OCTOBER 1988 

There were no Commission decisions issued in October. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-04-88 

10-06-88 

10-07-88 

10-13-88 

10-17-88 

10-17-88 

10-20-88 

10-20-88 

10-21-88 

10-21-88 

10-21-88 

10-24-88 

10-25-88 

10-25--88 

10-27-88 

10-31-88 

Local 8622, Dist. 22, UMWA v. Castle Gate Coal Co. 

Joseph BosgaLv. J.Kircher & American Mine Service 

Sec.Labor for Brian Bosch & UMWA v. Jim Walter Res. 

Westmoreland Coal Company 

Cyprus Emerald Resources Corp. 

Black Beauty Coal Company 

Hallett Construction Company 

Helen Mining Company 

Sec. Labor for David H. Miller v. Consolidation 

Coal Co. 

David Johnson v. Jericol Mining Inc. 

Green River Coal Company 

Sec. Labor for Joseph Gabossi v. Western 

Fuels-Utah, Inc. 

Green River Coal Company 

Local 2333, Dist. 29, UMWA v. Ranger Fuel Corp. 

Westrick Coal Company 

Southern Ohio Coal Company 

WEST 

WEST 

SE 

VA 

PENN 

KENT 

CENT 

PENN 

WEVA 

87-212-C 

88-119-M 

88-18-D 

88-49-R 

88-220 

88-36 

88-17-M 

88-1-R 

88-165-D 

KENT 88-135-D 

KENT 87-217-R 

WEST 86-24-D 

KENT 88-92-A 

WEVA 86-439-C 

PENN 88-119 

WEVA 86-190-R 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1411 

1412 

1413 

1414 

1417 

1425 

1429 

1448 

1452 

Pg. 1455 

Pg. 1456 

Pg. 1462 

Pg. 1472 

Pg. 1474 

Pg. 1480 

Pg. 1487 
OCTOBER 1988 

There were no cases filed in which review was granted in October. 

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

Charles H. Sisk v. Charolais Corporation and E.R. Mining, Inc., Docket No. 

KENT 87-212-D. (Judge Melick, August 22, 1988) 

Sec. of Labor, MSHA v. Rivco Dredging Corporation, Docket No. KENT 87-147, 

etc. (Judge Maurer, September 8, 1988) 
ADMINISTRATIVE LAW JUDGE DECISIONS 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. CO 80204 

OCT 4 198C 

LC:X:AL UNION NO. 8622, DISTRICT 22,: COMPENSATION PROCEEDING 

UNITED MINE WORKERS OF 

AMERICA (UMWA), Docket No. WEST 87-212-C 

Complainant 

Castle Gate Portal No. 5 

v. and Mine No. 3 

CASTLE GATE COAL COMPANY, Mine ID No. 42-01202 

Respondent 

DECISION DISMISSING PRC:X:EEDINGS 

Before: Judge Cetti 

On Sept6nber 23, 1988 the United Mine Workers of America 

(UMWA), on behalf of Local Union 8622, moved to withdraw its 

Complaint for Compensation filed in the above-captioned-proceeding. 

In support of its motion, complainant states that the affected 

miners have been compensated. 

Accordingly, complainant's motion is granted and this proceeding is dismissed. 

'5:& 

Aug t F. Ce t ti 

Administrative Law Judge 

Distribution: 

John T. Scott, III, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, Washington, D.C. 20004-2505 (Certified Mail) 

Joyce A. Hanula, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

/ot 

1411 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. CO 80204 OCT 6 1988 

JOSEPH T. BOSGAL, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

JOE KIRCHER, 

and 

AMERICAN MINE SERVICES, INC., 

Respondents 

Docket No. WEST 88-119-DM 

MD 87-08 

ORDER OF DISMISSAL 

Before: Judge Morris 

A prehearing conference in the above case was held on 

August 2, 1988 in Grand Junction, Colorado. The hearing on the 

merits was subsequently set for October 25, 1988. 

On September 14, 1988 complainant filed a letter stating he 

was dropping all charges against American Mine Services and Joe 

Kircher. 

The above respondents are the only r~naining parties to the 

case and I consider complainant's letter to be a motion to 

dismiss his complaint of discrimination. 

Accordingly, the following order is appropriate: 

1. The hearing scheduled in Grand Junction, Colorado for 

October 25, 1988 is cancelled. 

2. The case is dismissed. 

Law Judge 

Distribution: 

Mr. Joseph T. Bosgal, P.O. Box 213, Montrose, CO 81402 

(Certified Mail) 

Mr. Joe Kircher, P.O. Box 3115, Hawthorne, NV 89415 (Certified 

Mail) 

Mr. Morris E. Friberg, Safety Director, American Mine Services, 

Inc., 14160 East Evans Avenue, Aurora, CO 80014 {Certified Mail) 

/ot 

1412 
FEDERAL Mlft.ie SAFETY AND HEALTH REVIEW'COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 7 ~( ...... 'J ,...;.'-~ I·.? • . .i<.., 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

on behalf of · 

BRIAN BOSCH, 

Complainant 

and 

UNITED MINE WORKERS OF 

AMERICA, (UMWA), 

Intervenor, 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. SE 88-18-D 

BARB CD 87-4 

No. 4 Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

The respondent's unopposed Motion to Dismiss is granted. 

the parties agree that this case is controlled by the 

Commission decision in Secretary on behalf of\Beavers etal. v. 

Kitt Energy Corporation WEVA 85-753-D and no ~ppeal has peen 

taken from that decision. This ca is therenore dismis/sed. 

. \ 

Distribution: 

. ~ • ~~/ ·\J~I Ga/ry Me 1ck 

Adminis rative 

(703) 7 6-6261 

Frederick w. Moncrief, Esq., U.S. Depa tment of Labor, Office 

of the Solicitor, 4015 Wilson Bouleva~ , Arlington, VA 22203 

(Certified Mail) 

David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.G., 

12th Floor Watts Building, Birmingham, AL 35203 (Certified 

Mail) 

nt 

1413 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 131988 

WESTMORELAND COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. VA 88-49-R 

Citation No. 2965807; 5/16/88 

Bullitt Mine 

Mine ID 44-00304 

CIVIL PENALTY PROCEEDING 

Docket No. VA. 8 8-5 8 

A.C. No. 44-00304-03598 

Bullitt Mine 

DECISION 

Appearances: Thomas C. Means, Esq., Crowell & Moring, 

Washington, D.C. for the Contestant/Respondent; 

F. Thomas Rubenstein, Esq., Big Stone Gap, 

Virginia, for the Contestant/Respondent; 

Before: 

Sheila K. Cronan, Esq., Office of the 

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

Virginia, for the Respondent/Petitioner. 

Judge Maurer 

In these proceedings, Westmoreland Coal Company 

(Westmoreland) is contesting the validity of a section 104(a) 

citation purportedly issued by Inspector Kenneth L. Card on 

May 16, 1988. Pursuant to notice, the case was heard on 

September 19, 1988 in Abingdon, Virginia. 

At the conclusion of the Secretary's presentation of her 

case, I granted the Contestant's motion, essentially made 

pursuant to FED. R. CIV. P. 4l(b), that the Secretary had not 

made out a prirna f acie case because she could not get a copy 

of the citation at issue into evidence. 

1414 
This rather strange turn of events started out routinely 

enough. Government Exhibit No. 8 was marked and identified by 

Inspector Card as the citation he wrote the operator for 

failure to submit an accident report to MSHA. It was offered 

into evidence and received without objection--at least 

initially. 

During cross-examination of Inspector Card, it became 

obvious that the citation marked and received as Government 

Exhibit No. 8 was different in a few respects from the citation that Westmoreland had contested, and that I held in my 

file appended to the Notice of Contest. Significantly, oRe of 

the gravity marks and the negligence mark were altered. 

A brief recess was had while counsel for the Secretary 

investigated the apparent discrepancy. When we went back on 

the record, she represented that she had spoken to someone at 

the Norton office who told her that the original citation on 

file there had been whited out in the aforementioned two 

places and improperly altered. 

In the meantime, Respondent's counsel had now objected to 

the relevancy of Government Exhibit No. 8, the altered citation, as not being at issue in this case, as well as never 

having been served on the operator. I sustained that objection and Government Exhibit No. 8 was now excluded from the 

record of trial. 

Counsel for the Secretary thereupon marked a copy of the 

citation that was attached to the Notice of Contest as 

Government Exhibit No. 11 and offered it into evidence through 

Inspector Card. However, upon voir dire, Inspector Card was 

unable to decide which document, Exhibit No. 8 or No. 11 was 

actually the one he wrote the operator on May 16, 1988. Upon 

objection for lack of foundation for the exhibit, I excluded 

it from evidence as well. 

The upshot of the ·1.-1hole episode \vas that unable to get 

either version of the citation into eviderice with- the witnesses 

present and available to lay an acceptable evidentiary foundation, the Secretary rested her case. 

1415 
Whereupon, on motion, I granted the operator's contest 

and vacated Citation No. 2965807 in all its versions, and 

closed the hearing. Pursuant to 29 C.F.R. § 2700.65, this 

decision announced orally from the bench is hereby reduced to 

a writing and ordered executed this date. Therefore, MSHA's 

petition for assessment of a civil penalty is dismissed. 

Distribution: 

f /1,(;~~ -r!c:yAfurer 

Admitjs1f.rative Law Judge 

Thomas c. Means, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, DC 20004-2505 (Certified Mail) 

F. Thomas Rubenstein, Esq., Westmoreland Coal Company, 

Drawer A & B, Big Stone Gap, VA 24292 (Certified Mail) 

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified M~il) 

/f b 

1416 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 71988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CYPRUS EMERALD RESOURCES, 

CORPORATION, 

Respondent 

DECISION 

Docket No. PENN 88-220 

A.C. No. 36-05466-03644 

Docket No. PENN 88-221 

A.C. No. 36-05466-03645 

Emerald Mine No. 1 

Appearances: Thomas A. Brown, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, · 

Pennsylvania for the Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 

Pittsburgh, Pennsylvania for Respondent. 

Before: Judge Melick 

These cases are before me upon the 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 seq., the "Act," charging Cyprus Emerald 

Resources, Corporation (Emerald) with three violations of 

regulatory standards. The general issues before me are 

whether Emerald violated the cited regulatory standards and, 

if so, whether those violations were of such a nature as 

could have significantly and substantially contributed to the 

cause and effect of a mine safety or health hazard, i.e. 

whether the violations were "significant and substantial". 

If violations are found, it will also be necessary to 

determine the appropriate civil penalty to be assessed in 

accordance with section llO(i) of the Act. 

Docket No. PENN 88-220 

Citation No. 241935 alleges a "significant and 

substantial" violation of the regulatory standard at 

30 C.F.R. 75.1400-3 and charges as follows: 

An adequate daily examination of the elevator 

located at No. 1 portal is not and cannot be 

performed due to the excessive amounts of dirt and 

1417 
grease on the ropes. Also the termination of the 

governor rope has not been performed properly. The 

governor rope has been bent through the termination 

socket on the down side and bent above in the arm 

above the socket.l/ 

The cited standard provides in relevant part as follows: 

Hoists and ~levators shall be examined daily and 

such examinations shall include, but not be limited 

to, the following: (a) elevators. A visual 

examination of the rope for wear, broken wires, and 

corrosion, especially at excessive strain points 

such as near the attachments and near where the 

rope rests on the sheaves ••• 

MSHA Inspector James Bandish, found on January 21, 1988, 

that the seven 3/4 inch wire ropes to the elevator at the No. 1 

portal of the No. 1 mine were covered with excessive dirt and 

grease. He was therefore unable to perform a proper 

inspection for possible breaks in the rope valleys. Bandish 

opined that about 1/2 to 3/4 of the 600 foot-long ropes were 

in that conditibn. He later testified that the rope crowns 

were also obscured by grease and dirt therefore also 

preventing proper examination for crown wear. According to 

Bandish such conditions would have taken "weeks and weeks" to 

develop. 

The log books for the daily elevator examinations in 

fact had handwritten entries showing that examinations were 

being performed but the entries did not reflect any evidence 

of grease and dirt on the ropes. While Bandish conceded that 

he too was unable to perform a proper examination of the wire 

ropes because of the dirt and grease he nevertheless 

permitted the elevator to return to service without the ropes 

being cleaned. He also acknowledged that the system had an 8 

to 1 safety ratio ·thereby indicating that 1 rope would be 

sufficient to hold the elevator. He was not however 

concerned with cable breakage but of excess slippage of the 

ropes around the traction drum that drives the elevator car. 

This drum depends on friction for grip and according to 

Bandish, excess grease could result in the elevator sliding 

back into the pit from a height of 25 to 30 feet. It could 

then hit the buffers and "knock people over" in the elevator 

resulting in lost workdays or disabling injuries. 

!/ In a bench conference counsel for the Secretary explained 

that the last two sentences of the citation did not charge a 

sepacate violation and accordingly may be considered as 

surplusage for purposes of these proceedings. 

1418 
Respondent's witnesses, General Maintenance Foreman 

Terry Coss and Elevator Examiner, Scott Kramer, both had 

inspected the wire ropes at issue--Coss at the same time as 

Inspector Bandish and Kramer two days earlier--and both 

admitted there was some dirt and grease in the valleys of the 

ropes. Coss specifically denied however that the crowns were 

dirty or greasy. Coss also felt that an adequate examination 

could be performed in any event because broken wires would 

"ordinarily" protrude through the grease and dirt. Kramer 

thought that grease and dirt in the valleys would not 

"ordinarily" cover a defect because a break would protrude 

outward and excess wear would .appear on the crowns which, 

according to Kramer, were plainly visible. 

Within the framework of the undisputed evidence I find 

that there was indeed dirt and grease in significant areas of 

the valleys of the cited wire ropes. In addition, I find 

that such grease and dirt could very well obscure examination 

of defects in the valleys such as small breaks and corrosion. 

