with Peabody's electrical supervisor, Robert (Bob) Epley, 

and miners 1 representative and electrical repairman, Artemaus 

Birchwell, the individual inspection teams entered the mine 

together and traveled to the 4th East panel. Upon arrival at the 

4th East panel around 9:00 a.m., the individual inspection teams 

(footnote 1 continued) 

of miners who is also an employee of the operator shall suffer no 

loss of pay during the period of his participation in the 

inspection made under this subsection. To the extent that the 

Secretary or authorized representative of the Secretary 

determines that more than one representative from each party 

would further aid the inspection, he can permit each party to 

have an equal number of such additional representatives. 

However, only one such representative of miners who is an 

employee of the operator shall be entitled to suffer no loss of 

pay during the period of such participation under the provisions 

of this subsection. Compliance with this subsection shall not be 

a jurisdictional prer~quisite to the enforcement of any provision 

of this Act." 

1303 
(with the exception noted above) separated to conduct an 

examination of separate and distinct areas of the No. 4 Unit. 

The team members and the inspection responsibilities 

assigned were as follows: Supervisor Parks, State Inspector 

James Hawkins and Miners' Representative William D. Johnson, 

walked and inspected the entire length of the return air course 

entry of the No. 4 Unit, a distance of approximately 4200 feet. 

Electrical Inspector Branson, Miners' Representative and 

Electrical Repairman Birchwell, and Peabody's Electrical 

Supervisor Epley traveled directly to the No. 4 Unit and 

conducted an electrical inspection. Inspector Gamblin, 

Representative Cecil Phillips and Company Representative Steve 

Little walked and inspected the full length of the belt entry to 

the No. 4 Unit, again a distance of approximately 4200 feet. 

Roof Control Specialist Cullen and Miners' Representative Terry 

Bov.nnan traveled by mantrip down the track entry to the face area 

of Unit No. 4 inspecting the roof and faces of the Unit. 

Inspector Martin and Miners' Represerttative Sam Sockey walked and 

inspected the 4200 foot intake air course entry. 

Upon reaching the No. 4 Unit, the team led by Inspector 

Martin obtained rock dust samples in seven different locations. 

Each of the inspection teams started their 

individual assignments at approximately 9:00 a.m. and reached the 

No. 4 Unit at about 11:30 a.m. Thereafter, each separate team 

assisted in completing the inspection of the unit, taking 

approximately 30 minutes. At noon on March 7, 1991, the separate 

inspection teams rendezvoused at the end of the track and 

traveled to the surface together, arriving outside at or near 

12:45 p.m., and from this point until 1:30 p.m., the inspectors 

wrote citations for violations noted while underground. At 1:45 

p.m"r all members of the separate inspections teams (save 

Inspector Branson who had already held a close-out conference 

Peabody and departed the mine at 1:45 p.m.) 

participated in a close-out conference. 

On March 19, 1991, at 7:15 a.m. five federal inspectors 

arrived at the Martwick Mine to complete the quarterly 

j_nspection, teams were formed and entered the mine at 

8;30 a.m. The teams entered the mine together and traveled to 

the 1st Northwest submain. Upon reaching this submain, at 

approximately 8:45 a.m., the teams separated and commenced their 

separate inspection assignments. The team members and the 

assigned responsibilities were as follows: MSHA 

Supervisor Parks, Inspector Gamblin, and Miners' Representative 

Phillips walked and inspected the return air course entry to the 

No. l Unit, .a distance of about 3300 feet, arriving on the No. l 

Unit at about 9:30 a.m. Inspector Mike Whitfield and Miners' 

Representative Bowman walked and inspected the full length of the 

intake air course entry to the No. 1 Unit, a distance of 

3,300 feet. team arrived on the No. 1 Unit at 9:35 a.m. 

1304 
Electrical Inspector Branson, Miners' Representative Birchwell 

and Peabody Electrical Supervisory Epley traveled separate and 

apart from the other inspection teams and proceeded directly down 

the track entry by mantrip to the No. 1 Unit to conduct an 

electrical inspection in that unit. Inspector Ted Smith, Miners' 

Representative Sockey, and company Representative Little walked 

and inspected the belt entry to the No. 1 Unit traveling about 

3,300 feet and arriving on the unit at 9:30 a.m. 

The teams rendezvoused at the end of the track and 

thereafter departed the No. 1 Unit at about 12:45 p.m. While on 

the No. 1 Unit, a ventilation problem was discovered and Miners' 

Representatives Phillips and Sockey assisted in correcting the 

problem. Sockey devoted about 30 to 40 minutes in these 

endeavors. 

The teams arrived on the surface at 1:10 p.m. and the 

federal inspectors wrote citations for the violations noted 

underground. At 1:30 p:m., a close-out conference was attended 

by all members of the inspection teams except Inspector Branson, 

who had conducted a separate close-out conference with Peabody 

officials and had departed the mine at 1:15 p.m. 

It is not disputed that during the course of both of the 

underground inspections each team operated separate and apart, 

with no overlapping responsibilities or duplication of inspection 

efforts. On both dates the teams had distinct inspection 

assignments unique to that individual team. Physical barriers 

including stoppings separated the teams during much of the 

underground portion of the inspection. 

All of the miners' representatives who participated in the 

pre-inspection activitiesu the inspections on March 7 and 19, and 

the post-inspection close-out conferences were scheduled to work 

at the mine at those times. Those unpaid representatives would 

have received their regular pay except for their participation in 

the inspection. Because Peabody refused to pay more than one 

miners' representative on each date Inspector Noffsinger issued 

the three section 104(a) citations at bar. There is no dispute 

that those miners listed in these citations were those not paid. 

In Magma Copper Company v. Secretary of Labor, 645 F.2d 694 

(9th Cir. 1981), the Court of Appeals for the Ninth Circuit in 

affirming a decision of this Commission, held that under section 

103(f) of the Act, when an inspection of a mine is conducted by 

more than one Federal Mine Safety and Health Administration 

(MSHA) inspector, each of whom acts separately and inspects a 

different part of the mine, one representative of miners who is 

an employee of the mine operator may accompany each inspector 

without loss of pay. The cases at bar fall clearly within the 

ambit of the Magma decision. 

1305 
In reaching this conclusion, I have not disregarded 

Peabody's argument that the Magma case is inapposite because the 

inspections in the instant cases occurred within the same mining 

unit. This distinction is, however, without significance. 

Clearly, the thrust of the Magma decision was that since each 

inspector was performing a separate and distinct inspection 

function, it was essential that each be accompanied by a separate 

representative of miners. It is of no material consequence then, 

whether the inspectors were performing their unique inspection 

functions in separate sections of a milling complex, as in the 

Magma or in separate sections of large underground mining 

units these cases, so long as those inspection functions 

were and distinct. 

Indeed, while Peabody argues that the inspections on 

March 7, and 19, 1991, concerned only one "unit" on each 

respective date, each such "unit" was enormous. Reference to 

the mine maps makes this quite clear (See Joint Exhibits Nos. 1 

and 2). In addition, in these'"Cases the inspection teams were 

not only functionally separate but, because of stoppings between 

the travelled by the inspection teams, most of the teams 

were also effectively separated physically. 

Under the circumstances, it is clear that Peabody violated 

the provisions of section 103(f) of the Act in failing to 

compensate the designated miners' representatives who accompanied 

an MSHA inspector during the noted inspections. 

ORDER 

Citation Nos. 3416696, 3416751 and 341\752 are affirmed and 

the Contests of those citations areAdismis~~d. 

I~ \\ U\ ~ ,' )fl A~\ v 

y MetM"c'k-- \ 

~ inistrative ~w Judge ·, I \ 

i \ I 

Distribution: J \ \ 

David R. Joest, Esq., Peabody Coal 

1951 Barrett Court, P.O. Box 1981, 

cJrnpany, Mi~est Division, 

Henderson, KY 42420 

( Mail) 

w. F. Taylor, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

( Mail) 

/fb 

1306 
APPENDIX 

Citation No. 3416696 charges as follows: 

A violation of 103(f) of the 1977 Act has occurred 

because Sam Sockey has evidence (pay record) that he 

suffered loss of pay on March 7 and 19 for time spent 

in the capacity of Miner Representative while traveling 

with an authorized representative of Secretary of 

Labor, (MSHA), during inspection. 

