OCTOBER 1993 

COMMISSION DECISIONS AND ORDERS 

10-13-93 

10-25-93 

10-25-93 

10-26-93 

10-28-93 

Rhone-Poulenc of Wyoming Company 

C & B Mining Company 

RBK Construction, Inc. 

Virginia Crews Coal Company 

Sec. Labor on behalf of Freddy 

Thacker v. Black Dragon Mining Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-29-93 

10-01-93 

10-04-93 

10-07-93 

10-12-93 

10-14-93 

10-18-93 

10-18-93 

10-18-93 

10-19-93 

10-20-93 

10-22-93 

10-26-93 

10-26-93 

10-28-93 

10-28-93 

Sec. Labor on behalf of Larry 

Hildebrand v. Meadows and Leonard 

Mining Inc. (previously unpubl.) 

sec. Labor on behalf of Edward 

Phillips, Jr., et al. v. Locust 

Grove, Inc., etc. 

Robert L. Weaver 

Garden Creek Pocahontas Co. 

Montana Resources, Inc. 

Joy Technologies, Inc. 

Sec. Labor on behalf of Freddy 

Thacker v. Black Dragon Mining Co. 

Renny's Creek Mine 

Sec. Labor on behalf of Anita D. 

Samuelson v. Clean Rite Services 

Costain Coal Incorporated 

Puerto Rican Cement Company 

s & H Mining, Inc. 

Kiah Creek Mining Company 

Asphalt, Incorporated 

Sec. Labor on behalf of Kirby Senter v. Black Dragon Mining Co. 

Genstar Stone Products Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

10-08-93 Sec. Labor on behalf of James 

Miller v. Mettiki coal Corp. 

10-13-93 Sec. Labor/James Miller v. Mettiki 

10-22-93 Energy West Mining Company 

WEST 92-519-M 

PENN 92-531 

WEST 93-154-M 

WEVA 92-246 

KENT 93-977-D 

PENN 93-388-D 

KENT 

YORK 

VA 

WEST 

WEST 

93-878-D 

93-25-M 

92-101 

92-343-M 

93-129 

KENT 93-977-D 

SE 92-474-M 

WEST 

KENT 

SE 

SE 

KENT 

WEST 

92-420-D 

93-102-R 

92-196-M 

93-9 

92-964 

92-526-M 

KENT 93-954-D 

YORK 93-115-M 

YORK 93-155-D 

YORK 93-155-D 

WEST 94-22-R 

Pg. 2089 

Pg. 2096 

Pg. 2099 

Pg. 2103 

Pg. 2110 

Pg. 2113 

Pg. 2116 

Pg. 2117 

Pg. 2126 

Pg. 2144 

Pg. 2147 

Pg. 2153 

Pg. 2156 

Pg. 2163 

Pg. 2170 

Pg. 2192 

Pg. 2196 

Pg. 2204 

Pg. 2206 

Pg. 2215 

Pg. 2217 

Pg. 2219 

Pg. 2221 

Pg. 2223 

OCTOBER 1993 

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

Secretary of Labor, MSHA v. Cyprus Plateau Mining Company, Docket Nos. WEST 

92-370-R, WEST 92-485. (Judge Morris, August 24, 1993) 

Secretary of Labor, MSHA v. RBK Construction, Inc., Docket No. WEST 93-154-M, 

etc. (Judge Melick, Interlocutory Review of July 13, 1993 Order -

unpublished) 

Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. KENT 93-295. 

(Judge Amchan, September 15, 1993). 

There were no cases filed in which review was denied. 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 13, 1993 

Docket No. WEST 92-519-M 

RHONE-POULENC OF WYOMING COMPANY 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act 9f 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The 

issue is whether Commission Administrative Law Judge John J. Morris erred in 

denying the Secretary of Labor's motion to accept the late filing of his 

Proposal for Penalty. Judge Morris granted the motion filed by Rhone-Poulenc 

of Wyoming Company ("Rhone-Poulenc") to dismiss this proceeding on the ground 

that the Secretary h~d not demonstrated adequate cause for the late filing of 

his Penalty Proposal under the Commission' s Procedural Rules ("Rules") . 1 14 

FMSHRC 2090 (December 1992)(ALJ) For the reasons set forth below, we reverse 

the judge's decision. 

I. 

Factual and Procedural Background 

Rhone-Poulenc operates the Big Island Mine and Refinery in Sweetwater 

County, Wyoming. On October 2, 1991, an inspector with the Department of 

Labor's Mine Safety and Health Administration ("MSHA") issued a citation to 

Rhone-Poulenc pursuant to section 104(d)(l) of the Mine Act, 30 U.S.G. § 

814(d)(l), alleging a violation of 30 C.F.R. § 57.12016. On May 26, 1992, the 

1 This case involves the Commission's former Procedural Rules. The current 

rules became effective May 3, 1993. See 58 Fed. Reg. 12158-74 (March 3, 1993), 

to be codified at 29 C.F.R. Part 2700 (1993). All references in this d~cision 

to the Commission's Rules are to the former rules. The time limits at issue have 

not changed. 

2089 
Secretary notified Rhone-Poulenc pursuant to Rule 252 that MSHA was proposing 

a civil penalty assessment of $1,000 for the alleged violation. Included with 

the notice of proposed penalty assessment was a blue, pre-printed postcard 

("blue card") advising Rhone-Poulenc to sign and return the postcard to MSHA 

if it wished to contest the proposed assessment. On June 16, 1992, RhonePoulenc sent the blue card to MSHA pursuant to Rule 26. 3 MSHA apparently 

received Rhone-Poulenc's notice of contest on June 19, 1992. 

On August 14, 1992, the Secretary filed his Proposal for Penalty, 

pursuant to Rule 27(a), 4 along with a Motion to Accept Late Filing of 

Proposal for Penalty. Under Rule 27(a) the Secretary was required to file his 

Proposal for Penalty within 45 days of receipt of Rhone-Poulenc's notice of 

contest. The Secretary filed the Proposal for Penalty with the Commission 

approximately two weeks late. In the motion to accept late filing, the 

Secretary stated that the penalty proposal was delayed because the case file 

was "sent by [MSHA's] Arlington office to Denver but was not received by the 

Denver Office of the Solicitor until August 3, 1992." 5 

2 Former Rule 25, provided, in pertinent part: 

The Secretary, by certified mail, shall notify the 

operator or any other person against whom a penalty is 

proposed of: (a) The violation alleged; (b) the amount 

of the penalty proposed; and (c) that such person shall 

have 30 days to notify the Secretary that he wishes to 

contest the proposed penalty. 

29 C.F.R. § 2700.25 (1992). 

3 

part: 

Former Rule 26, entitled "Notice of Contest," provided,· in pertinent 

A person has 30 days after receipt of the 

notification of proposed assessment of penalty within 

which to notify the Secretary that he wishes to contest 

such proposed penalty. 

29 C.F.R. § 2700.26 (1992). 

part: 

4 Former Rule 27, entitled "Proposal for a Penalty," provided, in pertinent 

(a) When to file. Within 45 days of receipt of 

a timely notice of contest of a notification of proposed 

assessment of penalty, the Secretary shall file a 

proposal for a penalty with the Commission. 

29 C.F.R. § 2700.27 (1992). 

5 The motion does not disclose the date on which the file was sent by 

MSHA's Arlington Office. 

2090 
On August 24, 1992, Rhone-Poulenc filed a motion to dismiss the 

proceeding, contending that the Secretary had failed to show adequate cause to 

justify the late filing. In response, the Secretary stated that, due to an 

"unusual chain of events, the MSHA civil ..• penalty office was faced with a 

tremendous and instantaneous influx of new and refiled cases" at the time this 

proceeding was pending. He stated that MSHA was "suffering from a lack of 

clerical personnel to process this dramatic increase in the caseload." The 

· Secretary cited two reasons for this increase. First, MSHA was required to 

recalculate many proposed penalties and to serve amended proposed assessments 

on mine operators because of changes in the Secretary's civil penalty 

assessment regulations. Second, the Commission's decision in Dppmpoud Co .. 

~. 14 FMSHRC 661 (May 1992), required MSHA to reassess and refile cases 

involving hundreds of citations. 

Relying on the Commission's decisions in Salt Lake County Rd. Dep't, 3 

FMSHRC 1714 (July 1981), and Medicine Bow Coal Co., 4 FMSHRC 882 (May 1982), 

·the judge concluded that this case should be dismissed. The judge held that 

the Secretary's explanations for tbe delayed filing did not meet the "adequate 

cause" test established in Salt Late. 14 FMSHRC at 2091. He determined that 

the fact that the case was not received by the Solicitor's office in Denver 

until August 3 was not adequate cause for the delay. The judge also 

determined that the unusually high workload cited by the Secretary was caused 

by MSHA's "own policy changes and its mistake in trying to enforce its 

'excessive history program.'" 14 FMSHRC at 2092. The judge held that changes 

in administrative policy, an unusually high.workload and shortage of clerical 

personnel do not constitute adequate cause under Salt take. He concluded 

that, even if the Secretary provides an adequate explanation for the delay, 

the proceeding may nevertheless be dismissed if the operator demonstrates that 

it was prejudiced by the delayed filing. 14 FMSHRC at 2091. Finally, the 

. judge held that the Secretary should have filed a motion for an extension of 

time within the 45-day period set forth in the Rule. 14 FMSHRC at 2092. 6 

The Commission granted the Secretary's Petition for Discretionary Review 

of the judge's order dismissing this case. 

6 The judge also rejected Rhone-Poulenc's argument that the Secretary 

violated section lOS(a) of the Mine Act, 30 U.S.C. § 815(a), by filing the 

notification of proposed penalty assessment 237 days after the citation was 

issued (October 2, 1991, to May 26, 1992). 14 FMSHRC at 2093. Because RhonePoulenc did not seek review of this ruling or otherwise raise the issue in its 

. response brief, we do not address it. 

2091 
II. 

Disposition 

The Secretary admits that he filed the Proposal for Penalty out of time, 

but contends that the judge misapplied the Commission's test for excusing late 

filed penalty proposals set forth in Salt Lake and Medicine Bow. 7 He argues 

that the judge failed to consider the fact that the operator had actual 

knowledge of the Secretary's allegations in the Proposal for Penalty -- the 

violation charged and the proposed civil penalty -- and that Rhone-Poulenc was 

not prejudiced by the late filing. He contends that dismissal is an extreme 

sanction that should not be imposed absent bad faith or prejudice. The 

Secretary states that his practice is to file proposals for penalty on time 

and that he is aware of only five instances since 1982 when such proposals 

have been filed out of time. The Secretary requests that the Commission 

review the facts de novo, including the facts supporting his claim of a heavy 

workload set forth in his hrief on review, conclude that this evidence 

demonstrates adequate cause for the late filing and reverse the judge's order 

dismissing this proceeding. 

Rhone-Poulenc contends that the judge's findings of fact are supported 

by substantial evidence. It argues that the judge properly applied the facts 

of this case to the two-part test set forth in Salt Lake and Medicine Bow and 

properly concluded that the Secretary failed to demonstrate adequate cause for 

the late filing. It maintains that the judge was correct in not considering 

whether Rhone-Poulenc was prejudiced by the late filing because the 

Commission's two-part test contemplates the consideration of prejudice only 

after the Secretary has shown adequate cause. Rhone-Poulenc argues that the 

Commission should not conduct a de ~ review of the facts of this case, 

consider the new justifications presented in the Secretary's brief on review, 

or substitute its judgment for that of the judge. 

In Salt Lake, the Secretary filed his proposal for penalty approximately 

60 days late because of an extraordinarily high caseload and the lack of 

clerical help. 3 FMSHRC at 1714, 1717. The Commission held that the 45-day 

period in Rule 27 is not a statute of limitations. 8 3 FMSHRC at 1716. The 

7 The parties and the judge state that the proposal for penalty should have 

been filed by July 31, 1992, 45 days after Rhone-Poulenc mailed its notice of 

contest of proposed penalty assessment. It would appear, however, that the 

proposal for penalty should have been filed by August 3, 1992, 45 days after the 

Secretary received the notice of contest, according to the certified mail return 

receipt card. See Ex. A to Rhone-Poulenc's Motion for Dismissal. Rule 27(a) 

provides that a proposal for penalty shall be filed by the Secretary "[w]ithin 

45 days of receipt of a timely notice of contest .... " See Medicine Bow, 4 FMSHRC 

at 882, 884 (emphasis added). This distinction does not affect our disposition 

of this proceeding. 

8 The Commission held that the 45-day period in Rule 27 implements the 

provision in section lOS(d) of the Mine Act, 30 U.S.C. § 815(d), which requires 

the Secretary to "immediately" advise the Commission when a timely contest of a 

2092 
Commission recognized that "[s]ituations will inevitably arise where strict 

compliance by the Secretary [will] not prove possible." Id. The "drastic 

course of dismissing a penalty proposal would short circuit the penalty 

assessment process and, hence, a major aspect of the Mine Act's enforcement 

scheme." Id. In order to balance considerations of procedural fairness 

against the "severe impact of dismissal of the penalty proposal," the 

Commission concluded that "if the Secretary does seek permission to file late, 

he must predicate his request upon adequate cause." Id. The Commission 

further held that, in the event the Secretary demonstrates adequate cause, 

justice may require that the case nevertheless be dismissed if the operator 

can demonstrate that it was prejudiced in the preparation of its case by the 

stale penalty proposal. Id. The Commission determined that the Secretary was 

engaged in "voluminous national litigation and mistakes can happen" and held 

that the Secretary "minimally satisfied the adequate cause standard." 3 

FMSHRC at 1717. 

In Medicine Bow, the proposal for penalty was filed approximately 15 

days late because of the lack of clerical help. 4 FMSHRC at 883, 885. The 

Commission reaffirmed the "two-par~," test established in Salt Lake. 4 FMSHRC 

at 885. The Commission specifically rejected the Secretary's argument that, 

unless the delayed filing is caused by "significant malfeasance," a penalty 

proceeding should not be dismissed absent a showing of prejudice to the 

operator. 4 FMSHRC at 885 n.6. The Commission determined that the Secretary 

met the adequate cause test but warned the Secretary that the Commission could 

reach a different conclusion in future cases with similar facts. 

We agree with the judge that, under Salt Lake and Medicine Bow, the 

Secretary must establish adequate cause for the delay in filing, apart from 

any consideration of whether the operator was prejudiced by the delay. In 

general, if the Secretary fails to demonstrate adequate cause, the case may be 

subject to dismissal. We disagree, however, with the judge's holding that 

~[s]ince at least 1981, an unusually high workload and a shortage of clerical 

personnel do not constitute adequate cause." 14 FMSHRC at 2092. 

The reasons offered by the Secretary in the present case were the 

unusually high caseload at the time the penalty proposal was issued and a lack 

of clerical help to process those cases. The Commission may take official 

notice of the unique events that transpired in 1992, in which the Commission 

proposed penalty assessment is filed by an operator. Salt Lake, 3 FMSHRC at 

1715. The Commission noted that Congress, in discussing the filing of an initial 

notice of penalty assessment by the Secretary,· indicated that "there may be 

circumstances, although rare, when prompt proposal of a penalty may not be 

possible." S. Rep. No. 181, 95th Gong., 1st Sess. 34, reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Gong., 2d. Sess., 

Le~islative HistoiY of the Federal Mine Safety and Health Act of 1977, at 622 

(1978). The Senate Committee stated that it "does not expect that the failure 

to propose a penalty with promptness shall vitiate any proposed penalty 

proceeding." Id. In Salt Lake, the Commission held that this language "bespeaks 

the overriding concern with enforcement" and rejected the operator's argument 

that Rule 27 established a "statute of limitations." 3 FMSHRC at 1715-16. 

2093 
played a part. On May 5, 1992, the Commission issued its decision in 

Dptmmond, holding that the Secretary's Program Policy Letter ("PPL") 

establishing his excessive history policy was an invalidly issued substantive 

rule that could not be accorded legal effect. 14 FMSHRC 661, 692. 

Accordingly, in Drummond and related cases, the Commission remanded the 

proposed penalties to the Secretary for recalculation without use of the PPL. 

Following that decision, about 2,780 pending cases were remanded to the 

Secretary for reproposal of penalties. ~ Jim Walter Resources. Inc. , 15 

FMSHRC 782, 785 (May 1993). The Commission has noted that the Secretary 

"recalculated thousands of penalties that had been proposed pursuant to the 

PPL .•.. • Jim Walter, 15 FMSHRC at 792. The unusually heavy volume of penalty 

reassessments is a matter of Commission record. 

The rapid increase in new civil penalty cases in 1992 is also a matter 

of Commission record. Relying on Salt Lake, Chief Administrative Law Judge 

Paul Merlin has excused several late filed penalty proposals based on "the 

precipitous rise in the vol~e of contested cases .•• as indicated by the 

Commission's own records." Powe17 Operating Co .. Inc., 15 FMSHRC 931, 932 

(February 1993) (ALJ) (published May 1993). The judge noted that the number of 

new cases received by the Commission escalated from 2,029 in Fiscal Year 1990 

and 2,267 in Fiscal Year 1991 to 6,032 in Fiscal Year 1992. 15 FMSHRC at 932, 

n. 1. 

We note that the Secretary's late filing of the Proposal for Penalty is 

apparently a rare event. We conclude that the Secretary established adequate 

cause for the delayed filing on the basis of MSHA's unusually heavy 1992 

caseload and its shortage of personnel to process this caseload. For the same 

reason, we conclude that adequate cause exists to excuse the Secretary's 

failure to file a motion for extension of time within the 45-day period. 

We agree with the judge that, even if the Secretary provides an adequate 

reason for the delay, dismissal may be warranted if the operator demonstrates 

that it was prejudiced. We conclude that Rhone-Poulenc has failed to 

demonstrate that it was prejudiced by the 11-day delay in filing. The judge 

found that Rhone-Poulenc was not prejudiced when the Secretary failed to 

notify it of the proposed panalty assessment until 237 days after the citation 

was issued. 14 FMSHRC at 2093. He noted that Rhone-Poulenc had asserted it 

was "inherently prejudiced" by the delay, but that it failed to allege "any 

factual basis to establish such prejudice." Id. While that finding does not 

resolve the issue before us, Rhone-Poulenc has similarly failed to show that 

it was prejudiced by the Secretary's 11-day delay under the Commission's Rules 

in filing the Proposal for Penalty. 

2094 
III. 

Conclusion 

For the foregoing reasons, the judge's order dismissing this proceeding 

is vacated and the Secretary's Proposal for Penalty is accepted for filing 

this date. This case is remanded to the judge for further proceedings 

consistent with this opinion. 

Distribution 

Tana M. Adde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Daniel A. Jensen, Esq. 

Arlene Holen. Chairman 

~£~. oyce K. Doyle, Comm~ss~o r 

Kimball, Parr, Waddoups, Brown & Gee 

P.O. Box 11019 

Salt Lake City, UT 84147 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

1244 Speer Boulevard, Suite 280 

Denver, CO 80204 

2095 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

C&B MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 25 .. 1993 

Docket No. PENN 92-531 

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

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq (1988) ("Mine Act"). On May 25, 

1993, Administrative Law Judge David F. Barbour issued a decision concluding 

that C&B Mining Company ("C&B") had violated section 103(a) of the Mine Act, 

~p U.S.C. § 813(a). C&B did not file a timely petition for discretionary 

review of the judge's decision. 

The judge's jurisdiction over this case terminated when his decision was 

issued on May 25, 1993. Commission Procedural Rule 69(b), 58 Fed. Reg. 12158, 

12171 (March 3, 1993), to be codified at 29 C.F.R. § 2700.69(b)(l993). 

Because C&B did not file a timely petition for discretionary review of the 

judge's decision and the G0mmission did not direct review on its own motion 

within the 30-day period prescribed by the Mine Act, the judge's decision 

became final 40 days after its issuance. See 30 U.S.C. §§ 823(d)(l), (2)(A), 

& (2)(B). 

On August 23, 1993, the Commission received a letter from Gary Lorenz, 

an owner of C&B, stating that he had called Judge Barbour on the day he 

received the judge's decision and had been transferred to another office for 

"paperwork" to appeal the decision. Lorenz further asserts that, as of August 

16, 1993, he still had not received the paperwork but would like to appeal the 

decision. It appears from the record that the Commission's list of 

instructions for filing a petition for discretionary review was attached to 

the copy of the decision mailed to Lorenz. 

We deem C&B's letter to be a request to reopen a final Commission 

decision and for an enlargement of time to file a petition for discretionary 

review. In accordance with Fed. R. Civ. P. 60(b)(l), the Commission has 

afforded relief from final judgments upon a showing of mistake, inadvertence, 

surprise, or excusable neglect. See, ~. Wayne C. Turner v. New World 

2096 
Mining. Inc., 14 FMSHRC 76, 77 (January 1992). Here, it appears that C&B, 

proceeding without benefit of counsel, may have believed that it would receive 

additional materials for appeal. Accordingly, we will reopen the case and 

allow C&B to file a petition for discretionary review, as explained below. 

A petition for discretionary review must state one or more of the 

following as grounds for appeal: 

(1) A finding or conclusion of material fact is not 

supported by substantial evidence; 

(2) A necessary legal conclusion is erroneous; 

(3) The decision is contrary to law or to the duly 

promulgated rules or decisions of the Commission; 

(4) A substantial question of law, policy or 

discretion is involved; 

(5) A prejudicial error of procedure was committed. 

See 30 U.S.C. § 823(d)(2)(A)(ii). Each issue must be separately numbered, 

plainly and concisely stated, and supported by detailed citations to the 

record when assignments of error are based on the record, and by statutes, 

regulations or authorities relied upon. 30 U.S.C. § 823(d){2){A)(iii). 

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. Id. 

C&B's petition for discretionary review must be filed and received by 

the Commission at the above-noted address by November 24, 1993. 29 C.F.R. 

§ 2700.70(a). If C&B fails to file its petition for discretionary review by 

that date, this case shall be closed. If C&B files its petition for 

discretionary review in the manner described in this order, the Commission 

shall then consider whether to grant C&B's petition. 

2097 
For the foregoing reasons, this case is reopened, and C&B is granted 

leave to file its petition for discretionary review. 

Distribution 

Gary L. Lorenz 

Empire Trucking Company 

RD 112, Box 861 

Shamokin, PA 17872 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Holen, Chairman 

Joyce 

v~0-/ A. Doyle, Commiss~oner «- ~~ 

L. Clair Nelson, Commissioner 

Administrative Law Judge1David Barbour 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2098 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RBK CONSTRUCTION, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON~ D.C. 20006 

October 25, 1993 

Docket Nos. WEST 93-154-M 

WEST 93-155-M 

WEST 93-156-M 

DIRECTION FOR REVIEW 

DECISION 

This civil 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 

August 11, 1993, Commission Administrative Law Judge Gary Melick issued a 

certification for review of interlocutory ruling pursuant to Commission Rule 

76(a)(l)(i), 58 Fed. Reg. 12158, 12172 (March 3, 1993), to be codified at 29 

C.F.R. § 2700.76(a)(1)(i)(l993). The judge, on his own motion, certified that 

his July 13, 1993, ruling "denying the Secretary's attempted vacation of 

citations issued under section 104(a) of the [Mine Act, 30 u.s.c. § 814(a)] 

. • . involves a controlling question of law and that immediate review will 

materially advance the final disposition of the proceedings." Certification, 

August 11, 1993. 

We grant interlocutory review and suspend briefing. For the reasons set 

forth below, we vacate the judge's order of July 13, 1993, and grant the 

parties' motions to dismiss these proceedings. 

This civil penalty proceeding consists of eight section 104(a) citations 

issued by the Department of Labor's Mine Safety and Health Administration 

("MSHA") to RBK Construction, Inc., on October 8, 1992. The citations allege 

safety, training, and notification violations, as well as a citation for 

failing to file a legal identity form. In issuing these citations, the 

Secretary maintained that respondent was the operator of a mine. In its 

answer, on February 4, 1993, respondent asserted that it was engaged in a 

"cut-and-fill operation for the Colorado Department of Transportation," not a 

mining operation, and that, therefore, MSHA was without jurisdiction. 

Respondent's letter of February 4, 1993. 

Subsequently, the Secretary filed a letter with the judge on July 9, 

1993, stating that the Secretary had vacated all the citations. The Secretary 

explained that, upon review of the matter, he had determined that respondent's 

operation was primarily related to the public "highway cut" and any mineral 

being processed was only incidental to that work. The Secretary cited and 

attached MSHA I Program Policy Manual, Sec. 4, 3 (July 1, 1988), referencing 

the Interagency Agreement between MSHA and the Occupational Safety and Health 

Administration ("OSHA"). The. agreement states: 

MSHA does not have jurisdiction where a mineral is extracted 

incidental to the primary purpose of the activity. Under this 

circumstance, a mineral may be processed and disposed of, and 

MSHA will not have jurisdiction since the company is not 

functioning for the purpose of producing a mineral. 

2099 
Operations not functioning for the purpose of producing a 

mineral include, but are not limited to, the following: 

2. Public road and highway cuts 

Secretary • s ~letter of July 9, 1993, Attachment 1. The judge construed this 

letter to be a motion by the Secretary to dismiss. 

Additionally, the record contains a note to the file by the judge 

regarding teleconferences on July 12, 1993, between the judge and 

representatives of the parties. The judge advised the parties that, in his 

preliminary judgment, respondent's operation was a mine and, therefore, he 

could not approve the Secretary's attempted vacation of the citations. The 

judge noted his reliance upon the inspector's statement that respondent 

operated a screening plant wherein cut rock was sized and then used as fill 

for road construction. 

On July 13; 1993, respondent advised the judge that it no longer sought 

to contest the citations and that it would not attend the scheduled hearing. 

That same day the judge issued "his ord~r denying the motions to dismiss. 

Subsequently, the Secretary advised the judge that he too saw no basis for a 

hearing, since the citations had been vacated. 

In response to a briefing order issued July 23, 1993, the Secretary 

explained his position to the judge that vacation of the citations was a 

proper exercise of statutory authority under sections 104 and 107 of the Act, 

30 U.S.C. §§ 814, 817, and that such action was not inconsistent with section 

110(k), 30 u.s.c. § 820(k). 1/ The Secretary asserted that, since the 

citations were vacated, "there simply is no penalty to be considered and there 

is nothing further for the Commission to decide." Secretary's letter of August 

6, 1993. 

The judge, on his own motion, then certified his order for interlocutory 

review. The judge stated that the Secretary had failed to provide adequate 

reasons for the "attempt to vacate"; had failed to enable the Commission to 

conduct an evidentiary hearing regarding the purported reasons for vacation; 

and had failed to secure the Commission's approval in accordance with section 

llO(k) of the Act and Youqhiogheny and Ohio Coal Co., 7 FMSHRC 200 (February 

1985). Certification, A1:gust 11, 1993. 

On August 24, 1993, the secretary filed his opposition to interlocutory 

review. The Secretary asserted that he has exclusive enforcement authority 

pursuant to sections 104 and 107 of the Mine Act and that he is authorized to 

vacate citations and orders. Asserting that Cuyahoga Valley Ry. Co. v. United 

Transp. Union, 474 u.s. 3 (1985) is virtually identical to the present case, 

the Secretary contends that his determinations to vacate citations and orders 

are not reviewable by the Commission. The Secretary states that his decision 

not to assert jurisdiction in the instant case is fully consistent with the 

1/ Section llO(k) provides: "No proposed penalty which has been contested 

before the Commission under section lOS(a) shall be compromised, mitigated, or 

settled except with the approval of the Commission. No penalty assessment 

which has become a final order of the Commission shall be compromised, 

mitigated, or settled except with approval of the court." 

2100 
Interagency Agreement between MSHA and OSHA. Finally, the Secretary argues 

that section llO(k) applies only to settlements of penalties, not to 

vacations of citations or orders. The Secretary states that the Mine Act 

contains no provision for Commission approval of his decisions to vacate 

enforcement actions. 

In Youghioqheny and Ohio, cited by the judge, the Commission concluded 

that "adequate reasons" were required to support a dismissal of a proceeding. 

7 FMSHRC at 203. Subsequently, the Supreme Court ruled in Cuyahoga Valley Ry. 

that the Secretary of Labor has unreviewable discretion to withdraw a citation 

charging an employer with a violation of the Occupational Safety and Health 

Act, and that the Occupational Safety and Health Review Commission does not 

have the authority to overturn the Secretary's decision not to issue or to 

withdraw a citation. 474 u.s. at 7-8. Based on that decision, we overrule 

Youghiogheny and Ohio. We agree with the Secretary that he has the authority 

to vacate the citations in issue, and, therefore, we grant the motions to 

dismiss. 2./ 

/ 

'L.f---'t:. /r,":'_.~·'.-~· //,. /.·/-_~.<·. 

Joyce f\. Doyle, Commissi9ner 

L. Clair Nelson, Commissioner 

2./ Parties may, in the future, file stipulations of dismissal, signed by all 

parties to a proceeding, in order to effect voluntary dismissal. Cf. 

generally Fed. R. Civ. P. 41 (a)(l)(ii). Upon the parties• filing of the 

appropriate stipulation, the presiding Commission judge shall enter an order 

dismissing the proceeding. 

2101 
Distribution 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Douglas N. White, Esq. 

Counsel, Trial Litigation 

U.S. Department of Labor 

4015 Hilson Blvd. 

Arlington, VA 22203 

Ronda Dockter, President 

RBK Construction, Inc. 

P.O. Box 387 

, Colorado 81069 

Administrative Law Judge Gary Melick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2.102 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

VIRGINIA CREWS COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 26, 1993 

Docket Nos. WEVA 92-246 

WEVA 92-247 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

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

Administrative Law Judge George Koutras found that Virginia Crews Coal Company 

("Virginia Crews") violated its roof control plan and that the violation was 

of a significant and substantial nature ("S&S") , 1 but that· the violation was 

not the result of Virginia Crews's unwarrantable failure2 to comply with the 

plan. 14 FMSHRC 1691 (October 1992)(ALJ). Accordingly, the judge modified 

the section 104(d)(l) citation to a section 104(a) citation. 14 FMSHRC at 

1716. The judge also found that Virginia Crews violated 30 C.F.R. § 75.400, 

as alleged in a subsequently issued section 104(d)(l) order. 14 FMSHRC at 

1709-10. The judge concluded that, because that violation was not S&S and the 

underlying section 104(d)(l) citation had been modified to a section 104(a) 

citation, it was unnecessary to consider whether the violation was the result 

of the operator's unwarrantable failure. 14 FMSHRC at 1717-18. The judge 

modified the order to a section 104(a) citation. 14 FMSHRC at 1718. The 

Commission granted the Secretary's petition for discretionary review, which 

challenges the judge's failure to find that the violations were the result of 

unwarrantable failure. For the reasons that follow, we affirm the judge's 

findings. 