Inspector Bandish clearly was of this view. Even 

Respondent's own elevator inspector could state only that 

such grease and dirt would not "ordinarily" obscure rope 

defects. In any event, it may reasonably be inferred that 

dirt and grease in the valleys of the wire ropes would 

obstruct visual examination of such defects as corrosion. 

Since it is also undisputed that the grease and dirt had 

taken "weeks and we~ks" to develop it may also reasonably be 

inferred that the requisite daily examinations of the ropes 

could not properly have been made. The violation is 

accordingly proven as charged. However, in light of the 

evidence that Inspector Bandish allowed the elevator to 

return to service without requiring cleaning or further 

inspection of the ropes, I cannot find that the violation was 

either "significant and substantial" or serious. See Mathies 

Coal Co., 6 FMSHRC 1 (1984). Clearly if the violation 

presented a serious and "significant and substantial" hazard 

the inspector would not have allowed it to return to service. 

In addition, since Emerald itself had ceased operation 

of the elevator some two days before the MSHA inspection, and 

was prepared to keep the elevator out of service until new 

wire ropes arrived, I find Emerald chargeable with but little 

negligence. Since it is also apparent that the inspector 

himself did not believe there was a serious hazard (because 

he allowed the elevator to return to service without cleaning 

or further inspection of the ropes) it would be difficult to 

1419 
conclude that the operator should have been aware of any 

serious hazard. 

Citation No. 2938166 alleges a "significant and 

substantial" violation of the mine operator's ventilation 

plan under the regulatory standard at 30 C.F.R. § 75.316, and 

charges as follows: 

The approved ventilation plan was not being 

complied with in the 16 right (007) section in that 

a hole measuring 7 inches x 15 inches was present 

in a stopping between the No. 1 return entry and 

the No. 2 intake entry at the No. 32 crosscut. The 

approved plan requires permanent stoppings to be 

maintained between the intake and return air 

courses. 

In particular the Secretary maintains that the following 

provisions of the operator's ventilation plan (Government 

Exhibit 5) were violated: 

Location of all stoppings, overcasts, regulators, 

seals, airlock doors and man doors are shown on the 

mine map. At this time, man doors in permanent 

stopping lines are projected at 450' ~ 650', or 

greater intervals at management's discretion. 

These permanent ventilation controls shall be 

constructed of solid, substantial materials. List 

of materials used in constructing the following: 

Permanent stopping (between intake and 

return): cinder, concrete Omega Block 384 

or limestone blocks, mortar, stopping 

sealant, micon krush bloc, metal and 

steel doors. Airlock doors constructed 

either "plywood or l" x 6", lumber, also 

several are constructed out of steel. 

Overcasts, undercasts: cinder, concrete, 

Omega Block 384, limestone block, mortar, 

stopping sealant, micon krush bloc, 

metal, and complete metal overcast 

(galvanized steel sheeting.) Section 

intake regulators require approval prior 

to their installation. Section return 

regulators and temporary section intake 

regulators will be constructed the same 

as permanent stoppings with metal frame 

adjustable doors. Shaft partitions: 

concrete steel. 

1420 
Permanent stoppings shall be erected between the 

intake and return air courses and shall be 

maintained to and including the third connecting 

crosscut outby the faces of entries except for 

Exhibit EMMV-15. 

Emerald does not deny that the hole, approximately 7 

inches by 15 inches in size, did exist in the stopping at the 

No. 32 crosscut and admits the violation as charged. Emerald 

argues however that the violation did not involve any 

"discrete safety hazard" and accordingly_that it was not 

"significant and substantial". I agree. It is ·undisputed 

that the hole in the stopping had been used to ventilate a 

charging station at that location as recently as the previous 

Friday, January 8, 1988, and that the hole was permissiola_at 

that time when used in that fashion. It is also undispute~'-. 

that on the Friday before the violation the charging station 

had been moved several blocks away but the subject hole had 

not yet been patched as of the following Monday when the 

condition was cited. 

The Secretary admits that it would be permissible to 

maintain two such holes in the stoppings to ventilate two 

separate charging stations and, in that case, the same amount 

of air would leak from the intake into the return air course 

as was caused by the instant violation. It is also 

acknowledged that the stopping was structuraliy sound and 

there were no sources of ignition in the cited crosscut. No 

air readings were taken at the hole so the amount of leakage 

could not be determined. Moreover according to the 

undisputed testimony of Construction Foreman Albert Giacondi, 

the small amount of leakage had no affect upon the face 

ventilation. 

Accordingly I find that the violation involved little 

hazard and was not "significant and substantial". See 

Mathies Coal Company, supra. I agree however with the 

inspector's assessment that the operator is chargeable with 

moderate negligence. The undisputed testimony of General 

Mine Foreman Steve Medve was that at the time of the 

violation the practice at the mine was to patch such holes 

within a "reasonable" time as the masons made their rounds 

for repairs. Accor~ing to Medve the company now pays "much 

closer attention to patching holes". 

In assessing civil penalties for the above citations I 

have also considered evidence of the history of violations at 

Emerald, the size of its business, and it3 abatement 

efforts. Under the circumstances penalties of $75 for each 

of these citations is appropriate. 

1421 
Docket No. PENN 88-221 

Order No. 3086725, issued pursuant to section 104(d)(2) 

of the Act, alleges a "significant and subst~ntial" violation 

of the mine operator's roof control plan under the regulatory 

standard at 30 C.F.R. § 75.200 and charges as follows: 

The approved roof control plan was not being 

complied with in that two rows of breaker posts 

were not set inby the cut being mined for the 

construction of the overcast in the Two East 

Section at No. 20 crosscut into the intersection of 

the belt entry. Two rows of posts were not set at 

20 crosscut at the track entry where the mining had 

been in progress at an earlier time. The entrance 

inby, and outby the No. 20 cross track entry was 

not provided with a physical barrier to keep people 

out of the area. 

The parties agree that the relevant roof control plan 

(Government Exhibit No. 3) permits either one of two methods 

for protecting miners during the process of cutting overcasts 

or boom holes in a previously supported area. One method, 

and the method admittedly not followed here, is set forth in 

the roof control plan as follows: "Cl) two rows of 

posts shall be installed at each approach of the roof area to 

be removed except the approach where the machine will start 

cutting". The alternative method is stated in the plan as 

follows: 

5) Note: Two roof trusses may be utilized as 

additional roof support in place of the two rows of 

posts as stated in item No. 1. The first roof 

truss installed in the approach shall be located 

approximately four feet from the roof strata to be 

mined and the second roof truss shall be installed 

approximately three feet from the first. In 

addition, the unused approaches to the overcast or 

boom hole shall be fenced off with adequate 

physical barriers to prevent persons from 

inadvertently entering the area before the minedout area has been permanently supported. 

In this case Emerald had provided "superbolting" to 

comply with the requirement in this part of the plan for two 

roof trusses~ At issue is whether it was also necessary for 

Emerald to then have in place "adequate physical barriers to 

prevent persons from inadvertently entering the area before 

the mined out area has been permanently supported." Emerald 

1422 
argues that it was not necessary because the mined-out area 

had already been permanently supported. 

At the conclusion of the Secretary's case-in-chief 

Emerald filed a Motion for Directed Verdict and Motion for 

Summary Decision. The Motion for Directed Verdict (See 

FED.R.CIV.P.4l(b) applicable hereto by virtue of Commission 

Rule l(b), 29 C.F.R. § 2700.l(b) was granted at hearing and 

that decision appears as follows with only non-substantive 

corrections: 

Judge Melick: I am going to grant the motion. 

First of all, we have the allegation of violation 

as clarified and amended -- let me refer to that 

momentarily. The allegation as it stands before me 

now is an alternative pleading, as I understand it, 

that in order to comply with this Roof Control Plan 

(that's Government Exhibit No. 3) you must comply 

either with Provision 1, which states, "Two rows of 

posts shall be installed at each approach of the 

roof area to be removed except the approach where 

the machine will start cutting," or comply with 

Provision 5, which requires roof trusses or as it 

is acknowledged, in the alternative, superbolting, 

plus, in addition to the superbolts, a requirement 

which is stated in these words, "In addition, the 

unused approaches to the overcast or boom hole 

shall be fenced off with adequate physical barriers 

to prevent persons from inadvertently entering the 

area before the mined-out area has been permanently 

supported." It is conceded and acknowledged that 

Provision 1 was not met in this case, that is that 

the two rows of posts were not installed. However, 

it is alleged and maintained by the Operator that 

it complied with Provision 5, in essence, that it 

did have superbolting but that it was not required 

yet to have the physical barriers present because 

the mined-out area was, indeed, permanently 

supported. I agree with that statement. 

The evidence shows, and this is from the mine 

inspector himself, that the mined out areas, 

specifically those areas shown on Joint Exhibit 

No. 1 with shading, were permanently supported. 

The evidence also shows that the area in the No. 20 

crosscut between the shaded areas still had roof 

bolts in it from the regular mining process. Those 

roof bolts had not been removed and no cutting or 

mining had commenced in that portion of the No. 20 

crosscut. Now, I am limiting my decision to the 

1423 
facts of this case and to the precise wording of 

the Roof Control Plan. It appears that there may 

have been a very serious hazard here but 

unfortunately I don't see where the Roof Control 

Plan addresses the hazard that the inspector 

testified about. It so often happens when a Roof 

Control Pian is drawn up, it is not drawn with the 

precision or with the ability to foresee all 

possible.hazards and, unfortunately, I think that 

is the case here. I think you are going to have to 

do some work on that Roof Control Plan to tighten 

it up to include the hazard that the inspector 

related -- and I have no doubt that what he has 

testified about does constitute a hazard. 

The problem is the Mine Safety Act and due process 

standards require you to give advance notice to the 

mine operator as to precisely what that hazard is 

and I don't believe this Roof Control Plan does 

that. So, under the circumstances, I am going to 

grant the motion for a directed verdict as the 

evidence stands and vacate that order. 

ORDER 

Docket No. PENN 88-220: Citations No. 2938166 and 

2941935 are modified to non "significant and substantial" 

citations and are affirmed as modified. Cyprus Emerald 

Resources Corporation is directed to pay civil penalties of 

$75 for each violation within 30 days of he date of this 

decision. Docket No. PENN 88-221: Order o. 3086725 is 

vacated. 

Law Judge 

Distribution: 

Thomas A. Brown, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, P~ 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant 

Street, 57th Floor, Pittsburgh, PA 15219 (Certified Mail) 

nt 

1424 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL'rH ! 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BLACK BEAUTY COAL COMPANY, 

Respondent 

OCT 1 71988 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 88-36 

A.C. No. 15-16037-03501 

Docket No. KENT 88-79 

A.C. No. 15-16037-03502 

No. 1 Mine 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN, for the 

Petitioner; 

Ms. Maxine Patterson, and Mr. OWen Grubb, Black 

Beauty, Middlesboro, KY, for the Respondent. 

Before: Judge Fauver 

These consolidated proceedings were brought by the Secretary 

of Labor under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et ~ The Secretary seeks civil penalties for 

alleged violations of safety standards. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following: 

FINDINGS OF FACT 

1. At all times relevant, Respondent, a small operator, 

operated a surface coal mine, known as Mine No. 1, in Knox 

County, Kentucky. The mine produced coal for regular sales or 

use in or substantially affecting interstate commerce. 

2. Citation 2794718 was issued on May 20, 1987, by 

Inspector Alex Sorke for a violation of 30 C.F.R. § 77.1001. 

Loose, hazardous material had not been stripped from the top of 

the mine pit and the mine highwall. The mine highwall at the 

site was 40 to 50 feet high and 50 to 60 feet long. There were 

overhanging trees, as well as loose dirt and rocks throughout the 

length of the wall. 

1425 
3. Citation 2794719 was issued on May 20, 1987, by 

Inspector Sorke for a violation of 30 C.F.R. § 77.403. A 

front-end loader was in operation beneath the highwall. The cab 

on the front-end loader had been removed, and therefore the 

equipment had no falling object protection. 

4. Citation 2794721 was issued on May 20, 1987, 

Inspector Sorke for a violation of 30 C.F.R. § 48.25. 

were employed on the mine site without having had the 

required for new miners. 

by 

Miners 

training 

5. Order 2794722 was issued on May 20, 1987, by Inspector 

Sorke for a violation of 30 C.F.R. § 77.410. A Caterpillar 

bulldozer was not equipped with a backup alarm. 

6. Order 2794717 was issued by Inspector Sorke on May 20, 

1987, under§ 107(a) of the Act, closing the entire pit because 

of an i~minent danger. The imminent danger resulted from the 

dangerous highwalf in conjunction with the operation of mobile 

equipment near the highwall without falling object protection. 

This order was not terminated until May 29, 1987. 

7. Citation 2794724 was issued on May 27, 1987, by 

Inspector Sorke for operating the mine contrary to the above 

closure order (No. 2794717). The mine site was in operation May 

27, 1987, while the order was in force. The front-end loader, 

which lacked falling objection protection, had previously been 

removed from the pit on May 20, 1987, pursuant to a§ 107(a) 

order, but had been returned to the pit. Piles of coal were 

present and ready for loading. Coal trucks were lined up to be 

loaded. 

8. Citation 2794725 was issued on May 27, 1987, by 

Inspector Sorke for operating a Caterpillar bulldozer in 

violation of a closure order (No. 2794722). The order, written 

under i 104(d)(l) of the ~ct on May 20, 1987, had removed the 

bulldozer from service for failure to have a backup alarm. 

DISCUSSION WITH 

FURTHER FINDINGS 

with the exception of Citation 2794725, discussed below, I 

credit the inspector's testimony and notes as to the conditions 

he observed when the above citations and order were issued. The 

credible evidence also warrants the conclusions reached by the 

the inspector as to gravity, negligence, and violations and his 

allegations as to such matters in the citations and order (except 

Citation 2794725) are incorporated in this Decision as 

conclusions. 