Citation No. 3416752 charges as follows: 

A violation of 103(f) of the 1977 Act has occurred 

because William D. Johnson (3-7-91) and Artemaus 

Birchwell (3-7-91 & 3-19-91) has [sic] evidence (pay 

record) that they suffered loss of pay for time spent 

in the capacity of Miner Representative while traveling 

with an authorized representative of Secretary of 

Labor, (MSHA), during inspection. 

Citation No. 3416751 alleges as follows: 

A violation of 103(f) of the 1977 Act has occurred 

because Terry R. Bowman has evidence (pay record) that 

he suffered loss of pay (3-7-91 & 3-19-91) for time 

spent in the capacity of Miner Representative while 

traveling with an authorized representative of 

Secretary of Labor, (MSHA), during inspection. 

1307 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE. OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 21 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

Docket No. LAKE 91-56 

A.C. No. 11-00585-03778 

Mine No. 10 

DECISION 

Appearances: Denise Hockley.~cann, Esq., and Rafael Alvarez, 

Esq.,·office of the Solicitor, U.S. Department of 

Labor, Chicago, Illinois, for the Petitioner; 

David S. Hemenway, Esq., Thompson & Mitchell, 

St. Louis, Missouri, for the Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seq., the "Act," charging the Peabody Coal Company (Peabody) 

with one violation of the mandatory standard at 30 C.F.R. 

§ 75.509 and proposing a civil penalty of $1,100 for the alleged 

v:Lolation, The general issue before me is whether Peabody 

violated the cited regulatory standard and, if so, the 

appropriate civil penalty to be assessed in accordance with 

section llO(i) of the Act. 

The withdrawal order at issue, Order No. 3032502, issued 

pursuant to section 104(d)(2) of the Act, alleges a ''significant 

and substantial" violatiyn of the standard at 30 C.F.R. § 75.509 

and charges as follows: 

1 Section 104(d) of the Act reads as follows: 

n ( l) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and if 

he also finds that, while the conditions created by such violation 

do not cause imminent danger, such violation is of such nature as 

could significant and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard, and if he 

finds such violation to be caused by an 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 

1308 
Electrical work was being performed on a 

continuous-mining machine while the cont. miner was 

energized with 950 volts alternating current 

electricity. Power wires to the right cutting motor 

were being insulated and nonelectrical parts were being 

installed. Four-hourly maintenance men and one chief 

electrician was [sic] performing the work. The above 

condition was observed in the 2 North section off 

7 West entries. 

The cited standard provides as follows: 

All power circuits and electric equipment shall be 

deenergized before work is done on such circuits and 

equipment, e~cept when necessary for trouble shooting 

or testing. 

There is no dispute in this case that the cited continuous 

miner was indeed energized at the time Federal Mine Safety and 

Health Administration (MSHA) Inspector John Stritzel arrived at 

(footnote 1 continued) 

subsequent inspection of such mine within 90 days after the 

issuance of such citation, an authorized representative of the 

Secretary finds another violation of any mandatory health or safety 

standard and finds such violation to be also caused by an 

unwarrantable failure of such operator to so comply, he shall 

forthwith issue an order requiring the operator to cause all 

persons in the area affected by such violation, except those 

persons referred to in subsection (c) to be withdrawn from,a nd to 

be prohibited from entering, such area until an authorized 

representative of the Secretary determines that such violation has 

been abated. 

(2) If a withdrawal order with respect to any area in a coal 

or other mine has been issued pursuant to paragraph ( 1), a 

withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar to 

those that resulted in the issuance of the withdrawal order under 

paragraph ( 1) until such time as an inspection of such mine 

discloses no similar violations. Following an inspection of such 

mine which discloses no similar violations, the provisions of 

paragraph (1) shall again be applicable to that mine." 

2 The Secretary in this case is proceeding solely on the 

theory that electric equipment must be deenergized only when 

performing electrical work in this case by allegedly insulating the 

power wires to the right cutting motor of the cited continuous 

miner. 

1309 
the work scene at the 2 North 7 West section at approximately 

8:50 a.m., on August 9, 1990. Stritzel has had extensive 

experience within the mining industry (including experience as a 

repairman on continuous miners) and with MSHA. He was previously 

advised by management that the continuous miner was "down" and as 

he approached to within about 10 to 12 feet of the miner, 

Stritzel observed four miners working on the machine. One miner 

was sitting in the operator's compartment, two were on top of the 

miner moving cover plates into position, and the fourth miner had 

electrical tape in his hands and was working on electrical lead 

wires. Stritzel was certain that the fourth miner was actually 

in the process of taping the power conductor which is one of the 

inner wires of the power cable. 

When Stritzel asked if the continuous miner was deenergized, 

one miner responded "no" and another responded "yes." In light 

of the mixed response, Stritzel directed that all work be halted 

and he proceeded to check the p9wer center to determine for 

himself whether the power cable had in fact been disconnected, 

locked out and tagged out. Maintenance foreman Randy Aymer 

accompanied Stritzel to the power center and they verified that 

indeed the power was "on." At that point, Stritzel told Aymer 

that he was issuing a section 104(d)(2j withdrawal order. Aymer 

explained to Stritzel that the cable had initially been locked 

out when they began work on the miner. Stritzel then explained 

to one of the chief electricians, Bill McGuire, that in order to 

abate the closure order it would be necessary to deenergize the 

miner and present a safety talk to the miners. McGuire then 

proceeded to instruct the miners regarding safe operating 

procedures when working on electrical equipment . 

.Stritzel thought that under the circumstances it was 

"reasonably likely" for a miner to be fatally injured through 

electrocutiono He observed that the circuit breaker on the 

continuous miner is a mechanical device that is not "foolproof" 

and that it cannot be verified whether the power is indeed off. 

Stritzel based his conclusion that the violation was ''significant 

and substantial'' and of high gravity, upon his inference that the 

person who was taping the leads had necessarily earlier been 

working on bare wires. It is not disputed that 950 volts 

alternating current is sufficient to cause electrocution. 

Stritzel further concluded that the violation was the result of 

high negligence inasmuch as the repairmen were working under the 

supervision of a foreman, Randy Aymer. 

On behalf of Peabody, repairman Robert Eggerman testified 

that he began working on the subject continuous miner during the 

third shift that day, to repair a broken bit motor lead wire. 

According to Eggerman, the power cable was unplugged and 

locked-out with a padlo.ck. Eggerman testified that after the 

leads were repaired, the miner was then reenergized and found to 

be working correctly. When the inspector arrived, Eggerman was 

1310 
leaning over the pump motor allegedly repairing hydraulic hoses. 

He maintains that while the miner was energized, he saw no 

electrical work being performed, and did not know whether 

electrical work was indeed then being performed. He maintains 

that he was not on top of the miner, but leaning on the side of 

it. He maintains that he did not see what coworker Grauer was 

doing at the time the inspector arrived. 

Maintenance foreman Randy Aymer was maintenance supervisor 

on the third shift in charge of repairing the bit motor lead 

wire. According to Aymer, when the inspector arrived, miner 

William Grauer was in front of the floor jack bracket placing a 

protective covering or jacket on one of the water hoses. Aymer 

testified that when Inspector Stritzel asked if the machine was 

deenergized he responded "yes" because he in fact thought it was 

deenergized, and was not aware that it had been reenergized. 

Aymer acknowledged that he never protested or denied to Stritzel 

that electrical work was being .,performed on the continuous miner 

even when he was told that the order was being issued and even 

when McGuire was instructing the miners about the procedures to 

be followed when electrical work is being performed. 