1 The S&S terminology is taken from section 104( d)( 1) of the Act, 30 TI. S.C. 

§ 814(d)(l), which distinguishes as more serious in nature any violation that 

"could significantly and substantially contribute to the cause and effect of a 

mine safety or health hazard .... " 

2 The unwarrantable failure terminology is taken from section 104(d)(l) of 

the Act, 30 U.S.C. § 814(d)(l), which establishes more severe sanctions for any 

violations that are caused by "an unwarrantable failure of [an] operator to 

comply with ... mandatory health or safety standards .... " 

2103 
I. 

Factual and Procedural Background 

A. Docket No. WEVA 92-246 (§ 104{d)(l) citation). 

Virginia Crews owns and operates an underground coal mine (the No. 14 

mine) in West Virginia. On April 12, 1991, the crew on the evening shift 

mined the No. 6 entry in the first left section, which opened the last open 

crosscut ("break") between the No. 6 and the No. 5 entries and extended the 

working face beyond the break. On April 13, the evening shift began mining 

the break between the No. 6 entry and the No. 7 entry. The mine did not 

operate on Sunday, April 14 and production crews did not mine in the vicinity 

of the No. 6 entry on April 15. 

On April 16, between 4:30 and 5:30a.m., preshift examiner Ron Kennedy 

examined the No. 6 entry. Kennedy found that the mined portion of the 

crosscut between the No. 6 and No. 7 entries required roof bolting and 

reported this to day shift foreman Clyde Bailey. 

At 6:00a.m., Gerald Cook, an inspector of the Department of Labor's 

Mine Safety and Health Administration ("MSHA"), began an inspection. He 

entered the mine with Bailey and the day-shift crew and, along with miners' 

representative Richard Patton, checked the working faces of the section. 

Inspector Cook noted that the intersection of the No. 6 entry and the 

last open crosscut was supported. He saw, however, that the No. 6 working 

face had been advanced, in his estimation, 15 feet inby the last row of roof 

bolts, and that the No. 6 - 7 break had been advanced about 20 feet inby the 

last row of roof bolts. It appeared to the inspector that coal had been 

cleaned from the roadway and moved into the No. 6 - 7 break. Vehicle tracks 

were also apparent in the No. 6 heading. Cook concluded that miners must have 

traveled past one of the openings in the intersection to excavate the other 

opening. 

Cook issued a section 104(d)(l) citation alleging a violation of 30 

C.F.R. § 75.220(a)(l) in the No. 6 working place. 3 He concluded that 

Virginia Crews violated the approved roof control plan, which provides that 

"[o]penings that create an intersection shall be permanently supported or a 

minimum of one row of temporary supports shall be installed on not more than 

4-foot centers across the opening before any other work or travel in the 

3 Section 75.220(a)(l) states: 

Each mine operator shall develop and follow a roof 

control plan, approved by the District Manager, that is 

suitable to the prevailing geological conditions, and 

the mining system to be used at the mine. Additional 

measures shall be taken to protect persons if unusual 

hazards are encountered. 

2104 
intersection." Ex. P-3, at 4, para. 3. Cook designated the violation S&S and 

noted that the operator's negligence was high. Cook also determined that the 

violation was the result of Virginia Crews's unwarrantable failure to comply 

with the plan because everyone working in the section was supposed to review 

the approved roof control plan and to know what it required. 

The judge found that Virginia Crews had violated its roof control plan 

because the roof in the openings cited by Inspector Cook was not supported. 

14 FMSHRC at 1707-08. The judge determined that work or travel had occurred 

in the area, crediting Cook's testimony that coal had been pushed into the No. 

6 - 7 break, that tire tracks were present in the No. 6 heading, and that 

miners had to pass by one of the openings in the intersection to mine the 

other opening. 14 FMSHRC at 1708. 

The judge found that the violation was not the result of the operator's 

unwarrantable failure. 14 FMSHRC 1715-16. He concluded that, in the "absence 

of credible testimony from witnesses who were actually present during the 

mining activities which may have taken place during the days prior to 

Inspector Cook's inspection," there was "no credible evidence to establish 

that [Virginia Crews] deliberately and consciously failed to act, or engaged 

in conduct which one may reasonably conclude was aggravated." 14 FMSHRC at 

1716. The judge also rejected Cook's conclusion that the violation was due to 

unwarrantable failure because Virginia Crews knew or should have known about 

the requirements of its own roof control plan. Id. In addition, the judge 

noted the absence of any prior violations of section 75.220(a)(l). Id. 

Accordingly, the judge concluded that the Secretary failed to carry his burden 

of proving that the violation constituted an unwarrantable failure to comply 

with the roof control plan. Id. 

The judge found that the violation was the result of Virginia Crews's 

"ordinary or moderate negligence" and found the violation to be S&S. 14 

FMSHRC at 1713, 1718. The judge modified the section 104(d)(l) citation to a 

section 104(a) citation and assessed a civil penalty of $275. 14 FMSHRC at 

1719. 

B. Docket No. WEVA 92-247 (§ 104(d)(l) order). 

On April 29, 1991, Cook conducted another inspection of the No. 14 mine. 

Finding accumulations of loose coal and coal dust in several areas along the 

ribs and roadway in the return entry of the left mains section~ Cook issued a 

section 104(d)(l) order alleging a violation of section 75.400. Cook relied 

on the previously issued section 104(d)(l) citation to support the order. He 

designated the violation as S&S and charged Virginia Crews with high 

negligence. In issuing the order, Cook determined that the violation was the 

result of Virginia Crews's unwarrantable failure because the accumulations 

were extensive and had existed for at least a month. 

The judge credited the testimony of Inspector Cook concerning the 

accumulations and found a violation of section 75.400. 14 FMSHRC at 1709-10. 

The judge granted the Secretary's motion to modify the order to delete the 

inspector's S&S finding. 14 FMSHRC at 1714. 

2105 
The judge did not consider whether the violation was the result of 

Virginia Crews's unwarrantable failure. 14 FMSHRC at 1717-18. He held that 

the section 104(d)(1) order could not stand because the underlying section 

104(d)(l) citation had been modified to a section 104(a) citation. The judge 

modified the order to a section 104(a) citation rather than to a section 

l04(d)(l) citation because the order did not describe an S&S violation, which 

is required for the latter citation. Id. The judge found, however, that the 

violation resulted from a high degree of negligence and assessed a civil 

penalty of $225. Id. 

II. 

Disposition of Issues 

A. Docket No. WEVA 92-246 

The Secretary argues that Virginia Crews's conduct was an unwarrantable 

failure to comply because the operator knew about the violative condition, but 

did not attempt to correct it. The Secretary asserts that the judge failed to 

consider the April 16 preshift examination report, which explicitly noted the 

need for roof bolting and that he improperly focused on whether the operator 

should have reasonably expected miners to work or travel in the cited area 

rather than on the operator's knowledge of the violative condition. 

Virginia Crews argues that the judge's finding that the violation was not the 

result of an unwarrantable failure is supported by substantial evidence and 

should be affirmed. 

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the 

Commission determined that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence. This determination was derived, 

in part, from the plain meaning of "unwarrantable" ("not justifiable" or 

"inexcusable"), "failure" ("neglect of an assigned, expected or appropriate 

action"), and "negligence" (the failure to use such care as a reasonably 

prudent and careful person would use, and is characterized by "inadvertence," 

"thoughtlessness," and "inattention"). 9 FMSHRC at 2001. Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional 

misconduct," "indifferencE>" or a "serious lack of reasonable care." 9 FMSHRC 

at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 

(February 1991). 

The Secretary argues that Virginia Crews knew of the violative condition 

because preshift examiner Kennedy reported that the No, 6 - 7 crosscut needed 

roof bolting. Knowledge of a preshift examiner is imputable to the operator. 

Rochester & Pittsburgh, 13 FMSHRC at 194-98; Mettiki Coal Corp., 13 FMSHRC 

769, 772 (May 1991). Kennedy's April 16 report to day shift foreman Bailey 

was made at 5:45 a.m. and Cook issued the citation an hour and a half later, 

at 7:15 a.m. Thus, Virginia Crews had only a brief period of notice of the 

existence of a violation as a result of the preshift examiner's report. No 

activity occurred in the cited area during that period. We conclude that 

reliance upon the preshift report would not have supported an unwarrantable 

failure conclusion, and that, therefore, the absence of comment by the judge 

regarding this evidence is harmless. 

2106 
We also reject the Secretary's argument that the judge should be 

reversed because he focused on t~ expectation of work or travel in the cited 

area. While the judge discussed the lack of evidence of "mining activities 

that may have taken place during the days prior to Mr. Cook's inspection," he 

did so in reaching his conclusion that there was "no credible evidence to 

establish that the respondent deliberately and consciously failed to act or 

engaged in conduct which one may reasonably conclude was aggravated." 14 

FMSHRC at 1716. Based on this determination, and noting both the inspector's 

erroneous belief that the violation was unwarrantable solely because the 

operator "knew or should have known" the requirements of the roof control 

plan4 and the absence of any prior violations of section 75.220(a), the judge 

reasonably concluded that the Secretary had failed to carry his burden of 

proving that the violation was the result of unwarrantable failure. Id. at 

1716. 

We agree with the judge that a breach of a duty to know is not 

necessarily an unwarrantable failure. 14 FMSHRC at 1716. The Secretary, in 

relying on the "knew or should have known" language of Emery, 12 FMSHRC 2003, 

misconstrues the context in which.those words were used. The thrust of Emery 

was that unwarrantable failure results from aggravated conduct, constituting 

more than ordinary negligence. Id. at 2004. Use of a "knew or should have 

known" test by itself would make unwarrantable failure indistinguishable from 

ordinary negligence and we reject such an interpretation of EmetY. 

We have reviewed the record and conclude that substantial evidence5 

supports the judge's finding that Virginia Crews's violation of section 

75.220(a) was not the result of its unwarrantable failure to comply with its 

roof control plan. 

B. Docket No. WEYA 92-247 

An MSHA inspector is required to designate a citation issued under 

section 104 of the Mine Act as a section 104(d)(l) citation if he finds that 

(1) the violation could significantly and substantially contribute to the 

cause and effect of a mine hazard; and (2) the violation was caused by the 

4 Inspector Cook stated that the violation was the result of Virginia 

Crews's unwarrantable failure because the roof control plan was "supposed to be 

known by everybody who is working on that section that has to deal with roof 

control." Tr. 33. See 30 C .F .R. § 75. 220(d). Under Cook's reasoning, virtually 

every breach of a roof control plan would be the result of the operator's 

unwarrantable failure because his employees should know the plan's requirements. 

5 The Commission is bound by the terms of the Mine Act to apply the 

substantial evidence test when reviewing an administrative law judge's 

conclusion. 30 U.S.C. § 823(d)(2)(A)(ii)(I). See also Consolidation Coal Co., 

11 FMSHRC 966, 973 (June 1989). "Substantial evidence" means "such relevant 

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

See e.g., Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), 

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

2107 
operator's unwarrantable failure to comply with the standard. 6 A section 

104(d)(l) withdrawal order is issued if, during the same or another inspection 

within the next ninety days, the inspector finds another violation that was 

caused by the operator's unwarrantable failure to comply with a standard. 30 

u.s.c. § 814(d)(l). 

Based on his finding that the roof control violation was not the result 

of the operator's unwarrantable failure, the judge modified that section 

104(d)(l) citation to a section 104(a) citation, removing the basis for the 

section 104(d)(l) order issued in this docket for a violation of section 

75.400. Accordingly, he modified the order to a section 104(a) citation. 

The Secretary urges that, if the judge's finding of no unwarrantable 

failure as to the underlying citation is remanded for reconsideration, this 

docket should also be remanded for a determination of whether the violation of 

section 75.400 was caused by the operator's unwarrantable failure. Because we 

have affirmed the judge's finding that the underlying violation was not the 

result of unwarrantable failure, the issue in this docket is moot. 

6 Section l04(d)(l) states: 

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

an authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

safety standard, and if he also finds that . . . such 

violation is of such nature as could significantly and 

substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard, and if he 

finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory 

health or safety standards, he shall include such 

finding in any citation given to the operator under this 

[Act]. If, during the same inspection or any subsequent 

inspection of such mine within 90 days after the 

issuance of such citation, an authorized representative 

of the Secretary finds another violation of any 

mandatory health or safety standard and finds such 

violation to be also caused by an unwarrantable failure 

of such operator to so comply, he shall forthwith issue 

an order requiring the operator to cause all persons in 

the area affected by such violation ... to be withdrawn 

from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary 

determines that such violation has been abated. 

30 u.s.c. § 814(d)(l). 

2108 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's finding that Virginia 

Crews's violation of its roof control plan was not caused by its unwarrantable 

failure. 

Distribution 

Tana M. Adde, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

David J. Hardy, Esq. 

Jackson & Kelly 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 

Arlene Holen, Chairman 

~t:/(_~AA-t~d_ Richard V. Backley, Commissioner ~ 

L. Clair Nelson, Commissioner 

Administrative Law Judge George Koutras 

Federal 1'1ine Safety & Health Revie'v Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

2109 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 28, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION on behalf of 

FREDDY THACKER 

Complai,nant 

v. 

BLACK DRAGON MINING COMPANY 

Respondent. 

ORDER 

Docket No. KENT 93-977-D 

Case No. PIKE CD-93-12 

on October 18, 1993, Administrative Law Judge Roy J. Maurer 

concluded that the discrimination complaint of Freddy Thacker 

against Black Dragon Mining Company ("Black Dragon") was not 

frivolously brought, granted the Secretary of Labor's application 

for temporary reinstatement and ordered Thacker's immediate 

reinstatement. 

On October 22, 1993, the Secretary filed with the judge a 

"Motion Seeking Compliance with Temporary Reinstatement Order." 

since the judge's jurisdiction ended upon issuance of his order, 

the Secretary's motion in this proceeding was forwarded to the 

Commission. Commission Procedural Rule 69(b), 58 Fed. Reg. 12171 

(March 3, 1993), to be codified at 29 C.F.R. § 2700.69(b) (1993). 

In the motion, the Secretary asserts that Black Dragon failed to 

reinstate Thacker on October 20, 1993, and that it refused to pay 

him for that day, and, thus, violated "the plain wording and the 

spirit" of the reinstatement order. Therefore, the Secretary 

seeks an order requiring Black Dragon to pay the complainant for 

October 20, 1993. 

on October 26, 1993, the Secretary filed a second motion 

before Judge Maurer. In this motion, the Secretary asserted that 

the complainant had received a telephone death threat pertaining 

2110 
to his reinstatement as well as a number of prank telephone 

calls. The Secretary further asserted that these calls placed 

the complainant in fear for his safety and that of his family. 

on the basis of these assertions, the Secretary sought to have 

economic reinstatement for Thacker (which by agreement between 

the parties was to continue until his return to work on October 

27) remain in effect until Black Dragon's "thorough investigation 

into the death threat made to Mr. Thacker, including the 

harassing telephone calls, and the operator's report to the Court 

on its investigative effort and findings." Secretary's October 

26 Motion at 3. 

Black Dragon responded to the Secretary's October 26 Motion 

on the same day, vigorously denying that Black Dragon or its 

employees were in any way connected with the asserted threat, 

suggesting that the claim of threat was an attempt to receive 

wages without being required to work, and requesting that the 

Secretary's motion for continued economic reinstatement be 

denied. 

As noted above, the judge's jurisdiction in this matter 

terminated upon issuance of his October 18 Order of Temporary 

Reinstatement. Accordingly, we remand this proceeding to Judge 

Maurer for consideration of the Secretary's motions and Black 

Dragon's responses. 

L. Clair Nelson, Commissioner 

2111 
Distribution 

(by fax and certified mail) 

Carl Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Billy R. Shelton, Esq. 

Baird 1 Baird, Baird, & Jones 

P.O. Box 351 

Pikeville, KY 41502 

Administrative Law Judge Roy J. Maurer 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, ,Suite 1000 

Falls Church, VA 22041 

2112 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

l 730 K STREET NW, G TH rt 00R 

WASHINGTON, D.C -;>ory;r, 

SEP 2 9 1993 

SECRETARY OF LABOR, MSHA 

on behalf of 

LARRY J. HILDEBRAND, 

Petitioner 

v. 

MEADOWS & LEONARD MINING INC.,: 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. PENN 93-388-D 

PITT CD 93-16 

DECISION APPROVING SETTLEMENT 

This case is before me pursuant to section 105(c) of the 

Federal Mine Safety and Health Act of 1977. The Solicitor has 

filed a motion to approve settlement of this matter along with a 

settlement agreement signed by both parties which states in 

relevant part: 

1. Upon execution of this Agreement, Respondent 

will immediately post on the mine bulletin board, or in 

a conspicuous place where notices to employees are 

customarily posted, and maintain for a period of 14 

consecutive days from the date of posting, the Notice 

attached to the settlement agreement. Said Notice is 

to be signed by a responsible official of the 

Respondent apd the date of actual posting is to be 

shown thereon. 

2. Respondent will comply with the terms and 

provisions of said Notice. 

3. Respondent agrees to pay a civil penalty to 

the Federal Mine Safety and Health Administration, 

Office of Assessments, in the amount of $2,500.00. 

Payment shall be made by check in six consecutive 

monthly installments commencing October 1, 1993, in the 

following manner: 

The first five (5) installments shall be in the 

amount of $400.00. The sixth (6) and final installment 

shall be in the amount of $500.00. Each payment shall 

be mailed to MSHA no later than the 7th day of the 

month it due. Should any two payments be made after 

the 7th day of the month it is due, the entire balance 

of all remaining amounts shall immediately become due. 

2113 
4. Respondent further agrees to pay Applicant 

full compensation for lost wages which resulted in 

Applicant's being laid off, which amount is calculated 

to be $5,670.00. Payment shall be made to Applicant 

(Larry J. Hildebrand) by check in six consecutive 

monthly installments of $945.00, commencing October 1, 

1993. Each payment shall be mailed to Applicant no 

later than the 7th day of the month it is due. Should 

any two payments be made after the 7th day of the month 

it is due, the entire balance of all remaining amounts 

shall immediately become due. 

5. Respondent shall purge Applicant's personnel 

file of any disciplinary action taken by Respondent 

against him as a result of Applicant's actions or 

inactions of January 15, 1993, or any time thereafter 

as relates to this matter. 

6. Applicant will, upon Respondent's execution 

and completion of performance of this agreement, 

withdraw his complaint of discrimination filed with the 

United States Department of Labor. 

7. Applicant and Respondent hereby agree that as 

between themselves, this settlement agreement is a 

compromise of a disputed claim and shall constitute a 

final disposition of this matter. Applicant specifically agrees to relinquish any additional claims or 

causes of action arising under Section 105(c) of the 

Federal Mine Safety and Health Act of 1977 for the acts 

set forth in paragraph 5 of the Secretary of Labor's 

Amended Complaint filed August 25, 1993 in this matter. 

8. Respondent's consent to enter into this 

settlement agreement does not constitute an admission 

by Respondent to any violation of the Mine Act or the 

regulations or standard promulgated thereunder, and 

Respondent denies that it committed any such 

violations. However, for purposes of this settlement, 

Respondent agrees and consents to a finding by the 

Commission of the existence of the violation, that the 

violation may be assessed as set forth herein. Nothing 

contained herein shall be deemed an admission by 

Respondent of a violation of the Mine Act or any 

regulation or standard issued pursuant thereto, in any 

judicial or administrative forum, by the United States 

Government, other than in an action or proceeding 

brought by the United States Government under the 

Federal Mine Safety and Health Act of 1977. 

2114 
9. Applicant and Respondent understand that each 

party is obligated to fully abide by the laws of the 

Commonwealth of Pennsylvania pertaining to wages and 

other benefits, as well as Federal and State tax laws 

associated therewith. 

Based on the foregoing and noting that both parties have 

signed the settlement agreement, I conclude that the proffered 

settlement is appropriate under the provisions of the Mine Act. 

Accordingly, the motion for approval of settlement is 

GRANTED and it is ORDERED that this case be DISMISSED . 

. .. ·- . -·:,-----~ ~ . \_ ____ / n · · ~ \"vJ o . ---------------\ 

Paul 

~ 

Merlin 

""'\ ~ 

--

ChieLAdministrative Law Judge 

Distribution: (Certified Mail) 

Anthony G. O'Malley, Esq., Office of the Solicitor, u.s. 

Department of Labor, 14480 Gateway Bldg., 3535 Market Street, 

Philadelphia, PA 19104 

RichardT. Williams, Sr, Esq., Meadows & Leonard Mining, Inc., 

Williams and Brierton, 726 Scalp Avenue, Johnstown, PA 15904 

rdj 

2115 
FEDERAL IIIRB SAFETY AliD UEAI.TH .REVIEW COIIIIISSIOH 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OC1 11993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) on 

behalf of EDWARD PHILLIPS, 

JR. and BENJAMIN HOLDER, 

. . TEMPORARY REINSTATEMENT 

PROCEEDINGS 

. . Docket No. KENT 93-878-D 

MSHA Case No. BARB-CD-93-19 

Applicants . . v. . . 

. . Docket No •. KENT 93-879-D 

MSHA Case No. BARB-CD-93-20 

LOCUST GROVE, INC. and . · BOYD WILSON, an individual 

Respondents 

Surface Mine No. 4 

Mine ID 15-16866 

ORDER OF DISMISSAL 

Applicants request approval to withdraw their Applications 

for Temporary Reinstatement in the captioned cases on the 

basis of mutually agreeable and comprehensive settlement agreements reached among the parties and signed by the individual 

Applicants. Under the circumstances herein, permission to 

withdraw is granted. 29 C.F.R. § 2700, 11. These cases are 

therefore dismissed. / 

Distribution: 

/Gary lick 

Admin' trative 

703-7,6-6261 

Stephen D. Turow, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Blvd., Suite 400, 

Arlington, VA 22203 (Certified Mail) 

' I . ..-.., 

I I ', 

~ l 

Tony Oppegard, Attorney for Edward Phillips, Jr. and 

Benjamin Holder, Mine Safety Project of the Appalachian 

Research and Defense Fund of Kentucky, Inc., 630 Maxwelton 

Court, Lexington, KY 40508 (Certified Mail) 

Paul R. Collins, Esq., Hollon, Hollon and Collins, 

Hollon Building, Drawer 779, Hazard, KY 41701 (Certified 

Mail} 

\lh 

2116 

\ 
FEDERAL IIIRE COIDIISSIOII 

OFFICE OF ADMINISTRATIVE LAW JUOGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 4 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROBERT L. WEAVER, 

Respondent 

. . Docket No. YORK 93-25-M 

: A. C. No. 30-02333-05506 . . 

: Docket No. YORK 93-26-M 

A. C. No. 30-02333-05507 

weaver Pit No. 2 

DECISION 

Appearances: Jane Snell Brunner, Esquire, Office of 

the Solicitor, u.s. Department of Labor, 

New York, New York, for Petitioner~ 

Karen Weaver, Hastings, New York, 

for Respondent 

Before: Judge Melick 

These cases are before me upon the petitions 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 mine operator 

Robert L. Weaver (Weaver) with seven violations of mandatory 

standards and seeking civil penalties of $638 for those 

violations. The general issue is whether the violations were 

committed as charged and, if so, what is the appropriate civil 

penalty for such violations. Additional specific issues are 

addressed as noted. 

Docket No. YORK 93-25-M 

Citation No. 4080929 alleges a violation of the mandatory 

standard at 30 C.F.R. § 56.14132(a) and charges as follows: 

The back-up alarm of the International Hough 

550 front-end loader was not functional. The 

loader was being used to feed the screening 

plant and to load haul trucks. Foot traffic 

in this area was slight. 

The cited standard provides that "manually-operated 

horns or other audible warning devices provided on selfpropelled mobile equipment as a safety feature shall be 

maintained in functional condition." 

2117 
The testimony of Inspector Stephen w. Field of the 

Mine Safety and Health Administration (MSHA) regarding this 

citation is not disputed. Field was inspecting the Weaver 

Pit No. 2 on September 2, 1992, when he observed the cited 

front-end loader loading a customer's haulage truck. When 

the machine was placed in reverse the alarm did not activate 

and accordingly the citation herein was issued. Inspector Field noted that without a functioning back-up alarm reverse 

movement of the loader might not be detected and persons 

unaware could be struck. The loader was operating in an area 

of customer truck drivers and plant helper Chuck Fuller. The 

condition was obvious according to Inspector Field in that when 

the machine was placed in reverse no alarm could be heard. 

Under the circumstances I find that the violation was serious 

and that the operator is chargeable with negligence. There is 

no dispute that the violation was abated in a timely manner. 

Citation No. 4080930 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 56.14103(b) and charges 

as follows: 

The windshield of the International Hough 550 

front-end loader was severely cracked, offering the operator limited visibility. The windshield 

was cracked in several directions from two sources 

near the top. A large crack across the bottom half 

of the windshield caused the windshield to buckle 

when pressure was applied. This condition has 

existed for about 3 months. 

The cited standard provides as follows: 

If damaged windows obscure visibility necessary 

for safe operation, or create a hazard to the 

equipment operator, the windows shall be replaced 

or removed. Damaged windows shall be replaced if 

absence of a window would expose the equipment 

operator to hazardous environmental conditions 

which would affect the ability of the equipment 

operator to safely operate the equipment. 

According to the undisputed testimony of Inspector 

Field the entire windshield of the Hough 550 front-end loader 

was shattered from top to bottom thereby seriously impairing 

operator visibility. The cracking was so severe that safety 

plastic material between the glass layers was exposed. According to Field, the windshield was so shattered and the framework 

so broken it was likely that the windshield would fall onto 

the operator. Field concluded that the violation was "significant and substantial" because of this extreme obstruction 

to the visibility of the machine operator. It may reasonably 

2118 
be inferred under the circumstances that the loader operator could strike another vehicle working on the premises causing 

serious injuries. 

A violation is properly designated as "significant and 

substantial" if, based on the particular facts surrounding 

that violation, there exists a reasonable likelihood that 

the hazard contributed to will result in an injury or illness 

of a reasonably serious nature. Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (1981). In Mathies Coal Co., 

6 FMSHRC 1, 3-4 (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 violation, (3) a re~~onable likelihood that 

the hazard contributed to will result in an injury; and (4} a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

See also Austin Power Co. v. secretary, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathies criteria). 

The third element of the Mathies formula 

'requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result 

in an event in which there is an injury. (U.S. Steel 

Mining co., 6 FMSHRC 1834, 1836 (1984), and also that 

in the likelihood of injury be evaluated in terms of 

continued normal mining operations (U.S. Steel Mining 

Co •• Inc.F 6 FMSHRC 1573, 1574 (1984); see also, 

Halfway, Inc., 8 FMSHRC 8, 12 (1986) and southern Ohio 

Coal Co., 13 FMSHRC 912, 916-17 (1991). 

Within this framework I find that this violation was 01 significant and substantial. n 

Field also concluded that the violation was the result 

of operator negligence in that the condition of the windshield was obvious. Foreman Richardson himself was operating 

the loader with this defect directly in his view. It is not 

disputed that the violation was abated in a timely manner. 

Citation No. 4080934 charges a violation of the 

standard at 30 C.F.R. § 56.1000 and charges as follows: 

2119 
The operator did not notify MSHA prior to commencement of mining operations. The portable screening 

plant has been operating for about 3 months. The 

operator also did not notify MSHA of a temporary 

closure of mine operations during the previous winter months. The mine operator was unaware of 

this requirement. 

The cited standard provides as follows: 

The owner, operator, or person in charge 

of any metal and nonmetal mine shall notify the 

nearest Mine Safety and Health Administration 

Subdistrict Office before starting operations, 

of the approximate or actual date mine operation 

will commence. The notification shall include 

the mine name, location, the company mine name, 

mailing address,. person in charge, and whether 

operations will be continuous or intermittent. 

When any mine is closed, the person in 

charge shall notify the nearest subdistrict office 

as provided above and indicate whether the closure 

is temporary or permanent. 

The Secretary argues in this matter that the Weaver Pit 

No. 2 Mine was "closed" in November 1991 and reopened in May 1992 and that accordingly the operator failed to notify MSHA 

in accordance with the above noted regulation about such closure 

and such reopening. I do not find, however, that the Secretary 

has sustained her burden of proving that the Weaver Pit No. 2 

Mine ever in fact "closed" between November 1991 and May 1992. 

The term is undefined in the regulation and the only credible 

evidence in this regard was the testimony of Inspector Field 

that sometime during the winter months he had approached the 

entrance to the mine and noted that a cable was strung across 

the entrance road. Field apparently also relied upon an alleged 

out-of-court statement attributed to Foreman Richardson that the 

plant was closed in November 1991 and was reopened in May 1992. 

Howeveru I can give but little weight to this alleged hearsay 

statement since Richardson was laid off in November 1991 and 

was not working at the plant until recalled in May 1992. 

Moreover, according to Karen Weaver, the spouse of mine 

operator Robert Weaver, mine product was sold throughout the 

period between November and May and that although employees 

had been laid off during that time both she and her husband 

continued to fill orders by loading from mine stockpile 

during that time. She further testified that mine product, 

both sand and stone, was also processed during that time, 

including "maybe a week" in December and two or three weeks 

in February. 

2120 
The credible evidence clearlydemonstrates that the 

subject mine was therefore operating intermittently from 

November 1991 through May 1992. Since the regulation 

itself requires notification to MSHA that a mine is in 

operation whether "continuous or intermittent," the intermittent operation in this case is consistent with an operating 

rather than closed mine. Indeed, the Secretary has failed 

to sustain his burden of proving that the mine had ever been 

"closed." Since it has not been proven that the mine ever 

was in fact "closed" as alleged, there was accordingly no 

need for MSHA to be notified that the mine had been "reopened" 

in May 1992. Under the circumstances, there was no violation 

and Citation No. 4080933 must be vacated. 

Citation No. 4080934 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 56.14130(a)(3) and 

.charges as follows: 

The Trojan 3000 front-end loader was not provided 

with seatbelts. The loader was being used to 

load a customer haul truck and does travel elevated incline roadways. The loader had previously 

been equipped with seatbelts and is occasionally 

used at the mine site. 