1426 
aegarding Citation 2794725, the inspector testified that he 

heard an engine which he assumed to be the bulldozer that was the 

subject of the backup alarm order and listened for a backup alarm 

but heard none. However, he could not see the vehicle at that 

time. Later he saw the bulldozer standing still, and walked past 

the bulldozer, but did not inspect it to see whether it had a 

backup alarm. I find that the evidence does not meet the 

Secretary's burden of proving the violation as charged. 

Considering the criteria for civil penalties in§ llO(i) of 

the Act, I find that the following civil penalties are 

appropriate for the violations found herein: 

Citation or Order Civil Penalty 

Citation 2794718 $700 

Citation 2794719 700 

Citation 2794721 800 

Order 2794722 500 

Citation 2794724 950 

$3,650 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction over these 

proceedings. 

2. Respondent violated the safety standards as alleged in 

the above citations and order, except Citation 2794725. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Respondent shall pay the above civil penalties of $3,650 

within 30 days of this Decision. 

2. The charge alleged in Citation 2794725 is DISMISSED. 

Distribution: 

~~~ William Fauver 

Administrative Law Judge 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certif ie~ Mail) 

1427 
Ms. Maxine Patterson, Black Beauty Coal Company, 103 Hebrew 

Cementary Road, Middlesboro, KY 40965 (Certified Mail) 

kg 

1428 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2O1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 88-17-M 

A.C. No. 41-03197-05506 

v. 

Porter Plant & Pit 

HALLETT CONSTRUCTION COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Mary Witherow, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

the Petitioner; 

Frank Johnson, Division Manager, Hallett 

Materials, Porter, Texas, for the Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a). Petitioner seeks civil penalty assessments in the 

amount of $595 for six alleged violations of certain mandatory 

safety standards found in Part 56, Title 30, Code of Federal 

Regulations. The respondent filed a timely answer contesting 

the alleged violations, and a hearing was convened in Houston, 

Texas. The parties waived the filing of posthearing briefs, 

but I have considered their oral arguments made on the record 

in the course of the hearing. 

Issues 

The issues presented in this case are Cl) whether the 

conditions or practices cited by the inspector 1constitute violations of the cited mandatory safety standards, (2) the appropriate civil penalty to be assessed for the violations, taking 

into account ~he statutory civil penalty criteria found in 

section llO(i) of the Act, and (3)· whether the violations were 

1429 
"significant and substantial." Additional issues raised by 

the parties are identified and disposed of in the course of 

this decision. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 U.S.C. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820{i). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Discussion 

All of the contested citations in this case were issued by 

MSHA Inspector Melvin R. Jacobson during the course of an 

inspection of the respondent's sand and gravel dredge operation 

on August 19, 1987 (Tr. 8). The inspector was accompanied by 

respondent's mine foreman, Steve Iverson (Tr. 11). 

Section 104(a) "S&S" Citation No. 3061118, cites a violation of mandatory safety standard 30 C.F.R. § 56.12025, and 

the coridition or practice is described as follows: "The 

ground lug on the electrical cord for the fan used on the left 

walkway of the dredge was broke off exposing personnel to a 

probable shock hazard should a fault occur on the fan motor or 

controls." 

Inspector Jacobson testified that he issued the cit~tion 

after finding the ground lug of an electrical plug-in cord of 

a 110-volt, 1/2 horsepower, metal encased cooling fan broken 

off. The fan was one of two fans located on either side of 

the dredge, and he believed they were used for cooling the 

cabin. He observed an electrical outlet nearby, and the cord 

was long enough to reach it. The fan was portable, had no 

handles, and the fan blade was 18 to 24 inches in diameter. 

The cited fan was not plugged in, and neither fan was operating. The dredge was down for maintenance, and no one was at 

the controls. Mr. Jacobson stated that he pointed out the 

condition to Mr. Iverson, and he agreed that it was a hazard 

and stated that he would take care of it "right away" (Tr. 

12-14). 

Mr. Jacobson believed that the lack of a ground lug constituted a hazard because under a fault condition, the fan 

could be energized and someone could be severely shocked. If 

this occurred, the individual could suffer fatal injuries or 

burns. Since the dredge operator is sometimes alone on the 

dredge, if he were to receive a shock, no one would be there 

1430 
to help him. No one can predict when a fault will occur, and 

any deterioration of the insulation on the wiring could result 

in a fault if it were to contact the metallic fan parts. The 

lack of a sufficient grounding device would not blow the 

fuses, and if anyone were to touch the fan with the current 

still on, they could become part of the circuit and this could 

result in a fatal shock. Mr. Jacobson believed that it was 

reasonably likely that ~n injury would occur "based on the 

fact that these type accidents have been and are continuing to 

occur" (Tr. 16). He stated that one of his friends was 

fatally injured after using an electrical cord without a 

ground lug on it (Tr. 20). 

Mr. Jacobson confirmed that he made a finding of "low 

negligence" because the dredge operator probably was not 

cognizant of the potential shock hazard, and the fact that the 

foreman was new and probably did not recognize the potential 

for an accident. The violation was abated by installing a 

proper plug with a connecting ground to provide the proper 

protection to prevent a fault in the current on the fan frame 

(Tr. 17). 

Mr. Jacobson believed that the fan was not new and had 

been used for a long period of time, and exposure to the 

sunlight would contribute to the deterioration of the wiring. 

He confirmed that he observed no deterioration, but did 

observe that it had been exposed to a certain amount of grease 

and oil which would also add to the deterioration of the cord 

(Tr. 19). He confirmed that he inspected the cord receptacle 

and found that it would accommodate a three-conductor plug 

(Tr. 20). 

Section 104(a) "S&S" Citation No. 3061120, cites a violation of 30 C.F.R. § 56.12025, and the condition or practice is 

described as follows: 

The ground lug on the cord plug-in for the 

battery charger in the shop was broke off. 

Additionally, 3 Light extension cords in the 

gravel plant and 1 in the sand plant had the 

ground lugs broke off. The foreman cut the 

plugs off these cords. This citation will only 

be abated when all of the cords are removed 

from service or new 3 conductor plug-ins 

installed. 

Inspector Jacobson conf ir~ed that this citation was similar to the previous one in that he found electrical extension 

cords with the ground lugs cut off in the locations noted. 

1431 
The battery charger in question was often used with extension 

cords to reach the batteries being charged on equipment 

located at the mine. He ooserved the battery charger at the 

shop area near a trailer used as a maintenance area. A grounding lug is necessary because a battery charger is an electrical device that changes AC current to DC current through a 

rectifier, and a fault on the charger could energize the metal 

charger case, as well as the vehicle to which it is attached. 

Anyone coming in contact with the current, or between the two 

potentials, could be killed. The remaining plugs were not 

being used and were rolled up and stored in the trailers, but 

they were available for use by the employees. The battery 

charger was not being used, and if it were, he would have 

taken it out of service. Mr. Iverson agreed that the conditions posed a severe hazard and indicated that he "was going 

to keep better track of his equipment from now on," and was 

concerned about it (Tr. 23). 

Mr. Jacobson stated that a failure of the insulation or 

any of the component parts of the metal battery charger under 

a fault condition would cause the metal surface of the battery 

charger to become charged, and without a ground to blow the 

fuse, anyone could put their hand on it and become part of the 

circuit. The same would be true if the frame of a vehicle 

being charged were touched, and "it don't take much current to 

take you out" (Tr. 24). 

Mr. Jacobson believed that the cited conditions posed a 

serious hazard, and that an electrical accident would likely 

result in fatal injuries or burns. He stated that "the 

battery charger, in particular, is notorious for causing 

accidents" (Tr. 25). If the battery charger had been plugged 

in, Mr. Jacobson would have removed it from service by issuing 

an imminent danger order because fault conditions can occur at 

any time (Tr. 26). The cords which were stored "weren't in 

bad shape, except that the plug ends were broke off," and 

Mr. Jacobson believed that they were rel~tively new cords (Tr. 

27). Mr. Jacobson observed no visible signs of deterioration 

in any of the cords, including the one used on the battery 

charger, and if the ground lug were in place, he would have 

had no other reason for citing it (Tr. 28). 

Mr. Jacobson confirmed that he based his "moderate negligence" finding on the fact that the individuals using the equipment are maintenance personnel, and that the supervisor was new 

and not aware of his responsibility to see to it that the equipment is maintained properly (Tr. 29). Mr. Jacobson stated that 

during a previous inspection in February, 1987, he found some 

ext2nsion cords with the ground plugs broken off ·in storage and 

1432 
discussed the matter with Mr. Johnson. Mr. Jacobson believed 

that these cords were either destroyed or replaced by new ones. 

Be did not cite the prior cords because "I would probably have 

had a problem proving they were being used,& and he did not 

cite the battery charger previously because it had a ground 

plug on it (Tr. 32). The cited fan had never been a problem in 

the past, and Mr. Jacobson confirmed that his inspection of 

August 19, 1987, was the first time he ever noticed any problem 

with electrical~equipment on the dredge (Tr. 32);. 

Section 104(a)"S&S" Citation No. 3061127, cites a violation of 30 C.F.R. § 56.14001, and the condition or practice is 

described as follows: "The drive coupling on the fresh water 

pump on t~e pond supplying water to the plant was not 

guarded." 

Mr. Jacobson confirmed that he issued the citation after 

finding an unguarded water pump drive coupling on the pump 

being used to pump water to the plant area. The coupling was 

a moving metallic machine part, and he identified exhibit P-3 

as a photograph taken of the pump, coupling, and motor, and 

confirmed that the coupling is used to connect the pump to the 

motor (Tr. 34-36). 

Mr. Jacobson believed that anyone coming in contact with 

the coupler could be injured, and he investigated one case in 

which an individual's coattail was caught in a similar 

coupling, and it resulted in fatal injuries. He believed that 

anyone contacting the coupler could suffer severe lacerations, 

bruises or burns, "something that would cause him to lose 

time." He described the motor as a 100 to 150 horsepower 

motor, and estimated that the coupler would turn at least at 

120 rpm (Tr. 37). He believed that anyone greasing the pump 

while it was operating, or observing a mechanical problem, 

could contact the coupler inadvertently or brush against it. 

If it were cold weather, a jacket tail could wrap around the 

shaft and access to the pump was by means of a walkway or ramp 

from the shore to the pump location (Tr. 38). 

Mr. Jacobson stated that the coupler has two parts which 

are coupled together by bolts which leave seams, and that it 

probably has rough edges. He confirmed that the pump could be 

turned on and off from shore, and that no one needs to board 

the barge where the pump was located to start and stop it. 

The only reason one would have to go on to the barge would be 

for maintenance of the coupling or to grease the pump. 

Mr. Jacobson had no knowledge of the respondent's maintenance 

procedures, but he believed that the pump should be greased 

once a day and that the ideal method for greasing the pump 

1433 
bearings would be while it was running. However, he did not 

know whether the pump in question was greased while it was 

running or while it was turned off (Tr. 41). 

Mr. Jacobson believed that it was reasonably likely that 

an accident would occur if someone on the barge came in 

contact with the drive coupling in question, and that he could 

brush against it with his leg and tear the tissue. He stated 

that one cannot predict when someone will walk out to the 

barge, but the opportunity i's there, and the hazard exposure 

has "accident probability," and the coupler needed to be 

protected (Tr. 44). 

Mr. Jacobson confirmed that he made a finding of "low 

negligence" because the respondent did not believe the 

coupling had to be guarded because the pump could be started 

and stopped without anyone going on the barge. Abatement was 

achieved by guarding the coupler (Tr. 45). 

Section 104(a) "S&S" Citation No. 3061128, cites a violation of 30 C.F.R. § 56.14006, and the condition or practice is 

described as follows: "The sides of the guard on the pea 

gravel conveyor had been removed, exposing the pinch point." 

Inspector Jacobson stated that he had previously observed 

the conveyor in question during a prior inspection in 

February, 1987, and it was guarded. He identified exhibit P-4 

as a photograph of the tail pulley area of the conveyor, and 

he confirmed that during his inspection of August 19, 1987, 

the guards had been removed frrno the side, exposing the pinch 

points and moving parts of the pulley. The guard on the back 

side of the self-cleaning tail pulley was intact and not 

removed, and he described it as the wire mesh guarding shown 

in the photograph. He also described the location of the 

unguarded pinch point (Tr. 44-48). 

Mr. Jacobson confirmed that the conveyor was not in use 

at the time of his inspection, but that Mr. Iverson admitted 

that it had been used without the guard in place, and the 

presence of small particles of material on the frame of the 

conveyor, as shown in the photograph, would indicate that the 

conveyor was operated without the guard in place (Tr. 49). 

Mr. Jacobson believed that anyone working around the open 

pinch point while greasing the tail pulley or cleaning up 

around it would be exposed to the moving parts. He was aware 

of ihjuries occurring under other similar conditions, and 

injuries have happened through inadvertence or thoughtless 

acts while working in such areas. The conveyor was out in the 

open, and anyone walking by could stick his hand into the 

1434 
pinch point if he were to fall or slip. Anyone walking on the 

outside of the conveyor, however, would have to stick his arm 

into the pinch point. The conveyor operates at high speed, 

and the pulley is turning at a rapid rate. If one were to 

contact the pinch point he could not react fast enough to get 

away from it, and many individuals have been known to get 

caught in similar situations (Tr. 51-53). 

Mr. Jacobson stated that Mr. Iverson offered no explanation as to why the guard was off, and Mr. Jacobson saw no 

guard in the area. A new guard was made and installed to 