William Grauer, another repairman working on the continuous 

miner that shift, testified that all the work was done on the 

machine when he arrived except for placing protective jackets 

over the hydraulic hoses. He estimated. that it was around 8:45 

that morning when the inspector arrived. He was kneeling beside 

the continuous miner purportedly taping a hydraulic hose. In 

response to a question at hearing as to whether he heard the 

inspector inquire whether the machine was energized, he answered 19 not really." He conceded that the inspector could see the tape 

his hands, but maintains that he was not taping electrical 

leads and that hands w1re no closer than 15 inches from the 

exposed electrical leads. 

William Dowdy, another Peabody repairman testified that he 

was working in the cab area of the cited continuous miner at the 

time Inspector Stritzel arrived. He maintains that he saw no 

electrical work being performed while the machine was energized. 

He acknowledgedr however, that no one protested or denied that 

electrical work was being performed on the energized miner when 

McGuire gave his safety speech. 

3 Grauer acknowledged that he was issued a letter of 

reprimand by Peabody for allegedly working on the electric leads of 

the energized continuous miner, but the reprimand was dropped at 

"step 2" of the disciplinary procedures for reasons not clearly 

established. Under the circumstances, this evidence, even if 

properly admissible, is of no probative value to this case. 

1311 
Roger Ingram, another repairman, testified that during the 

third shift when he reported to the cited continuous miner he 

verified that was locked and tagged-out. At that time 

the leads were waiting to be bolted in. Ingram testified that he 

was the person who actually attached, bolted and insulated the 

lead wires. He testified that he had completely covered 

the leads so that there was no need for Grauer to tape the leads 

any further. Ingram noted that Eggerman then gave up the keys 

and the power was returned at the power center to test the 

continuous miner. Ingram maintains no further electrical work 

was performed after the machine was tested and the motor found to 

be working. The breaker was then purportedly turned off and he 

was on top of the machine replacing some covers when the 

inspector arrived. Ingram maintains that he later argued with 

the inspector stating that he did not see a problem but the 

inspector denied that such a conversation ever occurred. Indeed 

Inspector Stritzel testified that no one at the mine denied that 

work was being performed on the electrical power leads until he 

received a telephone_call days later from Grauer. 

I find in this case that the Secretary has met her burden of 

proving the cited violation by a preponderance of the evidence. 

The testimony of Inspector Stritzel is completely credible. He 

was in position to clearly observe what was going on and has no 

reason to fabricate. Accordingly, I find that a miner, either 

William Grauer or another, was indeed taping the electrical leads 

at a time when the continuous miner was energized. While that 

miner was most likely Mr. Grauer, I do not, because of his lack 

of contemporaneous protestation, find his later denials after 

notice of reprimand to be credible. 

The Secretary's evidence is additionally supported by the 

absence of any contemporaneous protestation or denial from any of 

the other miners to Inspector Stritzel's order to deenergize the 

continuous miner and upon his issuance of a withdrawal order for 

performing electrical work on energized electrical equipment. 

Moreover, as already noted, the sole undisputed protest arose 

after one of the miners, William Grauer, was later issued a 

letter of reprimand for his alleged participation in the unlawful 

Under the circumstances this belated protestation 

as ~lready noted, without much credibility, 

I do not, however, accept the inference of Inspector 

Stritzel regarding the gravity and 11 significant and substantialn 

nature of the violation. Stritzel based his conclusions of high 

upon an inference that one of the repairmen must have 

been working on bare lead wires at some point in time while the 

continuous .miner was energized. In this regard, I find credible 

that portion of the testimony of Eggerman, Aymer, and Ingram to 

the effect that the leads had already been attached and at least 

partially taped and insulated before the power was returned to 

the continuous miner for purposes of testing. It more reasonably 

1312 
may be inferred that at the time the bare leads were being 

insulated and taped, the continuous miner was indeed locked out 

and deenergized. It would appear under the circumstances that 

the miner observed by Stritzel taping the leads was placing 

another layer of insulating tape upon leads that had already been 

initially insulated in part. Under the circumstances, I do not 

find sufficient evidence to support a conclusion that the 

violation was "significant and substantial" or of high gravity. 

I also find credible the testimony of maintenance foreman 

Aymer that the continuous miner had been in fact earlier 

deenergized and locked out while electrical work was being 

performed. His initial response to Stritzel's inquiry as to 

whether the continuous miner was deenergized clearly suggests 

that he in fact believed that the miner was then deenergized. 

Accordingly, I find that while Aymer was negligent in failing to 

have controlling knowledge of the lock-out status of the 

continuous miner, thi,s negligence was not of such an aggravated 

nature as to constitute "unwarrantable failure." See: Emory 

Mining Corporation, 9 FMSHRC 1997 (1987), and Youghiogheny & Ohio 

Coal Company, 9 FMSHRC 2007 (1987). 

Under the circumstances and considering the criteria under 

section llO(i) of the Act, I find that the civil penalty of $300 

is appropriate. 

ORDER 

Order No. 3032502 is hereby MODIFIED to a citation under 

section 104(a) of the Act, and that citation is AFFI,RMED. 

Peabody Coal Company is hereby directed to pay a civil penalty of 

$300 within 30 days of the date of this decision. Ii 1 

·1 ~ 0 ! ~ / \ / 11 I\ f { 

l / ' /~~-- \\ i --\1 \ ~ Me\l-ick \ i _,1\ 

Adminisf;:rative Law, Judge \ 

\ ; \ \ : ; "' 

Distribution: \ 1 

Hockley-Cann, Esq. Rafael Alvarez, Esq., U.S. Department 

of Labor, Office of the Solicitor, 230 South Dearborn Street, 

8th Floor, Chicago, IL 60604 (Certified Mail) 

Davids. Hemenway, Esq., Thompson & Mitchell, One Mercantile 

Center, St. Louis, MO 63101 (Certified Mail) 

/fb 

1313 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 211991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 91-91 

A.C. No. 46-01433-03952 

v. 

Loveridge No. 22 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Appearances: Charles Jackson, Esq., Office of the Solicitor, 

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

the Petitioner; 

Before: 

Walter Scheller, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for the Respondent. 

Judge Melick 

This case is before me upon the petition for civil penalty 

led 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 

., the "Act," charging the consolidation Company 

l with one violation of the mandatory standard at 

30 C.F.R. § 75.1405 and proposing a civil penalty of $147 for the 

violation. The general issue before me whether Consol 

committed a "significant and substantial" violation of the cited 

regulatory standard and, so, the amount of civil penalty that 

should be assessed for the violation in accordance with section 

llO(i) of the Act. 

The one citation at issue, Citation No. 3308635, alleges a 

"significant and substantial" violation and charges that "the cut 

off levers on the No. 1 and 9 supply cars in the 1 South mains 

(058) section are damaged and inoperative creating a hazard to 

persons who may have to uncouple the supply cars." 

The cited standard provides as follows: 

All haulage equipment acquired by an operator of a 

coal mine on or after March 30, 1971, shall be equipped 

with automatic couplers which couple by impact and 

1314 
uncouple without the necessity of persons going between 

the ends of such equipment. All haulage equipment 

without automatic couplers in use in a mine on 

March 30, 1970, shall also be so equipped within 

4 years after March 30, 1970. 

Consol does not dispute the violation but maintains that it 

was neither "significant and substantial" nor of high gravity. 

Frank Bowers, a coal mine inspector for the Federal Mine Safety 

and Health Administration (MSHA), explained that the existing 

cutoff levers on the cited supply cars were located at the ends 

the cars at the sides, which enabled persons to uncouple the 

cars without going between the cars. He explained that, if 

working properly, by pushing the lever down, a chain uncouples 

the car. In this case, the chains were broken off the levers. 

Bowers thought it was reasonably likely under the 

circumstances for a person to proceed between the cars to 

uncouple them and it would be reasonably likely to result in 

serious crushing injuries and lost fingers or legs. Bowers 

further testified that he had previously seen a miner at this 

mine position himself between two supply cars in attempting to 

uncouple the cars. This had occurred in spite of stickers on the 

cars warning miners not to proceed between the cars, in spite of 

the issuance of a safeguard at this mine prohibiting miners from 

uncoupling between cars, and in spite of purported safety 

messages and training sessions at which'employees were allegedly 

trained against proceeding between rail cars to uncouple cars. 