The cited standard provides that "roll-over protection 

structures (ROPS) and seatbelts shall be installed on ••• 

wheeled loaders and wheeled tractors; " 

According to the undisputed testimony of Inspector Field 

there were in fact no seatbelts provided on the Trojan 3000 

wheeled front-end loader and.that the loader was being used 

by Foreman Richardson at the time it was cited. Field concluded that the condition was hazardous and a "significant 

and substantial 11 violation because the loader was operated 

in an area of inclined roadways and was used in the loading 

of other vehicles. In the event of overturning or accident 

with another vehicle the loader operator could, in Field's 

opinion,· be ejected from his seat causing serious injuries. 

I conclude under the circumstances that the violation was 

indeed serious and "significant and substantial." Mathies 

coal Company, supra. Because of the obvious nature of the 

violative condition it is clear that the operator is also 

chargeable with negligence. 

Citation No. 4080935 charges a violation of the standard 

at 30 C.F.R. § 56.14101(a)(2) and alleges as follows: 

2121 
The Trojan 3000 front-end loader was not provided 

with a functional parking brake. The loader was 

being used to load a haul truck. The loader is 

parked on level ground with the bucket lowered to 

ground level when the loader is left unattended. 

The cited standard provides that "[i]f equipped on selfpropelled mobile equipment, parking brakes shall be capable 

of holding the equipment with its typical load on the maximum 

grade it travels." 

According to the undisputed testimony of Inspector 

Field the parking brakes on the cited loader were not at 

all functional because the linkage between the brake handle 

and the brake cable had been disconnected. It was a serious 

hazard according to Field because it could result in uncontrolled movement of the loader while parked. He found that 

the hazard was somewhat· mitigated by the fact that the loader 

was parked on level ground with the bucket down and therefore 

movement was inhibited. Field concluded that the operator was 

negligent in that the condition was obvious. I accept his 

undisputed findings. 

Citation No. 4080936 alleges that a violation of the 

standard at 30 C.F.R. § 56.14132(a) and charges as follows: 

The horn of the Trojan 3000 front-end loader was 

not functional. The loader was being used to load 

haul trucks. Foot traffic in this area was slight." 

The cited standard provides that "manually-operated horns 

or other audible warning devices provided on self-propelled 

mobile equipment as a safety feature shall be maintained in 

functional condition." 

According to the undisputed testimony of Inspector Field 

the horn on the Trojan 3000 loader was in fact not functioning 

at the time it was cited. According to Field the loader 

therefore was unable to warn persons in an emergency situation 

and it was in fact being used to load customers' haulage trucks. 

He felt that injuries were unlikely because the cited loader was 

used in a low traffic area. He concluded that the operator was 

negligent because the condition was obvious. I accept Field's 

undisputed findings. 

2122 
pocket No. YORK 93-26-M 

Citation No. 4080932 issued pursuant to Section 104(d)(l) 

of the Act1 alleges a "significant and substantial" violation of 

the standard at 30 C.F.R. § 56.14112(b) and charges as follows: 

The L.B. Smith portable screener chain drive 

feeder sprockets were not guarded to protect 

persons against contact. The sprockets were 

about 2 and 3 feet above ground level. The 

guard was lying on the ground·about 4 feet 

away and was about half covered with material 

built-up. This condition has existed for about 

3 months. The sprockets were easily accessible 

to foot traffic. This condition was cited on 

two occasions during previous inspections. This 

is an unwarrantable failure. 

The cited standard provides that "guards shall be securely 

in place while machinery is being operated, except when testing 

or making adjustments which cannot be performed without removal 

of the guard." 

According to the undisputed testimony of Inspector Field 

the guard for the cited sprockets was indeed four feet away 

from its proper location lying on the ground and partially 

Section 104(d)(l) of the Act provides as follows: 

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

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard 6 and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, 

such violation is of such a nature as could significantly 

and substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable failure of 

such operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such citation, an authorized 

representative of the Secretary finds another violation of 

any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such 

operator to so comply, he shall forthwith issue an 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, and to be prohibited 

from entering, such area until an authorized representative of 

the Secretary determines that such violation has been abated. 

2123 
covered with sand and gravel. He noted that the chain drive 

feeder sprocket was therefore exposed creating a hazard from 

pinch-points. According to Field, material was being screened 

and loaded while he was present and Chuck Fuller, one of the 

mine employees, was working in the area. Field observed 

Fuller's footprints only one foot from the exposed sprockets. 

According to Field there was a serious potential for loss of 

fingers or arms and even death from the hazard. 

The condition, according to Field, was readily observable 

and the operator had twice before been cited for failure to 

guard chain drive sprockets at the same mine and for the same 

type of screening plant. Field maintains that Foreman Richardson 

also told him that the guard had been off since his return to 

work at the end of May 1992. Karen Weaver, testifying on behalf 

of the operator, disputes Richardson that the guard had been off 

for three months but concedes that the guard had been off for 

about a week. 

Within the above frameworkof evidence it is clear that 

the violation was indeed "significant and substantial." There 

was indeed a reasonable likelihood of reasonably serious 

injuries resulting from the exposed working sprocket in close 

proximity to working miners. Mathies Coal Company, supra. 

I also find that the violation was the result of the 

operator's "unwarrantable failure" and of gross negligence. 

Unwarrantable failure has been defined by the Commission as 

"aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of the 

Act." Emery Mining Corporation, 9 FMSHRC 1997 (1987); 

Youghiogheny and Ohio Coal Company, 8 FMSHRC 2007 (1987). 

In the latter decision the Commission further stated that 

whereas negligence is conduct that is "inadvertent, thoughtless, or inattentive, unwarrantable conduct is conduct that 

is described as not justifiable or is inexcusable." 

The fact in this case that the guard had been removed 

from the operating plant for at least one week prior to its 

discovery by the Inspector in this case and remained off while 

the machinery continued to operate with miners plainly working 

in the vicinity of the machinery clearly supports a finding of 

gross negligence and "unwarrantable failure." The existence 

of two similar violations in the recent past also supports 

the unwarrantable finding. 

2124 
ORPER 

Docket No. YORK 93-25-M 

Citation No. 4080933 is hereby vacated. 

citations are affirmed and the mine operator, 

is hereby directed to pay the following civil 

30 days of the date of this decision: 

citation No. 4080929 

Citation No. 4080930 

Citation No. 4080934 

Citation No. 4080935 

Citation No. 4080936 

Docket No. YORK 93-26-M 

$50 

$69 

$69 

$50 

$50 

The remaining 

Robert L. Weaver, 

penalties within 

Citation No. 4080932 is affirmed as a citation pursu 

to section 104(d)(l) of the Act and L. Weaver ish 

directed to pay a civil pena-l-ty of r this violatio 

within 30 days of the date of thi~ ,/' I\]'~'\ , 

. \/ Gary Mel' Y 

Administf tive Law Judge 

Distribution: /~ 

Jane Snell Brunner, Esq.u Office of the olicitor, 

u.s. Department of·Labor, 201 Varick Street, Room 707, 

New Yorku NY 10014 (Certified Mail) 

Karen Weaver, Robert L. Weaver, Box 208, Hastings, NY 

(Oswego County) 13076 (Certified Mail) 

Robert L. Weaver, Box 59A, Constantia, NY 13044 

(Certified Mail) 

\lh 

2125 
FEDERAL MINE SAFETY AND HEAL"rH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 7 1993 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VA 92-101 

A.C. No. 44-04517-03675 

v. 

GARDEN CREEK POCAHONTAS 

Docket No. VA 92-126 

A.C. No. 44-04517-03680 

COMPANY, 

Appearances: 

Before: 

Respondent Mine: Virginia Pocahontas 

No. 6 

DECISION 

James V. Blair, Esq~, Office of the Solicitor, 

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

for Petitioner; 

Charlie Jessee, Esq., Jessee & Read, Abingdon, 

Virginia, for Respondent. 

Judge Barbour 

These civil penalty proceedings were initiated by the 

Secretary of Labor ("Secretary") against Garden Creek Pocahontas 

Company ("Garden Creek") pursuant to sections 105(a) and 110 of 

the Federal Mine Safety and Health Act of 1977 ("Mine Act" or 

nAct")v 30 u.s.c. 801 et seq. In Docket No. VA 92-101 the 

Secretary alleges Garden Creek in two instances violated certain 

mandatory safety standards for underground coal mines found in 

Part 75, Title 30, of the Code of Federal Regulations ("C.F.R."), 

and in Docket No. Va 92-126 the Secretary alleges one additional 

violation. The Secretary further alleges that one of the 

violations in Docket No. Va 92-101 constituted a significant 

and substantial contribution to a mine safety hazard (a "S&S" 

violation)o All of the alleged violations were cited at Garden 

Creek 1 s Virginia Pocahontas No. 6 Mine ("V-P 6"), an underground 

coal mine located in Buchanan County, Virginia. 

Garden Creek denied the existence of the violations and the 

Secretary 1 s S&S allegation. Pursuant to notice, the matters were 

heard in Abingdon, Virginia. At the close of the hearing, 

counsels chose to forego briefing the issues, solely relying upon 

oral summations. 

SETTLEMENT 

Before the hearing counsel for the Secretary submitted a 

motion to approve the partial settlement of Docket No. VA 92-101. 

In essence, the motion stated the parties agreed that Garden 

Creek would pay the penalty proposed for Citation No. 3762880. 

2126 
Counsel reiterated the agreement on the record and I stated I 

would make approval of the settlement part of my decision. 

Tr. 3. 

Citation No. 

3762880 

Date 

12/12/91 

30 C.F.R. S 

75.316 

Assessment 

$620 

Settlement 

$620 

The citation states the approved ventilation system and 

methane and dust control plan for the mine was not complied with 

in that methane in concentrations of 5.1 percent to 6.4 percent 

was detected at the top end of a bleeder entry. The approved 

plan required bleeder entries connected to areas from which 

pillars had been extracted to be maintained in such a manner as 

to control air flow through the gob and to induce the drainage of 

gas from all portions of the gob. This was not being done, as 

shown by the detected methane. 

The citation also conta~ns the inspector's finding that the 

violation of section 75.316 was S&S and due to Garden Creek's 

moderate negligence. Finally, the citation was issued in 

conjunction with an imminent danger order of withdrawal that 

closed the entire mine until the methane was reduced and the 

danger of explosion and fire was eliminated. 

The parties have agreed the violation occurred. Clearly, it 

was S&S and very serious. I accept counsel's representation that 

it was due to moderate negligence on Garden Creek's part and that 

Garden Creek exhibited good faith in abating the violation. A 

computer printout of previously assessed violations establishes 

the mine has a large history of prior violations. Exh. P-1. 

There is no indication payment of the proposed penalty will 

affect Garden Creek's ability to continue in business. 

Having considered the above factors, I conclude the 

settlement is reasonable and in the public interest. It is 

therefore APPROVED. 

CONTESTED VIOLATIONS 

STIPULATIONS 

The parties stipulated as follows: 

1. [VP-6] is a coal mine and is owned and operated by 

Garden Creek. 

2.. The products of VP-6 enter commerce and VP-6 is 

therefore subject to the Mine Act. 

3. The ALJ has jurisdiction to hear and decide these 

cases. 

2127 
See Tr. 

Citation 

3800262 

citation 

3763241 

4. The inspector who issued the citations is a duly 

authorized representative of the Secretary. 

5. True and correct copies of the citations were 

properly served upon Garden Creek. 

6. The imposition of any civil monetary penalty 

authorized by section 110 of the Mine Act will not 

affect the ability of Garden Creek to continue in 

business. 

7. The violations were abated in good faith. 

8. The communications (telephone) cable referred to 

in the two violations is not controlled by 75.516. 

The hanging of the communications cable as 

described in the two violations does not 

constitute a violation. 

5-7. 

DOCKET NO.VA 92-101 

No. Date 30 C.F.R. s 

12/17/91 75.516 

DOCKET NO. VA 92-126 

No. Date 30 C.F.R. s 

03/03/92 75.516 

The citations allege violations of 30 C.F.R. § 75.516, the 

mandatory safety standard that specifies the trpe of support 

required for power wires in underground coal m1nes. 

Section 75.516, which repeats section 305(k) of the Act, 

30 u.s.c. § 865{k) states: 

All power wires (except trailing cables 

on mobile equipment, specially designed 

cables conducting high-voltage power to 

underground rectifying equipment or 

transformers, or bare or insulated ground 

and return wires) shall be supported on 

well-insulated insulators and shall not 

contact combustible material, roof, or ribs. 

2128 
citation No. 3800262 states: 

Exh. P-2. 

Beginning approximately 100 feet inby 

survey station 6656 of the No. 2 belt 

conveyor entry on 2 Dev. 0-East section and 

extending on inby for a distance of 

approximately 300 feet the 110 volt belt 

control cable, the communication line and the 

co monitor cable are not supported on wellinsulated insulators. The cables are tied 

together with nylon rope the entire 300 feet. 

Citation No. 3763214 states: 

Beginning at crosscut number 35 of the 

No. 1 belt conveyor entry for the 0-East 4 

Dev. section and extending on inby for a 

distance of approximately 1000 ft. the co 

monitor cable, the telephone cable and the 

110 volt control cable are hung together with 

nylon rope. The cables are also contacting 

the metal frame of the mono-rail at two 

different locations. Two-tenths [.2] of 

methane was detected in the affected area. 

Exh. P-3. The alleged violations were abated when the cables 

were hung on insulated insulators. Exh. P-2, Exh. P-3. 

Randall Ball, an inspector for the Secretary's Mining 

Enforcement and Safety Administration ("MSHA"), issued both 

citationso He found that neither was S&S. He also found that 

although the first was due to Garden Creek's low negligence, the 

second, which was cited approximately six weeks after the first, 

was due to Garden Creek's moderate negligence because, in his 

opinion, Garden Creek knew from the first citation that the 

condition constituted a violation. Tr. 12. 

The issues are: 

lo Whether Garden Creek twice violated 

section 75.516'? 

2o If so, what civil penalties should be assessed for 

the violations'? 

2129 
THE EVIDENCE 

THE SECRETARY'S WITNESSES 

RANl)ALL BALL 

Randall Ball was the Secretary's first witness. Ball 

testified he believed the CO monitor cables and belt control 

cables were current-carrying conductors, that is, "power wires" 

within the meaning of section 75.516 and that the nylon rope by 

which they were suspended was combustible. Tr. 11, 34-35. (As 

noted, the parties stipulated the communications cables, although 

mentioned in the body of the citations, were not subject to 

section 75.516. Stip. 8.) 

Although Ball referred to both the co monitor cables and the 

belt control cables in the citations, his testimony made clear 

that he was not certain the co monitor cables should have been 

included. He stated initially that a co monitor cable was a 

power wire subject to section 75.516, but on cross examination, 

he stated he did not really know and that he included references 

to the co cables in the citations because he was unsure whether 

or not they were covered. He explained that he was "not that 

electrically inclined." Tr. 22, see also Tr. 17. ( On redirect, 

Ball explained further that he had "based • • • [the citations] 

mostly on the belt control cable." Tr. 36.} 

Ball had no such doubts about the belt control cables. He 

felt certain suspension of such cables from nylon rope 

constituted a violation of section 75.516. Tr. 23, 24. Ball 

described the belt control cables as running parallel to and 

3 or 4 feet above the belts, depending upon the height of the 

entries. Tr. 15. Ball noted that in discussing section 75.516, 

the Department of Labor, Mine Safety and Health Administration 

Program Policy Manual (the "Manual") defined a "power wire" as "a 

current-carrying conductor which may be bare, insulated, or part 

of a cable assembly. 11 Tr. 35. He stated that the belt control 

line controlled power to the belt conveyor. Tr. 23. He also 

stated that at the time he wrote the citations he believed the 

line had a voltage of 110-volts. Tr. 23. 

Counsel for Garden Creek pointed out that at Vol II, 

Part 18 of the Manual, "power conductor" was defined in part as, 

"[a] conductor that supplies electric power to an electric 

component or device on a machine or to a related detached 

component of a machine" and that "control circuit conductors" 

were excluded from the definition. Tr. 27; ~ Exh. R-6A. Ball 

was asked if, given this definition and the exclusion of control 

circuit conductors, he still believed a belt control cable was a 

"power conductor" within the meaning of the regulation. 

2130 
Ball responded that he had not looked at or otherwise 

considered the definition of "power conductor" prior to the 

hearing. Tr. 39. He insisted that the citations were based on 

the fact the belt control cables were power wires carrying 

electricity. Tr. 27-28. As such, he believed the cables should 

have been hung on insulated insulators because section 75.516-1, 

which defines "well-insulated insulators," states in part that 

J-hooks may be used "for permanent installation of control cables 

such as may be used along belt conveyors." Tr. 28. However, any 

other type of insulators would have been acceptable, provided 

they were well-insulated and were noncombustible and would not 

have conducted electricity. Tr. 36. 

Ball testified at the time he issued the first citation 

on December 17, 1991, he thought the nylon rope was combustible, 

even though he had never conducted any test to determine whether 

·or not it was. Tr. 18. But between December 17 and March 3, 

1992, when he issued the second citation he had seen James 

Franklin, a MSHA district conrerence officer, ignite the nylon 

rope with a cigarette lighter. Tr. 11-12. Thus, in his view, 

the power wires were not supported on well-insulated insulators 

and they were contacting the combustible nylon rope. 

Ball maintained that when section 75.516 refers to "well 

insulated insulators" it means, in part, that insulators must be 

noncombustible, and he read the portion of the Manual that states 

"(a]cceptable insulators are constructed of noncombustible, 

nonabsorptive insulating material adequate for the high-voltage 

being used." Tr. 15; Exh. P-4 at 2. 

He believed the hazard avoided through the use of 

noncombustible insulators was that of fire caused by a defect in 

the power wires. Tr. 15. Although, he was of the opinion that 

nylon could conduct electricity, he described the likelihood of 

it doing so as "minute." Nonetheless, it was still "possible." 

Tr. 19. 

JAMES C. FRANKLIN 

James Franklin, a district conference officer for MSHA Coal 

Mine Safety and Health, District 5, Norton, Virginia, was the 

Secretaryws next witness. He explained that as a conference 

officer he represented MSHA at meetings held after enforcement 

actions had been taken by inspectors and at which operators 

presented arguments as to why the enforcement actions should be 

modified or vacated. Tr. 42. 

Franklin was present at the meeting where the first citation 

was discussed. According to Franklin, Garden creek took the 

position that the nylon rope with which the cables were hung was 

an acceptable insulator. As Franklin remembered it, a company 

safety specialist stated that Garden Creek had tested the rope 

2131 
and found it be noncombustible. Tr. 44. The representative had 

brought some pieces of the rope to the hearing and Franklin 

described what happened: "[M]y cigarette lighter was laying on 

the table so I picked up a piece of it, set it on fire and it 

burned like a candle. So based on that I told him it didn't meet 

the requirements(.]" Tr. 44-45. (Franklin admitted that he did 

not know the flame spread index of the nylon -- that.is, how hot 

it had to become before it would show any symptoms of catching 

fire. Tr. 46-47.) 

Franklin maintained that after the demonstration with the 

cigarette lighter Garden creek's representative agreed the rope 

was combustible, but then maintained the belt control cable was 

not a power-carrying or current-carrying conductor. Tr. 45. 

ROY D. DAVIDSON 

Roy Davidson, an electrical engineer who both conducted 

electrical inspections for MSHA and provided electrical technical 

assistance to operators on MSHA's behalf, was the Secretary's 

final witness. According to Davidson, each of the belt control 

cables had three conductors, two that carried power for the 

control of the belt circuit and one that was the ground 

conductor. The cables provided the electricity for turning the 

belts on and off. They have a 110-volt potential, i.e., standard 

household current. Tr. 53. Davidson was asked if he believed it 

possible for the belt control cables to set the nylon rope on 

fire? Davidson responded that he had not tested nylon rope but 

that "[g]enerally, there's enough energy in control cables to 

provide more heat than can be generated from a cigarette lighter. 

An arc can short circuit from an electric current. It's a very 

high heat. There's enough energy to produce fire." Tr. 55. 

In Davidson 1 s opinion, the danger section 75.516 is designed 

to eliminate is of an ignition source being created if a cable 

deteriorates or is damaged and its conductors contact one 

another. Under such circumstances the conductors could create a 01 tremendous amount of heat." Tr. 56. 

Davidson acknowledged that section 75.516 refers to npower 

wires." Davidson, nonetheless, believed that as used in 

section 75.516, the term "power wires" includes cables because 

power wires are among the components of cables. Moreover, the 

standard's specific exceptions for trailing cables on mobile 

equipment and for those of special design implied to Davidson 

that unless excepted, power carrying cables are covered. Tr. 62. 

With regard to the CO monitor cable, Davidson stated that it 

carried enough energy to ignite methane, but he was not certain 

it carried enough to ignite other combustible material. Tr. 56. 

2132 
Davidson described his understanding of a "well-insulated 

insulator . 11 He stated that the Manual def.ines one as being 

adequate for the voltage of the circuit. Whether an insulator is 

adequate could be determined by the dielectric rating of the 

insulator, a rating given to insulators by private testing companies, such as UL Testing. Tr. 57. To the best of his 

knowledge nylon rope never had been subjected to independent 

testing and been given a dielectric rating. Id. 

On cross examination, Davidson identified a piece of the 

belt control cable used at the mine. R. Exh. 8. He also stated 

the belt control cable had a "P-122 MSHA" label on it, which is 

an MSHA approval seal. Tr. 60-61; Exh. R-8. The label meant the 

cable had a flame resistant outer jacket. Tr. 60. Davidson 

testified that each of the three conductors in the belt control 

.cable were insulated -- they were not bare wire conductors. 

There were three paper-like fillers amidst the three conductors 

to make the entire cable assembly uniformly round, and the 

insulated wires were in contact with the noncombustible cable 

jacket. Tr. 60-62. 

Finally, Davidson agreed that the Manual, at Volume II, 

Part 18, excluded control circuit conductors from the definition 

of power conductor/control conductor. Tr. 67; Exh. R-6A. 

However, he maintained the definition applied only to Part 18, 

the regulations setting forth the requirements for MSHA approval 

of permissible equipment. Tr. 67. According to Davidson, belt 

control cables are not approved under Part 18. Tr. 68. 

GARDEN CREEK'S WITNESSES 

MARVIN L. SMALLWOOD 

Garden Creekus only witness, Marvin Smallwood, is the chief 

electrical engineer for the Virginia Division of Garden Creek's 

parent company, Island Creek Corporation. First, Smallwood 

testified regarding the CO monitor cables. He stated such cables 

carried DC poweru a maximum of 24-volts. The power was supplied 

by batteries. Smallwood further stated the cables were 

considered communications cables and were not covered by 

section 75.516. In Smallwood's view, the co monitor cables could 

not generate enough heat to set anything on fire. Tr. 74-75. 

Smallwood put it, "You are into milli-watts." Tr. 77. Further, 

there was not enough energy carried by the CO monitor cables even 

to constitute the transmission of power. Id. 

According to Smallwood, the belt control cables were 

"control cables" as defined by the Institute of Electrical and 

Electronic Engineers ("IEEE") and the American National Standards 

Institute ("ANSI") and control cables did not have to be hung on 

well-insulated insulators. The cited belt control cables 

operated at between less than 1-watt and up to 5-watts of energy, 

2133 
the approximate energy of a house nightlight, and as such would 

not heat anything enough to cause a fire. Tr. 79-80, 88. In 

fact, belt control cables carried such low current they were not 

power wires or power conductors. Tr. 79. ("It's hard 

electrically to define 1-watt of energy as power." Id. "When you 

think of power you tend to think of it being able to do something 

and there's just not enough energy there in my opinion." 

Tr. 89-90.) 

Despite his belief that the belt control cables were not 

required to be hung on well-insulated insulators, Smallwood 

maintained the nylon rope that was used to hang the cables had 

"excellent insulation characteristics." Tr. 79. Smallwood 

stated that he was not aware of any testing by IEEE or ANSI to 

measure the nylon rope's dielectric capability, but that he had 

tested the rope and concluded it had infinite resistivity when 

impressed with 1000-volts, which was eight times greater than the 

operating voltage involved .... Tr. 85. 

Smallwood also stated that he did not know of any testing 

for combustibility of the nylon rope, other than that which was 

done by Franklin with the cigarette lighter. Tr. 85-86. 

PARTIES'ARGUMENTS 

THE SECRETARY 

Counsel for the Secretary maintains that both the CO monitor 

cables and the belt control cables were power wires in that they 

were wires carrying power. According to counsel, the section of 

the Manual that excludes control circuit conductors from those 

things considered to be power conductors applies only to 

section 18.46 of the regulations and cannot be used to find that 

the belt control cables are not covered by section 75.516. 

Counsel also argues the evidence establishes the nylon rope 

with which the cables were hung was combustible and, therefore, 

the cables were not hung on well-insulated insulators and were in 

contact with combustible material in violation of the standard. 

Tr. 99-100. 

GARDEN CREEK 

Counsel for Garden Creek counters that section 75.516 

pertains to "power wires" and that a wire is a single conductor. 

The belt control cables were each a combination of three wires, 

not one. Further, the wires in each cable were surrounded by a 

noncombustible jacket and thus were not in contact with 

combustible material. The nylon rope was a "very good electrical 

insulator" and MSHA's "cigarette lighter test 11 did not prove the 

rope was combustible because it did not establish the ignition 

temperature of the nylon. Moreover, the co monitor cable was 

2134 
equivalent to a communication cable, which the parties stipulated 

was not subject to section 75.516. Tr. 101-104. 

THE FACT OF VIOLATION 

Section 75.516 requires "[a]ll power wires," with the 

exception of those specifically mentioned-- i.e., trailing 

cables on mobile equipment, specially designed cables conducting 

high-voltage power to underground rectifying equipment or 

transformers, or bare of insulated ground and return wires -- to 

be supported on well-insulated insulators and it prohibits 

contact by such wires with three things -- combustible materials, 

roof and ribs. The fact of violation can be resolved by 

answering four questions that track the wording of the standard. 

Were the cited cables "power wires"? If so, were the power wires ~xcepted by the standard? If not, were the power wires supported 

on well-insulated insulators? And/or were the power wires in 

contact with combustible materials, with the roof or with the 

ribs? 

Were the cited cables "power wires"? 

The standard does not define power wires, but, as was noted 

during the testimony, the Manual does. In providing guidelines 

for the interpretation and application of section 75.516, the 

Manual states '' 'Power wire' means a current-carrying conductor 

which may be bare, insulated, or part of a cable assembly." 

Manual, Vol. v, Part 75 at 65 (July 1, 1988), reproduced in Exh. 

P-4 at 2. The Commission has recognized that in certain 

circumstances the Manual may "reflect a genuine interpretation or 

general statement of policy whose soundness commends deference 

and therefore results in the [Commission] according it legal effect.~~ King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981) ; see 

also Western Fuels-Utah Inc., 11 FMSHRC 278, 285-286 (March 

1989). On the other hand, the Commission has declined to follow 

the Manual where its interpretation is clearly inconsistent with 

the plain language of the standard. Garden Creek Pocahontas Co., 

11 FMSHRC 2148, 2152 (November 1989). Here, the Manual's 

definition of "power wire" is not clearly inconsistent with the 

language of the standard. Indeed, it compliments it. 

The essence of a power wire is that it conducts current. 

Power wires can be used singly or several can be bound together 

to form a cable. As Davidson recognized, the standard implies 

that if power wires are combined to form a cable, they do not 

loose their essential nature as power wires for purposes of 

the standard. The standard's reference to "[a]ll power wires 

(except trailing cables on mobile equipment, specially designed 

cables ••• or bare or insulated return wires)" indicates that 

in·the context of the standard the reference to "power wires" 

includes cables as well. Section 75.516 (emphasis added); See 

also Tr. 62. Thus, in my view, if the co monitor cables and the 

2135 
belt control cable were wires bound together to carrying current, 

that is, if they were current-carrying conductors, they were 

"power wires" within the meaning of the standard. That both 

were, is substantiated by the record. 

Davidson stated his belief the CO monitor cable carried 

current Tr. 56. Smallwood agreed and was more specific -- the 

cable carried DC battery supplied power at a maximum of 24-volts. 

Tr. 75. Since neither the standard nor the Manual's definition 

of power wire couch the standard's application in terms of the 

amount of current carried, I conclude that in order to be a 

"power wiren within the meaning of section 75.516, a wire or 

cable must simply carry current, which the co monitor cables did. 

The same can be said of the belt control cables. Ball 

testified the cables controlled the power to the beltlines, and 

he thought, carried 110-volts. Tr. 23. Davidson was more 

precise. The cables provided current to the controllers that 

turned the belts on and off'and had a 110-volt potential, the 

same voltage as standard household current. Tr. 53-54. 

Smallwood concurred that the cables carried current, although he 

was of the opinion the current was insufficient to pose a hazard. 

Tr. 74-75. There being agreement that the belt control cables 

carried current, I conclude that they too were power wires within 

the meaning of section 75.516. 

Further, I cannot overlook the fact that in defining 

"insulated insulators", section 75.516-1 clearly contemplates 

that "control cables such as may be used along belt conveyors" 

are considered to be power wires within the meaning of the 

standard. 

I agree with Garden Creek's counsel that if the definition 

of ~power conductor jcontrcl conductor" contained in Vol II, Part 

18 of the Manual were applied to section 75.516, the Manual might 

well indicate the belt control cables should be excluded from the 

standard. However, as Davidson testified and as counsel for the 

Secretary noted, Volume II, Part 18 of the Manual never was meant 

to apply to section 75.516. Rather, the Manual's headings make 

clear the interpretation, application and guidelines for 

enforcement contained therein apply only to the referenced parts 

of 30 C.F.R. Thus, the definition relied upon by Garden creek 

applies to section 18.48, a section pertaining to the 

construction and design specifications required for MSHA approval 

of circuit-interrupting devices, and not to section 75.516. 

For all of the foregoing reasons, I find the subject cables 

were "power wires" within the meaning of section 75.516. 

Were the cited power wires excepted from section 75.516? 

2136 
As previously noted, section 75.516 excepts from coverage, 

trailing cables on mobile equipment, specially designed cables 

conducting high-voltage power to underground rectifying equipment 

or transformers, or bare or insulated ground and return wires. 