abate the violation, and the respondent did a good job in 

designing and installing a guard which was much better than 

those on the other conveyors in the area. Mr~ Jacobson stated 

that he had no information that the guard had been removed for 

changing bearings, and was replaced before the plant was 

started up. Had he been told that the conveyor was out of 

service and locked out, which he doubted was the case, he 

would not have issued the citation (Tr. 53-55). 

Mr. Jacobson believed that it was reasonably likely that 

an accident would occur as the result of the unguarded conveyor in question because unguarded equipment of this type has 

caused numerous serious and fatal accidents over the years, 

and he confirmed that within the past 6 months he investigated 

an accident where an individual lost an arm in an unguarded 

pulley pinch point (Tr. 58). Mr. Jacobson believed that all 

guarding citations are "S&S" because "at some point in time, 

around a piece of unguarded equipment that is accessible, somebody is going to have to go there," and no one can predict 

when this will occur (Tr. 59-60). Inadvertent accidents and 

mistakes have caused many injuries of this type in the past 

(Tr. 61). He made a finding of "moderate negligence" because 

the supervisor was new, and Mr. Johnson was not able to be 

present at the mine site for some time (Tr. 61-62). 

Section 104(a) "S&S" Citation No. 3061129, cites a violation of 30 C.F.R. § 56.12032, and the condition or practice is 

described as follows: "A motor starter box in the gravel 

plant electrical panel had the cover off exposing the electrical 480-volt conductors." 

On September 2, 1987, the inspector terminated the citation, modified it to a non-"S&S" citation, and also modified 

the gravity finding to "unlikely." The reasons for these 

modifications are stated as follows: "It was determined the 

box was disconnected lowering the degree of hazard to 

unlikely, no lost work days, non-S&S. The cover should have 

1435 
been on the box to protect the magnetic starter from mechanical damage. The cover was placed on the box." 

Mr. Jacobson explained the circwnstances which prompted 

him to issue the citation. He stated that he observed a cover 

off of a motor starter box, and the motor starter was attached 

by conduit to a fuse box directly above it. He assumed the 

unit was either used, or could be used, and if someone "threw 

the right switch, they could turn the power on," exposing the 

uncovered electrical parts inside the box and thereby presenting a hazard if someone contacted the parts. Since the area 

was muddy, a person walking through the area could slip or 

fall and easily come in contact with the exposed electrical 

parts. He believed the box needed to be protected or removed 

if it were not to be used (Tr. 63-64). 

Mr. Jacobson stated that during his follow-up abat~~ent 

inspection it was brought to his attention that the wiring 

inside the cited starter box had been removed, and at the time 

of his spot inspection "there was evidence that this was the 

case." However, since the starter motor.was still there, 

Mr. Jacobson believed that it was going to be used again, and 

that it needed to be protected and maintained in an operable 

condition. He conceded that the starter could only be used 

only if the box were re-wired, and that under the prevailing 

conditions, the motor could not have been started. Under the 

circumstances, the only hazard presented "would be in the 

abuse of the equipment." He assumed that if the starter box 

were to be used again, there was an opportunity to use the old 

box which had been exposed to mud and water. He could not 

recall observing any wires going into the box during his 

initial inspection, and during his follow-up, there were no 

wires in the box, and it was deenergized. He also stated that 

during his initial inspection, he assumed the box "was dead," 

but that it could be energized. At that time, the plant was 

down, and the power to the starters was off (Tr. 66-68). He 

assumed that the conduit connecting the fuse box to the 

starter box would allow current to flow, but that the upper 

portion of the box had apparently been disconnected (Tr. 69). 

Mr. Jacobson cohfirmed that he made a gravity finding of 

"reasonable likely" based on the information he had during his 

initial inspection, but that he would now rate it "unlikely." 

He believed that the respondent's negligence was "low," and 

assuming the box had been wired, he would have required the 

cover to be replaced with a screw to hold it on. Assuming the 

box were not wired or "live" he would require the box to be 

covered to protect the components, and in this case abatement 

was achieved by installing a cover over the box. The box was 

1436 
subsequently removed, and he believed this was a good idea 

(Tr. 69-70). 

On cross-examination, Inspector Jacobson confirmed that 

he was unaware that the cited fan was burned out, and that 

Mr. Iverson informed him that it was in operable condition. 

Mr. Jacobson stated further that both he and Mr. Iverson 

believed that the fan would have worked if it were plugged in, 

and that the fact that it may have been burned out made no 

difference. He believed that a burned out fan presented every 

opportunity for a shock hazard because a fan motor malfunction 

could energize the frame of the fan if it were plugged in (Tr. 

80-81). 

With regard to the cited electrical extension cords, 

Mr. Jacobson confirmed that d~ring his pcior inspection he 

discussed with Mr. Johnson the fact that ground lugs were missing from extension cords which were not in use and stored in a 

parts trailer. Although Mr. Jacobson did not cite them at 

that time, he included them in the cit:i.tion which he issued 

during the August 18, inspection because they were available 

for use on the battery charger. The batter charger cord was 

not long enough to reach a piece of machinery in the shop 

area, and Mr. Jacobson believed that the cords woula have been 

used to reach the equipment being charged with the battery 

charger (Tr. 85). 

In response to further questions, Mr. Jacobson stated 

that an extension cord carries current to the circuit, and it 

is an extension and integral part of the circuit. Without a 

grounding lug or conductor, there is no grounding continuity. 

As soon as an extension cord is plugged in, it becomes part of 

the circuit (Tr. 86-87) .. Mr. Jacobson confirmed that he has 

observed battery chargers used with more than one extension 

cord at other mining operations, but not at the respondent's 

mine. He cited the cords because he believed they would be 

used in series with the battery charger, and to bring to the 

attention of the respondent the fact that the cords had a 

problem that needed to be corrected (Tr. 89). 

Mr. Jacobson stated that there is no MSHA standard specifically requiring an extension cord to have a ground lug, and 

if he were to cite only an extension cord he would cite section 56.12030 which requires the correction of a potentially 

dangerous condition before equipment or wiring is energized. 

He confirmed that the cords were not in use, but in storage, 

and that he had previously discussed the lack of ground lugs 

·with Mr. Johnson and that "it is quite apparent that conversation wasn't doing the job" (Tr. 92). 

1437 
Mr. Jacobson stated that the battery charger was portable 

and mounted on small wheels, and that it was used to charge 

batteries on mobile equipment, including trucks and pick-ups. 

The battery charger cord was not long enough to reach out to 

the trucks without the use of an extension cord, and the 

battery charger was on the ground in the shop area. If the 

charger were taken to the vehicle, an extension cord would be 

required because the charger would have to be plugged into an 

electrical source. Although a battery could be removed from a 

piece of equipment and taken to the charger, he found this 

highly unlikely because the batteries are large and heavy (Tr. 

9 3-9 6) • 

Respondent's Testimony and Evidence 

Division Manager Frank Johnson asserted that the cited 

fan was burned out and was not in use at the time of the 

inspection. He explained that the fan was not removed from 

the dredge because it weighed 40 pounds and would require two 

men to carry it and place it in ~ boat to take it to shore. 

He conceded that the fan was not tagged out, and had no 

knowledge as to whether Inspector Jacobson was aware of the 

fact that the fan was inoperable (Tr. 82-83; 96-97). 

With regard to the cited electrical extension cords, 

Mr. Johnson stated that they were not in use and that "we 

threw them in the parts trailer to get them out of service" 

(Tr. 97). He confirmed that as a result of Mr. Jacobson's 

prior inspection in February, "we had gotten rid of all the 

old, ungrounded cords, and bought new ones." Mr. Johnson 

conceded that the battery charger ground lug was broken off, 

and he explained that some of his employees who live nearby 

probably used the charger to charge their personal batteries 

and broke the lug off because their house had no grounding 

plug-in device, and "they probably snapped it off" (Tr. 98). 

With regard to the cited unguarded coupler, Mr. Johnson 

stated that i.t is perfectly round with no protrusions on it, 

and that it is powered by a 75 horsepower motor, and turned at 

175 0 rpms. Mr. Johnson explained that the purnp is 3reased in 

the morning before it is started, and the water valves are 

opened to bleed off any air. As soon a·s the flow of water 

begins, the valve is closed, and the pump is started from 

shore with a start button, and "we never touch it again until 

the next morning." No one is on the barge during the cours~ 

of the day, unless something brejks down. Any breakdown would 

only involve the pump or motor because they are the only 

1438 
moving parts on the barge, and in the event maintenance is 

required this equipment is shut off (Tr. 99). 

Mr. Johnson stated that if anyone contacted the coupler 

while it was in operation and spinning, he could suffer 

bruised or broken ribs, but not fatal injuries, and this would 

also be true if anyone fell against the guard which was 

installed to abate the violation. He believed that the 

likelihood of anyone coming in contact with the coupler while 

it was in operation was remote (Tr. 99-101). 

With regard to the unguarded conveyor, Mr~ Johnson stated 

that the rock plant was down at the time of the inspection, 

and that the conveyor belt speed was approximately 70 feet per 

minute (Tr. 102). Mr. Johnson could not confirm that 

Mr. Iverson told Mr. Jacobson that the belt had operated with 

the guard off, and he stated that Mr. Iverson "was a very 

shook up man because he got nailed with 19 citations that 

day," and he has since quit (Tr. 102-103). Mr. Johnson agreed 

that if Mr. Iverson told the inspector the conveyor was operated without a guard, "he should give him a citation" (Tr. 

109). 

With respect to the cited starter box with the missing 

cover, Mr. Johnson stated that the box was not in use and that 

all of the wires had been torn out of it when several conveyors were dismantled and removed, and the disconnected box 

simply remained in the panel (Tr. 109). The box in question 

had been used for a magnetic starter, and the stop-start 

switch was located on a separate panel and had a cover on it 

(Tr. 110). Mr. Johnson agreed that in the event the box in 

question had been hooked up, it would have been dangerous (Tr. 

111). Mr. Iverson may not have been aware of the fact that 

the wires had been removed from the box because he was not 

working there when the prior dismantling work was done, and 

Mr. Jacobson may not have known it because he was not the 

inspector when this work was done CTr. 112). 

Findings and Conclusions 

Fact of Violations 

Citation No. 306118 - 30 C.F.R. § 56.12025 

The credible evidence of record reflects that the cited 

electrical fan cord used to supply power to the fan had its 

grounding lug broken off, thereby rendering it incapable of 

providing any ground continuity in the event the fan were 

plugged into a receptacle which was within ready access of the 

1439 
fan. The cited standard section 56.12025, requires that all 

metal enclosing or encasing electrical circuits be grounded or 

provided with equivalent protection. While it is true that 

the fan was not plugged into the receptacle when the inspector 

observed it, thus completing the circuit between the fan and 

the electrical source provided by the receptacle, the fact is 

that the electrical circuitry inside the fan motor, which was 

enclosed with a metallic frame or covering, was not provided 

with any workable grounding device since the ground lug to the 

power cord had been broken off. Under the circumstances, I 

conclude and find that the cited fan was not provided with any 

grounding protection, nor was it provided with any equivalent· 

ground protection. Accordingly, I conclude and find that the 

petitioner has established a violation of the cited standard, 

and the citation IS AFFIRMED. 

Citation No. 3061120 - 30 C.F.R. § 56.12025 

The respondent has conceded that the ground lug on the 

·electrical plug-in cord which supplied power to the cited 

battery charger was broken off, and the credible testimony of 

Inspector Jacobson establishes this fact. Given the fact that 

the broken grounding lug would not provide a means of maintaining any grounding continuity or protection for the metallic 

battery charger circuitry, and the fact that no equivalent 

grounding protection was provided, I conclude and find that 

the petitioner has established a violation of the cited 

standard, and the citation concerning the battery charger IS 

AFFIRMED. 

With regard to the extension cords which were found in 

the equipment trailer and which were not in use or connected 

to the battery charger, I cannot conclude that the missing 

ground lugs, standing alone, constituted a violation of 

section 56.12025. The cords were not an integral part of the 

battery charger electrical circuitry, and Inspector Jacobson's 

speculative opinion that they were available and could be use 

in conjunction with the battery charger's power cord is 

insufficient to establish a violation. Further, Mr. Jacobson 

admitted that part of his reason for citing the cords was to 

alert the respondent to the fact that the broken ground lugs 

may present a problem, and he conceded that although MSHA has 

no specific mandatory standard for citing extension cords 

per se, he could have cited section 56.12030, which requires 

that potentially dangerous conditions be corrected before 

equipment or wiring is energized. Under all of these circwnstances, that portion of the citation which alleges a violative condition in connection with the extension cords which 

were in the trailer IS VACATED. 

1440 
Citation No. 3061127 - 30 C.F.R. § 56.14001 

The respondent does not dispute the fact that the drive 

coupling for the water pump located on the barge was unguarded, 

and Inspector Jacobson's credible testimony establishes that 

this was the case. The cited section 56.14001 requires that 

all exposed moving machine parts, such as a coupler, which may 

be contacted by persons and which may cause injury to persons, 

be guarded. Mr. Johnson conceded that the coupler in question 

was a moving machine part, and although he believed that the 

chances of someone contacting the unguarded and exposed coupler 

were remote, he nonetheless confirmed that someone could have 

have come in contact with it while it was spinning, and if they 

did, they could possibly suffer bruised or broken ribs. Under 