While Bowers observed that a "safety bar" could be used to 

uncouple the cars from a safe position he did not see any such 

bar in the area at that time. Bowers also testified that the 

motorman told him that he did not then have such a safety bar 

available. 

Bowers also concluded that the operator "should have known" 

of the violative condition because it was "pretty obvious" and 

that company policy requires that cutoff levers be checked on the 

cars before they enter the mine. 

Within this framework, I conclude that indeed the violation 

was "significant and substantial" and of significant gravity. 

See Mathies Coal Company, 6 FMSHRC 1 (1984). In reaching these 

conclusions, I have not disregarded the testimony of Loveridge 

Mine Escort David Olson that warning stickers have been placed on 

mine cars warning miners not to proceed between the rail cars, 

and that supply cars are ordinarily furnished with a symbolic 

warning sticker. It is apparent, however, that the warnings were 

ignored by the Consol employee previously observed by the 

inspector between supply cars. The effectiveness of such 

warnings are therefore suspect. 

1315 
I have also not disregarded Olson's testimony that miners 

have been periodically advised in training sessions and in safety 

messages not to proceed between rail cars, and that he had never 

personally seen any employee between the cars. It is apparent, 

however, that this training and these messages were also ignored 

by the employee seen by Inspector Bowers proceed between the 

cars. While this evidence provides some mitigation, it is not of 

sufficient weight to negate the "significant and substantial" 

findings herein. 

I have also considered the testimony of Olson that he 

observed a safety bar on the locomotive of the subject supply 

train at the time of the citation. However, even assuming that 

the safety bar was indeed present as Olson testified, and that 

such a bar could be used by miners to uncouple cars without 

proceeding between them, I do not find this evidence to be 

sufficiently mitigating to negate the "significant and 

substantial" and high gravity_findings made herein. 

In light of the undisputed testimony that the cited and 

admitted violative conditions were "obvious" and had been 

overlooked during Consol's inspection process, I must also 

conclude that the violation was the result of negligence. In 

particular I have also noted the existence of seven prior 

violations in the 10-month period preceding the instant citation 

the same regulatory standard at issue herein and involving 19 

inoperable automatic couplers. This evidence is not only 

relevant to the history criterion under section llO(i) but also 

reflects upon the ineffectiveness of the company inspection 

procedures and indeed is also a factor to be considered in 

evaluating operator negligence. Under the circumstances, and 

considering all of the criteria under section llO(i) of the Act, · conclude that a civil penalty of $300 is appropriate. 

ORDER 

Citation No. 3308635 is affirmed, and Con!lidation Coal 

company is directed to pay a civil penalty of 300 for the 

violation charged therein. within O ays of t e date of is 

decision. · \ 

Distribution: 

Charles Jackson, Esq., Office of 

of Labor, 4015 Wilson Boulevard the Solicitor, U.S. Department (Certified Mail) ' Room 516, Arlington, VA 22203 

Walter Scheller, Esq., Consolidation Coal com an 

~=l~~tment 1800 Washington Road, Pittsburgh, ~A Yis~:ia~certified 

1316 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2 7 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

R B COAL COMPANY, INCORPORATED, 

Respondent 

Docket No. KENT 91-193 

A.C. No. 15-13362-03582 

Mine No. 3 

DECISION APPROVING SETTLEMENT 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

Susan c. Lawson, Esq., Forester, Buttermore, 

Turner & Lawson, P.s.c., Harlan, Kentucky, for the 

Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). At hearings, Petitioner filed a 

motion to approve a settlement agreement and to dismiss the case. 

A reduction in penalty from $300 to $100 was proposed and 

Respondent noted that he would in the future send all of his dust 

samples by certified mail. I have considered the representations 

and documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section llO(i) of the Act. 

WHEREFORE, the motion for approv 

and it is ORDERED that Respondent pay, 

of settlement 's GRANTED, 

pe alty of $10 within 

30 days of this order. I 

I 

II (l1t 

Gary Mettck 

· Adminis~ ative 

\_,,ti\, La~ Judge \ 

l 

1317 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2 7 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JEWELL SMOKELESS COAL CORP., 

Respondent 

Docket No. VA 91-60 

A.C. No. 44-00649-03535 

Coronet Jewell Prep. Plant 2 

DECISION 

Appearances: Glenn M. Loos, Esq., U.S. Department of Labor, 

Office of the Solicitor, Arlington, Virginia; 

Joseph W. Bowman, Esq., Street, Street 1 Street, 

Scott & Bowman, Grundy, Virginia. 

Before: Judge Weisberger 

~ STATEMENT OF THE CASE 

This case is before me based upon a petition for civil 

penalty filed by the Secretary (Petitioner) seeking a total 

penalty of $59 for violations by Respondent of two mandatory 

standards set forth at 30 C.F.R. § 77.130l(c} (6) and 30 C.F.R. § 

77.130l(c) (9). The Operator, (Respondent) filed an answer in 

which, in essencer it denied that the Mine Safety and Health 

Administration has jurisdiction over the facility in which the 

alleged violations occurred. In a telephone conference call 

initiated by the undersigned on April 25, 1990, with counsel for 

both parties, the parties agreed that they would each submit 

motions for summary decision in order to resolve the issues 

presented herein. The parties further indicated an intention to 

engage in discovery, and the parties were consequently allowed 

until July 31, 1991; to file their respective motions. On 

July 31, 1991, the parties each filed a motion for summary 

decision" 

II. FINDINGS OF FACT 

In their respective motions, the parties set out enumerated 

facts, which are adopted and are set forth below as follows: 

1. Jewell Smokeless Coal Corporation is the owner and 

operator of the Jewell Equipment Shop which is the subject of 

this proceeding. 

1318 
2. Federal Mine Safety and Health Inspector Leslie E. 

Slowey was acting in his official capacity when he issued 

Citations No. 3507039 and 3507040, except that Jewell Smokeless 

does not admit that Inspector Slowey had jurisdiction to issue 

the Citations at the equipment shop. 

3. True copies of Citations No. 3507039 and 3507040 were 

served upon Jewell Smokeless Coal Corporation or its agent as 

required by the Mine Act. 

4. The proposed penalty assessments for Citations No. 

3507039 and 3507040 are reasonable in light of the conditions 

stated in those citations, and such penalties will not adversely 

affect Jewell smokeless Coal Corporation's ability to continue in 

business. 

5. Citations No. 3507039 and 3507040, are true and 

accurate in their statement of the conditions existing at Jewell 

Smokeless Coal Corporation's machine.shop on September 5, 1990. 

6. The violations stated in Citations No. 3507039 and 

3507040 were timely abated. 

7. Jewell Smokeless Coal Corporation operates an equipment 

shop ("the shop") located north of Virginia State Route 638 and 

Dismal River near Vansant, in Buchanan County, Virginia. The 

exact location of the shop is indicated in green on the map 

attached as "Exhibit B11 to the parties' motions. 

8. The shop owns, and operates, maintains and repairs 

through its employees the following types of equipment: 

bulldozersu dump trucks, cement trucks, a hydoseeder, a vacuum 

truck, spreader trucks, a road grader, tractor trucks, a rollback 

trailer, a lowboy trailer, a gradeall, a crane, and loaders. 

9. The shop has twenty-five employees: two supervisors, 

four carpenters, four mechanics and fifteen equipment operators. 

lOo From its inventory of equipment and employees, the shop 

supplies equipment and operators to Jewell Smokeless Corporation, 

and to Dominion Coal Corporation and Jewell Coal & Coke Co., 

affiliated companies. All work done by the shop for Jewell 

Smokeless Coal Corporation, Dominion Coal Corporation and Jewell 

Coal & Coke Co., is charged by the shop to the company for which 

the work done. 

11. Jewell Smokeless Coal Corporation operates a coal 

tipple which is located south of State Route 638 and on the north 

and south sides of Dismal River near Vansant, in Buchanan County, 

Virginia. The exact location of the coal tipple is indicated in 

red on the map attached as "Exhibit B" to the Parties' motions. 