The testimony of all of the witnesses makes-clear that whatever 

else the subject cables may have been, they were not trailing 

cables, high-voltage cables or ground or return wires. Hence, I 

find the co monitor cable and the belt control cables were not 

excluded from the purview of the cited standard. 

Were the cited power wires supported on well-insulated 

insulators? 

Section 75.516-1 states that "[w]ell insulated insulators is 

interpreted to mean well-installed insulators," a definition · Commission Administrative Law Judge Gary Melick aptly has termed 

"convoluted" and, as he also has noted, that may require 

"creditable creativity" to decipher. Consolidation Coal co., 

15 FMSHRC , Docket No. PENN 92-854 (August 9, 1993) (ALJ 

Melick). The Secretary seems, implicitly at least, to have 

recognized the regulatory inadequacy of defining section 75.516 

with a non sequitur, for the Manual makes clear that 

"well-insulated insulators" must be more than "well-installed 

insulators." (The Secretary also has amplified in the Manual the 

meaning of "well-installed insulators" in terms of adequate 

support for the cables installed thereon and, more specifically, 

in terms of the tensile strength required. However, the 

installation of the cited power wires is not at issue in this 

proceeding.) To be "well insulated," the insulators must be 

constructed of "noncombustible, nonabsorptive insulating material 

adequate for the voltage being used." Manual, Vol.V, Part 75 

at 65. Exh. P-4 at 3-4. 

Thus 1 the material used for a well-insulated insulator must 

have specified physical properties. First, it must be 

noncombustible. "Noncombustible" is defined as "[a]ny material 

that will neither ignite nor actively support combustion in air 

at 1 6 200° F when exposed to fire." u.s. Department of the 

Interiorp A Dictionary of Mining, Mineral, and Related Terms 

{1968) 754 ("DMMRT"). Second, it must be nonabsorptive. That 

is, it must lack the ability to take up moisture by molecular or 

chemical action. See Id. at 4. Third, it must be adequate for 

the voltage being used in that it must have an adequate 

dielectric strength. {For example, the Secretary has stated that 

an insulated J-hook may be accepted as "well-insulated" if it has 

a "dielectric strength of not less than eight times the voltage 

of the circuit." Manual, Vol V. Part 75 at 66 

(Exh. P-4 at 3.) 

In the context of this case the Manual's definition means 

the Secretary must establish the nylon rope used to hang the 

cited cables was not noncombustible, nonabsorptive or not 

2137 
composed of material adequate for the voltage being used. The 

burden of proof is on the Secretary. 

The evidence offered by the Secretary with respect to the 

noncombustibility and nonabsorptive properties of the nylon is, 

in my judgement, inadequate to support a conclusion regarding 

those properties. Ball, himself had not conducted any test on 

the nylon to gauge its combustible properties. Tr. 18. Ball 

admitted he did not know the ignition temperature of the nylon 

rope. Tr. 32. Rather, his belief the rope was not 

noncombustible was based upon having seen Franklin light a piece 

of the rope. Tr. 11-12, 18. 

Franklin's testified that Garden Creek's safety specialist 

brought pieces of the rope to the conference, that Franklin 

picked up a piece and set it on fire with his cigarette lighter, 

and that it "burned like a candle." Tr. 45. Franklin too did 

not know the ignition temperature of the nylon. Tr. 46-47. 

Davidson was forthright in testifying to his lack of 

first-hand knowledge regarding the combustible nature of the 

rope. ("I'm not familiar with the nylon rope." Tr. 54. "The 

nylon rope in particular, I have not any test with this nylon." 

Tr. 55.) His opinion as to its combustibility was based upon his 

general belief that defective control cables could provide enough 

energy to produce more heat than a cigarette lighter. 

("Generally, there's enough energy in control cables to provide 

more heat than can be generated from a cigarette lighter." 

Tr. 55.) In addition, Davidson stated that he had seen a nylon 

rope burn when it was used to bridge two conductors carrying 

4,160-volts -- but, he added "its a different nylon rope than 

this." Tr. 58. 

The DMRT definition establishes that the word 01 noncombustible" has a specific meaning recognized in the m1.n1.ng 

industry. (If the Secretary intended a different meaning, no 

evidence was offered to that effect.) For the Secretary to have 

proved that the nylon material was not "noncombustible," his 

evidence should have matched the definition. It did not. 

No evidence was offered as to what the nylon rope used to 

hang the cables would do when exposed to flame in air at 1200° F, 

and I cannot infer on the basis of a void record the temperature 

of the flame of the cigarette lighter Franklin used to ignite the 

rope at the conference. Nor can I even infer from Franklin's 

testimony that the rope brought to the conference by Garden 

Creek's safety specialist was in the same condition as when it 

was used to hang the cable. Franklin's testimony was extremely 

limited in this regard. He simply stated that Garden Creek's 

representative brought some pieces of the rope to the conference. 

2138 
The evidence with respect to the nylon rope's nonabsorptive 

properties was equally unpersuasive. Ball "assumed" the nylon 

rope would hold water or moisture, but he added "I haven't 

checked it." Tr. 16, see also Tr. 17-18. Davidson believed the 

way the different strands of the rope were interwoven "would 

provide cavities enough for moisture to accumulate," testimony 

that may relate to the design or configuration of the rope, but 

does not appear to relate to the ability of nylon to take up 

moisture by molecular or chemical action. Tr. 58. (The rope 

itself, or a piece similar to it, or a picture or drawing of the 

rope was not offered as evidence, so it is difficult to envision 

exactly to what Davidson was referring.) Indeed, if anything, 

Davidson seems to have believed nylon had at least some 

nonabsorptive properties, for he also stated, "[F]rom my 

experience with nylon[,] it doesn't absorb moisture very well." 

Id. As with the question of the noncombustible nature of the 

nylon rope, I believe the Secretary has failed to establish the 

cited rope did not meet this part of the definition of 

"well-insulated." 

Further, in my opinion, the Secretary also failed to offer 

sufficiently persuasive evidence that with respect to whether the 

nylon rope was not adequate for the voltage being used. Davidson 

testified MSHA makes a determination of "adequacy" by referring 

to a material's dielectric rating. Tr. 57. Obviously, testimony 

regarding the dielectric rating of nylon would have been the best 

evidence. No such testimony was offered. 

This was not necessarily fatal to proving the rope was not 

adequate to the voltage being used, for it may be there is no 

dielectric rating of nylon. Tr. 57, 85. (Although I tend to 

doubt it.) Even so, the Secretary presumably could have come 

forward with other detailed and convincing testimony as to why 

the rope did not offer the resistance to the passage of electric 

current necessary for the cited cables. He did not. Rather, the 

record contains only Davidson's account of a demonstration 

conducted by "Kentucky Utility" involving 4160-volts and a 

different kind of nylon rope, a test hardly pertinent to the 

facts at issue. (I should also note that although Franklin 

testified MSHA has a policy with regard to the approval of 

insulators that involves their dielectric strength, he could not 

testify about it because it was "not [his] area of expertise." 

Tr. 48.) 

Because I find the Secretary has not established the nylon 

rope was not noncombustible, nonabsorptive and not adequate for 

the voltage being used, I conclude he has failed to establish the 

power wires were not supported on well-insulated insulators. 

Were the power wires in contact with combustible material. 

roof or ribs? 

2139 
Section 75.516 prohibits the subject cables from physically 

touching combustible material, roof, or ribs. Consolidation Coal 

co., 15 FMSHRC ___ , slip op. at 4. The Secretary contends that 

the nylon rope used to hang the cables and with which the cables 

were in contact was "combustible material." {There is no 

allegation on the Secretary's part the cables were touching the 

roof or ribs.) 

"Combustible" is defined as "(c)apable of undergoing 

combustion or of burning. Used especially of materials that 

catch fire and burn when subjected to fire." DMMRT at 239. As 

Ball and Davidson testified, the purpose of the requirement is to 

prevent power wires or cables from igniting the combustible 

material should the wires or cables for some reason become 

defective. Therefore, for the Secretary to establish that this 

part of the standard was violated it is incumbent upon the 

Secretary to prove the particular cables cited could, if damaged, 

ignite the particular "combustible material" cited. It is not 

enough for the Secretary 'simply to establish in general that the 

particular "combustible material~' will burn. Many materials, 

even some which are used as insulators, will burn if subjected to 

a high enough temperature for a long enough time. 

Here in my view, the Secretary's evidence again falls short. 

Precious little evidence was offered with respect to whether, if 

the co monitor cables were defective, they could ignite the nylon 

rope. Davidson stated, "I'm not sure on their particular co 

monitor system how much energy it's got for igniting combustible 

material." Tr. 56. Ball was not even sure he should have 

included the co monitor lines in the citations. Tr. 22, 36. 

Testimony was more extensive concerning the belt control 

cablesu but it too was insufficient. Ball thought the belt 

control cable carried 110-volts but did know for sure. Tr. 23. 

Nor did he know the ignition temperature of the rope. Tr. 33. 

Although he believed "wires coming in contact with each other 

would generate heat," and although he may have been right, that 

alone does not permit the conclusion that the wires of the cited 

cables would generate enough heat to burn the nylon used to hang 

them. 

Franklin's belief in the combustibility of the nylon rope 

was based solely upon the fact he had ignited a piece it with his 

cigarette lighter. Tr. 44-45. He did not testify regarding the 

effect of damaged cables upon the rope and he did not know how 

hot the nylon rope had to get before showing symptoms of catching 

fire. Tr. 47. 

Davidson, while offering the opinion a damaged belt control 

cable could cause enough heat to produce a fire, was not, in my 

opinion, sufficiently responsive to the precise issue at hand 

whether the cited belt control cables if damaged could ignite the 

2140 
nylon rope from which they were hung? The following exchange 

between the Secretary's counsel, Davidson and me illustrates the 

general and less-than-fully-responsive nature of Davidson's 

testimony: 

Q. Would it be possible that the belt control cable 

could set this (nylon) rope on fire? 

A. The belt control cable has the energy if there's 

an arcing short circuit . • • to generate heat to cause 

a fire. I'm not familiar with the nylon rope, but it 

has enough energy there to cause enough heat to produce 

a fire. 

* 

The Court: Wait a minute. Ask him the question again . Didn't you ask him if nylon rope could be set on 

fire? 

[Secretary's counsel): By the belt control cable. 

The Court: Right. What's your answer to that? 

A. The nylon rope in particular, I have not any test 

with the nylon rope. [sic) Generally, there's enough 

energy in control cables to provide more heat than can 

be generated from a cigarette lighter. An arc can 

short circuit frcm an electrical current. It's a very 

high heat. There's enough energy to produce a fire. 

Q. What is the danger if [the belt control cable) 

contacts combustible materials]? 

A. Because if the cable deteriorates or becomes 

damaged and two conductors come in contact with each 

other they can produce a tremendous amount of heat 

which could be an ignition source. 

Q. And, as you stated, that could set this nylon rope 

aflame? 

A. Any combustible material could be set on fire. 

Tr. 56. 

214l 
As noted, the question is whether the belt control cables if 

damaged could have ignited the cited nylon rope. Davidson 

repeatedly disclaimed familiarity with nylon and his statement 

that "any combustible material could be set on fire" is 

equivocal. He may have meant either that heat from the 

conductors in the cited cables could have ignited the particular 

rope in question or simply that any material that is 

"combustible" could be set on fire. 

Also, even if I credit Davidson's general assertion that 

"there is enough energy in control cables to provide more heat 

than can be generated from a cigarette lighter" I cannot make the 

logical leap of faith that because Franklin's cigarette lighter 

burned the nylon rope at the conference, defective belt control 

cables could have burned the rope used to hang the cited cables. 

As I have noted, there is no assurance that rope burned at the 

conference was in the same condition as that used to hang the 

cables. '· 

In short, when the nature of Davidson's testimony is 

considered together with the fact that Davidson had not tested 

nylon and admittedly was unfamiliar with it, I find it does not 

support a conclusion the cited nylon rope could have been ignited 

by the cited belt control cables. (This being so, I need not 

evaluate Smallwood's assertion the cited belt control cables did 

not carry sufficient power to cause a fire. Tr. 80.) 

CONCLUSION 

Because I conclude the Secretary has not established the cited 

cables were not supported on well-insulated insulators and 

were not in contact with combustible materials, I hold that 

the Secretary has not proved the alleged violations of 

section 75.516. This, of course, does not mean the Secretary may 

never under similar circumstances allege and prove violations of 

the cited standard, only that he has not done so in this 

instanceo 

ORDER 

In Docket No. VA 92-101 the Secretary is ORDERED to vacate 

Citation No. 3800262, 12/17/91, 30 C.F.R. § 75.516, within thirty 

(30) days of the date of this proceeding. 

In Docket No. VA 92-126, the Secretary is ORDERED to vacate 

Citation No. 3763241, 3/3/92, § 75.516, within thirty (30) days 

of the date of this proceeding. 

2142 
In Docket No. VA 92-101, Garden Creek is ORDERED to pay a 

civil penalty in the settlement amount of six-hundred twenty dollars ($620) within thirty (30) days of the date of this 

proceeding for Citation No. 376880, 12/12/91, 30 C.F.R. 

S 75.316. Upon receipt of payment, this matter is DISMISSED. 

Distribution: 

JJ~/-0 r b~~---, David F. Barbour 

Administrative Law Judge 

James Blair, Esq., Office of the Solicitor, 

·u.s. Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

Charles R. Jessee, Esq., Jessee & Read, P.c., P.O. Box 1506, 

200 w. Valley Street, Abingdon, VA 24210 (Certified Mail) 

\epy 

2143 
. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

OCl 121993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MONTANA RESOURCES, INC. 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-343-M 

A.C. No. 24-00338-05531 

Docket No. WEST 92-705-M 

A.C. No. 24-00338-05535 

Continental Mine 

DECISION ON REMAND 

Before: Judge Cetti 

The stay order in Docket No. WEST 92-343-M is lifted. 

On August 3, 1993, the Commission vacated the August 27, 

1993, Decision Approving Settlement and remanded this matter to 

this Judge for appropriate proceedings. 

It is clear from the record that the Commission vacated and 

remanded this matter because there was no true meeting of the 

minds of the parties as to exculpatory language in paragraph 8 of 

Respondent's May 17, 1993, motion to approve settlement. As 

stated by the Commission "it is clear that respondent's motion 

(to approve settlement) was prematurely filed and should have 

been denied. va 

On August 27, 1993, I issued a Post Remand Order directing 

the parties to inform me as to whether or not they had or could 

reach a full "genuine settlement agreement" on all issues. The 

parties were notified that if they could not reach such an agreement I would timely set the matter for a two day hearing in 

Butte, Montana. 

On September 9, 1993, the parties informed this Judge that 

they had "worked out" a settlement agreement on all issues 

including the specific wording of the settlement agreement's 

exculpatory paragraph. 

2144 
on October 1, 1993, the Joint Motion to Approve the Settlement Agreement was received in the Commission's Deriver office. 

There has been no objection to any of the provisions of the 

settlement agreement from any source. 

The parties now jointly move for approval of the settlement 

agreement pursuant to 29 C.F.R. § 2700.30. Under the proffered 

settlement agreement there is a reduction in the initial proposed 

penalties for a total settlement sum of $20,000. The citations, 

initial proposed assessments, the proposed modifications and the 

settlement amounts are as follows: 

Docket No. WEST 92-343-M 

Citation No. 30 C.F.R. § 

3908002 56.12017 

3906071 56.14107(a) 

3606072 56.14107(a) 

3906073 56.14107(a) 

Docket No. WEST 92-705-M 

3630731 

3630732 

3630733 

56.12017 

56.12006 

50.12 

Initial 

.Proposed 

Penalty 

$178 

119 

119 

119 

15,000 

14,000 

20 

TOTAL 

Agreed 

settlement 

$110 

Vacated, 

Vacated, 

20 

10,000 

9,850 

20 

$20,000 

insufficient 

evidence 

insufficient 

evidence 

Not S&S 

I have considered the representations and documentation submitted and I conclude that the proffered settlement is reasonable 

and consistent with the criteria in § 110(i) of the Act. 

ORDER 

The motion for approval of settlement is GRANTED. It is 

ORDERED that the "significant and substantial" finding in 

Citation No. 3906073 be deleted, that Citation Nos. 3906071 and 

2145 
3906072 be VACATED and that RESPONDENT PAY to the Secretary of 

Labor a penalty of $20,000 within 40 days of this order. Upon 

receipt of payment these cases are DISMISSED. 

Distribution: 

nistrative 

t F. Cetti ~~ Law Judge 

susan J. Eckert, Esq., Office of the Solicitor, u.s. Department 

of Labor, 1585 Federal Building, 1961 stout street, Denver, co 

80294 (Certified Mail) 

Mark N. savit, Esq., JACKSON & KELLY, 2401 Pennsylvania Avenue, 

NWu Suite 400u Washington, DC 20037 (Certified Mail) 

sh 

2146 
FEDERAL IIIHE SAFETY ARD HRATII'B REVIEW COIIIIISSIOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

· 2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 4 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JOY TECHNOLOGIES INC.,-

COAL FIELD OPERATIONS, 

Respondent 

Docket No. WEST 93-129 

A.C. No. 05-04452-03501 BBO 

sanborn Creek Mine 

DECISION .. 

Appearances: Margaret Miller, Esquire, Office of the 

Solicitor, u.s. Department of Labor, Denver, 

Colorado, for Petitioner; 

Before: 

w. Scott Railton, Esquire, Reed, Smith, Shaw 

and McClay, McLean, Virginia, for Respondent 

Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to Section 105(d) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, 

seq., the "Act," charging Joy Technologies, Inc. {Joy) with 

one violation of the standard at 30 C.F.R. § 48.28(a). A preliminary issue is whether Joy is subject to jurisdiction under 

the Act as a mine noperatoro" If Joy is found to be within such 

jurisdiction, then the general issue is whether Joy violated the 

cited standard and, if so, what is the appropriate penalty to be 

assessed. 

The subject Sanborn Creek Mine is an underground coal mine 

operated by the Somerset Mining Company (Somerset). Joy is the 

manufacturer of mining equipment and parts. Joy sells its 

equipment and provides followup services to its customers, such 

as expert advice on repairs and assistance in obtaining parts. 

Joy maintains that while it sold equipment to and provided such 

followup services for the Sanborn Creek Mine it was neither an 11 operator" nor an "independent contractor" as defined in the Act 

and that therefore the Secretary had no jurisdiction under the 

Act to issue the order at bar. 

2147 
The Order, No. 3581501, was issued April 7, 1992, 

pursuant to Section 104(g)(l) of the Act, by Coal Mine 

Safety and Health Inspector Larry Ramey for the alleged 

failure of Joy Service Representative Dixson McElhannon to 

have received eight hour annual refresher training required by the cited standard. There is no dispute that McElhannon 

had not received the training. 

McElhannon had been employed by Joy as a service 

representative since August 1990. He is experienced as a 

miner, is a certified mechanic and is considered to be an 

expert in the mechanics of Joy mining equipment. McElhannon's 

job as a service representative for Joy includes acting as a 

"troubleshooter" for Joy equipment at mines where such equipment is used. In that capacity he often determines what parts 

are necessary, orders the parts and ascertains that the parts 

are delivered. McElhannon maintains that he does everything but the installation of the ... parts. In addition, when new 

equipment is shipped, he determines that the equipment is 

properly unloaded, that it is not damaged, and that it performs 

as it should. McElhannon testified that he continues to visit 

his customers regularly even after the manufacturer warranties 

have expired and that Joy provides such services for as long as 

its equipment is being used. 

The evidence shows that the Sanborn creek Mine had been 

reopened and coal production resumed in August, 1991 by Somerset. 

The documentary evidence shows that between January 24, 1992 

and the date the instant order was issued on April 7, 1992, 

McElhannon had performed services on a number of occasions at 

the Sanborn Creek Mine in his capacity as a Joy service representative (Exhibit M-2). McElhannon acknowledged at hearing 

that he was also present in this capacity at this mine at other 

times not documented. 

Section 104(g)(l) of the Act provides as follows: 

If, upon any inspection or investigation pursuant to 

section 103 of this Act, the Secretary or an authorized 

representative shall find employed at a coal or other 

mine a miner who has not received the requisite safety 

training as determined under section 115 of this Act, 

the secretary or an authorized representative shall 

issue an order under this section which declares such 

miner to be a hazard to himself and to others, and 

requiring that such miner be immediately withdrawn from 

the coal or other mine, and be prohibited from entering 

such mine until an authorized representative of the 

Secretary determines that such miner has received the 

training required by section 115 of this Act. 

2148 
on the Joy sales/service report dated January 24, 1992, 

McElhannon noted as follows: 

Went under ground to trouble shoot cutter gear box problems. Discovered right hand high speed 

gear on cutting motor was bad. Also cutter head 

hinge pin was missing (found in magnet). They decided to run machine on afternoon shift anyway 

and do repairs on weekend. 

On the February 19, 1992 report, McElhannon noted as 

follows: 

Assisted mine mechanic in a complete remove 

rebuild and replacement of complete cutter 

head on the machine. 

Replaced all bearings and seal throughout 

cutter case and both pinion bevel gears. 

On the March 2, 1992 report, McElhannon noted as follows: 

Assisted mine mechanics unloading new shuttle 

car installed electrical nip checked out every- thing on car. Found atmospheric relief valve on 

boom. Lift leaking through. Talked to Kim Ball 

to have valve replaced on warranty. Valve Part 

Number 571668. They cut side boards off of car 

and took it underground 3-4-92. 

On the March 3, 1992 report, McElhannon noted as follows: 

Assisted mine.mechanics unloading new shuttle 

care Hooked up power and checked car operation. 

No problems were found. 

They will cut sideboards off and the car will go 

underground 3-5-92. 

FinallYu on the April 6 0 1992 report! McEl~annon noted as 

follows: 

Assisted mine mechanics unloading machine as it 

arrived on mine property. On 4-7-92 we started 

reassembling new miner and on 4-11-92 we took 

miner underground and on 4-13-92 miner went into 

production. 

The machine is currently in a seven foot coal seam 

on 20 foot cut as is not cutting to full potential. 

They are developing a lower seam with more height 

and have asked for a variance for 40 ft cuts which 

will increase production dramatically. 

2149 
on April 6, 1992, Joy delivered a new continuous miner 

to the Sanborn Creek Mine. It was delivered in sections on 

three trucks and was unloaded and placed in the maintenance 

shop. on April 7, 1992, MSHA Inspector Larry Ramey entered 

the maintenance shop while Somerset Maintenance supervisor Bill Pecharich and his crew were assembling the new miner. 

Joy Service Representative McElhannon was also present at this 

time and was using a remote control device to move the main 

frame of the continuous miner to help a mechanic pin it together. 

Ramey observed another person standing at this time in front of 

the cutter heads on the continuous miner. 

Section 3(d} of the Act defines the term "operator" as 

"any owner, lessee, or other person who operates, controls, or 

supervises a coal or other mine or any independent contractor 

performing services or construction at such mine •••• 11 In 

Otis Eleyator Company v. Secretary of Labor and fMSRRC, 921 F.2d 

1285 (D.C. Cir. 1990), the court held that in Section 3{d) the 

"phrase 'any independent contractor performing services ••• at 

[a] mine' means just that" and that the court "did not confront 

••• whether there is any point at which an independent contractor's contact with a mine is so infrequent, or de minimis, 

that it would be difficult to conclude that services were being performed since (Otis] conceded that it was performing limited 

but necessary services at the mine" (921 F.2d at 1290 n. 3). 

Otis had a contract to service the shaft elevators at a mine. 

In Lang Brothers. Inc., 14 FMSHRC 413 (1991), Lang 

Brothers had an annual contract to clean and plug gas well 

sites for Consolidation Coal Company "to ensure that natural 

gas does not seep through the well into a mining area and 

create a safety hazard. 11 14 FMSHRC 414. In holding that 

Lang Brothers was an "operator," the Commission stated: 

Lang's work at the well sites •.. was integrally 

related to Consol's extraction of coal. Cf. 

Carolina Stalite, 734 F.2d at 1551. The sole 

purpose of Lang's cleaning and plugging contract 

with Consol was to facilitate Consol's extraction 

of underground coal. 14 FMSHRC at 418. 

The Commission did not adopt the restrictive interpretation of 

Old Dominion Power Company v. Secretary of Labor and FMSHBC, 

772 F.2d 92 (4th Cir. 1985) {implying that an independent 

contractor must have a "continuing presence at the mine" to be 

held to be an "operator" under the Act). Rather, it held that 

the de minimis standard may be measured by the significance of 

the contractor's presence at the mine, as well as the duration 

or frequency of its presence. The Commission noted that even 

though Lang's actual presence at the mine to clean and plug 

wells was for a short period its activity was an integral part 

of Consol's extraction process. 

2150 
In aulk Transportation Services, Inc., 13 FMSHRC 1354 

(1991), the contractor had a contract with a coal mine operator 

to transport coal from the mine to a generating station 40 miles 

away. The Commission noted that Bulk had a substantial presence 

at the mine -- "[T]here is a constant flow of truck drivers in 

and out ••• four to five days a week"-- 13 FMSHRC at 1359 -- but it focused on the significance of Bulk's activities to the 

extraction process in determining that Bulk was an operator subject to the Mine Act. "Given the undisputed fact that Bulk 

was Beth Energy's exclusive coal hauler between Mine No. 33 and 

the generating station, and given the quantities of coal hauled 

by Bulk, we agree with the judge that Bulk's services in hauling 

coal were essential and closely related to the extraction 

process." 13 FMSHRC at 1359. 

Within the above framework of law and evidence it is clear 

.that Joy service Representative McElhannon had been performing 

limited but necessary services ~t the Sanborn Creek Mine before 

and at the time of the issuance of the order at bar. It may reasonably be inferred that these services were essential to 

the extraction of coal in that McElhannon determined that the 

Joy mining equipment, including a continuous mining machine 

was properly delivered, put together and in good working order. 

McElhannon further performed followup services for Joy mining 

equipment at the Sanborn creek Mine providing 11 troubleshooting11 

advice in the underground area of the mine, ordering parts, and assisting in specific repairs of mining equipment. The 

continued operation of mining equipment, including continuous 

miners and shuttle cars, is essential and closely related to 

the extraction of coal and its removal from the mine. Joy's 

representative was therefore clearly performing limited but 

necessary services at the Sanborn Creek Mine and Joy was 

therefore an uvoperatorn within the meaning of the Act. Otis 

Elevator Company; supra; 921 F.2d at 1290 n. 3. 

In reaching these conclusions I have not disregarded Joy's 

argument that it did not in fact have a contract to perform 

services at the Sanborn Creek Mine and that it was presumably 

therefore not an independent contractor. While there is 

insufficient evidence in the record to conclude whether or 

not such a specific service contract existed, it is undisputed 

that Joy, as a vendor, sold mining equipment (and parts) to be 

used at the sanborn creek Mine and that Joy, through its service 

representative, performed continuing services in connection 

with those contracts of sale. Under the circumstances Joy was 

an independent contractor. See, e.g., 41 Am Jur. 2d Independent 

Contractors, § 18. 

Joy also argues that it is not responsible as a mine 

operator because it was not "continually present" at the 

Sanborn Creek Mine. However, the appropriate legal test to be 

applied includes consideration not merely of the duration and 

2151 
frequency of the contractor's presence at the mine, but also 

the significance of its presence usually expressed in terms 

of how essential and closely related such services are to the 

extraction process. See Otis Elevator, supra; Lang Brothers, 

supra; Bulk Transportation, supra. 

Since there is no dispute that McElhannon had not received 

the safety training required by 30 C.P.R. § 48.28(a) as charged in Order No. 3581501, the violation is proven as charged. However, in light of the inability of the Secretary to have shown 

that McElhannon did not have, through other experience, training and resources, the requisite knowledge that would be incorporated in the subject training I am unable to find that the violation 

was "significant and substantial" or of high gravity. In 

addition, in light of the good faith legal position taken by Joy in this case that it was not subject to the Act's jurisdiction, a 

finding of negligence is inappropriate. Under the circumstances 

and considering all of the crl,teria under Section 110(i) of the 

Act, I find that a civil penalty of $100 is appropriate. 

ORDER 

Joy Technologies, Inc. is hereby directed to pay a civil 

penalty of $100 within 30 days of the date f this decision. 

Distribution: 

\ J l 

tary 

Admin 

703-7 

Margaret Miller, Esq. 0 Office of the Solicitor, 

UoS. Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, co 80294 (Certified Mail) 

w. Scott Railton, Esq., Reed, Smith, Shaw and McClay, 

3251 Greensboro Drive, suite 1100, McLean, VA 22102-3844 

(Certified Mail) 

\lh 

2152 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 81993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

ON BEHALF OF FREDDY THACKER, 

complainant 

v. 

BLACK DRAGON MINING COMPANY, 

Respondent 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 93-977-D 

PIKE CD 93-12 

No. 2 Mine 

ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Carl c. Charneski, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, 

for Complainant; 

Billy R. Shelton, Esq., Baird, Baird, Baird & 

Jones, P.s.c., Pikeville, Kentucky, for Respondent. 

Before: Judge Maurer 

On September 16, 1993, the Secretary of Labor (Secretary) 

filed an application for an order requiring Respondent, Black 

Dragon Mining Company (Black Dragon) to reinstate Freddy Thacker 

to the position which he held immediately prior to his June 19, 

1993, discharge, or a similar position at the same rate of pay, 

and with the same or equivalent duties assigned to him. The 

application was supported by an affidavit of Lawrence M. Beeman, 

who is the Chief, Office of Technical Compliance and 

Investigations, Coal Mine Safety and Health, Mine Safety and 

Health Administration (MSHA) and by a copy of the original 

complaint filed by Thacker with MSHA. 

on September 27, 1993, Black Dragon filed a responsive 

pleading, denying that the Secretary is entitled to the requested 

Order of Temporary Reinstatement, denying that it violated the 

Mine Act in discharging Thacker and requesting a hearing on the 

Secretary's Application. 

The requested hearing was held pursuant to notice on 

October 7, 1993, in Prestonsburg, Kentucky. 

The relevant scope of this hearing, at this preliminary 

stage of the proceedings; is limited to a determination of 

whether the miner's complaint is being frivolously brought. I 

stated on the record at the hearing and will reiterate here that 

2153 
I am not at this time determining the merits of Thacker's 

discrimination complaint, but only whether that complaint is 

frivolous, as that word is commonly used. 