all of these circumstances, I conclude and find that the petitioner has established a violation of the cited standard, and 

the citation IS AFFIRMED. 

Citation No. 3061138 - 30 C.F.R. § 56.14006 

The respondent has not rebutted the credible testimony of 

Inspector Jacobson which establishes that the conveyor side 

guard in question had been removed and not replaced. Since 

Mr. Iverson is no longer e1nployed by the respondent, and was 

not called to testify. Mr. Jacobson's testimony that 

Mr. Iverson a&nitted that the conveyor had been in operation 

without the guard in place, and that the presence of materials 

on and around the frame of the conveyor led him to believe 

that the conveyor had been operated without the guard in 

place, is unrebutted. Further, Mr. Johnson conceded that if 

Mr. Iverson told the inspector that the conveyor was operated 

without the guard in place, the citation was justified (Tr. 

10 9) . 

The cited section 56.14006 requires that guards be 

securely in place while machinery is being operated. While it 

is true that the conveyor was not in operation during the 

inspection, I conclude and find that the evidence presented by 

the petitioner establishes with some degree of reasonable 

certainty that the conveyor had in fact been operated with the 

guard off, and the inspector found no evidence of any guard 

nearby the cited equipment. 

Although the standard provides for an exception for a 

guard while the equipment is being tested, and the respondent's 

answer states that bearings were being changed, and that the 

guard was assembled before the plant was started, the respondent advanced no such credible evidence at the hearing. 

1441 
Further, the fact that the conveyor was guarded to the rear of 

the exposed and moving pulley area, suggests that the respondent was aware of the fact that the area was hazardous and 

needed guarding. 

In view of the foregoing, and on the basis of all of the 

credible evidence adduced by the petitioner in support of the 

violation, I conclude and find that a violation of section 

56.14006, has been established, and the citation IS AFFI&~ED. 

Citation No. 3061129, 30 C.F.R. § 56.12032 

The record reflects that the cited motor starter box 

which lacked a cover was inoperable and that all of the wiring 

inside the box had been removed. There was no power to the 

box, and Inspector Jacobson conceded that the box could only 

be rendered operable if it were re-wired and again placed in 

service. Mr. Johns6n's unrebutted testimony, which I find 

credible, establishes that the box had been disconnected and 

the inside wires removed for a lonq time prior to the inspection of August 19, 1987, when several conveyors used in conjunction with the box in question were dismantled and removed. 

Mr. Johnson testified that although the box was in use in 

1985, the conveyors were torn out and the box was disconnected 

and the wires were removed (Tr. 109). 

The cited standard, section 56.12032, requires that cover 

plates on electrical equipment and junction boxes be kept in 

place at all times except during testing or repairs. I conclude and find that the dismantling and removal of the conveyors and the removal of the wires from inside the box which 

w·as used in conjunction with the conveyors when they were 

operable, constituted repair work. Under the circumstances, I 

conclude that the removal of the box cover falls within the 

exception found in the standard, and there is no evidence that 

the box was ever used or rendered serviceable subsequent to 

the time this repair work was done. I conclude and find that 

the petitioner has failed to establish a violation, and the 

citation IS VACATED. 

The respondent has withdrawn its contest of section 104(a) 

"S&S" Citation No. 3061132, August 19, 1987, citing a violation 

of mandatory safety standard 30 C.F.R. § 56.12032 (Tr. 70-71). 

Inspector Jacobson issued the citation after finding that a 

lighting panel at the plant was not provided with an inner 

cover, thereby exposing a person to a 220-volt single phase 

hazard when the outer cover was raised to turn on the lights. 

Under the circumstances, the citation IS AFFIR.~ED AS ISSUED. 

1442 
Significant and Substantial Violation 

A "significant and substantial" violation is described in 

section 104Cd)(l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly 

designated signijicant and substantial "if, based upon the 

particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 

1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "signif icant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). we have e~phasized that, in accordance 

with the language of section 104(d)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be signiEicant 

and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

S"t'eel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

1443 
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). 

Based on the credible testimony of the inspector, I conclude and find that the violation concerning the missing 

ground l.ug on the fan electrical cord (3061118), and the violation concerning the missing ground lug on the battery charger 

electrical cord {3061120), posed a discrete shock hazard 

within the Commission's interpretation of "significant and 

substantial." Even though the fan may have been inoperable, 

it was not removed or tagged out, and in the event someone 

inadvertently plugged it in and a fault occurred, the metallic 

fan frame could have been energized. Had this occurred, the 

individual plugging it in would likely suffer a shock or burn 

injury of· a reasonable serious nature. This same result would 

occur in the event a fault occurred while someone using the 

battery charger plugged in the.cord supplying power to the 

charger. The evidence establishes that employees often used 

the battery charger to service their personal vehicles, and 

this would increase the likelihood of an injury by the use of 

the charger without a proper grounding device. Under these 

circumstances, I conclude and find that these violations were 

significant and substantial, and the inspector's findings in 

this regard are af~irmed. 

With regard to the unguarded motor drive coupler on the 

fresh water pump (3061127), I agree with the inspector's 

significant and substantial finding. While it is true that 

the motor could be turned on and off from shore, the unguarded 

coupler was readily accessible to anyone on the barge greasing 

or performing maintenance work. Although respondent's witness 

Johnson stated that no one had a need to be on the barge while 

the pump was in operation, he conceded that someone would 

necessarily be present in the event of an equipment breakdown, 

and he confirmed that if anyone inadvertently came in contact 

with the exposed and unguarded coupler, he would likely suffer 

broken or bruised ribs. Under the circumstances, I conclude 

and find that the violation was significant and substantial, 

and the inspector's finding is affirmed. 

With regard to the unguarded pea gravel conveyor violation 

{3061128), the credible testimony of the inspector supports his 

significant and substantial finding. Although the conveyor was 

not in operation at the time of the inspection, the evidence 

presented by the inspector supports a reasonable unrebutted 

1444 
inference that material had been processed with the conveyor 

running with an exposed unguarded pinch-point which was readily 

accessible to anyone greasing or cleaning up in the vicinity of 

the unguarded conveyor pulley. Since the conveyor operates at 

a relatively high speed, anyone inadvertently contacting the 

unguarded pinch-point would likely suffer injuries of a reasonably serious nature. I conclude and find that this violation 

was significant and substantial, and the inspector's finding is 

affirmed. 

Size of Business and Effect of Civil Penalty Assessments on 

the Respondent's Ability to Continue in Business 

The parties agreed that the respondent is a medium-sized 

sand and gravel operator (Tr. 121-122), and absent any evidence 

to the contrary, I conclude and find that the civil penalty 

assessments which I have made for the violations in question 

will not adversely affect the respondent's ability to continue 

in business. 

History of Prior Violations 

Petitioner's counsel did not have a computer print~out of 

prior assessed violations available at the hearing. However, 

based on the information available from MSHA's proposed assessment .form, petitioner's counsel stated that the respondent was 

issued 10 prior citations durin~ the 24-month period prior to 

the issuance of the contested citation~ in this case. Counsel 

had no knowledge as to whether or not any of the prior citations were similar to those issued in this case (Tr. 119-120). 

Given the available evidence, I cannot conclude that the 

respondent's history of compliance is such as to warrant any 

additional increases in the civil penalties which have been 

made for the contested violations in issue in this case. 

Good Faith Compliance 

The record establishes, and the parties agreed, that all 

of the violations were timely abated by the respondent in good 

faith (Tr. 17, 30, 45, 54-62, 122). I have taken this into 

account with respect to the civil penalty assessments made in 

this case. 

Negligence 

The inspector's negligence findings as to each of the 

citations in question, ranging from low to medium, are 

affirmed. I conclude and find that the violations resulted 

from the respondent's failure to exercise reasonable care. 

1445 
Gravity 

For the reasons stated in my significant and substantial 

violations findings, I conclude and £ind·that the violations 

concerning the missing ground lugs on the fan and battery 

extension cords, the unguarded motor drive coupler on the 

barge water pump, and the unguarded pinch point on the pea 

gravel conveyor were all serious violations. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, I conclude and find that the following civil penalty 

assessments are reasonable and appropriate for the violations 

which have been affirmed in this proceeding: 

Citation No. Date 30 C.F.R. Section Assessment 

3061118 08/19/87 56.12025 $ 112 

3061120 08/19/87 56.12025 $ 100 

3061127 08/19/87 56.14001 $ 68 

3061128 08/19/87 56.14006 $ 126 

3061132 08/19/87 56.12032 $ 112 

In view of my findings and conclusions concerning the 

cited electrical motor box, Citation No. 3061129, 30 C.F.R. 

§ 56.12032, the citation IS VACA'rED, and the petitioner's 

proposal for assessment of a civil penalty for this violation 

is REJECTED AND DISMISSED. 

ORDER 

The respondent IS ORDERED to pay the civil penalties 

assessed in this proceeding within thirty (30) days of this 

decision and order. Upon receipt of payment by the petitioner, 

this case is dismissed. 

~/ d // -L-- //-~-' '/.cf/: 1t::i~C--~~ ~~ rge Koutrasf 

Adrninis rative Law Judge 

1446 
Distribution: 

Mary Witherow, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 752-02 

(Certified Mail) 

Frank Johnson, Division Manager, Hallett Materials, P.O •. 

Box 329, Porter, TX 77365 (Certified Mail) 

T. E. Doyle, Director Personnel, Risk Management & Compliance, 

Hallett Materials, 1109 Division Street, P.O. Box 13, Boone, 

IA 50036 (Certi!ied Mail) 

/f b 

1447 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 201988 

THE HELEN MINING COMPANY, 

C9ntestant 

v • . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE HELEN MINING COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. PENN 88-1-R 

Order No. 28Sl028; 8/31/87 

Homer City Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-112 

A.C. No. 36-00926-03705 

Homer City Mine 

DECISION 

Appearances: Joseph Crawford, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor 

(Secretary>; Ronald B. Johnson, Esq., Volk, 

Frankovitch, Anetakis, Recht, Robertson & 

Hellestedt, Wheeling, West Virginia, for The Helen 

Mining Company (Helen). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Helen contests a withdrawal order issued under section 

104Cd)(2) of the Act on August 31, 1987, alleging a violation of 

30 C.F.R. § 75.503. The Secretary seeks a civil penalty for the 

violation alleged in the contested order. The two proceedings 

were ordered consolidated for the purposes of hearing and 

decision. Pursuant to notice, the consolidated cases were heard 

in Pittsburgh, Pennsylvania on August 16, 1988. Thomas 

Whitehair, Ronald Lee Rhodes and William D. Sparvieri testified 

on behalf of the Secretary. Joseph Lewis Dunn and Wayne Fink 

testified on behalf of Helen. Both parties were given the 

opportunity to file posthearing briefs. Counsel for Helen filed 

a brief; counsel for the Secretary did not. I have considered 

1448 
the entire record and the contentions of the parties, and make 

the following decision. 

ISSUES 

1. The basic issue in this proceeding is a factual one: 

was the pump switchbox cited on August 31, 1987 - a&nittedly 

nonpermissible - in return or intake air? If it was in return 

air, a violation is established; if in intake air, a violation is 

not established. 

2. If a violation is established, was it significant and 

substantial? 

3. If a violation is established, what is the appropriate 

penalty? 

FINDINGS OF FACT 

At all times pertinent to this proceeding, The Helen Mining 

Company was the owner and operator of an underground coal mine in 

Indiana County, Pennsylvania, known as the Homer City Mine. 

Helen produced over three million tons of coal annually, of which 

800,000 tons were produced at the subject mine. The record does 

tiot contain any evidence respecting Helen's history of previous 

violations. Th~refore, I assume that it had a favorable histo~y. 

The subject mine is a gassy mine and liberates more than two 

million cubic feet of methane in a 24 hour period. 

On August 31, 1987, Federal mine inspector Wayne Burkey and 

inspector trainee Thomas Whitehair conducted a regular ("AAA") 

inspection at the subject mine. They entered the mine with 

Dale Montgomery, a company safety representative and Ron Rhodes, 

a union safety committeeman. At one point during the inspection, 

the inspection party split up, with Whitehair and Rhodes 

proceeding to what they believed was a return aircourse off the 

Burrell Mains track. They observed company f ireboss Wayne Fink 

apparently monitoring a pump for methane. Fink testified that in 

fact he was taking a methane reading at the intake evaluation 

point at the water's edge. Whitehair saw that the switchbox was 

not enclosed and asked Fink if he knew that this was a 

nonpermissible switchbox in return air. Fink admitted it, and 

said that was why he was there, monitoring the methane. 

Inspector-trainee Whitehair went to find Inspector Burkey, and 

returned with Burkey and Montgomery to the switch. Burkey issued 

the§ 104(d)(2) order contested herein, and said he wanted power 

removed from the pump. Neither Montgomery nor Fink at that time, 

or afterwards when the order was discussed outside, claimed that 

the pump was not in return air. None of the members of the 

inspection party conducted any test to determine the direction of 

1449 
the airflow. It was apparently assumed by all that the area was 

in return air. 

The map filed by Helen with MSHA as part of its ventilation 

plan on January 16, 1987, and approved on January 29, 1987, 

showed the area in question to be in return air. There is a 

dispute in the testimony as to the location of pump with 

reference to this map. Although it is not decisive, I accept the 

testimony of Joseph Dunn, Helen's General Mine foreman, as to the 

location of the pump. (Inspector Whitehair located the pump and 

switchbox at areas marked in red "Y" and "P" on page 3 of 