Equipment and operators are supplied by the shop to Jewell 

Smokeless Coal Corporation for such things as road construction 

and maintenance and pond construction and maintenance. The shop 

1319 
does not supply equipment or operators such as tipple equipment, 

tipple operators, tipple mechanics, car droppers, etc. When the 

equipment and operators of the shop are supplying services at the 

tipple of Jewell Smokeless Coal Corporation, they are subject to 

regulation by MSHA. 

12. Dominion Coal Corporation operates several underground 

coal mines in Buchanan County, Virginia. The nearest mine to the 

shop is located· approximately one and one-half miles from the 

shop, and the farthest mine is located approximately twenty miles 

from the shop~- -Eq\iipment and operators are suppiied to Dominion 

coal Corporation for such things as mine construction and face-up 

work 1 road construction and maintenance, mine reclamation work, 

etc. The shop does not supply equipment or operators such as 

continuous miners, continuous miner operators, roof bolters, roof 

bolter operators, or other such underground mining equipment or 

operators. When.the equipment and operators of the shop are 

supplying services at the mines of Dominion Coal Corporation, 

they are subject to l;,"egulatiohbyMSHA. 

13. Jewell Coal & Coke Company operates a coke 

manufacturing facility which is located south of Virginia State 

Route 630 and on the north and south sides of Dismal River near 

Vansant, in Buchanan County, Virginia. The exact location of the 

coke manufacturing facility is indicated in black on the map 

attached as "Exhibit B" to the Parties' motions. Equipment and 

operators are supplied by the shop to Jewell Coal & Coke Company 

for such things as construction, road construction and 

maintenance, clean-up activities, etc. When the equipment and 

operators of the shop are supplying services at the coke ovens of 

Jewell Coal & Coke Company, they are subject to regulation by 

OSKCi.o 

l~" The actual site of the shop consists of a road leading 

from State Route 638, a parking area for the shop employees and 

for equipment not in use or awaiting maintenance or repair, and 

two buildings, one of which contains an office and three repair 

bays, where maintenance and repair of the shop's equipment is 

performedo Two of the bays have grease pitso The other building 

has bays in which to park equipment, and is used primarily for 

the purpose of sheltering equipment during the winter and 

providing access to electrical outlets into which diesel engine 

heaters can be connected during cold weather. The shop through 

employees performs maintenance and repair services on the 

shop equipment identified above at the shop site. No maintenance 

or repairs are done at the shop on mine equipment of Dominion 

Coal Corporation or tipple equipment of Jewell Smokeless Coal 

Corporation such as that previously identified. 

15. The shop has separate supervision from any of the 

aforesaid mines, tipple or coke manufacturing facility, and has 

no MSHA mine identification number. 

1320 
16. The only issue presented in this action is whether the 

equipment shop at which Inspector Slowey issued Citation No. 

3507039 and 3507040 comes within the jurisdiction of the Mine 

Safety and Health Administration. 

III. DISCUSSION 

The facts indicate that at the shop maintenance and repair 

services are performed on the following types of equipment: 

bulldozer, dump trucks, cement trucks, a hydroseeder, a vacuum 

truck, spreader trucks, a road grader, tractor trucks, a rollback 

trailer, a lowboy trailer, a gradeall, a crane, and loaders. 

These items of equipment are used at a coke manufacturing 

facility, which, when at that site, are subject to regulation by 

the Occupational Safety and Health Administration. In addition, 

they are used at a tipple and several mines in Buchanan County, 

Virginia, for road and pond construction and maintenance and mine 

construction and face-up work. 

In analyzing whet.her the'"Shop is within the jurisdiction of 

the Mine Safety and Health Administration, I take cognizance of 

the definition of a coal mine set forth in section 3(h) (i) of the 

Federal Mine Safety and Health Act of 1977, (The Act) in relevant 

part, as "lands .•. structures, facilities, equipment, 

machines, tools, or other property . . • on the surface ••. 

used in, or to be used in . • • the work of extracting ~coal) 

from (its) natural deposits • . • • or the work of preparing." The 

Commission has indicated that although this definition is not 

without bounds it". . . is expansive and is to be interpreted 

broadly." (U.S. Steel Mining co .. Inc., 10 FMSHRC 146, at 149 

(1988}.} In this connection, the legislative history of the Act 

explicitly sets forth the Congressional intent with regard to a 

broad construction to be accorded the Act's definition of a coal 

mine. The Senate report on the bill that became the Act states 

as follows: 

[T]he Committee notes that there may be a 

need to resolve jurisdictional conflicts, but 

it is the Committee's intention that what is 

considered to be a mine and to be regulated 

under this Act be given the broadest possible 

interpretation, and it is the intent of this 

Committee that doubts be resolved in favor of 

inclusion of a facility within the coverage 

of the Act. 

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

in Senate Subcommittee on Labor, Committee on Human Resources, 

95th Cong., 2nd Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 602. 

The various equipment in question, being used to maintain 

1321 
and construct roads at the site of mines, and in mine 

construction, are thus used in activities that perform an 

integral part of the work of extracting coal, given a broad 

construction to that term, as was done implicitly by the 

commission in U.S. Steel, supra.) 1 • Accordingly, the shop 

wherein such equipment is parked, maintained, and repaired, is 

considered "within the scope • structures, facilities, 

on the surface • ·-- •. used .in, or to be used in • • • the work of 

extracting (coal:} ••• or the work of preparing coal." (See, 

U.S. Steel, ·supra~·· - -- -- - --·-· 

In light of this conclusion Respondent's motion for summary 

decision is DENIED and the.motion for summary decision by 

Petitioner is GRANTED. Inasmuch as the only issue presented for 

resolution was whether the citations 3507039 and 3507040 are 

within the jurisdiction of the Mine Safety and Health 

Administration, and inasmuch as that issue has been answered in 

the affirmative, judgment in this case shall be entered in favor 

of the Petitioner bas~d upon 'the allegations contained in the 

petition for assessment of civil penalty. 

1In supra, the Commission, was presented with 

the issue of whether a facility for the repair and maintenance of 

electrical and .mechanical coal mining equipment was subject to 

the provisions of a mandatory standard requiring examinations of 

surface coal mines. In deciding this issue, the Commission took 

9ognizance of the parties' stipulations that the facility in 

questions exists and functions to repair and maintain equipment 

used inu or to be used in, coal mines, that the facility has a 

separate mine identification number, and that it has a history of 

regulation and by MSHA. Based on these stipulations the 

Commission held that the facility "consists of land""" 

structuresu facilities, equipment, machines, tools, or other 

property ... on the surface .•• used in, or to be used in •.• the 

work of extracting [coal] .•. or the work of preparing coal and, 

therefore a surface coal mine subject to the examination 

requirements of section 77. 1713 (a) ie (U. s. Steel, supra at 14 9) " 

In the instant case, the shop does not have an MSHA 

identification number, and there is nothing in the record to 

indicate that has a history of regulation and citation by 

MSHAo The absence of these factors herein do not distinguish the 

instant case from U.S. Steel, supra. Inasmuch as, according to 

the Act, supra, a facility, is a coal mine if it is in the 

work of extracting or preparing coal, the critical element is the 

function of a facility, and not how it has been identified by 

MSHA or the Operator. In this connection, it is significant that 

in the instant case a~ in U.S. Steel, supra, the shop at issue 

repairs equipment used at a coal mine. 

1322 
ORDER 

It is ordered that Respondent's pay $59 as a civil penalty 

for the violations set forth in the petition for assessment of 

civil penalty. 

gei~ Administrative Law Judge 

Distribution: 

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

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Joseph w. Bowman, Esq., Street, Street, Street, Scott & Bowman, 

P.O. Box 2100, Grundy, VA 24614 (Certified Mail) 

nb 

1323 
FEDER.Al MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2 7 1991 

MICHAEL E. HOLLAND, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Docket No. WEVA 90-315-D 

MSHA Case No. HOPE CD 90-17 

Amonate No. 31 Mine 

Appearances: H. John Taylor, Esq., Rand, West Virginia for 

Complainant; 

Laura E. Beverage, Esq., Jackson and Kelly, 

Beckley, West Virginia for Respondent. 

on August 13, 1991, Complainant moved to withdraw his 

pleadings in this case, and to withdraw his claims against 

Respondent. Based on the assertions of counsel which were 

presented orally on the record on August 13, 1991, Complainant's 

Motion is allowed. 