The Secretary has produced evidence that Thacker was a 

shuttle car operator with Black Dragon for about 5 days or so 

when he was discharged. During his short tenure with the 

company, Thacker was quite vocal with regard to complaints 

concerning defective steering and brakes on the shuttle car which 

he operated at Black Dragon's No. 2 Mine. There is also other 

evidence that mine management was well aware of the shuttle car's 

steering and brake problems. On June 24, 1993, after MSHA 

Inspector Buster Stewart wrote a 104(a) citation against the 

shuttle car, management removed it from service and repaired it. 

Mr. Thacker believes, as does the MSHA investigator who 

testified, that Thacker was discharged for complaining about the 

steering and brakes being bad on the shuttle car he was assigned 

to operate. The complaint has a lot of common sense appeal. 

Here is an employee with but a few days seniority making a big 

to-do over a mechanical condition that the evidence would suggest 

has been of long-standing duration. This begins to look to 

management like the company might have hired a chronic complainer 

and it might be prudent at this point to remove the source of 

irritation. Ergo, Thacker is discharged. 

However, there being two sides to nearly every story, Black 

Dragon maintains they took all these safety complaints in stride. 

Rather, it was Thacker's unfortunate proclivity to pull the 

shuttle car's cable off the reel, or pull the cable in two, or 

otherwise cut the cable -- he did so three times in the 5 days he 

worked there, that caused him to be let go. Mine Foreman Russell 

Lewis emphatically states that he was not fired for being too 

slow or because of making safety complaints. 

There is another aspect of controversy with regard to 

Thacker's maintenance of the shuttle car. Management testified 

he was not properly maintaining the equipment. Thacker insists 

he waso There is evidence from others on both sides of the 

issueo 

I note that the record contains a great deal more relevant 

evidence than is recited or dealt with herein, including some 

evidence that tends to rebut or refute portions of the 

Secretary 1 s evidence. However, at this stage of the proceedings 

I do not need to weigh the evidence or make findings on the 

ultimate issues. At this time I am only required to determine if 

Thacker's complaint was frivolously brought. 

Quite frankly, while this is not the strongest case I have 

ever seen, at least in the current state of the record, there is 

ample evidence in the record that Mr. Thacker engaged in 

2154 
protected activity during nis short tenure at Black Dragon and it 

is also undisputed that he was fired after only 5 days on the 

job. It is less clear whether this adverse action had any 

substantial connection to the protected activity, but it is at 

least arguable and the evidence in the record is sufficient to 

satisfy the complainant's burden of proof that his complaint was 

not frivolously brought. In reaching this conclusion, I do not 

mean to portend, one way or the other, what the ultimate findings 

concerning the merits of this case might be, as both parties will 

have further opportunities to enlarge the record. 

I have carefully considered the entire record of this 

proceeding in that light and I conclude that Thacker's complaint 

is not clearly without merit, fraudulent or pretextual in nature. 

Therefore, I conclude that Thacker's complaint is not frivolously 

brought. 

ORDER 

Respondent is ORDERED to immediately reinstate Freddy 

Thacker to the position from which he was discharged on or about 

June 19, 1993, or to an equivalent position, at the same rate of 

pay and with the same or equivalent duties. 

Roy;e~ Admi ~rative Law Judge 

Distribution: 

Carl Co Charneskio .Esq. 6 Office of the Solicitor, 

u. s. Department of Laboru 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.s.c., 

P. 0. Box 351u Pikeville, KY 41502 (Certified Mail) 

dcp 

2155 
F.BDBRAL BDIE SAFETY Alii> BBAIII'B REVIEW COIIIIISSIOR 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 81993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RENNEY 'S CREEK MINE, 

Respondent 

Docket No. SE 92-474-M 

A.C. No. 31-02078-05504 

Docket No. SE 93-54-M 

A.C. No. 31-02078-05505 

Renney's Creek Mine 

DECISION 

Appearances: Rafael Batine, Esquire, Office of the Solicitor, 

u.s. Department of Labor, Atlanta, Georgia, 

Before: 

for Petitioner; 

Andy Purifoy, Vice-President, Renney's Creek 

Mine, New Bern, North carolina, for Respondent 

Judge Melick 

These consolidated cases are before me upon petitions 

for civil penalties filed by the Secretary of Labor under 

Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seg., the "Act," charging Renney's 

Creek Mine with violations of mandatory standards. The 

general issue is whether Renney's Creek Mine violated the 

cited standards andu if so, what is the appropriate civil 

penalty to be assessed. Additional specific issues are 

addressed as noted. 

Docket No. SE 92-474-~ 

citation No. 3885035 alleges a violation of the mandatory standard at 30 C.F.R. § 56.12018 and charges that "[t]he 

electrical circuit breakers located at the central shop, were 

not labeled to identify the circuits, and identification by 

location was not possible." 

The cited standard provides that "(p]rincipal power 

switches shall be labeled to show which units they control, 

unless identification can be made readily by location." 

The undisputed testimony of Inspector Terry Scott of 

the Mine Safety and Health Administration (MSHA) was that on 

July 8, 1992, during the course of an electrical inspection 

at the Renney's Creek Mine he discovered the cited violation. 

He noted that these circuits provided power for inside the 

shop and if the wrong circuit were cut and an uncut circuit 

2156 
worked upon then a shock and electrocution hazard was presented. He concluded that serious injuries were "unlikely" however because the main breaker was in fact used to cut all 

power to all of the circuits and no separate breakers were 

used. He concluded that the violation was the result of 

operator negligence because other control boxes were properly labeled throughout the mine. I accept the undisputed findings 

of Inspector Scott. 

Citation No. 3885036 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 56.4104(a) and charges 

that 11 [s]even open containers of used motor oil and transmission 

fluid was (sic] allowed to accumulate in the shop, where weld~ng, 

cutting and smoking was permitted, which could create a fire 

hazard." 

The cited standard provides that "[w]aste materials, 

including liquids, shall not accumulate in quantities that 

could create a fire hazard." 

According to the undisputed testimony of Inspector Scott, 

during the course of his inspection on July a, 1992, he in fact 

observed seven open containers, some with motor oil and some 

with transmission fluid in the shop area within 10 to 15 feet 

of an area in which welding had occurred. Scott also observed 

cigarette butts within 10 to 15 feet of the motor oil. Scott 

thought that it was reasonably likely that if a fire started 

you could have injuries trying to put the fire out or trying 

to escape from the fire. He opined that "slag" or hot metal 

emitted during the welding process could ignite the motor oil and 

transmission fluid. 

violation is properly designated as nsignificant and 

substantial 00 if u based on the particular facts surrounding 

that violationu 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. 0 3 FMSHRC 822u 825 (1981). In Mathies 

Coal Co.u 6 FMSHRC 1 0 3-4 (1984) 0 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 

standardu (2) a discrete safety hazard -- that is, 

a measure of danger to safety -- contributed to by 

the violation, (3) a reasonable likelihood that the 

hazard contributed to will result in an injury, and 

(4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

2157 
See also Austin Power Co. v. Secretary, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 

(1987) (approving Mathies criteria). 

The third element of the Mathies formula 'requires that 

the Secretary establish a reasonable likelihood that the 

hazard contributed will result in an event in which there is 

an injury. (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (1984), 

and alsothat in the likelihood of injury be evaluated in terms 

of continued normal mining operations (U.S. steel Mining co •• ~~ 6 FMSHRC 1473, 1574 (1984); see also, Halfway Inc., 

8 FMSHRC 8, 12 (1986) and Southern Oil Coal Co., 13 FMSHRC 912, 

916-17 ( 1991). 

According to Renney's Creek Mine Owner Calvin Hawks the 

oil observed by Inspector Scott was the result of a recent oil 

change and would be burned in their heater. Hawks testified 

that in fact welding wa·s not performed in the presence of the 

used oil. Considering this undisputed testimony, I find that 

the potential ignition source from welding was not present in 

the shop .area and accordingly there was no likelihood of an 

ignition from that source. There is similarly no evidence that 

cigarettes were smoked in the presence of these liquids. Under 

the circumstances I can not find that the violative condition 

was either a serious hazard nor "significant and substantial." 

Inasmuch as the operator was reportedly also about to pour th$ 

used motor oil into another container and did not have the oil 

present during welding I find reduced negligence. 

Citation No. 3885037 alleges a violation of the standard 

at 30 CoFoRo § 56.14206(b) and charges as follows: 

The bucket on the Trojan, F.E.L. SNT 175581 

was suspended in mid air, approx. 2 to 3 feet 

from the ground. The loader was unattended. 

The cited standard provides as follows: 

When mobile equipment is unattended or not in 

usev dippers, buckets and scrape blades shall 

be lowered to the ground. Other movable parts, 

such as booms, shall be mechanically secured 

or positioned to prevent movement which would 

create a hazard to persons. 

It is undisputed that the bucket on the Trojan frontend loader was indeed some 2 to 3 feet off the ground, and 

the loader was unattended, with its motor running at the time 

it was cited. According to Inspector Scott the bucket could 

fall on someone resulting in the loss of a foot or leg. He 

concluded that the operator was negligent because he "should 

have known" that this was a violation. 

2158 
Calvin Hawks admitted that he left the bucket in an 

elevated position on this occasion but only because he was 

nervous by the presence of the inspector. He stated that it 

was his practice to always let the bucket down. Under the 

circumstances, and crediting Hawks testimony, I find that 

the violation was reasonably serious but that the operator 

is chargeable with only minor negligence. 

Citation No. 3885038 charges a violation of the standard 

at 30 C.F.R. § 506.12030 and alleges that "[t]he conduit was 

pulled from the junction box located at the No. 1 screen, 

allowing the single insulated wires to lay against the metal 

box." 

The cited standard provides that "[w]hen a potentially dangerous condition is found it shall be corrected before 

.equipment or wiring is energized." 

It is undisputed that the condition existed as cited. 

According to Inspector Scott, with the conduit pulled from 

the junction box and the single insulated wires rubbing 

against the metal box a shock hazard could eventually result. 

He considered the operator to be moderately negligent because 

the condition was readily visible. I accept the inspector's undisputed findings and conclude that a violation did occur 

as charged. 

Citation No. 3885039 alleges that "[t]he motor junction 

box cover was not in place on the No. 1 screen motor." The 

cited standard, 30 C.F.R. § 56.12032, provides that "[i)nspection 

and coverplates on electrical equipment and junction boxes shall 

be kept in place at all times except during testing or repairs." 

It is not disputed that the conditions existed as 

charged and that the fact that the junction box cover was 

not in place was plainly visible from the ground area. It 

is undisputed that there was a shock and electrocution hazard 

if there were bare wires inside the box and if someone placed 

their hands inside the box. Inspector Scott found the violation 

not to be serious however because, in fact, the wires were 

protected inside the junction box. I accept the undisputed 

findings of the inspector and find that the violation occurred 

as charged" 

Docket No. SE 93-54-M 

Citation No. 3884837 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 56.4402 and alleges as 

follows: 

2159 
About 1/4 gallon of gasolenejoil mixture for 

2 cycle engine (weed eater) was stored in a milk 

jug (plastic) immediately to the right of the 

large entrance door in the shop beside the outer 

wall on the floor. The gasolene (sic] was not 

in a safety can and was not labeled to indicate 

the contents. 

The cited standard provides that "(s]mall quantities of 

flammable liquids drawn from storage shall be kept in safety 

cans labeled to indicate the contents." 

The testimony of MSHA Inspector Ronald Lilly is undisputed that in the course of his inspection on September 2, 1992, 

there was a quarter gallon of gasjoil mixture for a 2 cycle weedeater stored in a plastic milk jug near the entrance door in 

the shop. It was neither stored in a safety can nor labeled to 

indicate its contents. Inspector Lilly opined that the violation 

was serious and "significant and substantial" because the plastic container in this case could easily have been punctured and was 

near electrical cables, including an extension cord and welding 

cables. In addition, according to Lilly, "when you put a spark 

to gasoline, especially when it's vaporized, you get an explosion 

and enormous fast-acting fire." 

Calvin Hawks did not dispute that the gasoline/oil mix 

was kept in the plastic jug but maintained that the jug was 

less likely to spill gas when filling the weedeater than 

safety cans. 

Within this framework I find that the violation was serious 

and 01 significant and substantial.n See Mathies coal Co., supra. 

The operator was also negligent in knowingly using the plastic 

container rather than a safety cano 

Citation No. 3884838 alleges a violation of the standard 

at 30 C.F.R. § 56.14132(a) and charges as follows: 

The backup alarm on the 645-B Fiat-Allis front-end 

loader (altered to use shovel for cleaning conveyors 

at the plant) was defective and would not give an 

audible sound when the machine was placed in reverse. 

A signal person was not being utilized. 

The cited standard provides that "[m)anually-operated 

horns or other audible warning devices provided on selfpropelled mobile equipment as a safety feature shall be 

maintained in functional condition." 

2160 
It is not disputed that the cited front-end loader did 

not in fact have its back-up alarm in a functioning condition 

at the time it was cited. According to Inspector Lilly someone behind the front-end loader could be struck due to the 

lack of visibility to the rear and the lack of an operative 

back-up alarm. He believed the hazard was "unlikely" however 

based on the limited area of operation and the absence of 

persons in the area. Lilly also concluded that the operator 

was negligent because it was obvious that the alarm did not 

function. I accept the undisputed findings of Inspector Lilly. 

Citation No. 3884839 alleges a violation of the standard 

at 30 C.F.R. § 14.1001(a) and charges that "[t]he 645-B FiatAllis front-end loader (altered to use as a shovel for cleaning 

conveyors in the plant} had not been inspected in regard to 

back-up alarm, before placing the machine in service." 

The cited standard provid~~ that 11 [s]elf-propelled mobile equipment to be used during a shift shall be inspected 

by the equipment operator before being placed in operation on 

that shift." 

There is no dispute that the cited loader was in fact not 

inspected before being placed in operation on the shift at issue. 

According to Calvin Hawks, his son-in-law Andy Purifoy had not 

yet had an opportunity to inspect the loader when it was cited in 

this case. According to Purifoy it was indeed his responsibility 

to check the loader and he acknowledged that it was not inspected 

that day. I accept the undisputed findings in this case that the 

negligence was "moderate" and that injury was "unlikely" under 

the circumstances. 

ORDER 

Docket No. Se 92-474-M 

The citations in this case are hereby AFFIRMED and Ranney's 

Creek Mine is directed to pay the following civil penalties for 

the violations charged in those citations within 30 days of the 

date of this decisiong 

Citation No. 3885035 $ 75 

Citation No. 3885036 $ 75 

Citation No. 3885037 $ 50 

Citation No. 3885038 $100 

Citation No. 3885039 $ 75 

21Cl 
Docket No. SE 93-54-M 

The citations in this case are AFFIRMED and Renney's Creek 

Mine is directed to pay the following civil penalties within 

30 days of the date of this decision: 

Citation No. 3884837 

Citation No. 3884838 

Citation No. 3884839 

Distribution: 

$100 

$100 

$100 

Gary jelick 

Admin1strat ve 

( 703) (56-6261 

Rafael Batine, Esq., Office of the Solicitor, 

Law Judge 

u.s. Department of Labor, 1371 Peachtree Street, N.E., 

Room 339, Atlanta, GA 30367 (Certified Mail) 

Andy Purifoy, Vice-President, Renney's Creek Mine, 

P.O. Box 13701, New Bern, NC 28561-3701 (Certified Mail) 

/lh 

2162 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

OCT 1 81993 

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , on behalf of 

ANITA DENICE SAMUELSON, 

Complainant 

v. 

CLEAN RITE SERVICES, INC., 

Respondent 

: 

. . 

. . 

Docket No. WEST 92-420-D 

DENV CD 91-04 

Caballo Mine 

DECISION 

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

u.s. Department of Labor, Denver, Colorado, 

Beforeg 

for Petitioner; 

Allen Van Tassel, Gillette, Wyoming, 

appearing pro se, for Respondent. 

Judge Morris 

This case involves a discrimination complaint filed by the 

Secretary of Labor on behalf of Anita Denice Samuelson against 

Clean Rite Services 1 Inc. {"Clean Rite"), pursuant to the Federal 

Mine Safety and Health Act of 1977 0 30 u.s.c. § 801, et seq. (the 

u'Act") o 

A hearing was held in Gillette, Wyoming, on August 3, 1993. 

The parties submitted their views in oral arguments. 

The Secretary of Labor, as representative of the Mine Safety 

and Health Administration ("MSHA"), alleges complainant Anita 

Denice Samuelson was employed as a janitor by Clean Rite at a 

surface mine and therefore was a "miner," as defined by Section 

J(g) of the Act. 

The Secretary further charges Clean Rite violated Section 

115(b) of the Act in failing to reimburse Complainant for 

exercising her statutory rights under the Act. Further, the 

2163 
Secretary charges Respondent thereby violated Section 105{c) of 

the Act. 

The Secretary also seeks a civil penalty against Clean Rite 

for the violations. 

Section 105(c)(1) of the Act provides: . . ... ' '' - . ..... "(c)(l) No person shall discharge or in any man~ 

ner discriminate against or cause to be discharged or 

cause discriminatiun against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for employment in any coal or other mine subject to this Act 

because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this Act, including a complaint no~ 

tifying the operator or,the operator's agent, or the 

representative of the miners at the coal or other mine 

of an alleged danger or safety or health violation in 

a coal or other mine, or because such miner, representative of miners or applicant for employment is the 

subject of medical evaluations and potential transfer 

under a standard published pursuant to section 101 or 

because such miner, representative of miners or applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act 

or has testified or is about to testify in any such 

proceeding, or because of the exercise by such miner, 

representative of miners or applicant for employment 

on behalf of himself or others of any statutory right 

afforded by this Act. 

The credible evidence establishes the following: 

fiNDINGS OF FACT 

lo ANITA DENICE SAMUELSON began working for Clean Rite as 

a janitor on June 23v 1991. She worked until July 16u 1991 

earning $5.75 an houro (Tr. 9-10 1 23). 

2. Ms. Samuelson worked at the Caballo Mine operated by 

t:he Carter Mining Company in Gillette, Wyoming. (Tr. 10). 

3. In order to work at the mine, she had to take the MSHA 

class. She took the training after she started to work. (Tr. 

10-11, 20). 

4. The training took two days. She had two 10-hour 

training classes. (Tr. 11). 

5. Ms. Samuelson was not paid by Clean Rite for the time 

spent in MSHA training. {Tr. 12, 15). 

2164 
6. Ms. samuelson had been hired by Mr. Van Tassel, president of Clean Rite. Her duties included cleaning at a surface 

coal mine eight to ten hours a day for five or six days a week. 

(Tr. 14). 

1. She worked at the Caballo Mine before receiving 

required training for 20 hours. (Tr. 14). 

s. A part of her training included a tour of the mine. 

She had no prior training or experience as a miner before 

starting work with Clean Rite. (Tr. -14, 16). 

9. The place where she was trained was three or four miles 

from her home. (Tr. 15). 

10. Mr. Van Tassel (Clean Rite) loaned the money to 

Ms. Samuelson as an advance to·attend the MSHA class. Ms. Samuelson later repaid him for this advance. (Tr. 17). 

11. DALE HOLLOPETER investigated this case for MSHA. 

(Tr. 19). 

12. In MSHA's opinion Ms. Samuelson was subject to the 

provisions of Section 105(c) of the Act. (Tr. 20). 

13. 

training. 

She is also required to have 24 hours of new miner 

(Tr. 21). 

14. Ms. Samuelson did not receive the cost of the training. 

Other employees also stated they had not been paid by Clean Rite. 

{Tr. 21u 22) o 

15. Ms. Samuelson was entitled to $50 for the cost of the 

training. In addition, she was entitled to be paid for the 20 

hours for classroom work. (Tr. 22, 23). 

16. ALLEN VAN TASSEL testified that Clean Rite is in 

Chapter 7 bankruptcy. (Tr. 30). 

17o When Mso Samuelson worked for him, Clean Rite had a 

contract with the Caballo Mine to provide cleaning services to 

Carter Mine Company. (Tr. 36)o 

18. Clean Rite employees worked on the surface of this 

open-pit mine. Clean Rite also had an MSHA contractor 1.0. 

number at the time. (Tr. 36). 

DISCUSSION AND FURTHER FINDINGS 

The evidence is uncontroverted that Ms. Samuelson was employed by Clean Rite to work in a surface coal mine. She had no 

prior mining experience and, after being employed, she was sub2165 
ject to the statutory right provided by section 115(a) of the 

Act. The failure of Clean Rite to fulfill its obligations under 

section 115(a) constituted a violation of Section 105(c) of the 

Act, since her activities were protected under the Mine Act. 

In Emery Mining Corporation v. Secretary of Labor et al., 

783 F.2d 155 (lOth Cir. 1986) and Brock v. Peabody Coal Company, 

et al., 822 F.2d 1134 (D.C. cir. 1987) the respective appellate 

courts held that certain unemployed miners were not "miners" 

within the meaning of the Act. However, the case at bar is factually different since Ms. samuelson was working as an employee 

and technically was a "miner" when the discrimination occurred. 

It follows that the commission has jurisdiction over these 

matters and Ms. Samuelson was a "miner" within the meaning of the 

Act. It is, accordingly, appropriate to consider Complainant's damages. 

Under Section 115(a) (2) 1 Ms. Samuelson, as a new miner with 

no surface experience, is entitled to 24 house of training. 

The record indicates she received 20 hours. Under Section 

115(b) she is also entitled to her normal rate of compensation of 

$5.75 per hour or a total of $115.00. 

In addition, under Section 115(b), 2 she is entitled to be 

compensated for the additional costs she incurred in attending 

2 

(2) New miners having no surface mining experience 

shall receive no less than 24 hours of training if they 

are to work on the surface. Such training shall include 

instruction in the statutory rights of miners and their 

representatives under this Act, use of the self-rescue 

device where appropriate and use of respiratory devices 

where appropriate, hazard recognition, emergency procedures, electrical hazards, first aid, walk around 

training and the health and safety aspects of the task 

to which he will be assigned; 

(b) Any health and safety training provided under 

subsection (a) shall be provided during normal working 

hours. Miners shall be paid at their normal rate of 

compensation while they take such training, and new 

miners shall be paid at their starting wage rate when 

they take the new miner training. If such training 

shall be given at a location other than the normal place 

of work, miners shall also be compensated for the additional costs they may incur in attending such training sessions. 

2166 
such training sessions. On this record these additional costs 

include tuition for training and mileage cost. 

Ms. Samuelson testified the school tuition was $150 but I 

credit the testimony of Messrs. Hallopeter and Van Tassell that 

the tuition was $50. These last two witnesses are more 

knowledgeable than Ms. samuelson as to the school tuition since 

they frequently deal with these issues. 

Additional costs include mileage from home to school and 

return. Two days at six miles per day involved a total of 12 

miles. The mileage reimbursement to government employees at the 

time of this incident was 24 cents per mile or a total mileage 

reimbursement of $2.88. 

Ms. Samuelson further seek$ damages for an additional 14 

hours because she was unable to work in certain portions of the 

mine because she had not secured her MSHA training. However, the 

evidence does not support Ms. Samuelson's claim as to these 14 

hours. Ms. Samuelson agrees she didn't miss any hours of work 

because she didn't receive her mine tour in time or because of 

the training. (Tr. 27). In fact, she worked anyway, even though 

she wasn't qualified to enter certain areas of the mine. (Tr. 

27). Further, she didn't recall any time when she wasn't able to 

work the full shift because she was not properly trained. (Tr. 

28). In short, Ms. Samuelson failed to prove the 14-hour loss. 

Ms. Samuelson's total damages are as follows: 

Twenty hours at $5.75 or 

School tuition 

Mileage at $0.24 a mile 

$115.00 

50.00 

$167.88 

Under Loc. u. 2274, UMWA v. Clinchfield Coal co., 10 FMSHRC 

1493 (November 1988) the Commission directed that in discrimination cases it would use the short-term Federal rate applicable to 

the underpayment of taxes as the rate for calculating interest 

for periods commencing after December 31, 1986. 

I further conclude that the training expenses should have 

been paid a week after Ms. Samuelson began to work for Clean 

Rite. Accordingly, interest should begin to accrue from June 30, 

1991. The interest on $167.88 from June 30, 1991, to the date of 

this decision (October 22, 1993) is $31.85. Accordingly, the 

total damages incurred by Complainant are $199.73. 

2167 
CIVIL PENALTY 

The Secretary also seeks a civil penalty against Clean Rite 

for violating the Mine Act. 

The statutory criteria for assessing civil penalties are 

contained in Section llO(b) of the Act. 

Considering the criteria, I note that the record shows Clean 

Rite is in bankruptcy proceedings. Since the operator is no 

longer in business, the assessment of a penalty will not affect 

its ability to continue in business. 

There is evidence Clean Rite failed to pay other employees 

for MSHA training. As a result, its prior history must be considered as adverse. ,Clean Rite was negligent since training 

courses are available from··a. local college. Mr. Van Tassel asserts the difficulty here lies with the inability of his company to secure competent workers. Basically, the workers are 

hired, take the training, and quit. I can understand Ms. Van 

Tassel's position; however, his suggestion that workers be hired 

and permitted to work for a period of time before training is 

required has not been adopted. It may not be adopted since such 

employees would be exposed to mining hazards without having had 

any training. 

The gravity is high since the employee was working in a mine 

without prior training. 

Prompt abatement was not an issue in this case. 

Based on the statutory criteria, I conclude that a civil 

penalty of $250 is appropriate. 

For the foregoing reasons I enter the following: 

ORDER 

1. The petition for discrimination herein is AFFIRMED. 

2. Complainant Samuelson is awarded the total amount of 

$199.73 to be paid by Respondent. 

3. A civil penalty of $250 is ASSESSED against Respondent. 

Law Judge 

2168 
Distribution: 

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

Denver, co 80294 (Certified Mail) 

R. Allen Van Tassel, CLEAN RITE SERVICES, INC., P.O. Box 122, 

Gillette, WY 82717 (Certified Mail) 

ek 

2169 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 91993 

COSTAIN COAL INCORPORATED, 

Petitioner 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COSTAIN COAL INC., 

Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 93-102-R 

Order No. 3552700; 10/16/92 

Docket No. KENT 93-103-R 

Order No. 3552934; 10/16/92 

! Wheatcroft No. 9 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 93-325 

A.C. No. 15-13920-03803 

Pyro #9 Wheatcroft 

DECISIONS 

Appearances~ Mary Sue Taylor, Esq., Office of the Solicitor, 

u.s. Department of Labor, Nashville, Tennessee, 

for the Petitioner/Respondent; 

Before: 

Carl B. Boyd, Esq., Henderson, Kentucky, for the 

Respondent/Contestant. 

Judge Koutras 

DECISIONS 

Statement of the Proceedings 

These proceedings concern a civil penalty proceeding 

initiated by the petitioner (MSHA) against the respondent 

(Costain Coal Incorporated) pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), 

seeking civil penalty assessments for four (4) alleged violations 

of certain mandatory safety standards found in Part 75, Title 30, 

Code of Federal Regulations. The respondent filed a timely 

answer contesting the alleged violations and assessments, and 

also filed Notices of Contest pursuant to Section l05(d) of the 

Act, seeking review of two of the section 104(d) (1) orders which 

are the subject of the civil penalty proceeding. The matters 

were consolidated and heard in Evansville, Indiana. The parties 

2170 
filed posthearing briefs and I have considered their arguments in 

the course of my adjudication of these matters. 

Issues 

The issues presented in these cases are (1) whether the 

conditions or practices cited by the inspectors constitute 

violations of the cited mandatory safety standards, (2) whether 

the alleged violations were "significant and substantial" (S&S), 

(3) whether the alleged violations were the result of an 

unwarrantable failure by Costain coal to comply with the cited 

standards, and (4) the appropriate civil penalties to be assessed 

for the violations, taking into account the statutory civil 

penalty assessment criteria found in section 110(i) of the Act. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. commission Rules, 29 C.F.R. § 2700.1 et seg. 

3. Mandatory Safety standard 30 C.F.R. § 75.400. 

Discussion 

Section 104(d) (1} "S&S" Order No. 3552700, issued on 

October 16, 1992, cites an alleged violation of 30 C.F.R. 

§ 75.1704, and it was consolidated with contest Docket 

No. KENT 93-102-R. The cited condition or practice is described 

as follows~ 

The primary ·designated intake escapeway for the 

longwall "y" panel tailgate entry was not maintained 

with 6 feet of clearance and coal bed height located 

one cross-out inby overcast and two cross-cuts outby 

survey station No. 69745, where a previous roof fall 

had occurred and is rubbed off. But evidence indicates 

shale roof material was scooped (pushed) outby fall in 

order to crib or support area, leaving low clearance 

from immediate roof. 

This area was inspected on 10-15-92 by this authorized 

representative and conditions of primary escapeway were 

noted and discussed with the operator in detail. 

Before any enforcement action was taken reference of 

this violation was brought to the attention of District 

#10 MSHA ventilation supervisor along with Roof control 

Specialists. 

2171 
MSHA's counsel asserted that the evidence now known to her 

reflects that the gravity findings of the inspector should be 

modified to reflect the number of persons affected by the cited 

conditions as five (5), rather than ten (10), as originally noted 

by the inspector. In addition, it is noted that the order was 

modified by the inspector on october 19, 1992, to change his 

initial gravity finding to "Highly Likely", rather than 

"Occurred" . 

MSHA's counsel stated that the evidence supports a 

modification of the contested section 104(d) (1) "S&S" order to a 

section 104(d) (1) "S&S" citation, ap.d that the respondent has 

agreed to pay a civil penalty assessment of $4,500, in settlement 

of the modified citation. Respondent's counsel confirmed the 

proposed settlement agreement, and it was approved from the bench 

(Tr. 136-137}. 

Section 104(d) (1} non-"s&sn Order No. 3552934, issued on 

October 16, 1992, cites an alleged violation of 30 C.F.R. § 

75.220, and it was consolidated with contest Docket No. KENT 93-

103-R. The cited condition or practice is described as follows: 

Loose rock from a previous roof fall had been pushed 

into the tailgate entry of the "Y" panel which would 

have prevented miners from traveling the intake 

escapeway entry. The roof control plan was not being 

followed on page 17 which requires certain safety 

precautions to be followed in the event of a failure or 

blockage in the tailgate entry. The safety precautions 

had not been implemented. The blocked tailgate was 

discovered on 10/15/92, and the longwall unit was in 

production. Roof control plan dated February 5, 1992. 