Government's Exhibit l; Mr. Dunn stated that they ~ere located at 

the point marked in blue "X" on the same document. Both these 

areas were, according to the map, in return air. Both were, in 

fact, according to Dunn, in intake air}. 

On the <lay following the issuance of the order, Mr. Dunn 

went to the area involved and performed a smoke tube test which 

showed that the split was intake and not mixed with return air. 

Mr. Dunn stated that this area had always been in intake air. He 

testified that the map submitted with the ventilation update 

omitted a wall, and mistakenly showed an area to the left of the 

Burrell Mains area as being in return air (double arrows on the 

map}. In fact, Dunn testified, it was in intake air from the 

split in the old face area. The air does not pass any working 

faces or ventilate any gob area; it does not mix with any return 

air. Dunn stated that this was a mistake on the part of the 

engineers who prepared th~ map, and of Dunn who reviewed it. 

Mr. Dunn's testimony on the basic factual issue was .consistent 

and convincing. Largely on the basis of his testimony, I find as 

a fact that the cited pump switchbox was on August 31, 1987, 

located in intake air. 

REGULATION 

30 C.F.R. § 75.507-l(a} provides in part: 

All electrical equipment, other than power-connection 

points, used in return air outby the last open crosscut 

in any coal mine shall be permissible . 

CONCLUSIONS OF LAW 

Helen Mining Company is subject to the provisions of the 

Mine Act in the operation of the subject mine, and I have 

jurisdiction over the parties and subject matter of this 

proceeding. The nonpermissible pump switchbox cited in order 

2881028 on August 31, 1987, was located in an intake aircourse. 

Therefore, a violation of 30 C.F.R. § 75.507-l(a) has not been 

established. 

1450 
ORDER 

Based upon the above findings of fact and conclusions of 

law, IT IS ORDERED: 

1. Order No. 2881028 issued on August 31, 1987, under 

section § 104 Cd) (2) of the Act is VACA·rED. ·rhe contest is 

GRANTED. 

2. The Secretary has failed to establish a violation of the 

mandatory standard alleged and her petition for civil penalty is 

DISMISSED. 

Distribution: 

Joseph Crawford, Esq., U.S. Department of Labor, Office of the 

Solicitor, Room 14480, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Ronald B. Johnson, Esq., Volk, Frankovitch, Anetakis, Recht, 

Robertson & Hellerstedt, 3000 Boury Center, Wheeling, WV 26003 

(Certified Mail) 

slk 

1451 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 21,988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

DAVID H. MILLER, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 88-165-D 

MSHA Case No. MORG CD 87-27 

Ireland Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of alleged discrimination filed by the Secretary of Labor on behalf of-David H. 

Miller against the respondent pursuant to section 105(c) (1) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(c) (1). The complaint alleges that on or about September 11, 

1987, Mr. Miller was discriminated against because the respondent interfered with his right as a representative of miners to 

accompany a Federal mine inspector during his inspection of the 

mine. Th€ complaint was subsequently amended by the Secretary to 

include a proposal for an assessment of ·a civil penalty against 

the respondent for the alleged act of discrimination. 

The respondent filed a timely answer denying that it discriminated against Mr. Miller, and the matter was scheduled for 

a hearing in Wheeling, West Virginia, on Tuesday, June 14, 1988. 

However, the hearing was cancelled after the parties advised me 

that they had reached a proposed settlement of the case. The 

parties have now filed a joint motion for approval of the 

proposed settlement. 

Discussion 

In support of the proposed settlement disposition of this 

case, the Secretary has submitted information pertaining to the 

1452 
six statutory civil penalty criteria found in section llO(i) of 

the Act. In addition, the conplainant David H. Miller states 

that he has voluntarilv consented to the agreement reached on 

his behalf by the Secretary, and that he will withdraw his complaint upon the respondent's posting of a notice to employees 

that it will comply with the provisions of sections 103(£) and 

lOS(c) of the Act, and payment of a civil penalty assessment in 

the amount of $2,000 to MSHA's Office of Assessments. The 

respondent has agreed to post the requisite notice at the mine 

and to pay a civil penalty assessment of $2,000. 

In further support of the settlement, the parties state 

that Mr. Miller received no disciplinary action from the respondent as a result of his attempts to exercise his rights as the 

walkaround representative of miners and that the respondent did 

not document the occurrence in question for purposes of placing 

a record of the incident in his personnel file. Under these 

circumstances, the parties are in agreement that the gravity of 

the violation should be minimally reduced from the initial proposed range of $2,500 to $3,000 to $2,000. 

Conclusion 

After careful review and consideration of the settlement 

terms and conditions executed by the parties in this proceeding, 

including Mr. Miller, I conclude and find that the proposed 

settlement reflects a reasonable resolution of the complaint 

filed by the Secretary on Mr. Miller's behalf, and th~t it is in 

the public interest. Since it ~eem~ Clear to me that the parties 

are in agreement with the proposed settlement disposition of the 

complaint, I see no reason why it should not be approved. I also 

find no reason for not approving the reduction of the initial 

proposed civil penalty assessment. 

ORDER 

The joint settlement motion filed by the parties IS GRANTED 

and the settlement IS APPROVED. The respondent IS ORDERED to 

fully comply with the terms of the settlement and to immediately 

post the aforementioned notice at a c9nspicuous place at the 

mine. The respondent IS ·FURTHER ORDERED to pay to MSHA a civil 

penalty assessment of $2,000, for the violation in question, and 

payment is to be made within thirty (30) days of the date of this 

decision and order. Upon receipt of payment by MSHA, and full 

compliance with the terms of the settlement, this matter is 

dismissed. 

/c:J/ 

~~.4:tras ,~ Administrative Law Judge 

14 53 
Distribution: 

Anita D. Eve, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

/fb 

1454 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

DAVID JOHNSON, 

Complainant 

v. 

JERICOL MINING INC., 

Respondent 

Before: Judge Maurer 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 21 \988 

DISCRIMINATION PROCEEDING 

Docket No. KENT 88-135-D 

BARB CD 88-20 

Darby's Mine 

ORDER OF DISMISSAL 

The Complainant, David Johnson, requests approval to 

withdraw his Complaint in the captioned case on the grounds 

that he has reconsidered his decision to proceed with the 

Complaint and no longer desires a hearing concerning this 

matter. Under the circumstances herein, permission to 

withdraw is granted. 29 C.F.R. § 2700.11. The case is 

therefore dismissed. 

Roy 

;~~ . aurer ~11~llvl-'-'~/ Admi 's rative Law Judge 

Distribution: 

Mr. David Johnson, P.O. Box 265, Baxter, KY 40806 (Certified Mail) 

Christopher M. Hill, Esq., McBrayer, McGinnis, Leslie, and 

Kirkland, 300 State National Bank Bldg., P.O. Box 1100, 

Frankfort, KY 40602 (Certified Mail) 

kg 

1455 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

October 21, 1988 

GREEN RIVER COAL CO., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREEN RIVER COAL CO., 

Respondent 

. 

. 

DECISION 

CONTEST PROCEEDINGS 

Docket No. KENT 87-217-R 

Citation No. 2828322; 

7/15/87 

Docket No. KENT 87-218-R 

Citation No. 9897267; 

7/9/87 

Docket No. KENT 87-82-R 

Citation No. 2216195; 

12/10/86 

Docket No. KENT 88-2-R 

Order No. 2836094; 

9/21/87 

Docket No. KENT 87-202-R 

Citation No. 2215847; 

5/27/87 

Docket No. KENT 87-203-R 

Citation No. 2215849; 

5/27/87 

No. 9 Mine 

Mine I.D. 15-13469 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 88-5 

A.C. No. 15-13469-03620 

Docket No. KENT 88-19 

A.C. No. 15-13469-03624 

No. 9 Mine 

Appearances: Flem Gordon, Esq., Gordon & Gordon, O.Vensboro, KY, 

for Green River Coal Co.; 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, TN, for the 

Secretary of Labor. 

Before: Judge Fauver 

1456 
The above cases, arising under the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq., were called for 

hearing at Evansville, Indiana. 

Motions to approve settlement and to withdraw some of the 

cases were considered and granted at the hearing. Accordingly, 

KENT 87-82-R, KENT 88-2-R, and KENT 87-218-R will be disillissed 

and the operator will be ordered to pay the following approved 

civil penalties: $700 each for Order 2215845 and Order 2215846 

in KENT 88-5; $700 for Order 2836094 in KENT 88-2-R; and $20 for 

Citation 9897267 in KENT 87-218-R. 

The following matters are pending decision following the 

hearing and briefs: KENT 87-217-R and KENT 88-19 concerning 

Citation 2828322 and KENT 87-202-R, KENT 87-203-R and KENT 88-5 

concerning Order 2215847 and Order 2215849. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the subgtantial, reliable 

and probative evidence establishes the following: 

FINDINGS OF FACT 

1. Green River Coal Company is a large coal operator 

producing coal for sales in or substantially affecting interstate 

commerce. 

Order 2215847 

2. On May 27, 1987, MSHA Ventilation Specialist Louis 

Stanley inspected working section 4 of Green River ~o. 9 mine. 

There were six active entries in the section. 

3. In No. 3 entry, Specialist Stanley observed an air 

curtain that appeared to him to be improperly hung in that it did 

not cover enough of the crosscut to direct sufficient air to the 

working face. The curtain extended only five to eight feet 

across the crosscut. Specialist Stanley believed the curtain 

would have to be extended to nearly the full width of the 

crosscut to direct adequate air to the working face. He believed 

the condition was obvious and should have put the foreman on 

notice to check the ventilation and correct the curtain. 

4. Ba~ed upon his suspicion about the curtain, Specialist 

Stanley took an air reading in the entry. He used a smoke tube 

to determine the speed of air in the entry and calculated the 

volume of air after measuring the air opening behind the air 

curtain. The air opening was 5 x 4 feet. His calculations 

showed 1,500 cfm of air. Because the regulations (30 C.F.R. 

§ 75.301-1) require a minimum of 3,000 cfm at each working face, 

Speciatist Stanley issued Order 2215847. 

1457 
5. Specialist Stanley measured the ~ir for methane in the 

same entry and found .9 percent methane. 

6. Specialist Stanley asked the section foreman, Kelvin 

Smelly, whether he had checked the ventilation. The foreman told 

him that he had. Specialist Stanley asked to see Mr. Smelly's 

calculations. Mr. Smelly said, "I don't have any." Specialist 

Stanley then asked him, "How could you calculate this?" and he 

replied, "I calculated it in my head." Specialist Stanley then 

asked what figures he had used for the air opening, and Mr. 

Smelly replied, "two foot by five foot." 

Order 2215849 

7. On May 27, 1987, Specialist Stanley observed 

accumulations of loose coal along the ribs of entries No. 2 

through No. 7 in working section 4, extending from the working 

faces outby 60 to 70 feet. The loose coal ranged from 12 to 30 

inches deep and one to four feet wide. 

8. Based upon the conditions he observed, Specialist 

Stanley's expert opinion was that the loose coal had accumulated 

over three work shifts. 

9. Methane was detected in each of the six entries, ranging 

from • 7 to 1.15 percent. 

Citation 283822 

10. On May 15, 1987, MSHA Inspector George Newlin took 

methane readings in the return air course off the ~o. 1 unit in 

the old headings of the No. 1 return. He detected methane of 

2.13 percent in one room at spad 2100 and 1.95 percent in another 

room at spad 2100. 

11. The Green River No. 9 mine liberates over one million 

cubic feet of methane in 24 hours. 

DISCUSSION WITH OTHER FINDINGS 

Order 2215847 

The company does not deny a violation of the ventilation 

standard (30 C.F.R. § 75.301-1), which requires 3,000 cfm, but 

challenges Specialist Stanley's finding that the violation was 

"unwarrantable." 

Speciali~t Stanley found 1,500 cfm in the entry. Mr. Smelly 

contended he had measured over 3,000 cfm shortly before the 

inspector's test. 

1458 
I credit ~pecialist Stanley's testimony and notes concerning 

this matter. The foreman was present on the section but had not 

ensured proper ventilation of the face, the curtain was obviously 

improperly hung, and an accurate air reading showed that the air 

was 1,500 cfm below the safety standard of 3,000 cfm. In 

addition, there was .9 percent methane in the entry. I find that 

the foreman demonstrated high negligence in operating this 

section without ensuring adequate ventilation. The improper 

hanging of the air curtain was the sole rea~on for the 50% loss 

of the required ventilation. Given the obvious condition of the 

curtain, the history of methane buildups in this mine, and the 

sources of ignition in the working section, the foreman's conduct 

exceeded ordinary negligence when he proceeded to work the 

section without adequately measuring the air and correcting any 

deficiency. I find that the foreman either did not take an air 

reading or, if he took one, he used a patently inadequate figure 

for the air opening, i.e., 10 sq. ft. instead of the accurate 

figure of 20 sq. ft. measured by the inspector. The inspector 

was justified in finding an "unwarrantable" violation of the 

ventilation standard. 

Considering the criteria for a civil penalty in§ llO(i) of 

the Act, I find that a penalty of ~700 is appropriate for this 

violation. 

Order 2215849 

The violation charged is not contested, but the company 

contends that it was not an "unwarrantable" violation. 

I credit the inspector's testimony and notes concerning this 

matter. 

Considering the obvious condition of the accumulations of 

loose coal, the fact that it took several shifts to accumulate 

the amount of loose coal observed, and the failure of the company 

to comply with its own cleanup policy, I find that the inspector 

was justified in finding a high degree of negligence. This 

satisfies the Commission's criteria for an "unwarrantable" 

violation. 

The company relies on the inspector's acceptance of the word 

"inattentive" during cross examination, in contending that the 

violation was not "unwarrantable." However, the inspector's 

personal interpretation of the word "inattentive" is that it 

means "no attention at all" and "basically the same" as 

"aggravated conduct or high negligence" (Tr. 37-38). This is 

consistent with his finding of an "unwarrantable" violation based 

on the facts he observed. 

Considering the criteria for a civil penalty in§ llO(i) of 

the Act, I find that a penalty of $800 is appropriate for this 

violation. 

1459 
Citation 283822 

This citation was issued by Inspector George Newlin on May 

15, 1987, for a violation of 30 C.F.R. § 309(b) on the ground 

that 2.3 percent and 1.95 percent methane readings were found in 

the return air course off the ~o. l unit in the old headings of 

the No. 1 return. Inspector Newlin took methane readings with an 

approved methane monitor in numerous areas throughout the old 

headings. He took bottle samples in two rooms and found 2.13 

percent methane in one and 1.95 percent methane in the other. 

The buildup of methane was caused by a rock fall in the return 

air course. It had been two or three days since the headings 