It is ORDERED that this case to be DISMISSED with prejudice. 

It is further ORDERED that the Complainant 1 s claims against 

the Respondent, as articulated in his complaint, his five-page 

statement to the investigator and his responses to discovery, are 

hereby DISMISSED with prejudice to the Complainant. This Order 

specifically includes any claim by the Complainant that the 

Respondent has discriminated against him on the basis of his Part 

90 status, that the Respondent has discriminated against him by 

requiring him to wear metatarsal boots, and that the Complainant 

has engaged in a protected work refu by refusing to wear 

metatarsal boots. / , 

Distribution: 

r m Wei bMer---

Administrative Law Judge 

H. John Taylor, Esq., 5823 Midland Drive, Rand, WV 25306 

(Certified Mail) 

Laura E. Beverage, Esq., Jackson & Kelly, 1600 Laidley Tower, 

P. o. Box 511, Beckley, WV 26801 (Certified Mail) 

nb 

1324 
fU)~RA"- M•Nr; SAFETY AND HEALTH lt~VIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FAl,.LS CHURCH, VIRGINIA 22041 

AUG 2 7 1991 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 91-192 

A.C. No. 46-01453-03947 

v. : 

: Humphrey No. 7 Mine 

CONSOLIDATION COAL COMPANY, : 

Appearances: 

Respondent 

- DECISION APPROVING SE'l'TLEMENT 

Robert Wilson, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the 

Petitioner; 

Walter J. Scheller III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). At hearings Petitioner filed a 

motion to approve a settlement agreement and to dismiss the case. 

The Secretary vacated Citation No. 3307355 for insufficient 

evidence. A reduction in penalty from $212 to $135 was proposed. 

I have considered the representations and documentation submitted 

in this case, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) of the 

Act 

WHEREFORE, the motion for approval 

and it is ORDERED that Respondent pay 

30 days of this order. 

1325 

t is GRANTED, 

$135 within 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2 9 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 91-20 

A. C. No. 41-02632-03531 

v. Docket No. CENT 91-21 

A. C. No. 41-02632-03532 

TEXAS UTILITIES MINING COMPANY, 

Respondent Docket No. CENT 91-63 

Appearances: 

Before: 

A. C. No. 41-02632-03534 

Martin Lake Strip 

DECISION APPROVING SETTLEMENT 

Ernest Burford, Esq., Office of the 

Solicitor, u. s. Department of 

Labor, Dallas, Texas, for the 

Petitioner; · 

Christopher R. Miltenberger, Esq., 

Worsham, Forsythe, Sampels & 

Wooldridge, Dallas, Texas, for the 

Respondent. 

Judge Melick 

These cases are before me upon petitions for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). At hearing, Petitioner filed a 

motion to approve a settlement agreement and to dismiss the 

caseso She moved to vacate Citations No. 3415948, 3415949, 

3415953r 3415957, 3416128 and 3416129, on the grounds that MSHA 

could not locate the inspector's notes of the related inspections 

and the inspector had insufficient independent recollection of 

the related conditions. She therefore noted that there was 

insufficient evidence to support the citations. 

With respect to the remaining citations a reduction in 

penalty from $1,022 to $358 was proposed. I have considered the 

representations and documentation submitted in these cases, and I 

conclude that the proffered settlement is appropriate under the 

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

1326 
WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty of $ 58 within 30 

days of this order. 

aw Judge 

Distribution: 

Ernest Burford, Esq., Office of the Solicitor, U. s. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Christopher R. Miltenberger, Esq., Worsham, Forsythe, Sampels & 

Wooldridge, Thirty-Two Hundred,'·2001 Bryan Tower, Dallas, TX 

75201 (Certified Mail) · 

/fas 

1327 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 

AUG 2 9 1991 

WEST ELK COAL 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. 

WEST ELK COAL COMPANY, INC., 

Respondent 

CONTEST PROCEEDING 

Docket No. WEST 90-365-R 

Citation No. 3584095; 8/16/90 

Mt. Gunnison No. l Mine 

Mine I • D. 0 5- 0 3 6 7 2 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-131 

A.C. No. 05-03672-03595 

Mt. Gunnison No. l Mine 

DECISION 

ORDER DISMISSING CONTEST PROCEEDING 

ORDER TO PAY 

App.earaoces: Susan J. Eckert, Esq., Office of the Solicitor, 

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

for Petitioner; 

David Mo Arnoldsu Esq., Denver 1 Colorado, 

for Respondent. 

Before Judge Cetti ~ 

Statement of the Proceeding 

These consolidated proceedings concern a Notice of Contest 

filed by the Contestant, West Elk Coal Company, Inc. (West Elk) ,1 

pursuant to Section 105(d) of the Federal Mine Safety and Health 

Ji.ct of 1977v 30 u.s.c. § 815(d) (the Act) 1 challenging the captioned citation issued by MSHA" 'Ihe civil penalty proceeding 

concern proposals for assessments of civil penalties filed ~ 

MSHA seeking assessments against Beaver Creek for the alleged 

violation of 30 C.F.R. § 75.316 stated in the above captioned 

citation and for the alleged violation of 30 C.F.R. 

§ 75.1106-3(a) stated in Citation No. 3584147. 

1 Now Mountain Coal Company, successor by merger to West Elk 

Coal Company, Inc., and Beaver Creek Coal Company. 

1328 
After notice to the parties, the matter came on for hearing 

on the merits before me at Glenwood Springs, Colorado. The parties introduced oral and documentary evidence and fully litigated 

both citations. After both sides rested, the Judge from the 

bench, in open court informed the parties as to his decision 

based on the record and the evidence presented at the hearing 

that the alleged violation of 30 C.F.R. § 75.1106-3(a} was not 

S&S. The parties then conferred off the record and advised the 

court they had reached an amicable settlement agreanent concerning both citations. 

Citation No. 3584095 

Respondent's counsel stated for the record that the reason 

West Elk contested Citation No. 3584095 was because of the impression West Elk received from the ci ta ti on that MSHA was seeking to require the operator to receive specific approval from 

MSHA every time the operator installed a bleeder system. In 

light of the testimony of Mr. William G. Denning, MSHA's supervisory mining engineer, that such specific MSHA approval is not required as long as the operator complies with the requirements of 

the mine' s ventilation plan, West Elk agreed to withdraw its contest of the citation. West Elk concedes that it mistakenly made 

cuts in the left barrier that should not have been made. West 

Elk, therefore, accepts the citation pursuant to the settlement 

agreement as a Section 104(a) non-S&S violation with a penalty of 

$20 as originally proposed by the Petitioner. 

Citation No. 3584147 

With respect to Ci on No. 3584147, the Judge at the conclusion of the hearing advised the parties that the evidence was 

insufficient to establish the S&S characterization of the alleged 

violation of 30 C.F.R. § 75.1106-3(a). The parties after conferring, informed the court they had reached an amicable settlement and moved for approval of the agreed settlement of the citation as a Section 104(a) non-S&S violation with a $20 penalty. 

The settlement agreement appeared reasonably proper and consistent with the evidence presented at the hearing. The settlemen t of both citations was approved and the a ppr ova 1 of the settlement agreement is hereby aff irrned. 

1329 
ORDER 

1. Citation No. 3584095 is AFFIRMED as a § 104(a) nonS&S violation of 30 C.F.R. § 75.316 and a civil penalty of $20 is 

ASSESSED. 

2. Citation No. 3584147 is MODIFIED from a § 104(a) S&S 

to a§ 104(a) non-S&S violation, and a civil penalty of $20 is 

assessed. 

3. Contest Proceeding Docket No. WEST 90-365-R is 

DISMISSED. 