Costain coal's defense is that the partially blocked entry 

was the result of additional rock that had fallen from the brow 

of the previous fall and that all longwall personnel were 

notified of the situation, immediate action was taken to correct 

the cited condition, and the condition was corrected before the 

inspector wrote the order. 

MSHA 1 s counsel asserted that the available evidence supports 

a modification of the section 104(d) (1) order to a section 104(a) 

citation, and that the parties agreed to settle the violation on 

that basis and the respondent has agreed to pay a civil penalty 

assessment of $500, as part of their settlement agreement. 

Counsel for the respondent confirmed that this was 

the case, and the settlement was approved from the bench 

(Tr. 133-136). 

Section 104(d) (2) "S&S" Order No. 3552424, issued on 

March 17, 1992, cites an alleged violation of 30 C.F.R. § 75.316, 

and the cited condition or practice is described as follows: 

2172 
Item 5 of the dust control plan that is written in the 

modified order was not being followed in that the No. 1 

Shear cut out in one item 5 states when the No. 1 shear 

cuts out, a step-out procedure will be conducted. The 

full web will not be cut out in one pass. 

MSHA's counsel stated that the facts and evidence now known 

to her support a modification of the contested section 104(d) (2) 

order to a section 104(a) citation with "S&S" findings, that the 

parties have agreed to settle this matter on that basis, and that 

the respondent has agreed to pay a civil penalty assessment of 

$500, to settle the violation. The respondent's counsel 

confirmed the proposed settlement agreement, and it was approved 

from the bench {Tr. 132-137). 

In addition to the aforementioned arguments presented by the 

parties in support of the settlements, the parties agreed that 

Costain Coal is a large mine operator, and MSHA presented 

information concerning Costain's history of prior violations for 

all of its mines for the period July 23, 1990, through July 22, 

1992. In addition, the record reflects that all of the cited 

violative conditions were timely abated and that two of the 

violations (No. 3552934 and 3552424) were terminated within five 

minutes of their issuance. 

Section 104(d) (1) "S&S" Order No. 3553244, issued on 

October 29, 1992, cites an alleged violation of 30 C.F.R. § 

75.400, and the cited condition or practice is described as 

follows: 

Accumulation of combustible materials consisting of 

loose coal, coal dust, and float coal dust from 

4 inches to 12 inches in depth had been allowed to 

accumulate underneath and alongside the No. 4 unit belt 

conveyor head drive dumping on the 11C belt conveyor. 

Starting at the No. 4 unit 11B belt conveyor head drive 

and continuing outby on the No. 11C belt conveyor for 

an approximate distance of 150 feet as measured with a 

metal measuring tape. 

Petitioner's Testimony and Evidence 

MSHA Inspector Donald L. Milburn, confirmed that he issued 

the contested order after finding accumulations of combustible 

material in a belt entry outby the No. 4 working unit. He 

observed coal spillage on the back side and bottom of the 

"mainline" belt conveyor head drive. The belt was running in the 

accumulations in an area of 10 to 15 feet. He also observed 

loose coal spillage down the belt entry at several places for a 

distance of approximately 150 feet. The coal "looked like it had 

been there for several shifts 11 {Tr. 14-18). 

2173 
Mr. Milburn stated that he issued the section 104(d) (1) 

order after finding "high negligence" because the respondent's 

belt boss Philip Prince informed him that there was an ongoing 

problem with the belt, that the condition was present for several 

shifts, if not days, and that people had been working for several 

days cleaning up the spillage. Mr. Milburn stated that the belt 

was later replaced because of some tears and bad splices, and he 

indicated that with these conditions present "you're going to 

lose some coal". Mr. Milburn observed no one cleaning the belt 

when he observed the accumulations (Tr. 18-19). 

Mr. Milburn believed that the respondent failed to take 

adequate corrective measures "to stay on top of it where they 

knew they had a spill" (Tr. 20). Mr. Milburn confirmed that in 

addition to Mr. Prince, he discussed the matter with maintenance 

foreman Don Gess and former belt boss Bruce Morris, and Mr. Gess 

agreed that the spillage was excessive and that he would assign 

people to take corrective action. Mr. Milburn stated that 

Mr. Morris showed him a "belt book" for a different belt, but 

later produced the correct belt book, and "the same conditions 

were in it as the first book I looked at" (Tr. 22). 

Mr. Milburn stated that the mine is on a ten-day spot 

inspection cycle because of the high liberation of methane. The 

loose coal spillage was black in color and he observed no rock 

dust on the spill. There were no additional belt violations or 

problems and he observed no stuck rollers running in the coal. 

However, the accumulations presented a fire hazard because most 

fires occur on belt conveyor entries because of stuck rollers or 

a belt rubbing against the frame creating friction and heat 

build-up (Tr. 23-24). 

Mr. Milburn confirmed that there was a fire suppression 

system at the belt head drive location. However, the spillage 

was also located feet 150 outby and down the entry, and the 

available co monitoring system would only serve as a quick 

reference to locate any fire, but it would not control any fire. 

He indicated that 16 miners normally would be present in the 

working section, and with the location of the affected area "it 

would take some time for them to even get to the area to put out 

a fire" (Tr. 25). 

Mr. Milburn stated that he had previously inspected the mine 

over a ten month period prior to his inspection of October 29, 

1992, and has issued other violations of sections 75.400 and 

75.402, and discussed them with the respondent's personnel, 

including Mr. Gess, Mr. Morrison, and Mr. Prince (Tr. 26-27). 

Mr. Milburn confirmed that the respondent has had an 

effective mine examination program to correct problems with 

equipment and permissibility, and has greatly reduced its repeat 

violations. However, he believed "they still needed to improve 

2174 
on their rock dust applications and accumulations in the mine" 

(Tr. 28). Mr. Milburn was aware of only one prior mine fire or 

ignition, and this was an explosion that occurred in 1989, but he 

was not at the mine at that time, and that incident occurred 

"several thousand feet away" from the cited area that he 

inspected on October 29, 1992 (Tr. 29). 

on cross-examination, Mr. Milburn stated that the 

accumulations located 150 feet outby the 11-C belt were at the 

side by the belt, and it was two feet deep at the head drive up 

to the bottom side of the belt. He did not know what caused the 

spillage at the time of his initial observations, but later found 

out that a baffle-type board had been installed on the backside 

of the belt to catch any coal spillage. He confirmed that the 

person in charge of the conveyors, Ricky Phillips, told him that 

the baffle-board had been installed "a couple of days prior" to 

October 29, and that there was an ongoing problem and that people 

were assigned each day to shovel the area and they were trying to 

stay on top of it. Mr. Phillips acknowledged the spillage 

problem and he had people working on it, but Mr. Milburn observed 

no one in the spillage area when he observed it during his 

inspection (Tr. 33). 

Mr. Milburn examined copies of certain entries made by the 

belt examiners in the 11-C and 11-B belt books for October 28, 

the day before his inspection, and although he did not believe 

the entries showed that corrective measures were written in the 

books, he agreed that a notation indicating "spillage is good" 

might indicate some improvement. However, he stated that 

"without seeing any corrective measure, I had no idea at that 

time what they had done to the spill" (Tr. 35-38). 

Mr. Milburn confirmed that based on the amount of coal 

spillage that he observed, he concluded that it must have been 

there for sometime (Tr. 38). He agreed that a malfunction of the 

belt skirting or baffle board could cause coal to accumulate 

rather quickly (Tr. 39). He confirmed that the 11-C and 11-B 

belt books indicated a spillage problem with the two belts that 

were connected together, and that although people may have been 

in the areas working on the problem on the days prior to his 

inspection, no one was there at the time of his inspection 

(Tr. 42) • 

Mr. Milburn stated that he was told that the 11-c belt was 

going to be changed out because of the tears and bad splices, and 

that the backboard had been installed, but he did not believe it 

was adequate enough to correct the condition (Tr. 42). He 

further confirmed that Mr. Phillips may have told him that the 

area had been cleaned up the day before his inspection, and that 

a mechanical malfunction had been corrected and was not present 

the morning of his inspection. He further explained as follows 

at (Tr. 43-44) : 

2175 
Q. Mr. Milburn, what, in your eyes, would the 

company have had to do in order for their 

negligence to be less than aggravated conduct 

in this -- on this violation if you'd been the 

operator? 

A. I'm not saying that they didn't make a -- an 

attempt previously on days prior to this 

inspection to correct the problem. I'm saying 

that they didn't take adequate measures. 

They knew they had a problem of spillage in 

this area. They installed this backboard 

brace. They knew they had spillage in this 

area. They should've had somebody on top of 

this and observing this after they installed 

this backboard to see if it was going to 

correct the condi ti.on. 

At the time of inspecting it, the -- the 

excessive amount of accumulation I observed and 

measured just couldn't have happened that 

morning. It had to have happened for several 

days if -- if not several shifts. 

Q. What would you have them do different on 

October 29 before you got there at 11 o'clock 

in the morning? 

A. Personally, I think they -- they knew they had 

a problem in this area. They installed a back -- this backboard. And the reason for 

installing the backboard, the belt, like I say, 

shifts from side to side when loaded with coal. 

They installed this backboard to catch the coal 

before it would shift to one side or it 

wouldn't spill. 

They should have changed this belt. I -- they 

knew they had a bad belt, bad tears, splices. 

They should have changed this out prior to this 

day. They knew they had a recurring, ongoing 

problem. 

And, at (Tr. 45-46): 

THE COURT: If you observed somebody shoveling 

through fairly well that day, would you have 

found that that was sufficient? 

WITNESS MILBURN: I would assume that if there were -- if they had a condition recorded in the belt 

2176 
books that they had a problem in this area and they 

had people working on it, then to me they were -- would have been making an effort to correct the 

condition. 

THE COURT: Am I correct in this assumption 

that you agree that -- with what Mr. Phillips 

told you when you spoke to him, that he told 

you that there was a problem. They installed 

the backboard. They were attempting to do 

something with it. You don't disagree with all 

that, do you? 

WITNESS MILBURN: No, I don't disagree. 

THE COURT: It's just that you found these 

accumulations that day, and you came to the 

conclusion that nothing was being done about it 

that day to take care of the problem? 

WITNESS MILBURN: Yes, sir. 

Respondent's Testimony and Evidence 

Clifford D. Burden, Director of Loss Prevention, produced 

copies of the belt book for the No. 11-C belt, for the dates 

October 21, through November 23, 1992 (Exhibit R-1: Tr. 58-60). 

He confirmed that the third shift entries for October 28, are for 

the shift immediately before the 11:00 A.M. time period when 

Inspector Milburn conducted his inspection (Tr. 61). 

Mr. Burden explained the entries made in the belt book, 

beginning on October 28Q 1992, and he identified a copy of notes 

given to him by belt supervisor Ricky Phillips who told him that 

the spillage was caused by a missing skirt board belt component 

where the coal was being dumped and that the coal found by the 

inspector was fresh belt spillage that was accumulating very 

rapidly (Tr. 63-64~ Exhibit R-2). Mr. Burden confirmed that he 

was personally familiar with the 11-c and 11-B locations and he 

explained the belt book entries for those locations (Tr. 66-67). 

on cross-examination, Mr. Burden reviewed and explained the 

belt book entries for October 24 through 28 (Tr. 68070). In 

response to further questions, Mr. Burden confirmed that the 

entire belt was 2,000 feet long, and based on the belt book 

entries, he concluded that the conditions noted changed from day 

to day during the period from October 25 through 28, and that 

there was "light spillage" (Tr. 78). 

Robert Bailey, belt mechanic, testified, that the 11-c belt 

was one of his responsibilities, and that on October 28, 1992, 

while checking out the belt header, he found a spill on the back 

2177 
\'' 

side of the 11-B header on the 11-c belt. He described the spill 

as one-foot to one-and-one-half foot deep, extending over a 20 

to 25 foot area. He stated that he cleaned up the spill with a 

shovel at approximately 1:00 P.M. in the afternoon and put the 

coal back on the belt. He stated that he did not observe any 

coal accumulations under the belt at the header area, and did not 

observe the belt running in coal. He also observed accumulations 

behind the inby 11-B header wiper and he cleaned that up 

Tr. 81-84). 

Mr. Bailey stated that the 11-B header, as well as all belt 

headers along the belts, have sprinkler-type fire suppression 

systems which shut the belt down and turn on the water sprays in 

the event of a fire (Tr. 85). He also confirmed that the belt is 

equipped with computerized co sensors which will quickly detect 

any fire (Tr. 86). 

Mr. Bailey stated that he returned to the area on the second 

shift on October 29, after the cited accumulations had been 

cleaned up and he had no trouble for the rest of the evening 

(Tr. 86-87). An hour or two later, Mr. Phillips asked him if 

there had been a coal spill the night before, and Mr. Bailey told 

him "no" (Tr. 88). Mr. Phillips stated that Ben Wilson, another 

belt mechanic, informed him that a belt skirt rubber came out and 

caused a spill where the 11-B belt dumped on the 11-C belt, but 

that it had been put back on the belt and that he should watch it 

to make sure it would be all right that day (Tr. 88-89). 

On cross-examination, Mr. Bailey stated that he worked the 

first day-shift on October 28, and the second shift on 

October 29. He stated that he was a certified belt examiner and 

that he worked for Mr. Phillips and Mr. Prince. He confirmed 

that he makes regqlar belt rounds once or twice a day, and that 

if a serious prob·1em develops "I'll stay with it" until it is 

fixed (Tr. 92) . 

Mr. Bailey described the spillage that he observed on 

October 28, as 11more than normal"v and that prior to this time he 

had no problems with the belt and had no prior occasion to clean up'~·tlle amount of spillage he cleaned up that day (Tr. 94) • He 

:;;.tated that a belt skirt and baffle board are essentially the 

same thing, and that they are used at every belt dumping point. 

He confirmed that the only problem he had with the 11-C belt was 

the spillage that he cleaned up. He stated that "we were in the 

midst of replacing that belt at the time" because some of the 

belt was narrow and there was an increase in the coal that was 

being loaded on the belt (Tr. 95). 

In response to further questions, Mr. Bailey reiterated that 

Mr "·"'Wilson advised him about the header skirt board problem after 

Inspector Milburn had been to the area on October 29 in order to 

make sure that 11 it didn't spill on me like it did - - - had on 

2178 
him" (Tr. 100). Mr. Ba.iley stated that had he observed the 

accumulations described by the inspector he would have cleaned 

them up, and if the skirt board had came out, he would have 

replaced it and aligned the belt to prevent spills (Tr. 102). 

Benjamin Wilson, day shift belt mechanic, testified that he 

was familiar with the 11-C belt. He stated that on October 29, 

1992, he worked the day shift from 6:00 A.M. until 4:00 P.M. He 

stated that he observed the 11-B belt header at the junction of 

the two belts at approximately 7:30 A.M. or 8:00 A.M. He checked 

the header rollers, skirt, and splices, and observed an inch of 

coal, six foot long, under the header. He saw no problems and 

left the area to check other belts. He observed no pile of coal 

dust with the belt running, and he observed no accumulations for 

any substantial distance (Tr. 103-105). 

Mr. Wilson stated that he was called back to the area at 

approximately 11:00 A.M. and saw the spill, and was told to get 

some shovels and have it cleaned up. He confirmed that the spill 

he observed at this time was more extensive than what he had 

previously observed earlier in the morning, and someone told him 

that the skirt rubber came out and went under the belt. When 

this occurs, coal will spill over the edge of the belt 

(Tr. 105-107). Mr. Wilson stated that he worked the day shift on 

the prior day, and passed by the same area. The accumulations 

were the same as those he previously observed (Tr. 108). He was 

not aware of any 11-E belt problems except for some narrow belts, 

and the physical condition of the belt was okay (Tr. 108). 

On cross-examination, Mr. Wilson stated that other than "the 

little spill" that he initially observed on the 11-C belt, "which 

it does every day with, you know, the narrow belt running through 

it 19 p he observed· no problems on that belt during the week prior 

to October 29, and observed no accumulations other than what he 

would consider "normal" (Tr. 110). He confirmed that he has been 

a certified belt examiner for six or seven years (Tr. 111). 

Mr. Wilson confirmed that a new production unit had started 

up a few days before October 29, and if two units are dumping on 

a narrow belt "it will affect the way the belt runs" (Tr. 113). 

In such a situation, he would observe how the belt runs. He did 

not believe any changes were necessary until he observed the 

spill when he was called back to the belt on October 29 

(Tr. 114). 

Randy Wiles, employed in the respondent's loss prevention 

department, testified that he was informed of the coal spill 

cited by the inspector on October 29, and was told that "a skirt 

rubber had kicked out" on the 11-C belt at the 11-B dumping point 

(Tr. 115-116). He was not aware of any tears or bad splices in 

the 11-C belt prior to this time {Tr. 117). 

2179 
Inspector Milburn was recalled by the presiding judge, and 

he confirmed at the time of his inspection he did not speak with 

any of the respondent's witnesses who testified in this case or 

with the belt mechanics (Tr. 119-120). In response to a question 

as to whether he gave any credence to the explanations offered by 

the respondent's witnesses, Mr. Milburn stated as follows at 

(Tr. 120-124): 

WITNESS MILBURN: They said they had a problem 

with it for several days, and they were going 

to change the belt out. And they had -- where 

they had -- they said spillage each day, and 

they had people down there to correct it, 

shovel it. But on this particular day, they 

didn't have anybody down there in this area. 

And my question to him was why didn't -- if 

this belt had a history of spilling or ongoing 

problem, why they didn't have somebody there at 

this stage to watch this belt. 

THE COURT: Is it altogether possible that -- that this event happened that day just due to 

this malfunctioning belt rubber and that that 

belt rubber was causing the spillage? 

WITNESS MILBURN: Part of it might have been 

attributed to -- to that right at the head 

drive, but the spillage down the belt was not 

related to the head drive. 

WITNESS MILBURN: I didn't know at the time 

what was causing all the spillage. I could 

only guess that is was either bad splices or 

tears until I got outside, and later on they 

mentioned to me, Philip Prince, that they were 

going to change the belt out, that they had a 

problem with that belt before. And they had a 

problem with splices and tears in this belt, 

and they were going to change the whole belt 

out. 

THE COURT: Now, in order to terminate this, 

though, they just simply cleaned up the 

spillage, right? 

WITNESS MILBURN: Yes, sir. 

THE COURT: How soon after this event was this belt 

replaced; do you have any idea? 

2180 
WITNESS MILBURN: · I don't have those statistics 

as far as when they did change it out. 

THE COURT: But the fact is that they didn't 

change the belt out to abate this particular 

cited condition. 

WITNESS MILBURN: No, sir. 

THE COURT: Do you suppose that Prince and 

Morris and Phillips were telling you all this 

just trying to justify the accumulations? 

WITNESS MILBURN: I think they were trying to 

tell me that they had a problem with this belt, 

and I didn't question them. And I'm not going 

to question that they didn't have people down 

there working on this spill each day. But this 

particular day -- if they knew they had a 

problem with it previous days and had people 

assigned to it, why didn't they have somebody 

down there this day watching it? 

THE COURT: But you don't know that the 

problems that they had earlier was at the 

magnitude they had the day that you showed up, 

in other words, whether they had previous 

spills of this magnitude? When I say 

"magnitude," I'm talking a hundred and fifty 

feet. 

WITNESS MILBURN~ That -- that I don't know. 

The crosscuts underground, there are a lot of 

places that are not marked. You don't have 

survey stations and place little tags in the 

roof telling you where you're at. 

Findings and Conclusions 

Fact of Violation. Order No. 3553244. 

The credible testimony of the inspector establishes the 

existence of the coal and coal dust accumulations that he cited 

during the course of his inspection on October 29, 1992. The 

existence of such accumulations constitutes a violation of the 

cited section 75.400. See: Old Ben coal company, 2 FMSHRC 2806 

(October 1980); c.c.c. -Pompey Coal Company, Inc., 2 FMSHRC 1195 

(June 1980); Utah Power & Light company, 12 FMSHRC 965, 968C May 

1990). I conclude and find that the violation has been 

established, and IT IS AFFIRMED. 

2181 
The Unwarrantable Failure Issue 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an 

inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or - practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several decisions concerning the interpretation and 

application of the term "unwarrantable failure," the Commission 

further refined and explained this term, and concluded that it 

means "aggravated conduct, constituting more than ordinary 

negligence, by a mine operator in relation to a violation of the 

Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 1987); 

Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 1987) ; 

Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249 

(March 1988). Referring to its prior holding in the Emery Mining 

case, the Commission stated as follows in Youghiogheny & Ohio, at 

9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 00 inadvertent, 11 "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 00 not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase 11 unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

nFailure" is defined as "neglect of an assigned, 

expected, or appropriate action." Webster's Third New 

International Dictionary (Unabridged) 2514, 814 (1971) 

{"Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." 

2182 
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

Costain Coal asserted that MSHA failed to establish the 

proper underpinning for the unwarrantable failure order in 

question because the inspector cited Citation No. 3857525, issued 

on October 4, 1992, as the underpinning, and that citation was 

ftot produced by MSHA's counsel in the course of the hearing. 

Even if the proper underpinning is established, Costain Coal 

takes the position that the facts presented in this case do not 

justify the inspector's unwarrantable failure finding. 

Notwithstanding its failure to produce the underlying 

citation recorded by the inspector in support of the order, MSHA 

points out that Costain has conceded a previously issued section 

104(d) (1) Citation No. 3552700,-··0ctober 16, 1992. Since Costain 

did not contest that citation, MSHA concludes that the contested 

Order in this case was properly issued under the sequence 

requirements found in section 104{d) of the Act. 

I agree with MSHA's position with respect to the procedural 

correctness associated with the section 104(d) "chain" and I 

conclude and find that the previously issued section 104(d) (1) 

citation of October 16, 1992, which was not contested, may serve 

as a proper underpinning for the order issued by the inspector in 

this case. However, for the reasons which follow, I cannot 

conclude that the disputed unwarrantable failure finding of the 

inspector is supportable. 

The inspector cited two areas where he observed coal 

accumulations. He concluded that the 4 to 12 inch deep coal at 

the conveyor head drive had existed "for several shifts". At the 

second location, outby the head drive and extending for a 

distance of 150 feet, he observed spillage at several places that 

he believed had existed "for awhile" (Tr. 18). It seems clear to 

me that the inspector did not know how long the accumulations in 

question had existed, and he simply concluded that from the 

amount of coal he observed that it was there "for sometime". The 

respondent's evidence, including the belt examination book 

entries for at least four days prior to the inspection on 

October 29, confirmed some spillage along the belt line, but not 

to the extent that it existed at the head drive at the time of 

the inspection. Indeed, the inspector admitted that he did not 

know the extent of any earlier spills or accumulations (Tr. 124). 

The inspector's testimony concerning the description of the 

accumulations outby the head drive and down the entry ranges from 

sparse to nil. 

The inspector alluded to prior coal accumulation citations 

that he issued at the mine, but there is no evidence that they 

2183 
were at the same cited locations that were cited during the 

inspection in question, and although the inspector believed that 

the respondent needed to improve "on their rock dust applications 

and accumulations", he confirmed that the respondent has an 

effective mine examination program to correct equipment and 

permissibility problems and has "greatly reduced its repeat 

violations" (Tr. 28) . 

The respondent's belt examination books contain notations by 

the belt examiner for the preceding work shifts which reflect 

"light to medium" spillage in the crosscuts, and "good" spillage 

condition. Other entries show some header spillage which was 

cleaned up, and belt mechanic Benjamin Wilson testified credibly 

that when he observed the area at the start of the shift before 

the inspector's arrival, he observed "an inch of coal and no 

problems" and left the area. When he was called back to the 

area, he observed the spill cited by the inspector and he was 

informed by someone that it -was caused by a belt rubber skirt 

that had come loose and caused the coal on the belt to spill over 

the edge and accumulate. 

Certified belt examiner Robert Bailey, who was responsible 

for the 11-C belt, testified that he routinely checks the belts 

once or twice a day. He confirmed that he found some spillage 

around the header the day before the inspection but cleaned it 

up. He confirmed that belt supervisor Ricky Phillips informed 

him that belt examiner Wilson had informed him that a displaced 

belt rubber skirt had caused some spillage where the 11-B and 

11-C belts came together, but that it had been cleaned up, and 

Mr. Bailey was told to watch it to avoid additional spillage. 

Although Mr. Phillips did not testify, respondent's loss 

prevention director Clifford Burden introduced a copy of Mr. 

Phillips 0 notes (Exhibit R-2), which contain notations concerning 

the defective skirt device which all of the respondent's 

witnesses believed caused the spillage cited by the inspector. 

After careful review of all of the testimony in this case, I am 

not convinced that the cited coal accumulations existed for an 

unusual or protracted period of time prior to the arrival of the 

inspector on the scene. 

The inspector confirmed that he was informed by mine 

management personnel of the belt problem at the time of his 

inspection and that people were assigned to clean up the 

spillage. The inspector testified that he had no reason to doubt 

what he was told. Although he indicated that someone had 

mentioned a problem with belt splices and tears, and he suggested 

that this way have caused the spillage problem, I take note of 

the fact that the inspector abated the violation after the 

spillage was simply cleaned up and the replacement of the belt 

was accomplished at some later time. 

2184 
I conclude and find that the respondent's evidence supports 

a reasonable conclusion that the coal spillage and accumulations 

found by the inspector were the result of the defective rubber 

belt skirting problem described by the respondent's witnesses. 

The inspector did not question the respondent's contention that 

people were assigned to take care of the spillage in question 

(Tr. 124). 

However, the inspector questioned why no one was there when 

be was in the area. In my view, the fact that no one was 

shovelling at the precise moment the inspector appeared on the 

scene, does not constitute "aggravated conduct" amounting to an 

unwarrantable failure to comply with the requirements of 

section 75.400. 

Based on the foregoing findings and conclusions, and after 

careful review and consideration of all of the testimony and 

evidence in this case, I conclude and find that MSHA has failed 

to prove that the violation in question constituted an 

unwarrantable failure on the part of Costain Coal. Under the 

circumstances, the inspector's finding of an unwarrantable 

failure IS VACATED, and the section 104(d) (1) order IS MODIFIED 

to a section 104(a) citation. 

Significant and Substantial Violation 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the .violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the · Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

2185 
In United States steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element of 

the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." u.s. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. u.s. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); u.s. steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988): Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

In support of the inspector's "S&S" finding, MSHA asserts 

that it is undisputed that there was a large and deep 

accumulation of loose coal and coal dust on the cited 11-C belt 

line at the time of the inspection. MSHA concludes that there 

are "clearly a confluence of factors sufficient to find that an 

ignition was reasonably likely to result from this accumulation". 

In support of this conclusion, MSHA states that the mine 

liberates a great deal of methane, has a history which includes a 

deadly explosion in 1989y that the belt was running in coal, and 

that a number of belt rollers were sticking or had other 

problems. Given this combination, MSHA further concludes that it 

would take a very short time for an ignition to occur. 

The respondent asserts that the accumulations would have 

been cleaned up in the normal course of business, and that the 

11-B header was equipped with a spray fire suppressant system to 

attack any fire, and that co monitors were located along the 

beltway to alert the respondent about such an event. In response 

to these arguments, MSHA points out that the next person who 

would have been in the area according to the respondent's normal 

course of business would be the preshift examiner for the second 

shift, and he would not have been in the area for a number of 

hours. With regard to any fire, MSHA states that everyone 

testifying in this case agreed that the sprays located at the 

head drive would be inadequate to deal with an ignition down the 

beltline. As for the CO monitor, MSHA points out that it 

notifies someone on the surface after smoke or heat are detected. 

MSHA believes that a serious mine fire could occur during the 

four or five minutes travel time required under normal 

2186 
circumstances given the location of the miners working inby and 

the speed at which a fire can spread in the high presence of 

methane. Further, MSHA believes that it cannot be assumed that 

the miners could travel the same path or in the same amount of 

time as under normal circumstances. 

Although Inspector Milburn testified that he observed no 

problems with the beltline itself, other than the spillage that 

he cited, he confirmed that the belts were running at the time of 

his observations, and that the accumulations were dry and black 

in color. He further testified that the 11-B "short belt" dumped 

coal onto the 11-C "main line" belt, and that at the back side 

and head drive of the 11-B belt where he observed a large amount 

of spillage, 4 to 12 inches in depth, the belt was running in the 

spillage for a distance of 10 or 15 feet. From that point outby 

for a distance of approximately 150 feet along the 11-c beltline, 

the inspector observed similar coal spillage along the side of 

the belt. He confirmed that the mine is a "gassy" mine and that 

it is on a ten-day "spot inspection" cycle because of the amount 

of methane liberated (Tr. 16-23). 

Inspector Milburn testified that most underground mine fires 

occur at belt conveyor entries where coal is transported out of 

the mine, and that fires are started by stuck belt rollers or the 

belt rubbing against the belt frame (Tr. 24). In the instant 

case, the inspector believed that the belt running through the 

combustible coal accumulations at the 11-B belt head drive would 

result in friction against the belt frame, and that the belt 

rollers turning through these accumulations would create and 

provide a heat source (Tr. 23-24). 

The belt inspection reports for the 11-c belt (Exhibit R-1), 

for the three shifts on October 28, 1992, the day before the 

accumulations were observed by the inspector on October 29, 1992, 

identify eleven (11) rollers by number. The third shift report 

for October 29, 1992, for that same belt also contains a notation 

concerning those same rollers. Although the reports do not 

further explain these entries, and the individuals who made them 

were not called to testify, respondent's loss control director 

Burden testified that identifying the rollers by number indicates 

a problem with the roller, such as sticking or a loose bearing, 

but that "sticking would be the main thing" (Tr. 70). 

The respondent's position that the cited accumulations did 

not constitute an "S&S" violation because the accumulations would 

have been detected in the ordinary course of business and that 

any fire would have been detected or taken care of by the co 

monitoring system is not well taken and it is rejected. Although 

the inspector made reference to a fire suppression spray at the 

head drive, he pointed out that while it may have taken care of a 

fire at that particular location, it would have no effect on the 

2187 
accumulations outby that 

down the 11-C beltline. 

the co monitoring system 

fire and that the system 

a fire {Tr. 24-25). 

location for a distance of some 150 feet 

The inspector further pointed out that 

along the beltline would not control any 

only serves to indicate the location of 

The respondent's belt mechanic, Robert Bailey, testified 

that the fire suppression sprinkler and sensors at the belt head 

drive would activate in the event of a fire, and that water would 

automatically be sprayed on the head drive and the sensors would 

shut the belt down (Tr. 85-86). However, Mr. Bailey confirmed 

that the CO monitoring system deals with the entire belt system, 

and that the water sprays and sensors located at the head drives 

serve only the head drives, and if there were a fire down the 

beltline where the belt is running in coal or in a major 

spillage, the head drive sprays would not provide water at those 

locations. He also confirmed that the co monitoring system along 

the beltlines, which· is the only defensive fire suppression 

system available at those locations, including the location of 

the major spillage where the rubber belt skirting was located, 

may or may not detect a fire (Tr. 97-98). 