were last inspected by the company. The headings are required to 

be walked and inspected once a week. The area was due to be 

sealed within a week. 

If left uncorrected, the condition probably would have 

caused a back up of methane to the active unit. 

Green River Coal Company No. 9 mine liberates in excess of 

one million cubic feet of methane in a 24 hour period. .Further 

build up of methane could have resulted in an explosive mixture 

of methane. The mine has a history of prior violations 

concerning methane. 

Section 75.309(b) of 30 C.F.R. provides that if, when 

tested, a split of air returning from a working section contains 

1.5 percent of methane or more, the area of the mine endangered 

by methane shall be safeguarded "until the air in such split 

shall contain less than 1.0 volume per centum of methane." 

A "split of air" means a separate air circuit, e.g., when 

mine workings are subdivided to form a number of separate 

ventilating districts; "the main intake air is split into the 

different districts of the mine" and later "the return air from 

the districts reunite to restore the single main return air 

current" (A Dictionary of Mining, Mineral, and Related Terms 

(Bureau of Mines, U.S. Department of Interior 1968) p. 1201). 

The locations where the inspector found methane readings of 2.13 

and 1.95 percent were in a "split of air returning from a working 

section." 

The methane buildup was caused by a roof fall, and not 

negligent conduct by the company. 

The safety~tandard requires the operator to take certain 

corrective action "If, when tested, a split of air retut'ning from 

any working section contains 1.5 volume per centum or more of 

methane." Since the company's last methane test of the cited 

area did not show this amount of methane, the Secretary has not 

shown a violation of§ 309(b) as charged in the citation. In 

other words, a duty to safeguard the area by the steps outlined 

1460 
in§ 309(b)·was not triggered by a prior test showing methane of 

1.5 percent or higher. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over these proceedings. 

2. Green River Coal Company violated the safety standards 

as alleged in Order 2215847 and Order 2215849. 

3. The Secretary failed to prove a violation as charged in 

Citation 2828322. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Docket Nos. KENT 87-82-R, KENT 88-2-R, and KENT 87-218-R 

are DISMISSED. 

2. Order 2215847 is AFFIRMED. 

3. Order 2215849 is AFFIRMED. 

4. Citation 2828322 is VACATED. 

5. Green River Coal Company shall pay the above civil 

penalties of $3,620 within 30 days of this Decision. 

UJ~t:~ Administrative Law Judge 

Distribution: 

Flem Gordon, Esq., Gordon & Gordon, P.S.C. 1500 Frederica Street, 

P.O. Box 390, OWensboro, KY 42302-0390 (Certified Mail) 

Mary Sue Ray, Esq., U.S. Departillent of Labor, Office of the 

S6licitor, 2002 Richard Jones Road, B-201, Nashville, TN 37215 

(Certified Mail) 

kg 

1461 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF- ADMINIS1RA1 IVE LAW JUDGES 

COLONNADE CFNTER 

ROOM 28(: 1?4·1 SPlER 80ULEVARO 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JOSEPH GABOSSI, 

Complainant 

v. 

WESTERN FUELS-UTAH, INC., 

Respondent 

DENVER CO 8(l2(l4 

OCT 2 41988 

DISCRIMINATION PROCEEDING 

Docket No. WEST 86-24-D 

Deserado Mine 

DECISION AFTER REMAND 

Before: Judge Morris 

On August 15, 1988 the Commission ruled that Joseph 

Gabossi's complaints to mine management concerning the company's 

reporting structure constituted an activity protected under the 

Act and, accordingly, the Secretary may have established a case 

of unlawful discrimination. Further, the Commission noted that 

"(i)t remains to be determined whether, on the basis of this 

record, Western Fuels successfully rebutted the Secretary's case 

or affirmatively defended against it." Slip~· at 6, 7. 

The Commission order of remand basically restates its 

established precedent. Specifically, an operator may rebut the 

prima facie case by showing that the adverse action was in no 

part motivated by protected activity. If the operator cannot 

rebut the prima facie case in this manner, it nevertheless may 

defend affirmatively by proving that it was also motivated by 

the miner's unprotected activity and would have taken the 

adverse action in any event for the unprotected activity alone. 

Secretary on behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2797 - 2800, rev'd on other grounds sub.nom. Consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 81), Secretary on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-

818 (April 1981). See also Eastern Assoc. Coal Corp. v. FMSHRC 

813 F.2d 639, 642 (4th Cir. 1987), Donovan v. Stafford Constr. 

Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 

719 F.2d 194, 195-96 (6th Cir. 1983) (Specifically approving 

Commission's Fasula-Robinette test). Cf. NLRB v. Transportation 

Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly 

identical test under National Labor Relations Act). 

1462 
In its order of remand the Commission directed the Judge 

to make additional findings of fact and to analyze such findings 

in accordance with applicable case law. In particular, the 

Commission directed the Judge to consider the incident of 

November 9, 1985 involving Gabossi and Mine Manager Upadhyay 

as well as the events surrounding Gabossi's discharge on 

January 30, 1985. • 

The Judge took the issues as submitted on the basis of the 

present record and briefs (Order, August 18, 1988). 

Based on the evidence and the record as a whole, I find 

that a preponderance of the substantial, reliable and probative 

evidence establishes the following and I make these: 

Findings of Fact 

Incident of November 9, 1984 

1. On November 9, 1984, a Friday, Upadhyay and Gabossi were 

discussing an increase in Gabossi's duties. This increase 

involved a computer technician and all of the belts from the mine 

to the silos (Tr. 30). 

2. Gabossi felt the time 

issue of the separation of the 

their [lack of] coordination. 

letter (relating to Gabossi's 

1 aw ) ( Tr • 31 , Ex . C 5 ) . 

was opportune so he brought up the 

company's departments as well as 

Gabossi showed Upadhyay Emmons' 

mine foreman duties under Colorado 

3. As soon as he read the letter Upadhyay got "instantly" 

mad and he told Gabossi that if he didn't like it he should quit; 

that when Western Fuel makes a decision they're going to run it 

the way they want no matter who else doesn't like it. It was a 

heated discussion (Tr. 30, 31). 

4. On November 11th 1/ Gabossi was called to Upadhyay's 

office. Upadhyay was very-mad that he (Gabossi> had called the 

State of Colorado. Upadhyay put Gabossi on probation for not 

getting along with senior staff members. A heated discussion 

followed (Tr. 32,33). 

Upadhyay stated the probation would be for an indefinite 

length of time (Tr. 35). 

1/ The testimony reflects this conversation also took place on 

November 12 (Tr. 34). 

1463 
5. The Upadhyay written reprimand to Gabossi was given to 

him. on November 16th (Tr. 35, Ex C3). 

6. The first paragraph of the reprimand discusses Gabossi's 

lack of willingness to work harmoniously (Tr. 36, Ex. C3). 

Respondent's evidence casts the "big blowup" in a different 

· l'ight. Specifically, Upadhyay had gone to Gabossi' s off ice in 

the change house to discuss a monitoring system, an on-site 

research student and duties concerning all of the silos. These 

were to be Gabossi's new responsibilities (Tr. 198, 199, 472, 

473). 

As he started to discuss it Gabossi brought up a question 

concerning his house and the company's failure to purchase it. 

Upadhyay said the company wasn't going to buy Gabossi's house. 

Gabossi then "blew up" and the meeting became a name calling 

contest wi€h Gabossi referring to Upadhyay as a "worst mine 

manager" and also to "caste systems" (Tr. 198, 199, 473, 474). 

Immediately after the "blowup" Gabossi gave Upadhyay the State of 

Colorado letter (Tr. 474, Ex. C5). Upadhyay said the letter 

didn't mean anything. While Upadhyay said he didn't think much 

of Gabossi he didn't raise his voice. Upadhyay left the room and 

took the letter with him (Tr. 474). 

Over the weekend Upadhyay contacted his supervisor seeking 

his authority to terminate Gabossi. But the counter suggestion 

was that Gabossi be put on probation. The probation ensued. 

Discussion and Evaluation 

I credit Gabossi's version of the incident of November 9th. 

The two men were discussing a computer technician and the silos, 

both involving additional duties for Gabossi. These subjects 

would, by then, be an almost automatic entry to Gabossi's 

arguments with management over the company's failure to coordinate underground mining activities. Such safety-related 

complaints with management were continuing, extensive and frequent. Further, they involved Gabossi's concern for the possible 

revocation of his mine foreman's papers. 

In addition, I reject Upadhyay's evidence. His version is 

less than unequivocal (Transcript at 475). Further, the house 

repurchase agreement in the total record was relatively insignificant when compared with the safety related complaints 

focusing on the company reporting structure. 

Respondent argues ~/ that Gabossi was not motivated by 

~/ Brief filed before Commission at 3, 4. 

1464 . 
safety concerns but by the house re~urchase hassle. I am not 

persuaded. As stated above, the house repurchase agreement and 

its apparent breach was relatively insignificant in the overall 

facts. I agree that certain facts are clearly confirmed by 

Gabossi. Specifically, Emmons did advise him that he must file 

a complaint in writing before Emmons would act and, further, 

Gabossi had originally applied for the position of mine manager. 

However, these factors do not cause me to conclude that Gabossi's 

complaints as to the reporting structure were other than safety 

related. 

Incident involving Gabossi's probation and discharge 

Based on the credible record I make the following: 

Findings of Fact 

1. G~bossi was placed on probation on November 12. A 

formal letter dated November 16, 1984, recites that Gabossi's 

performance had not been satisfactory. In detail, it recites 

as follows: 

Your willingness to work harmoniously under 

the organization structure put into effect 

by Western Fuels has been negative. You 

have repeatedly objected to the idea of 

Maintenance Superintendent being responsible 

for underground maintenance. 

You have demonstrated your inability to work 

harmoniously with other division heads and 

employees at the Deserado Mine. 

Your attitude towards other division heads, 

work ability and habits have always been 

negative. I have noticed this personally and 

also have heard from other people from other 

companies. 

Your attitude towards Western Fuels, its management and policies has been less than desirable. 

You getting into arguments with me over matters 

in which you should not be even involved with. 

I also would like to make it clear to you that 

once the decision is made by me on any matter 

that becomes a policy at the Deserado Mine, you 

are expected to abide by them irrespective of 

what your opinion was on that matter. 

(Exhibit C3) 

1465 
2. After November 12, 1985 Upadhyay was cool but civil to 

Gabossi (Tr. 42). 

3. On January 21, 1985 Gabossi brought to Upadhyay's 

attention the fact that a mechanic was falsifying MSHA electrical 

inspection books. Gabossi wanted the electrician fired (Tr. 42). 

4. After January 21, 1985 Upadhyay wouldn't talk to Gabossi 

(Tr. 42, 43). 

5. There were no further heated discussions, except for the 

underground safety problem (Tr. 43). 

6. There were no further heated discussions between Gabossi 

and any other supervisors or department heads (Tr. 43). 

7. After he was put on probation Gabossi became more quiet 

at staff meetings (Tr. 44). 

8. On Jan~ary 30th Gabossi went to Upadhyay's office. 

Upadhyay requested his resignation. When the company refused 

to repurchase his home, Gabossi refused to resign. At that point 

Upadhyay fired Gabossi. This meeting generated a heated discussion (Tr. 45). 

At the same time Gabossi received a termination letter. It 

read as follows: 

Western Fuels-Utah, Inc. at the Deserado Mine 

needs to have employees who can act together as 

a team, especially now in view of our small workforce. Your efforts have not been directed 

towards that end. For this reason, your e~ployment shall be terminated at Western Fuels-Utah, 

Inc. effective immediately. 

In an effort to be fair and equitable, you 

shall receive your normal compensation through 

February 15, 1985. Your current health insurance shall be terminated March 1, 1985 and if 

you desire to convert to a private policy it 

will be incumbent on you to investigate this 

privilege. 

( Tr • 4 5 , Ex • C 2 ) 

9. Gabossi told Upadhyay it was pretty bad that he "got 

run off" for showing him a letter from the State of Colorado and 

for his concern for the safety and health in the coordination 

between departments (Tr. 46). 

1466 
Respondent's evidence casts the events of Gabossi's termination along different lines. It indicates that on January 29, 

1985, A.B. Beasley gave his letter of resignation to Upadhyay 

(Tr. 484, 485). Beasley stated to Upadhyay that he was resigning 

because he couldn't work with Gabossi (Tr. 485). 

When Beasley left (after the conference), Upadhyay concluded people were leaving because of Gabossi's inability to work 

with them. So Upadhyay talked to the company's top officer. 

Permission was then granted to terminate Gabossi (Tr. 486, 487). 

Upadhyay called Gabossi to his office and gave him the 

option of resigning. When Gabossi refused to resign Upadhyay 

fired him (Tr. 488). 

Gabossi said "Bullshit, you cannot get away with it, you are 

the worst mine manager I've ever worked for." Upadhyay said he 

didn't want to hear anything further so he opened the door and 

Gabossi left (Tr. 488). 

Discussion and Evaluation 

A conflict exists in the two versions of the evidence 

concerning the events at the time Gabossi was fired. 

Basically, Gabossi contends he was fired because he was not 

a "team player." That is, his long and continuing conflict with 

management over its inadequate reporting structure finally 

removed him from "the team." 

On the other hand, respondent's position is that the company 

fired Gabossi because of Beasley's conflict with Gabossi which 

caused Beasley to resign. In sum, Upadhyay did not look forward 

to obtainin~ a new maintenance supervisor and later losing his 

services due to Gabossi's conflicts with management and whoever 

might be the maintenance supervisor. 

On these credibility issues I credit Gabossi's version. The 

termination letter recites the company needs employees "who can 

work together as a team." Further, Gabossi's efforts have not 

been directed "towards that end." Gabossi was not a "team 

member" because he refused to go along with the company's 

organizational plan. This issue, a safety related complaint, 

predominates in the evidence. The complaint was made ten to 

fifteen times. As Gabossi indicated, it got to be a "headache." 

But Upadhyay did not seem to be willing to work on the problem 

(Tr. 26, 126). 

1467 
I reject respondent's claim that Gabossi was fired because 

Beasley resigned due to his conflicts with Gabossi. It is true 

there were conflicts between Beasley and Gabossi, but such 

conflicts did not cause Beasley's resignation CTr. 430, 435). 

Beasley's resignation occurred for the reasons stated in his 

letter of resignation; namely, higher salary, larger community 

and more resources with which to meet the challenges of a maintenance superintendent {Ex. R4). If the Gabossi conflicts with 