4. Respondent is ORDERED TO PAY the approved penalty in 

the sum of $40 to the Secretary of Labor within 30 days of this 

Decision. Upon receipt of such payment the above-captioned civil 

penalty proceeding is DISMISSED. 

stribution: 

Au st F. Cetti 

Administrative Law Judge 

David M. Arnolds, • 9 'Ihomas F. Linn, • u WEST ELK COAL 

COMPANYP INC. 9 555 - 17th Streetu 20th Floor, Denveru CO 80202 

(Certified Mail) 

Susan J,, Eckertv Esq. u Robert J. Murphy, Esq., Off ice of the 

Solicitor, UoSo Department of Labor, 1585 Federal Office 

Building, 1961 Stout Street, Denver, CO 80294 (Certified Mail) 

Mr. Lawrence Beemanu Director, Office of Assessments, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

sh 

1330 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION· 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 3 0 1991 

RONALD TOLBERT, 

Complainant 

v. 

CHANEY CREEK COAL CORPORATION, 

Respondent 

ODELL MAGGARD, 

Complainant 

v. 

CHANEY CREEK COAL CORPORATION, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Complainant 

v. 

DOLLAR BRANCH COAL CORPORATION, 

Respondents 

and 

CHANEY CREEK COAL CORPORATION, 

Respondents 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-123-D 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-1-D 

MSHA Case No. BARB CD 85-48 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-51-D 

MSHA Case No. BARB CD 85-48 

Dollar Branch Mine 

ORDER OF DISMISSAL 

Before~ Judge Melick 

The Complainants, in essence, request approval to withdraw 

their Complaints in the captioned cases on the basis of a 

mutually agreeable settlement agreement. In addition, the 

proposed civil penalty of $1000 has been paid in full. Under the 

circumstances herein, permission to withdraw is granted. 29 C.F.R. 

§ 2700.11. These cases are therefore dismissed ,.nd the hearings 

scheduled for September 10, 1991, are \ccor.dingl, cancelled. 

v \ j' I I I 

-~ . \ . ·' 1 \ -

. I '-'\/\., '\ \ . ' . . \\ 1'.._ Gary Melick \ · ~ .. '---

Administratt'i ve La1· Judge 

~ \ . ·v 

1331 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 3 0 1991 

PEABODY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 91-179-R 

Citation No. 3419830; 2/11/91 

Martwick UG Mine 

Mine ID 15-14074 

Docket No. KENT 91-185-R 

Citation No. 3419831; 2/21/91 

Camp No. 2 Mine 

Mine ID 15-02705 

DECISION 

Appearances: David R. Joest, Esq., Peabody Coal Company, 

Henderson, Kentucky, for the Contestant; 

w. F. Taylor, Esq. Office of the Solicitor, u.s. 

Department of Labor, Nashville, Tennessee 1 for 

Respondent. 

Before: Judge Melick 

These expedited Contest Proceedings were filed by the 

Peabody Coal Company (Peabody) pursuant to section 105(d) of the 

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

seg., the "Act, 11 to challenge two citations issued by the 

Secretary of Labor alleging violations of the mandatory standard 

at 30 C.F.R § 75.316 for operating the cited mines without 

approved ventilation plans. 1

/ The citations were taken to 

1citation No. 3419830 reads as follows: 

The mine is presently operating without an approved 

ventilation. [sic] Plans which were submitted December 

28, 1990, January 10, 1991, and February 7, 1991, were 

considered to be not suitable for approval. Written 

notification from the District Manager of MSHA. 

District 10 was mailed to the operator stating the changes 

needed in the plan. These were mailed January 10, 1991, and 

January 30, 1991, as of this of time a suitable plan has not 

been submitted. 

1332 
obtain review of the disapproval by the Federal Mine Safety and 

Health Administration (MSHA) District Manager of ventilation 

plans submitted by Peabody. The underlying dispute involves the 

ventilation of "deep cuts" of up to 34 feet during the roof 

bolting cycle of the mining process. In particular MSHA is 

seeking in these ventilation plans a provision requiring that 

during the roof bolting cycle line brattice will be maintained to 

the second row of roof bolts located outby the working face and 

with a minimum of 3000 c.f.m. of air behind the line brattice. A 

diagram of the proposed requirement is displayed in Contestant's 

Exhibit Q at pages 23 and 24 and attached hereto as Appendices A 

and B respectively. These provisions will hereafter be noted as 

the "roof bolting ventilation requirement". 

In challenging the citations at bar Peabody has maintained 

that the roof bolting ventilation requirement was not mine 

specific to the particular conditions of the subject mines but 

was of such a general nature and was applied generally to all 

mines throughout the MSHA district .. without consideration of 

specific mine conditions so as to be subject to the rulemaking 

process of mandatory safety standards--and was therefore 

improperly imposed in the ventilation plan approval process. 

This issue was decided in a bench decision at bifurcated 

hearings in these cases and set forth below with only nonsubstantives changes: 

JUDGE MELICK: I am prepared to rule on the 

issue before me now. Let me just give some background 

of the law as it relates to the ventilation plan 

approval process. 

Cont 9 d footnote 1 

citation No. 3419831 reads as follows: 

The mine is presently operating without an approved 

ventilation plan. Plans which were submitted November 

31, 1990, January 4, 1991, February 1, 1991 and 

February 19, 1991, were considered to be not suitable 

for approval. Written notification from the District 

Manager of MSHA District 10 was mailed to the operator 

stating the changes needed in the plan. These were 

mailed December 1990, January 14, 1991. February 2, 

1991, and telephone conversations were held with the 

operator agents as meeting concerning the plan was held 

in the MSHA office February 19, 1990. 

1333 
The institution of a ventilation, methane and dust 

control plan through the process of Secretarial 

approval and operator adoption is set forth in Section 

303 of the Act and under 30 C.F.R. 316 Section 75.316, 

which essentially reiterates the provisions of the Act. 

The purpose of the approval-adoption procedure is to 

provide a plan whose provisions are effective and 

suitable to the conditions and mining system of a 

particular mine. Once a plan is approved and adopted, 

the provisions of the plan are enforceable at the mine 

as though they were statutory safety standards. The 

authority for that proposition is of course Zeigler 

coal Company v. Kleppe, 536 F.2d 398, (D.C. Cir, 1976). 

The bilateral approval-adoption process which 

supplements the Acts rulemaking procedures involves 

consultation and negotiation between MSHA and only the 

affected operator, whereas generally applicable 

standards are the product of notice and comment 

rulemaking pursuant to SectionlOl of the Act. The 

scope of a mine-specific plan is restricted to the mine 

in which the plan will be implemented, whereas a 

rulemaking safety or health standard applies acrossthe-board to all affected mines. 

In the Zeigler case, the court held that the approvaladoption procedure is not to be used by the Goverment 

to impose general requirements of a variety well-suited 

to all or nearly all coal mines. It upheld the 

operator's right to contest MSHA's requirement for a 

plan provision that relates not to the particular 

circumstances of its mine but, rather, imposes a 

provision of a general nature which should be addressed 

and formulated in rulemaking proceedings. 

In the ~arbon County Coal Company decisions of the 

Commission, 6 FMSHRC 1123 in 1984, and 7 FMSHRC 1368 in 

1985, the Commission found the Zeigler analysis to be 

"persuasive and compelling" and held that the 

provisions of 30 C.F"R" Section 75.316 do not permit 

MSHA to impose, as a condition of approving an 

operator 1 s ventilation plan, a general rule applicable 

to all mines. 

The specific issue then before me at this time is 

whether the ventilation plan provisions that are now at 

issue regarding the ventilation of deep cuts at the 

Martwick and Camp Number 2 Mines are specific to the 

particular conditions of the subject mlnes, or whether 

those provisions are of such a general nature as to be 

subject to the rulemaking process of mandatory safety 

standards and therefore ought not to be imposed through 

1334 
the ventilation plan approval process. I am persuaded 

by the evidence in this case presented today that 

MSHA's insistance upon the inclusion of these 

particular ventilation requirements, that is the 

extension of line brattice and a certain minimum 

ventilating air in areas of deep cuts during the roof 

bolting cycle at the Martwick and the Camp Number 

2 Mines is not a general requirement subject to the 

rulemaking procedures but rather is mine specific. The 

testimony of all the MSHA witnesses as well as the 

testimony of Martiwick mine superintendent, Mr. Jernigan, 

supports this position. 