Based on the testimony and evidence in this case it would 

appear to me that the coal spillage resulting from the backed-up 

rubber skirting at the belt head drive was causing a rather rapid 

buildup of accumulations of dry, black, combustible coal 

materials under the back of the head drive as well as outby along 

the 11-C beltline. The credible testimony of the inspector 

establishes that the belt and belt rollers were running and 

turning through these coal accumulations, and I find that they 

were potential sources of ignition. Further, although there is 

no direct evidence that any of the eleven belt rollers along the 

beltline were in fact sticking, based on the testimony of the 

respondent's own witness (Burden), as corroborated by the section 

inspection reports, there was a problem with the rollers. 

Indeed, Mr. Burden indicated that they were most likely sticking. 

I have concluded that a violation of section 75.400, has 

been established, and the violation has been affirmed. After 

careful consideration of all of the evidence and testimony, I 

conclude and find that the cited accumulations of loose coal, 

coal dust, and float coal dust, which I conclude were combustible 

materials within the meaning of section 75.400, constituted a 

discrete hazard of a potential mine fire. The belt and belt 

rollers were turning in the accumulations at the belt head drive 

while the belts were running, and some of the rollers along the 

beltline were more than likely sticking, thereby creating 

potential ready sources of ignition. Although there is some 

testimony that water sprays were located at the immediate head 

drive, belt mechanic Bailey confirmed that if a fire were to 

occur along the beltline where there is major spillage, and the 

belt is turning in the coal, there would be no available water 

2188 
because the sprays are only located at the head drives and not 

along the belt. Although co monitors are installed along the 

beltline, the evidence reflects that such monitors only serve to 

signal the existence and location of smoke or fire, and do not 

act as fire suppression devices. Further, Mr. Bailey indicated 

that these sensors may or may not detect a fire at a major 

spillage along the beltline (Tr. 98). 

In view of the foregoing, I conclude and find that in the 

normal course of continued mining at the time the inspector 

observed the cited coal accumulations, it was reasonably likely 

that an ignition would have occurred as the dry black combustible 

coal continued to accumulate and turn in the belt and rollers, 

and that a belt fire was reasonably likely to occur as a result 

of these accumulations and ready sources of ignition that were 

present. I further conclude and find that in the event of a belt 

fire, it would be reasonably likely that the men on the section 

would suffer smoke inhalation, and fire related injuries of a 

reasonably serious nature. Under the circumstances, I conclude 

and find that the violation was significant and substantial 

(S&S), and the inspector's finding in this regard IS AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The pleadings reflect that as of January 6, 1993, the mine 

had an annual production of 2,021,177, and the overall production 

for all of the respondent's mines was 12,670,082. I conclude and 

find that the respondent is a large mine operator. In the 

absence of any evidence to the contrary, I further conclude and 

find that payment of the civil penalty assessment for the 

violation that was litigated and affirmed in this case will not 

adversely affect-the respondent's ability to continue in 

businesso 

History of Prior Violations 

The respondent's history of prior violations for the period 

July 23v 1990, through July 22, 1992, reflects that the 

respondent paid $211,195, in civil penalties for 1,239 

violations. The print-out reflects 165 prior violations of 

section 75.400, six (6) of which were issued as section 104(d) (2) 

orders. Considering the size of the respondent's mining 

operations, I cannot conclude that its overall compliance record 

is particularly bad. However, given the number of past 

violations for coal accumulations, it would appear to me that the 

respondent needs to pay closer attention to its cleanup practices 

and I have considered this in the penalty assessment that I have 

made for the violation. 

2189 
Gravity 

Based on my "S&S" findings and conclusions, I find that the 

violation was serious. 

Negligence 

I conclude and find that the respondent failed to exercise 

reasonable care to insure that all of the cited accumulations 

were timely removed from the mine, and that this failure on its 

part constitutes a moderate degree of negligence. 

Good Faith Compliance 

The record establishes that the violation was timely abated 

in good faith. 

~ivil Penalty Assessment 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section 110(i) of the Act, I conclude and find that a civil 

penalty assessment of $2,000, is reasonable and appropriate. 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED AS FOLLOWS: 

1. Section 104(d) (1) "S&S" Order No. 3553244, 

October 29, 1993, 30 C.F.R. § 75.400, IS 

MODIFIED to a section 104(a) "S&S" citation, 

and the respondent IS ORDERED to pay a civil 

penalty assessment of $2,000, for the 

violation. 

2. Section 104(d) (1) "S&S" Order No. 3552700, 

October 16, 1992, citing a violation of 

30 C.F.R. § 75.1704, IS MODIFIED to a 

section 104(d) (1) "S&S" citation, and the 

respondent IS ORDERED to pay the agreed upon 

settlement amount of $4,000, for the violation. 

3. Section 104(d) (1) non-"S&S" Order No. 3552934, 

october 16, 1992, citing a violation of 

30 C.F.R. § 75.220, IS MODIFIED to a section 

104(a) non-"S&S" citation, and the respondent 

IS ORDERED to pay the agreed upon settlement 

amount of $500, for the violation. 

4. Section 104(d) (2) "S&S" Order No. 3552424, 

March 17, 1992, citing a violation of 30 C.F.R. 

2190 
§ 75.316, IS MODIFIED to a section 104(a) "S&S" 

citation, and the respondent IS ORDERED to pay 

the agreed upon penalty amount of $500, in 

settlement of the violation. 

Payment of the aforementioned civil penalty assessments, 

including the settlement amounts, shall be made to the petitioner 

(MSHA) within thirty (30) days of the date of these decisions and 

Order. Upon receipt of payment, these matters are dismissed. 

4~~ Administrative Law Judge 

Distribution: 

R. Eberley Davis, Legal Affairs Manager, Costain coal Inc., 

P.O. Box 289, sturgis, KY .42459 (Certified Mail) 

carl B. Boyd, Esq., 223 First Street, Henderson, KY 42420 

(Certified Mail) 

Mary Sue Taylor, Esq., Office of the Solicitor, u.s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

jm1 

2191 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 01993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PUERTO RICAN CEMENT COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MAR-LAND INDUSTRIAL 

CONTRACTORS INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 92-196-M 

A. C. No. 54-00001-05522 

Docket No. SE 92-233-M 

A. C. No. 54-00001-05523 

Ponce cement Plant 

CIVIL PENALTY PROCEEDING 

Docket No. SE-92-197-M 

A. C. No. 54-00001-05504 BOY 

Ponce Cement Plant 

DECISION 

Appearances: Jane Snell Brunner, Esq., Office of Solicitor, 

u.s. Department of Labor, New York, New York, 

for Petitioner; 

Before: 

Daniel R. Dominguez, Esq., and Miquel A. Maza, 

Esq., Law Office Dominguez & Totti, Hato Rey, 

Puerto Rico 1 for Respondents. 

Judge Barbour 

STATEMENT OF THE CASE 

In these consolidated civil penalty proceedings, brought by 

the Secretary of Labor ("Secretary") against Puerto Rican Cement 

Company ("Puerto Rican Cement") and Mar-Land Industrial 

Contractors, Incorporated ("Mar-Land") pursuant to sections 

105(d) and 110(a) of the Federal Mine Safety and Health Act of 

1977 ("Mine Act" or "Act"), 30 u.s.c. §§ 815(d), 820(a), the 

Secretary charges Puerto Rican Cement with three violations of 

mandatory safety standards for surface metal and nonmetal mines 

found in Part 56, Title 30, Code of Federal Regulations 

("C.F.R.") and Mar-Land with two violations. In addition, the 

Secretary asserts that four of the alleged violations were 

significant and substantial contributions to mine safety hazards 

( 11 S&S11 violations). 

2192 
All of the alleged.violations were cited on December 16, 

1991, by inspectors of the Secretary's Mining Enforcement and 

Safety Administration at Puerto Rican Cement's Ponce Cement 

Plant, a cement processing plant located at Ponce, Puerto Rico. 

In answer to the Secretary's subsequent proposals for the 

assessment of civil penalties, Puerto Rican Cement denied that 

the violations had occurred, and argued in the alternative that 

in any event the employees involved in the violations either were 

under the exclusive control of Mar-Land, were employees of 

Mar-Land, or that the area involved was under the exclusive 

control and supervision of Mar-Land. For its part, Mar-Land 

denied the violations. 

The matters were among a series of cases called for hearing 

in Hato Rey, Puerto Rico. Shortly before the scheduled hearing, 

counsel for Mar-Land, Enrique M. Bray, requested a continuance, 

stating he was required to appear in a case in Federal District 

Court in San Juan on the same·day as the hearing. Because the 

hearing in the Puerto Rican Cement\Mar-land cases had long been 

scheduled and because a continuance would have unduly prolonged 

the cases, I denied the motion. counsel then moved for 

permission to withdraw. I advised counsel that I would permit 

him to withdraw only if Mar-Land obtained replacement counsel. 

This was done when counsel for Puerto Rican cement entered an 

appearance on Mar-Land's behalf as well, and I then granted Mr. 

Bray's motion to withdraw. Tr. 5. 

At the hearing, counsel speaking on behalf of both 

Respondents, stated that the recent interview of the Respondents' 

potential witnesses had caused the companies to re-evaluate their 

positions. Counsel stated: 

The last thing that Puerto-Rican Cement 

and Mar-Land want to ever give the impression 

is that Puerto Rican Cement or Mar-Land will 

go into a case with witnesses that may not be 

stating the truth • • • and Puerto Rican 

Cement and Mar-Land want to make it very 

clear that they would never go into a 

situation for creating a credibility issue, 

when there is no credibility issue. 

so, under those circumstances, Mar-Land 

• and . • • Puerto Rican Cement will 

accept liability . • • . 

Tr. 6-7. Counsel then stated that both companies withdrew their 

contests of the alleged violations and 11 accept[ed] the fine[s]." 

Tr. s. 

In response, I expressed my concern about the Respondents' 

late decision to admit liability. I noted that had theirs been 

the only cases to be heard, the government would have been put to 

unnecessary expense arranging for the hearing, and I noted that 

2193 
it was incumbent upon counsel to be more expeditious in 

evaluating cases. I expressed the expectation that in the future 

Puerto Rican Cement and Mar-Land fully would meet their duty in 

this regard. Tr. 8. Counsel stated that he and co-counsel were 

"very conscious" of their obligations. Tr. 9. 

I then inquired of counsel for the Secretary whether the 

penalties proposed for the admitted violations were commensurate 

with the statutory penalty criteria. counsel stated that she 

believed they were and added that she had no objection to 

Respondents• withdrawing their contests of the penalties. 

CONCLUSION 

After review and consideration of the pleadings and 

submissions, I agree with counsel for the Secretary and find that 

the proposed penalties faithfully reflect the statutory civil 

penalty criteria and are each appropriate for the subject 

admitted violations. Accordingly; the civil penalties in these 

matters are assessed as follows: 

PUERTO RICAN CEMENT 

Docket No. SE 92-196-M 

Citat;Lon Date 30 C.F.R. § Assessment 

3878262 12/16/91 56.16009 $98 

3878266 12/16/61 56.12030 $98 

Docket No. SE 92-233-M 

:Citation Date 30 C.F.R. § Assessment 

3878268 12/16/91 56.18002(a) $20 

MAR-LAND 

Docket No. SE 92-197-M 

Citation Date 30 C.F.R. § Assessment 

3878261 12/16/91 56.16009 $136 

3878264 12/16/91 56.12030 $112 

ORDER 

The citations referenced above are AFFIRMED. Puerto Rican 

Cement and Mar-Land are ordered to pay civil penalties for the 

violations as assessed above within thirty (30) days of the date 

of this decision and upon receipt of payment this proceeding is 

DISMISSED. 

/) tV;f/ {!£~~ Davia F. Barbour 

Administrative Law Judge 

2194 
Distribution: 

Jane snell Brunner, Esq.; Office of the Solicitor, 

u.s. Department of Labor, 201 Varick Street, Room 707, New York, 

NY 10014 {Certified Mail) 

Daniel R. Dominguez, Esq., Miquel A. Maza, Esq., Dominguez & 

Totti, P.o. Box 1732, San Juan, PR 00919-1732 (Certified Mail) 

fepy 

2195 
PBDBDL .K:IIIB SAI'B'l'Y AliD HEALTH RBV:rD COIIXJ:SSIOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

S & H MINING, INC. 

Respondent 

OCT 2 21993 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 93-9 

A. C. No. 40-03011-03534 

Docket No. SE 93-10 

A. C. No. 40-03011-03535 

Docket No. SE 93-98 

A. C. No. 40-03011-03540 

S & H Mine No. 7 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

u.s. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

Imogene A. King, Esq., Frantz, McConnell & Seymour, 

Knoxville, Tennessee, for the Respondent. 

Before~ Judge Feldman 

These cases ara before me as a result of petitions for civil 

penalties filed by the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et ~~ (the Act). These proceedings were 

conducted on September 28 and September 29, 1993, in Knoxville, 

Tennessee. Mine Safety and Health Administration Inspector 

Don A. McDaniel testified on behalf of the Secretary. The 

respondent called Paul G. Smith, President of s & H Mining, 

Incorporated. The parties waived the filing of posthearing 

briefs. 

These matters concern a 104(a} citation and ten 104(d) 

orders that were issued as a result of the respondent's alleged 

unwarrantable failure. The total civil penalty proposed by the 

Secretary for these 11 alleged violations is $27,420.00. At the 

hearing, I issued a bench decision disposing of the 104(a) 

citation in issue and three of the 104(d) orders in question. 

After extensive testimony and several adjournments for the 

purpose of settlement discussions, the parties proffered a 

2196 
settlement motion for the rema1n1ng seven 104(d) orders which was 

granted on the record. This decision formalizes my bench 

decisions and incorporates the parties' settlement agreement. 

The substance of my bench decisions and the parties' approved 

settlement result in a civil penalty assessment totaling 

$10,775.00. 

Bench Decisions 

The following alleged violations1 concern the respondent's 

failure to make current annotations to its mine map for its No. 3 

Right Section; the respondent's lack of adherence to its approved 

roof-control plan in its No. 3 Right Section; and mud and water 

conditions observed by McDaniel in the respondent's main entry 

intake escapeway. The text of the bench decisions concerning 

each of these four alleged violations, with non-substantive 

edits, is as follows: 

Order No. 3382919 (Gov. Ex. 3) was issued on July 21, 

1992, by Inspector McDaniel for an alleged violation of 

section 75.1202. This mandatory safety standard 

requires that mine maps must be kept up-to-date with 

temporary notations and revisions. The testimony of 

McDaniel was that updated maps of different entries are 

important because once an entry is sealed, there is no 

way of determining the configuration of the sealed 

entry. If there is any subsequent mining adjacent to a 

sealed entry, it is important for the sealed area to be 

accurately reflected on a map in order to avoid 

unanticipated structural problems. 

McDaniel testified that the map he observed during his 

July 21, 1992, inspection did not reflect pillars after 

the 35th crosscut. Therefore, pillar rows 35, 36 and 

37 were not depicted on the map. 

However, the testimony is undisputed that on June 2, 

1992, approximately seven weeks prior to the date 

McDaniel issued this order, the respondent submitted a 

map to MSHA that was accompanied by its proposed 

ventilation plan that illustrated everything midway 

through the 37th row of pillars. Thus, the only area 

not shown on the map submitted to MSHA on June 2, 1992, 

that was inconsistent with McDaniel's observations on 

July 21, 1992, was essentially the No. 1 through No. 6 

entries between the 37th and 38th crosscut outby. 

1 The parties stipulated that the cited mandatory health and 

safety standards contained in 30 C.F.R. Part 75, revised as of 

July 1991, shall apply in these proceedings. (Vol. II, tr. 4). 

219 7 
As such, the mine map that MSHA had on June 2 was 

substantially accurate, even though McDaniel may have 

been shown a mine map that was less accurate during his 

inspection. Consequently, I find that the likelihood 

of injury is substantially reduced because the only 

inaccuracy on the map in MSHA's possession (which is 

also maintained by the respondent) is the lack of the 

38th crosscut. 

In summary, I am crediting the testimony of McDaniel 

that he was shown a map without current annotations. 

However, the substantially accurate June 2 Map is a 

significant mitigating factor. Therefore, I am 

modifying Order No. 3382919 to a 104(a) citation, 

and I am deleting the significant and substantial 

designation. I am also lowering the degree of the 

respondent's negligence from high to moderate. The 

penalty assessed for this citation is $200.00. (Tr. Vol. II, 43-47). . .. 

Order No. 3382964 (Gov. Ex. 7) was issued by McDaniel 

on July 23, 1992, for an alleged violation of section 

75.220 for the respondent's purported failure to adhere 

to its approved roof-control plan. The respondent was 

cited for beginning to mine a pillar by making a 

38 inch wide cut in the pillar without first installing 

timbers in the outby crosscut. This cut was witnessed by 

McDaniel. The respondent has stipulated to the fact of a 

technical violation but has asserted that the cut was 

inadvertently made by the continuous miner operator during 

the cleaning of an entry. 

The Secretary has the burden of proving that the pillar 

was being mined. McDaniel arrived at the respondent's 

mine on July 23 at 6:15 a.m. Order No. 3382964 was 

issued at 1:30 p.m. The continuous miner operator, 

Steve Phillips, was aware of McDaniel's presence at the 

mine. It is inconceivable that Phillips would mine a 

pillar without setting timbers knowing that McDaniel 

was on the premises. In view of the angle and size of 

the cut (38 inches in width), the Secretary has failed 

to meet his burden of establishing that this was a 

willful rather than a negligent act. Accordingly, I am 

removing the unwarrantable failure designation. 

The integrity of the pillars prior to installation of 

pertinent timbers is fundamental to the roof support 

system. Therefore, I am affirming the significant and 

substantial characterization of this violation. 

Accordingly, Order No. 3382964 is modified to a 

significant and substantial 104(a) citation with a 

2198 
reduction in the degree of associated negligence from 

high to moderate. A civil penalty of $400.00 is 

assessed. (Tr. Vol. II, 56-58). 

Order No. 3382962 (Gov. Ex. 14) was issued by McDaniel 

on July 22, 1992, for an alleged failure by the 

respondent to follow its approved roof-control plan in 

violation of section 75.220. The plan required the 

first pillar cut to be 13 feet wide. However, due to 

the dimension of the entries and the size of the 

continuous miner, the respondent's first cut was wider 

than the approved width. After the first cut, the 

respondent was able to maneuver the continuous miner to 

comply with the subsequent pillar cuts in its roofcontrol plan. (See tr. VOL. II, 66-68}. 

McDaniel has confirmed that there was an impossibility 

of performance with regard to the width of the first 

cut. However, it is incumbent on the operator to seek 

modification of its existing roof control plan if it 

cannot be followed. Any other approach would encourage 

the operator to ignore its approved roof-control plan 

if it finds that it is unwilling or unable to comply 

with it. Such unilateral action by the operator would 

render the roof control approval process meaningless. 

Significantly, the evidence reflects that the roofcontrol plan with respect to the first pillar cut has 

never been followed. Therefore, I am attributing this 

violation to the respondent's unwarrantable failure. 

Turning to the issue of significant and substantial, 

the roof control-plan was ultimately modified to 

essentially ·conform to the respondent's method of 

initial pillar cut. Thus, I am unable to conclude that 

the respondent's mining in this instance was 

structurally unsound. Moreover, the evidence does not 

reflect that any personnel were exposed to unsupported 

roof. Therefore, I am deleting the significant and 

substantial designation. 

The continued operation in violation of the roof 

support plan is a serious matter. Thus, I am affirming 

Order No. 3382962 as a 104(d) order and I am assessing 

a civil penalty of $2,100.00. (Vol. II, tr. 84-87). 

Citation No. 3382967 (Gov. Ex. 2) was issued by 

McDaniel on August 10, 1992, for an alleged significant 

and substantial violation of section 75.1704 which 

requires maintenance of escapeway passages to ensure 

passage at all times. The citation noted mud and rock 

2199 
from the portal inby to the No. 2 head drive in the 

main entry intake escapeway. 

McDaniel testified that the escapeway in the No. 3 

Right Section had been recently cleared and was well 

maintained. (See Vol. II, tr. 119). The photographic 

evidence and the testimony support the respondent's 

contention that there was also a recent attempt to 

clear the main entry intake escapeway of mud and water. 

However, the attempted clearing was unsuccessful 

because the scoop became stuck in ruts in the mud. 

These ruts are clearly visible in the photographs 

proffered by the respondent. (Resp. ex. 12). Thus, I 

find that the respondent's effort to clear this area, 

as evidenced by these ruts, is a mitigating factor. 

However, consistent with the Commission's decision in 

Eagle Nest, Inc~, 14 FMSHRC 1119 (July 1992), I 

conclude that mud and .. water in a primary escapeway 

creates a hazard that, when viewed in the context of 

continued mining operations, is reasonably likely to 

result in a slip and fall injury of a reasonably 

serious nature. Therefore, I am sustaining this 104(a) 

citation as significant and substantial and assessing a 

civil penalty of $75.00. (Tr. VOL. II, 119-122). 

Approved Settlement Agreement 

As noted above, the parties' motion to settle the seven 

remaining 104(d) orders in these proceedings was granted on the 

record. Order Nos. 3382920, 3382961 and 3382918 concern the 

respondent's bleeder system in its No. 3 Right Section. These 

orders concern the respondent's purported failure to comply with 

its approved ventilation plan; the respondent's failure to 

adequately ventilate the section; and the respondent's failure to 

perform weekly examinations for hazardous conditions in its 

bleeder system. McDaniels' significant and substantial 

designations with respect to these citations were retained. The 

settlement agreement, however, acknowledged that the respondent 

was in the process of mining through the 36th crosscut between 

the 7th and 8th entry at the time of the inspection. This 

operation ultimately cleared a blockage in the bleeder system 

which permitted the free flow of return air. 

In addition, the respondent was operating in an area of poor 

roof conditions which interfered with weekly hazard examinations. 

In view of these mitigating circumstances, the terms of the 

settlement removed the unwarrantable failure findings with 

2200 
respect to these violations. Therefore, these orders were 

modified to reflect 104(a) citations. Consequently, the 

Secretary moved to substantially reduce the civil penalties for 

these citations. 

The parties settlement agreement did not disturb the 

significant and substantial or unwarrantable failure designations 

for Order Nos. 3382915, 3382916 and 3382917. These orders 

concern violations of the respondent's approved roof-control plan 

and pillar mining methods that exposed the continuous miner 

operator to unsupported roof. 

Finally, the Secretary moved to vacate Order No. 3382914. 

This order involved an alleged violation of the respondent's 

approved roof control-plan with respect to pillar No. 38. 

However, due to poor roof conditions, McDaniel was unable to 

position himself to clearly observe the condition of this pillar. 

Therefore, the Secretary has concluded that there is insufficient 

evidence to support the fact of. the cited violation. 

As a final matter, there appears to be an animus between 

MSHA inspectors and the respondent's personnel. Both McDaniel 

and Smith advised me that it is not uncommon for the respondent's 

employees to disagree with the objective observations of the 

inspectors. For example, in these proceedings, the respondent 

has denied McDaniels' testimony concerning missing timbers. 

However, there is no evidence that McDaniels was ever advised by 

the respondent at the inspection of its belief that the subject 

timbers were in fact present. 

Therefore, I have urged the parties to initiate a voluntary 

procedure whereby any dispute concerning the objective findings 

of the inspectors should be conveyed in writing by the 

respondent 1 s personnel to the inspector. If a disagreement 

remains, in the spirit of good faith and cooperation, the 

inspector should initial and date the written objection which 

should be retained by the respondent. This written objection 

will serve to document and preserve the respondent's position in 

the event of subsequent litigation. McDaniel and Smith, the 

respondent 1 s president, have both indicated that this procedure 

would be helpful. (See vol. II, tr. 172-184). 

ORDER 

Consistent with the above bench rulings, IT IS ORDERED that: 

1. Order No. 3382919 IS MODIFIED to a 104(a) citation, thus 

reducing the degree of associated negligence from high to 

2201 
moderate. In addition, the significant and substantial 

designation is deleted. The civil penalty assessed for this 

citation is $200.00. 

2. Order No. 3382964 IS MODIFIED to a 104(a) citation, thus 

reducing the degree of underlying negligence from high to 

moderate. The civil penalty assessed for this citation is 

$400.00. 

3. Order No. 3382962 IS MODIFIED to remove the significant 

and substantial designation and is affirmed as modified. A civil 

penalty of $2,100.00 is assessed for this order. 

4. Citation No. 3382967 IS AFFIRMED. The respondent shall 

pay a civil penalty of $75.00. 

Consistent with my approval of the parties' settlement 

agreement, IT IS FURTHER ORDERED that: 

5. Order No. 3382920 IS MODIFIED to a 104(a) citation, thus 

reducing the degree of negligence from high to moderate. The 

respondent has agreed to pay a civil penalty of $400.00. 

6. Order No. 3382961 IS MODIFIED to a 104(a) citation, thus 

reducing the degree of negligence from high to moderate. The 

respondent has agreed to pay a civil penalty of $400.00. 

7. Order No. 3382918 IS MODIFIED to a 104(a) citation, thus 

reducing the degree of negligence from high to moderate. The 

respondent has agreed to pay a civil penalty of $1,200.00. 

So Order No. 3382915 IS AFFIRMED. The respondent has 

agreed to pay a civil penalty of $2,500.00. 

9o Order No. 3382916 IS AFFIRMED. The respondent has 

agreed to pay a civil penalty of $2,500.00. 

10o Order No. 3382917 IS AFFIRMED. The respondent has 

agreed to pay a civil penalty of $1,000.00. 

11. Order No. 3382914 IS VACATED. 

IT IS FURTHER ORDERED that the respondent shall pay, within 

30 days of the date of this decision 1 a total civil penalty of 

2202 
$10,775.00 in satisfaction of the above citations and orders. 2 

Upon receipt of payment, these ARE DISKISSBD. 