The relevant MSHA witnesses detailed a number of specific 

criteria that were in fact, and presumably will continue 

to be, examined on a mine-by-mine basis to resolve 

whether or not these particular requirements are going to 

be needed in a ventilation plan. I find Mr. Jernigan's 

corroborating testimony particularly compelling in this 

case that he was told by Mr. Casteel [MSHA Chief of 

Engineering Services] and Mr. Stanley (MSHA Ventilation 

Specialist] that the reason for the new requirements 

implemented at the Martwick Mine was its high methane 

liberation and that mines with deep cuts were being 

examined on a mine-by-mine basis. 

This conclusion that this is a mine specific requirement 

is further supported by the evidence that two mines 

within MSHA District 10 having comparatively low methane 

liberation have not been required to incorporate in their 

plans the new provisions that have been required at the 

Martwick and Camp No. 2 Mines in these cases, and they 

apparently will not be required to incorporate those 

provisions in their current plans now under review. 

So within the framework of that evidence I have no 

difficulty concluding that the provisions at issue here 

are mine specific and not generally applicable to all 

mines either in MSHA District 10 or generally applicable 

to all other mines. I would comment with respect to the 

number of operator witnesses who testified of having no 

recollection or having a different construction or other 

interpretation of what may have been said at the MSHAPeabody meetings but I discount that testimony in light 

of Mr. Jernigan 1 s testimony in particular. Apparently 

there may have been semantical problems, maybe people 

heard what they wanted to hear and did not hear what was 

actually spoken. There may not have been as clear an 

understanding during these meetings but I have no 

difficulty concluding as I have concluded. 

1335 
Now, I would like the parties to meet further to try to 

resolve this problem either tonight and/or before 

commencing trial tommorrow. I don't believe that, 

particularly based upon the preliminary discussions this 

morning and what counsel came back to me with, that 

Peabody has really been seriously forthcoming with 

negotiations on resolution of this problem. Maybe now 

based upon this preliminary ruling a more serious 

consideration can be given to this. I will certainly 

consider that in evaluating whether there have been good 

faith negotiations which will be the next issue to be 

reached tomorrow morning. So I would ask counsel to get 

together and arrange for continuing discussions. We will 

coITu.~ence back here at least initially in this courtroom. 

We may get another courtroom with better ventilation, but 

we'll initially meet here at 9 o'clock tomorrow morning. 

So that concludes today's proc&edings. 

Under the Carbon County Coal Company, 7 FMSHRC 1367 (1985), 

decision, MSHA and the mine operator are under a duty to "negotiate 

in good faith and for a reasonable period concerning a disputed 

provision" in a ventilation plan. The Secretary maintains in this 

regard that not only did Peabody fail to negotiate in good faith 

but that Peabody failed to negotiate at all. 

It is clear from this record that Peabody has maintained from 

the beginning of this controversy that the proposed changes could 

not be imposed by the ventilation plan approval process without an 

applicable mandatory standard. I believe that this position was 

based upon good faith reliance on a decision of a Commission 

Administrative Law Judge holding that similar proposed provisions 

in a ventilation plan were, under the circumstances of that case, 

not proven to be mine specific but rather were shown to have been· 

- applicable and were therefore subject to the rulemaking 

0rocess of mandatory standards. See peabody Coal Company v. 

10 FMSHRC 12 (1988). 

However good faith reliance on a colorable legal position must 

be distinguished from good faith negotiations. From the record in 

this case thus far it is apparent that Peabody has been relying 

upon this position as a basis for not negotiating regarding the 

specific underlying safety issue. It is therefore clearly 

premature for the Commission to intervene in the approval-adoption 

process. See Carbon County Coal Company, supra.; Secretary of 

Labor v. Penn Allegh Coal Company 3 FMSHRC 2767 (1981); and Bishop 

1336 
Coal Company, 5 IBMA 231, 1 MSHC 

must accordingly be affirmed and 

dismissed. 

Attachments 

Distribution: 

1367 (1975). T~e citations at bar 

the Contests of \hose ci,ations 

! ) \ . \ 

~· ~\~~,\;~ Gary Melick \ 

Administt~tive Law\Judge 

u 

David R. Joest, Esq, Peabody Coal Company, Midwest Division 

Counsel, 1951 Barrett Court, P.O. Box 1981, Henderson, KY 

42420-1981 (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) 

/ml 

1337 
NOTE: 

APPENDIX A 

TY ICAL VENTILA TIDN DRA \JINGS 

FDR 

MARTVJCK UG MINE 

I.D.ND. 15-14074 

FACE VENTJLATION REQUIREMENTS 

FOR 

ROOF BOL11NG OPERATIONS 

FIRST ROW OF BOLTS TO BE 

INSTALLED JN NEW CUT. 0000 

0000 

0000 

.. 

I 

34 FT. MAXIMU~1 DEPTH 

0000 

.... -----·-· -~-

• ,• • •·L __._Y_ DEFLECTOR 

CURTAIN 

AIRF Ow DIRECTION ,,,. ~ -~f--- 1 . FNO. 1 IN A SEQUENCE [}F FIVE 

WHERE ROOF BOLT1NG IS BEING DONE, LINE BRATTICE 

WILL BE MAINTAINED TO THE SECOND ROW OF BOLTS 

LOCATED OUTBY THE WORKING FACE. A MINIMUM OF 

3000 C.F.M. OF AIR WILL BE MAINTAINED BEHIND THE 

LINE BRATTICE. 

LEGEND 

1,..."'-.__CLJRTAIN 

...-.. AIRFLOW' 

e ROOFBDLT 

l_ DEFLECTOR CURTAIN 

O PROPOSED ROOFBOU 

NO SCALE 

1338 
I-' 

w 

w 

'° 

APPENDIX B 

TYPICAL VENTILATION DRAW'INGS 

FOR 

11ARTVJCK UG 11JNE 

l.O.NO. 15-14074 

FACE VENTlLATION REQUIREMENTS 

FOR 

ROOF BOLTING OPERATIONS 

SEQUENCE DRAWINGS SHOWING ADVANCEMENT OF LINE BRATIICE 

/lS ROOF BOLTING PROGRESSES. 

0000 

0000 

0000 

•••• 

• • • • 1· 

• • • e l muc1rn 

CURlAIN 

0000 

0000 

•••• 

•••• 

• ••• 

•••• 

AIRFLOW' DIRECTION ..... AIRFLD\./ DIRECTION ...... ..... ..... ...... ...... ...... ...... 

SKErrH l, . A SEQUEL OF ""' I I 

SKETCH N0.3 JN A SEQUENCE N F'IYE 

NOTE: 

0000 

•••• •••• LINE CUR

FAATHEST 

····~ 

AIRFLD\./ 

I 

: : : :11 __ _ • • • • lnrrucrll'l CURT~IN 

.,.._ 

I 

SKETCH N0.4- IN A SEQUENCE OF FIVE 

(24) 

•••• 

•••• 

•••• 

• • • • D(flEClCR 

AIRFLO\./ DIRECTION 

<IllCURlAIH 

.,.._ 

SKETCH N0.5 IN A SEQUENCE Of FIVE 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 3 0 1991 

RONALD LEE SHRIVER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 91-1772-D 

MORG CD 91-02 

Osage No. 3 Mine 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

Complainant's Motion to Withdraw Complaint and to Dismiss is 

granted. 

It is ORDERED that this case be DISMISSED with prejudice. 

~i~~ Administrative Law Judge 

Distribution: 

s. Grossman, Esq., Allan N. Karlin, Esq., 174 Chancery Row, 

(viorgantown 1 WV 26505 (Certified Mail) 

\:1alter J. Scheller III, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

nb 

1340