Distribution: 

,. 

~~~((23 §;:l --> 

JEROLD FELDMAN 

Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, u.s. Department 

of Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN 

37215 {Certified Mail) 

Imogene A. King, Esq., Frantz, McConnel & Seymour, P.O. Box 39, 

Knoxville, TN 37901 (Certified Mail) 

/11 

2 The $10,775.00 total civil penalty assessed in these cases 

represents: a $75.00 penalty assessed in Docket No. SE 93-9 for 

Citation No. 3382967; a $1,400.00 penalty assessed in Docket No. 

SE 93-10 for modified Citation Nos. 3382919, 3382920, 3382961 and 

3382964; and a $9, 300_. oo penalty assessed in Docket No. 93-98 for 

Order Nos. 3382915, 3382916, 3382917 and modified Citation No. 

3382918. 

2203 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT ~ 6 1~93 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KIAH CREEK MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-964 

A.C. No. 15-16678-03521 

No. 4 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Barbour 

Statement of the Proceeding 

This proceeding concerns proposals for assessment of a civil 

penalty filed by the Petitioner against the Respondent pursuant 

to Section 110(a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment for 

one alleged violation of a certain mandatory safety standard 

found in Part 77, Title 30, Code of Federal Regulations. 

The parties now have decided to settle the matter, and they 

have filed a motion pursuant to Commission Rule 30, 29 C.F.R. 

§ 2700.30, seeking approval of the proposed settlement. The 

citation, initial assessment, and the proposed settlement amount 

is as follows~ 

Citation No. 

3811870 

Date 

04/22/92 

30 C.F.R. 

Section 

75.220 

Assessment 

$94 

settlement 

$85 

In support of the proposed settlement disposition of this 

case, the Petitioner has submitted information pertaining to the 

six statutory civil penalty criteria found in Section llO(i) of 

the Act, included information regarding Respondent's size and 

ability to continue in business and history of previous 

violations. 

In particular, with regard to Citation No. 3811870, the 

parties note the violation of the approved roof control plan did 

not affect two persons, as indicated by the inspector but rather 

affected one. 

2204 
CONCLUSION 

After review and consideration of the pleadings, arguments, 

and submissions in support of the motion to approve the proposed 

settlement of this case, I find that the proposed settlement 

disposition is reasonable and in the public interest. Pursuant 

to 29 C.F.R. § 2700.30, the motion IS GRANTED, and the settlement 

is APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the 

settlement amount shown above in satisfaction of the violation in 

question. Petitioner IS ORDERED to modify the citation to 

indicate that only one person was affected. Payment is to be 

made to MSHA within thirty (30} days of the date of this 

proceeding and upon receipt of payment, this proceeding is 

DISMISSED. 

Distribution: 

/.1 ~-·r··-. :_<J / , !.- _) "] C" ~' . --;:'., L',j l , '\. ._....___ ._....,.. i,. (..· w -r· t.. ' 

David F. Barbour --· 

Administrative Law Judge 

(703}756-5232 

Mary Sue Taylor, Esq., Office of the Solicitor, 

u.s. Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

Mr. Mike Gipson, Mine Manager, Kiah Creek Mining company, 

P.O. Box 1409, Pikeville, KY 41502 (Certified Mail) 

jepy 

2205 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5267/FAX (303) 844-5268 

OCT 2 61993 

SECRETARY OF LABOR, CIVIL P~NALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ASPHALT, INCORPORATED,· 

Respondent 

Docket No. WEST 92-526-M 

A.C. No. 04-02251-05524 

Slaughterhouse Canyon 

DECISION 

Appearances: J. Mark Ogden, Esq., Office of the Solicitor, U.S. 

Department of Labor, Los Angeles, California. 

Before;; 

for Petitioner; 

Ray E. Ehly, Jr., President, ASPHALT INC., 

El cajon, California, appearing pro se, 

for Respondent. 

Judge Morris 

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

Health Administration ( 11MSHA11 ), charges Respondent Asphalt Incorporated (''Asphalt") with violating safety regulations promulgated 

under the Federal Mine Safety and Health Act of 1977 0 30 U.S.C. 

§ 801 0 et seq. (the "Act") . 

A hearing on the merits was held in San Diego, California, 

on August 25 0 1993. The parties waived the filing of post-trial 

briefs. 

SETTLEMENTS 

At the commencement of the hearing, Asphalt moved to 

withdraw its contest as to Citation Nos. 3930399, 3930400, and 

3930681. 

Pursuant to Commission Rule 11, 29 C.F.R. § 2700.11, the 

motion to withdraw was GRANTED and it is FORMALIZED in this 

decision. 

2206 
citation No. 3930396 

This citation alleges Asphalt violated 30 C.F.R. 56.11002. 1 

The citation issued under Section 104(a} of the Act, alleged the 

violation was significant and substantial. 

The citation reads as follows: 

A section of planking in the elevated wooden 

walkway, alongside the base belt was rotten. 

A person walking in this area could step through 

this section and injure a foot or ankle. 

[If] there was a handrail located alongside, .a 

person would not fall through to the ground below. 

Although persons were seldom in the area an injury 

was likely to occur. 

Based on the evidence, I enter the following: 

FINDINGS OF PACT 

1. ALLEN BRANDT, a federal mine inspector, conducted an 

investigation of the Slaughterhouse Canyon Mine on April 23, 

1991. (Tr. s, 9). 

2. Asphalt is a sand and gravel crushing operation. 

{Tr. 9). 

3. When the Inspector arrived at 7 a.m., the plant was not 

running as it was down for maintenance. (Tr. 10). 

4o The Inspector identified Citation No. 3930396. 

(TrQ llr 12) o 

5. Employees would use the elevated walkway on an asneeded basis. (Tr. 12). 

6. The walkway constructed of two by ten planking was 

eight to ten feet from the ground. (Tr. 13). 

56.11002. Handrails and toeboards. 

Crossovers, elevated walkways, elevated ramps, and 

stairways shall be of substantial construction provided 

with handrails, and maintained in good condition. Where 

necessary, toeboards shall be provided. 

2207 
7. The planking at one end of the plank was in a splinered condition. There was a 3- to 4-inch by 10-inch hole in the 

planking. (Tr. 14). 

8. The condition of the planking had existed for a month 

or so. It could cause slips, trips, andfor falls. (Tr. 15). 

9. The Inspector believed a person could suffer a losttime injury. Although a worker could not fall through the planking, he could injure a leg or an ankle. On this basis, the Inspector considered the gravity as "reasonably likely." The Inspector further believed the violation was "S&S." (Tr. 15, 16). 

CONTENTIONS, DISCUSSIONS, AND FURTHER FINDINGS 

RAY E. EHLY, JR., President of Asphalt, argues that on the 

day prior to the MSHA inspection, the company conducted a routine 

monthly safety inspection. Upon finding some safety defects, the 

plant was closed and the following morning the first order of 

work was to repair the safety deficiencies. 

Mr. Ehly argues that it seems self-incriminating, unreasonable, and unfair to be cited while the company was in the process 

of doing repairs. (Tr. 3, 4). 

I am not persuaded by this argument. In this case, the evidence shows the defective planking, the missing stop-cord, and 

the step-off existed for more than several days. In this period 

of time 1 workers were exposed to the violative conditions. In additionu daily and not monthly inspections are required. In fact, 

Asphaltus evidence in Exhibits R-1 and R-2 shows the company did, 

in fact, conduct daily inspections. 

ASPHALT'S EVIDENCE 

JERRY RICHESON, superintendent and plant manager for Asphalt 

since 1970 9 testified for the company. (Tr. 38). 

I find Mr. Richeson 1 s uncontroverted testimony supported by 

the daily reports to be credible. On the day of Mr. Brandt's 

inspection the plant had been shut down so repairs could be made. 

In particular, Mr. Richeson intended to repair the stop-cord and 

the step-off at the stairs. 2 (Tr. 39). The defective planking 

"did not catch his eye." (Tr. 39, 44). 

2 These violations are discussed, infra. 

2208 
Mr. Richeson establishes statutory good faith for Asphalt. 

However, the evidence shows the violative conditions existed for 

at least a few days before the MSHA citations were issued. 

Based on the uncontroverted evidence, this citation should 

be affirmed. The S&S allegations are discussed infra. 

Citation No. 3930397 

This citation, issued under 104(a) of the Act, alleged 

Asphalt violated 30 C.P.R. § 56.14109(a). 3 

The citation reads as follows: 

The stop-cord located along the #2 dust belt had 

not been reinstalled after construction work was 

completed. 

If a person fell onto or into the belt, it would not 

be able to be stopped. 

People were seldom in the area; there were no other 

conditions present that would make an injury likely to 

occur. 

fl:HDXHGS OF FACT 

10. A dust belt is a conveyor belt which delivers fine sand 

into a pile. (Tr. 17, 31). 

lL The dust belt is about 50 feet long and 36 inches wide. 

(Tr" 17) o 

12. The belt is not protected with any type of guard or 

cover over the top. {Tr. 17). 

13o After the walkway was extended, Asphalt failed to replace the stop-cord. (Tr. 17Q 18). However, the stop-cord was 

lying on the walkway. (Tr. 29). 

3 56.14109 Unguarded conveyors with adjacent travelways. 

Unguarded conveyors next to the travelways shall be 

equipped with--

(a) Emergency stop devices which are located so that 

a person falling on or against the conveyor can readily 

deactivate the conveyor drive motor; 

2209 
14. The walkway is for people to walk to the head of the 

belt to perform maintenance repairs. Employees would use this 

walkway. (Tr. 18). 

15. The dust belt conveyor was equipped with a railing on 

the outside portion. However, there was no railing between the 

walkway and the conveyor. (Tr. 18, 19). 

16. At the time of the inspection there was no stop-cord, 

nor any other emergency device to de-activate the conveyor drive 

motor. (Tr. 19, 20). 

17. The company representative, ROGER JANSSEN, stated the 

plant had been running for about a week after the construction 

involving the walkway. (Tr. 20, 21). 

18. If an individual f~.11 against the conveyor, he could 

sustain broken bones or a dislocated shoulder. (Tr. 21). 

19. The Inspector considered the gravity to be "unlikely." 

Since there were no tripping hazards, the possibility of a person 

falling would also be unlikely. As a result, the violation was 

not S&S. (Tr. 22). 

20. Asphalt properly abated the violation. (Tr. 22) • 

Based on the uncontroverted evidence confirmed by Mr. Richeson's testimony, it is established that emergency stop-cords 

were not provided. Accordingly, this citation should be 

affirmed. 

citation No. 3930398 

This citation alleges Respondent violated 30 c .. F.R. 

§ 56.11001. 4 

The citation reads: 

4 

The stairway located alongside the #2 dust belt leading to the elevated walkway did not extend to the 

ground. After the construction to lengthen the conveyor belt was completed, there was a 36- to 42-inch 

drop from the bottom step to the ground. Although 

The cited regulation reads: 

56.11001. Safe access. 

Safe means of access shall be provided 

and maintained to all working places. 

2210 
people were seldom in this area, a person getting off 

especially, could injure an ankle or leg. 

FINDINGS OF FACT 

21. Mr. Brandt read the citation into the record and 

testified workers would use this stairway to gain access to the 

length of the belt to do any repairs or maintenance. (Tr. 23). 

22. An ankle sprain or maybe a broken leg could result from 

this condition. 

23. Slips, trips, and falls are the most common injury in 

·any workplace. (Tr. 24). 

24. The Inspector considered the violation to be s&s. (Tr. 

24) • 

25. The violation was abated by extending the stairway to 

the ground. (Tr. 24). 

The uncontroverted evidence shows that the 36- to 42-inch 

step-off existed at the end of the stairway. Accordingly, safe 

access was not provided to a working place and this citation 

should be affirmed. 

SIGNIFICANT AND SUBSTANTIAL 

A 91 significant and substantial" violation is described in 

Section l04(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." A 

violation is properly designated significant and substantial "if, 

based upon the particular facts surrounding the violation there 

exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious 

nature." cement Division, National Gypsum co., 3 FMSHRC 822, 825 

(April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984}, the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that 

2211 
is, a measure of danger to safety--contributed to by 

the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

In United States steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further that: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard contributed to will result in an event in which there is 

an injury." u.s. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in accordance with the language of Section 104(d)(1), it is 

the contribution of a violation to the cause and effect of a hazard that .... must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 1866, 

1868 (August 1984); U.S. Steel Mining Company, Inc., 

6 FMSHRC 1573, 1575-1575 (July 1984). 

The Secretary designated th~ planking citation (No. 3930396) 

and the 24- to 36-inch step-off citation (No. 3930398) to be S&S. 

The "rotten planking" described in Citation No. 3930396 was 

a hole 3 to 4 inches by 10 inches. The Inspector indicated a 

person could not fall through the planking; however, he believed 

a worker could injure an ankle or leg. 

Based on these facts and in applying the Commission's 

decisions I am unable to conclude that an injury would be 

reasonably serious based on this minimal record. 

Accordingly, the S&S allegations as to Citation No. 3930396 

are stricken. 

Citation No. 3930398 involves a step-off of 36 to 42 inches 

from the bottom step of a walkway to the ground. By comparison, 

most business desks are less than 36 inches in height. If a 

worker stepped 36 to 42 inches from the end of a walkway, I believe there would be a reasonable likelihood that his injury 

would be reasonably serious. In sum, I agree with Inspector 

Brandt that an ankle sprain or broken leg could result. An ankle 

sprain is certainly more likely from such a step-off than from a 

worker somehow becoming entangled in a 3 by 10 inch hole in 

planking through which he could not fall. 

The S&S allegations should be affirmed as to Citation No. 

3930398. 

2212 
CIVIL PENALTIES 

Section 110(i) of the Act mandates consideration of six 

criteria in assessing civil penalties. 

The proposed assessment indicates Asphalt is a small 

operator since it annually produced 18,377 tons. 

The record does not present any information concerning the 

operator's financial condition. Therefore, in the absence of any 

facts to the contrary, I find that the payment of penalties will 

not cause Respondent to discontinue its business. Buffalo Mining 

co., 2 IBMA 226 (1973) and Associated Drilling. Inc., 3 IBMA 164 

(1974). 

There is no evidence of the operator's history of previous 

violations. 

The operator was negligent since the defective planking, 

missing stop-cord, and the 36- to 42-inch step-off were open and 

obvious. 

Concerning gravity: the planking has been previously discussed. Based on the hazard involved, I believe the gravity is 

low. 

The failure to provide a stop-cord for the short space 

involved presents a situation of moderate gravity. 

The step-off, as previously discussed, involves a situation 

of high gravity. 

Asphalt demonstrated good faith both by prompt abatement of 

the violative conditions. While the conditions should have been 

abated when they were discovered by the company, the company 

somewhat enhanced its good faith by scheduling repairs the day 

the MSHA Inspector arrived. 

I believe the penalties set forth in this order are 

appropriate and accordingly, I enter the following: 

ORDER 

1. Citation No. 3930399 and the proposed penalty of $157 

are AFFIRMED. 

2, Citation No. 3930400 and the proposed penalty of $252 

are AFFIRMED. 

2213 
3. Citation No. 3930681 and the proposed penalty of $267 

are AFFI:RMED. 

4. Citation No. 3930396 is AFFI:RMED and a penalty of $150 

is ASSESSED. 

5. Citation No. 3930397 is AFFI:RMED and a penalty of $150 

is ASSESSED. 

6. Citation No. 3930398 is AFFI:RMED and a penalty of $275 

ASSESSED. 

Law Judge 

Distributiong 

J. Mark Ogden, Esq., Office of the Solicitor, u.s. Department of 

Labor, 3247 Federal Building, 300 North Los Angeles Street, Los 

Angeles, CA 90012 (Certified Mail) 

Mr. Ray E. Ehly, Jr., President, ASPHALT, INC., P.O. Box 1356, El 

Cajon, CA 92022 (Certified Mail) 

ek 

2214 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 81993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on Behalf of KIRBY SENTER, 

Complainant 

v. 

BLACK DRAGON MINING COMPANY, 

Respondent 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 93-954-D 

PIKE CD 93-05 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

AND DISMISSING PROCEEDING 

Before: Judge Broderick 

On October 27, 1993, the parties by counsel filed a joint 

motion for approval of a settlement of this discrimination 

proceeding brought by the Secretary on behalf of Kirby Senter. 

Mr. Senter also signed the motion. 

on August 18, 1993, I issued an order that Respondent 

temporarily reinstate Kirby Senter effective August 12, 1993. 

Senter has been in receipt of economic reinstatement since that 

time. Counsel for the Secretary stated that the back wages to 

which Senter would be entitled if he were successful in his case 

would run from approximately January to April 1993. 

The settlement agreement provides that Respondent shall pay 

Kirby Senter the sum of $8000 and Senter will relinquish his 

rights and claims under the Mine Act against Respondent "or any 

other company owned by Todd Kiscaden." Respondent further agrees 

to expunge all references to matters being litigated in this 

matter from Senter's personnel records, and agrees that it will 

not give Mr. Senter a negative or unfavorable reference regarding 

his job performance at Respondent. 

I have considered the motion in the light of the purposes of 

section 105(c) of the Act and conclude that it is in the public 

interest and should be approved. 

Accordingly, IT ORDERED: 

1. The settlement motion is APPROVED. 

2215 
2. The order of temporary reinstatement issued August 18, 

1993, IS DISSOLVED; 

3. Respondent shall pay to Kirby Senter the sum of $8000 in 

settlement of his claims; 

4. Respondent shall pay to the Mine Safety and Health 

Administration a civil penalty of $200; 

5. The hearing scheduled for November 4, 1993, in 

Pikeville, Kentucky, IS CANCELED; 

6. Upon payment of the agreed-to amount to Kirby Senter and 

the civil penalty, this proceeding IS DISMISSED. 

:!VU~ ~4/lrviL~eK James A. Broderick 

( Administrative Law Judge 

Distribution: 

Mary Sue Taylor, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Charles J. Baird, Esq., Baird, Baird, Baird & Jones, P.S.C., 

415 Second Street, P. o. Box 351, Pikeville, KY 41502 (Certified 

Mail) 

dcp 

2216 
FED114L MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6iH FLOOR 

. WASHINGTON, D.C. 20006 

SECRETARY OF ~BOR, 

MINE SAFETY AND HEALTH ADMINISTRAT~ON (MSHA), 

Petitioner 

v. 

GBNS'AR STORZ PRODUCTS 

COKPUY, 

Respondent 

OCT 2 8 1993 

. • 

: 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 93-115-M 

A. C. No. 18-00010-05517 

Marriottsville Quarry 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judqe Merlin 

The parties have filed a motion to approve settlement of the 

one violation presented by the Secretary's penalty petition. 

The original assessed penalty was $8,500 and the proposed 

settlement is $5,250. A citation was issued after a fatal 

accident at the operator's quarry. An employee attempted to pick 

up a sheet of steel with a hydraulic crane when the lift lines 

contacted a 7,600 volt overhead power line. A second employee 

who was handling the hook-up block was killed when he tried to 

clamp the gripper device to the sheet of metal. The storage area 

where the sheeting was located was under a 7,600 volt line. 

30 C.F.Ro § 56.12071 provides that when equipment must be 

operated within 10 feet of energized high voltage lines,cp the 

lines shall be deenergized or other precautionary measures taken. 

There is apparently no dispute that a violation of the cited 

standard occurred. However, the settlement motion advises that 

not only has the operator not had an accident like this before, 

but on the contrary it has been the recipient of many safety 

awards which are detailed in the motion. The Mine Safety and 

Health Administration would reduce negligence from high to 

moderate because the victim had received extensive training 

covering situations like this and the crane operator had over 15 

years experience in his job. The operator was unaware what these 

two individu~ls were doing since their actions took place in a 

remote area of the quarry. 

The parties also have advised with respect to the remaining 

statutory criteria under section 110 of the Act. In particular, 

the operator is medium in size, its ability to continue in 

business will be unaffected by payment of the recommended penalty and the violation was abated in good faith. 

2217 
.. '~ -, 

Because a fatality occurred, the closest scrutiny must be 

given to the parties' settlement motion, involving as it does a 

reduction in the penalty amount. After careful consideration, I 

determine there is adequate basis to accept the motion's 

representations regarding negligence. Under Commission precedent 

I find that because of the operator's training po:tieies and 

procedures, negligence may be reduced from ·n:tgh to Imo.deratei~." 

Southern Ohio Coal Company, 4 FMSHRC 1459, 1463-1464 (August 

1982); Mar-Land Industrial Contractor, Inc., 14 FMSHRC 754, 758-

759 (May 1992); Compare also the recent decision of 

Administrative Law Judge David Barbour in Lyman.;..R1Jchey sand.'&"· · · 

Gravel Company, 15 FMSHRC 1378, 1398-1401 (July 1993) • ,, l;/als.o 

take note of the operator's previously excellent safety record, 

but I caution the operator that this is not acircumstance which 

could be considered in the future as a mitigating factor in 

determining the appropriate amount of a·penalty. 

In light of the ·foregoing, I determine that the recommended 

settlement is in accordance with the provisions •ofrthe. Act~t. ~- · 

It is therefore ORDERED that the proposed settlement be and 

is hereby APPROVED. • · 

It is further ORDERED that the operator PAY,$5,250 within 30 

days of the date of this order. 

'!: 

-

Paul Merlin 

Chief Administrative Law.Judge 

Distribution: 

John M. Strawn, Esq., Office of the Solicitor, U. S. Department .• 

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

Philadelphia, PA 19104 (Certified Mail) 

Mark Savit, Esq., Henry Chajet, Esq., Jackson & Kelly, 2401 

Pennsylvania Avenue, N. W., Suite 400, Washing_ton, DC· 20037 

(Certified Mail) 

jgl 

2218 
ADMINISTRATIVE LAW JUDGE ORDERS 

J'EDERAL KillE SAFETY Alm HEALTH REVIEW COIOUSSIOH 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SRYLINE, lOth FLOOR 

5203 LEESBURG PIRE 

FALLS CHURCH, VIRGINIA 22041 

-ocr a 1993 

SECRETARY OF LABOR, TEMPORARY REINSTATEMENT 

MINE SAFETY AND HEALTH PROCEEDING 

ADMINISTRATION (MSHA), 

ON BEHALF OF JAMES W. MILLER, Docket No. York 93-155-D 

Complainant MSHA Case No. MORG CD 93-06 

v. Mettiki Mine 

METTIKI COAL CORPORATION, 

Respondent 

ORDER DENYING RESPONDENT'S MOTION TO DISMISS 

ORDER DENYING RESPONDENT'S MOTION TO CONSOLIDATE 

ORDER PERMITTING DISCOVERY 

NOTICE OF HEARING 

Before me are the respondent's motion to dismiss the 

Secretary's Application for Temporary Reinstatement and, in the 

alternative, a motion to consolidate this temporary reinstatement 

proceeding with any future hearing on the merits if the secretary 

determines that a violation of section 105(c) (1) of the Mine 

Safety and Health Act of 1977 (the Act), 30 u.s.c. § 815(c) (1), 

has occurred. This order formalizes an October 5, 1993, 

telephone conference with the parties during which time I denied 

the respondent's motions, established a schedule for discovery 

and scheduled a hearing date. 

The respondent's motion to dismiss is based on its assertion 

that the subject complaint is vague and does not clearly address 

the nexus between the complainant's alleged protected activity 

and the termination of his employment. In addition, the 

respondent argues that the Secretary's application for temporary 

reinstatement is defective because the application was not filed 

within the 90 day investigatory period provided in Section 

105(c) (3) of the Act, 30 u.s.c. § 815(c) (3). The Secretary has 

filed an opposition to the respondent's motion to dismiss. 

As a threshold matter, the 90 day investigation period 

provided in the Act for initiation of a discrimination or related 

temporary reinstatement action by the Secretary is not 

jurisdictional in nature. Gilbert v. Sandy Fork Mining Co., 

9 FMSHRC 1327 (1987), rev'd on other grounds, 866 F.2d 1433 (D.C. 

Cir. 1989). In the instant case, James W. Miller's complaint was 

2219 
timely filed on June 9, 1993. Although the Secretary's 

application for temporary reinstatement was filed on 

September 17, 1993, approximately eight days after the expiration 

of this 90 day investigatory period, the respondent has failed to 

demonstrate that it has been unduly prejudiced by this delay. 

Moreover, in balancing the public interest in mine safety with 

the respondent's private interest in controlling its workforce, 

the public interest in ensuring the expeditious reinstatement of 

employees who are discharged for engaging in protected activities 

must prevail. Jim Walter Resources, Inc. v. Fed. Mine Safety & 

Health Review Commission, 920 F.2d 738, 746 (11th Cir. 1990). 

Accordingly, this matter shall be heard and the respondent's 

motion to dismiss is denied. 

Turning to the motion to consolidate, the respondent has 

conceded that this motion is premature in that the Secretary has 

not yet initiated a discrimination action. Accordingly, the 

respondent's motion to consolidate this temporary reinstatement 

proceeding with any future discrimination proceeding is also 

denied. 

During the course of the October 5, 1993, conference call, 

in response to the respondent's assertion that Miller's complaint 

lacks specificity, I granted the respondent's request for 

discovery. I established a limited discovery schedule whereby 

both parties will be permitted a maximum of six interrogatories. 

The interrogatories shall be served on or before October 15, 

1993, and answers shall be provided on or before October 25, 

1993. 

Finally, due to a scheduling conflict of respondent's 

counsel? it was agreed that this proceeding will be heard at 

9 a.m. on November 3 and November 4, 1993, if necessary, in the 

vicinity of Morgantown, West Virginia. The courtroom location 

will be specified by subsequent order. The respondent has 

stipulated that, if temporary reinstatement is ordered, such 

reinstatement will be retroactive to October 18, 1993. 

As noted above, the respondent's motions to dismiss and to 

consolidate ARE DENIED. IT IS ORDERED that the parties must 

comply with the discovery procedures discussed herein. 

~---...;;;;:.,. 

Jerold Feldman 

Administrative Judge 

7.220 
PBDBRAL JaRB SUBTY DO JIBALD JlBVIEW COIOIISSIOII 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF JAMES W. MILLER, 

Complainant 

v. 

METTIKI COAL CORPORATION, 

Respondent 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. York 93-155-D 

MSHA Case No. MORG CD 93-06 

Mettiki Mine 

ORDER DENYING RESPONDENT'S MOTION FOR 

CERTIFICATION OF INTERLOCUTORY RULING 

This temporary reinstatement proceeding is scheduled for 

hearing in Morgantown, West Virginia, on November 3 and 

November 4, 1993. By Order dated October 8, 1993, I denied the 

respondent's motion to dismiss the Secretary's reinstatement . application. In denying the motion, I rejected the respondent's 

assertion that the subject reinstatement application is defective 

because it was not filed within the 90 day investigatory period 

set forth in Section 105(c) (3) of the Mine Safety and Health Act 

of 1977 (the Act)g 30 u.s.c. § 815(c) (3). I also was not 

persuaded that the underlying complaint in this proceeding failed 

to allege a nexus between the alleged protected activity and the 

complainant's termination of employment, although I permitted 

limited discovery through interrogatories. 

The respondent has now filed a motion for certification for 

interlocutory review by the Commission pursuant to Commission 

Rule 76(a) (1), 29 C.F.R. § 2700.76(a) (1). In support of its 

motion, the respondent contends that the timeliness and legal 

sufficiency of the Secretary's application involve controlling 

questions of law and that immediate review of these issues will 

materially advance the final disposition of this proceeding. I 

disagree. 

Interlocutory review by the Commission is not a matter of 

right but is committed to the sound discretion of the Commission • . 29 C.F.R. § 2700.76 •. To support such a request for review, the 

respondent must identify dispositive questions of law which are 

novel or otherwise unresolved. In the instant case it is well 

settled that the 60-day time period provided in Section 105(c) of 

the Act for the filing of a complaint with the Secretary and the 

2221 
90-day period for the Secretary to complete his investigation of 

the complaint are not jurisdictional. Gilbert v. Sandy Fork 

Mining co., 9 FMSHRC 1327 (August 1987}, rev'd on other grounds, 

866 F.2d 1433 (D.C. cir. 1989). Rather, the timeliness of 

discrimination related complaints must be determined on a case by 

case basis by examining whether the delay in filing deprives a 

respondent of a meaningful opportunity to defend. See Roy Farmer 

v. Island Creek Coal Company, 13 FMSHRC 1226, 1231 (August 1991), 

citing Donald R. Hale v. 4-A Coal co., 8 FMSHRC 905, 908 (June 

19S6) (e.nphasis added). 

In this case the respondent seeks dismissal because the 

Secretary filed the reinstatement application on September 17, 

1993, eight days after the expiration of the statutory 90 day 

investigatory guideline. Surely this eight day delay has not 

deprived the respondent of its ability to meaningfully defend the 

application in issue. As the Commission has noted, material 

legal prejudice means more than the necessity of defending a case 

that could have been avoided tf the filing delay were treated as 

a jurisdictional defect. 13 FMSHRC at 1231. Consequently, the 

respondent has failed to demonstrate any unresolved controlling ~~estion of law with respect to the jurisdictional filing issue. 

Turning to the remaining issue concerning the legal 

s·.:.::.i.ciency of the complaint, the respondent has conceded that t~e complainant has engaged in protected activity. {Motion to Dis~iss, p. 4). The complainant alleges disparate treatment d~ri~g the course of a reduction in force that resulted in ~er=ination. Although the complaint states a cause of action, 

F.i.rs:.;.ant to the respondent's request for discovery conveyed 

during an October 5, 1993, telephone conference, I established a 

sctedule for limited discovery through interrogatories prior to ~rial, However, my desire to accommodate the respondent's 

req-.:.est for discovery is not indicative of any novel or u~res~lved issues of law concerning the legal sufficiency of the 

Secretary's application for temporary reinstatement. The 

interlocutory review process is not the appropriate vehicle for 

determining the merits of this reinstatement application or ~tether the underlying complaint has been frivolously brought. 

These issues must be resolved through the hearing process. 

Accordingly, I decline to certify the legal adequacy issue to the 

Con=.ission for interlocutory review. 

In view of the above, the respondent's motion for 

certification of interlocutory review by the Commission 

IS DENIED. The parties should continue to adhere to the 

discovert schedule contained in my October 8, 1993, Order. 

~~ 

',-q-..,~ ·--

old Feldman 

Administrative Judge 

2222 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ENERGY WEST MINE COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

2 2 1993 

CONTEST PROCEEDING 

Docket No. WEST 94-22-R 

Order No. 3587924; 10/4/93 

Deer Creek Mine 

Mine ID 42-00121 

ORDER DENYING 

MOTION FOR EXPEDITED HEARING 

AND PREHEARING ORDER 

On October 13, 1993, Energy West Mining Company, by counsel, 

filed a Notice of Contest of Order No. 3587924 issued on 

october 4, 1993, at the company's Deer Creek Mine by an inspector 

for the Mine Safety and Health Administration. The order was 

issued pursuant to Section 104(d) (1} of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 814(d) (1). As part of the 

Notice, Contestant stated that "Energy West requests that an 

expedited hearing in this matter be held in Price, Utah." 

Subsequently, on October 20, 1993, Energy West filed a 

Motion for Expedited Hearing in accordance with Commission Rules 

10 and 52, 29 C.F.R. §§ 2700.10 and 2700.52. Energy West asserts 

that requests an expedited hearing on the contested order i

9because the order put Energy West on the § 104 (d) unwarrantable 

failure 0 chain° which imposes a continuing threat of closure 

under§ 104(d) (2}. 11 Contestant avers that the only issue in this 

case is whether the alleged violation resulted from an 

unwarrantable failure to comply with the Secretary's regulations. 

The Secretary of Labor, by counsel, opposes the motion. The 

Secretary argues that "[a)n expedited hearing is an extraordinary 

remedy that is not to be given to the operator just for the 

asking" and that in this case Energy West has presented no basis 

for expediting the hearing. He points out that Energy West is in 

no different position than any other mine operator contesting a 

Section 104(d) (1) withdrawal order. 

The Secretary's point is well taken. Energy West is not in 

a unique position. Every mine operator contesting a Section 

104(d) (1} order is under "a continuing threat of closure under 

§ 104(d) (2) ." For that matter, every mine operator receiving a 

citation under Section 104(d) (1) faces the possibility of a 

subsequent withdrawal order. 

2223 
More is required t<> justify an expedited hearing. In two 

similar cases, Commission Administrative Law Judges William Fauver 

and John J. Morris also denied requests for expedited hearing. 

Pittsburg & Midway coal Mining Company v. Secretary of Labor, 

14 FMSHRC 2136 (December 1992) and Medicine Bow Coal Company v. 

Secretary of Labor, 12 FMSHRC 904 (April 1990). I find their 

reasoning persuasive. 

Accordingly, the request for expedited hearing is DENIED. 

However, having determined that an expedited hearing will not 

be held does not mean that this proceeding cannot be handled with 

dispatch. Therefore, in accordance with the provisions of Section 

105(d) of the Act, 30 u.s.c. § 815(d), the proceeding will be 

called for hearing on the merits at a time and place to be 

designated in a subsequent notice. 

1. on or before November 19, 1993, the parties shall confer 

for the purpose of discussing· settlement and stipulating as to 

matters not in dispute. If a settlement is reached, a motion for 

its approval shall be filed by the Secretary of Labor no later than 

November 19, 1993. 

2. If settlement is not agreed upon, the parties shall send 

to each other and to me no later than November 19, 1993, synopses 

of their expected legal arguments, expected proof, lists of 

exhibits that may be introduced, and matters to which they can 

stipulate at the hearing. Each party shall also state its best 

estimate of the length of time necessary to present its case at the 

hearing. 

3. Failure by any party to comply with this order will 

subject the party in default to a show cause order and possible 

default decision. · 

\./J/1~ T. Todd .;;;£a.~~' Administrative Law Judge 

Distribution: 

Timothy M. Biddle, Esq., Thomas c. Means, Esq., Crowell & Moring, 

1001 Pennsylvania Ave., N.W. Washington, D.C. 20004 

Carl Charneski, Esq., Office of the Solicitor, u.s. Department of 

Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203 

Representative of Miners, Deer Creek Mine, P.O. Box 310, 

Huntington, UT 84528 

/lbk 

2224