Beasley were the "primary reason" ~/ for Beasley's resignation 

there should have been in the very least a vague reference to it 

in Beasley's resignation letter. In sum, I find Beasley's letter 

of resignation to be much more persuasive than Beasley's and 

Upadhyay's contrary oral testimony at the hearing. 

The Commission has ruled that Gabossi's safety related 

complaints concerning the company's reporting structure may 

have been an activity protected under the Act. Slip 22· at 2. 

For the reasons stated herein I conclude such complaints were, 

in fact, safety related. 

Respondent asserts~/ that the Judge in his initial decision 

specifically found that respondent would have discharged Gabossi 

in any event for his unprotected activity. Respondent sets forth 

a portion of the Judge's decision. Slip 22· at 25. {August 21, 

1988). 

Respondent has misconstrued the Judge's initial decision. 

In that decision I ruled that Gabossi's unprotected activity 

"was his continued clash with management over the reporting 

structure." The trial Judge's narrow view of the Act's protective umbrella of the anti-discrimination provisions of section 

105{c){l) was held to be erroneous in the order of remand. Slip 

2£· at 1, 2 {August 15, 1988). 

On the facts stated above, I conclude that Gabossi was 

discharged because of his protected activity. 

Further, the operator's defense had not prevailed. The 

operator was not motivated by an unprotected activity when it 

fired Gabossi. 

ii Respondent's brief before Commission at 4. 

!/ Brief filed before Commission at 8. 

1468 
Even if I were to credit respondent's version that Beasley 

triggered Gabossi's firing (which I do not), I would nevertheless 

hold that the operator's discharge of Gabossi was motivated in 

part by his protected activity; namely, his prolonged complaints 

over the company's reporting structure. 

The complaint of discrimination should be affirmed. 

Damages 

The Senate Report, with respect to relief in section 105 

cases, states as follows: 

It is the Committee's intention that the 

Secretary propose, and the Commission require, 

all relief that is necessary to make the complaining party whole and to remove the deleterious effects of the discriminatory conduct 

including, but not limited to reinstatement with 

full seniority rights, back-pay with interest, 

and recompense for any special damages sustained 

as a result of the discrimination. The specified r~lief is only illustrative. 

S.REP.NO. 95-181, 95th Cong., 1st Sess. 37 (1977), 

reprinted in LEGISLATIVE HISTORY OF THE FEDERAL 

MINE SAFETYAND HEALTH ACT OF 1977, 95th Cong., 

2dSess., at625 (1978). 

Gabossi does not seek reinstatement. The claim for damages 

here focuses on salary, medical and dental expenses, the failure 

of the respondent to repurchase Gabossi's home and incidental 

costs related to refinancing and selling the house. 

Salary 

When Gabossi.was fired his annual salary was $52,000. His 

termination notice indicates his normal compensation was paid 

through February 15, 1985. (Ex. C2). The uncontroverted evidence 

further shows the employees on the payroll received a 5.8 % pay 

raise on January 21, 1985 (Tr. 50, 167-169, Ex. Cll). Gabossi 

did not receive the increase because he was on probation. On the 

uncontroverted evidence I conclude Gabossi's lost wages are: 

Six months without employment (February 15 to August 15) 

@ $4,584.66 per month, or $27,507.96. 

The monthly salary includes the 5.8 % increase given other 

employees on January 21, 1985. 

1469 
Other Appropriate Relief 

It must be determined whether the additional special damages which Complainant seeks 

may be awarded as ltother appropriate relief" 

under section 105 (c)(2). In the words of the 

Senate Report quoted, supra; such damages are 

awarded when they are sustained "as a result of" 

the discrimination. It has been held that in 

order to be recoverable, damages must be proved 

to be the proximate result of the complained 

wrong. Classic Bowl, Inc. v. AMF Pinspotter, Inc. 

403 F.2d 463 (7th Cir. 1968). The legal concept 

of proximity is applicable to ascertain and 

measure damages~ The necessary and appropriate 

limits of judicial inquiry are served by disregarding remote effects. Commonwealth Edison 

Company v. Allis-Chalmers Manufacturing Company, 

225 F.Supp. 332 (N.D. Ill. 1963). UMWA on behalf 

of Moore, et al v. Peabody Coal Company, 6 FMSHRC 

1920 (1984). 

Medical and Dental Expenses 

The medical and dental expenses claimed here are in the 

amount of $1,313. The evidence shows Gabossi apparently did 

not present any claims to the insurance carrier within 30 days 

after his discharge (during the period when his policy renained 

in effect). However, if Gabossi had not been terminated his 

insurance coverage would have been in effect. Accordingly, 

I believe it is appropriate that these additional special 

damages of $1,313 be awarded as "other appropriate relief" 

under section 105(c)(2) of the Act. 

Repurchase of Gabossi's House 

The evidence shows that respondent agreed to repurchase 

Gabossi's house in Rangely (Colorado) if he left the company 

within three years. The repurchase price was to be for the 

amount Gabossi had paid for it (Tr. 55, 56, 169-171). 

The original house loan had been guaranteed by respondent. 

The loan was immediately due when he was terminated. In order to 

prevent foreclosure Gabossi secured a new loan. I calculate 

Gabossi's damages as follows: 

Purchase Price 2-17-83 

Actual Resale Price 

Loss due to respondent's 

failure to repurchase house 

1470 

$119,000 

114,000 

$ 5,000 
Inasmuch as respondent agreed to repurchase the house 

at Gabossi's "purchase price" (Tr. 56), this award does not 

encompass improvements of $1,273.09 made by Gabossi. Respondent 

should not be held liable for a loss it did not agree to pay. 

In other words, I believe the loss incurred by Gabossi from the 

house improvements are remote damages. 

Additional house expenses include: 

Fees for abstract company 

Real estate agent fee 

Interest paid to secure loan 

to prevent foreclosure 

Total incidental house expenses 

$ 223.25 

2,500.00 

3,015.85 

$5,739.10 

In sum, the total damages are $39,560.06. 

For the foregoing reasons I enter the following: 

ORDER 

1. The complaint of discrimination filed herein is 

sustained. 

2. Respondent is ordered to pay to complainant within 

40 days of the date of this decision the sum of $39,560.06 

with interest. Said interest should be calculated by using the 

formula set forth in the case of Secretary ex rel Bailey v. 

Arkansas-Carbona, 5 FMSHRC 2042 (1983). 

. 

.....-~~ rris 

ative Law Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Richard s. Mandelson, Esq., Baker & Hostetler, 303 East 17th 

Avenue, Suite 1100, Denver, CO 80203 (Certified Mail) 

/ot 

1471 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 51988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREEN RIVER COAL COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 88-92-A 

A.C. No. 15-13469-03643 

Green River No. 9 Mine 

Appearances: Flem Gordon, Esq., Gordon & Gordon, Owensboro, KY, 

for Green River Coal Co.; 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, TN, for the 

Secretary of Labor. 

Before: Judge Fauver 

This is a civil penalty case under § 110 of the Federal Mine 

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

hearing of a companion contest case, Docket No. KENT 88-2-R, in 

Evansville, Indiana, the parties proposed a settlement agreement 

to include payment of the penalty proposed herein and dismissal 

of the contest case. The matter was considered under the 

criteria for civil penalties in§ llO(i) of the Act and approved. 

This Decision confirms the bench decision at the hearing, 

approving the settlement. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

approved civil penalty of $800 within 30 days of this Decision 

and upon such payment this proceeding is DISMISSED. 

Ud~u?:-W, Administrative Law Judge 

Distribution: 

1472 
Flem Gordon, Esq., Gordon & Gordon, P.s.c·. 1500 Frederica Street, 

P.O. Box 390, OWensboro, KY 42302-0390 (Certified Mail) 

May Sue Ray, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, B-201, Nashville, TN 37215 

(Certified Mail) 

kg 

14 73 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 51988 

LOCAL UNION 2333, DISTRICT 29,: 

UNITED MINE WORKERS OF 

AMERICA C UMWA) , 

Petitioner 

v. 

RANGER FUEL CORPORATION, 

Respondent 

COMPENSATION PROCEEDING 

Docket No. WEVA 86-439-C 

Beckley No. 2 Mine 

DECISION 

Appearances: Webster J. Arceneaux, III, Esq., Mcintyre, 

Haviland· & Jordan, Charleston, West Virginia 

and Joyce Hanula, United Mine Workers of 

America, Washington, D.C. on behalf of the 

Petitioner; 

John T. Scott, III, Esq., Crowell & Moring, 

Washington, D.C. on behalf of the Respondent. 

Before: Judge Melick 

This case is before me upon remand by the Commission for 

further proceedings consistent with its decision issued 

May 13, 1988. The case was initiated by the United Mine 

Workers of America CUMWA) under section 111 of the Federal 

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

the "Act," to obtain compensation from the Ranger Fuel 

Corporation CRanger).l/ The UMWA seeks compensation pursuant 

to the third sentence-of section 111 for an idling of miners 

on May 30 and 31, 1986, following the issuance by the 

Secretary of Labor of "imminent danger" Withdrawal Order No. 

2577281, issued pursuant to section 107(a) of the Act. The 

issues now before me are whether the underlying withdrawal 

.order is "final" within the meaning of section 111 and, if 

so, whether that order was issued for a violation of a 

mandatory health or safety standard, i.e. whether there was a 

causal nexus between the fact of violation and the withdrawal 

order. 

!7 Section 111 provides in part as follows: 

[l] If a coal or other mine or area of such mine is 

closed by an order issued under section 103, 

section 104, or section 107 all miners working 

during the shift when such order was issued who are 

idled by such order shall be entitled, regardless 

1474 
The UMWA maintains that the Section 107(a} withdrawal 

order that idled the miners had become final upon Ranger's 

failure to contest it within the 30 day time period set forth 

in section 107(e}(l} of the Act.2/ Ranger admits that it did 

not apply for review of the order under those statutory 

provisions and acknowledges that the order was therefor 

"final" between the Secretary of Labor and itself. It argues 

however that the order is not "final" as between itself and 

the UMWA and that issue can now be lititgated in this 

proceeding unaer section 111 of the Act. 

cont'd fn 1/ 

of the result of any review of such order, to full 

compensation by the operator at their regular rates of pay 

for the period they are idled but for not more than the 

balance of their shift. [2] If such order is not terminated 

prior to the next working shift, all miners on that shift who 

are idled by such order shall be entitled to full 

compensation by the operator at their regular rates of pay 

for the period they are idled, but for not more than four 

hours of such shift. [3] If a coal or other mine or area of 

such mine is closed by an order issued under section 104 or 

section 107 of this title for a failure of the operator to 

comply with any mandatory health or safety standards, all 

miners who are idled due to such order shall be fully 

compensated after all interested parties are given an 

opportunity for a public hearing, which shall be expedited in 

such cases, and after subh order is final, by the operator 

for lost time at their regular rates of pay for such time as 

the miners are idled by such closing, or for one week, 

whichever is the lesser •..• 

~/Section 107(e}(l} provides as follows: 

Any operator notified of an order under this section or any 

representative of miners notified of the issuance, 

medication, or termination of such an order may apply to the 

Commission within 30 days of such notification for 

reinstatement, modification or vacation of such order. The 

Commission shall forth with afford an opportunity for a 

hearing (in accordance with section 554 of title 5, United 

States Code, but without regard to subsection (a}(3} of such 

section} and thereafter shall issue an order, based upon 

findings of fact, vacating, affirming, modifying, or 

terminating the Secretary's order. The Commission and the 

courts may not grant temporary relief from the issuance of 

any order under subsection (a}. 

1475 
Section 111 of the Act does not in itself however 

provide any specific right of action or proceeding to 

challenge the section 107Ca) withdrawal order~ To determine 

whether such an order is "final" within the meaning of 

section 111, reference must therefore be made to the specific 

provisions of the Act authorizing the form of action over 

which the Commission may judicially preside. See Kaiser Coal 

Corporation v. Secretary and UMWA, Docket WEST 88-131-R, 

decided September 27, 1988. In this case, since it involves 

an order issued under Section 107Ca) of the Act, the relevant 

provisions are found in Section 107(e) of the Act. Since no 

application for review of the order herein was filed in any 

such proceeding that order is now "final" within the meaning 

of Section 111. 

Moreover the Commission, by its earlier ruling in this 

case ClO FMSHRC 612) would appear to preclude litigation of 

the underlying order. In dealing with the issue of whether 

Ranger's payment of the civil penalty proposed for the 

underlying violation of 30 C.F.R. § 75.329 and its failure to 

have contested the citation charging that violation precluded 

it from contesting the violation in this compensation' 

proceeding, the Commission stated as follows: 

In addition, we agree with the Secretary that 

allowing an operator to challenge in a compensation 

proceeding the fact of violation despite having 

paid the relevant civil penalty would improperly 

place miners and their representatives in a 

prosecutorial role. The Secretary, as enforcer and 

prosecutor of the Mine Act, is a party to a section 

105 enfoccement proceeding but not to a section 111 

compensation proceeding. [citations omitted] If 

an operator were permitted to make the kind of 

challenge advocated by Ranger, miners and their 

representatives would be required to perform 

functions properly resting within the Secretary's 

domain in order to prove the underlying violation 

or the validity of the citation or order in which 

the allegation of violation was contained. Given 

the unified scheme of the Mine Act, we find 

unconvincing Ranger's assertion that it would not 

be inconsistent to allow it to challenge the fact 

of violation in a compensation proceeding even 

though it chose not to contest the allegation of 

violation in an enforcement proceeding. 

1476 
The situation herein is closely analagous and the 

underlying principle the same. Clearly the Commission would 

find it inappropriate to "place miners and their 

representatives in a prosecutorial role" to litigate in a 

section 111 compensation proceeding what, in essence, is the 

validity of the "imminent danger" withdrawal order. I am 

therefore constrained to find that Withdrawal Order 

No. 2577281 became final upon Ranger's failure to apply for 

review or contest that order within the time set forth in 

section 107(e)(l} of the Act and that the order and the 

underlying issue of whether that order was based upon an 

"imminent danger" cannot now be contested in this 

compensation proceeding under section 111 of the Act. 

The assertion of "imminent danger" contained in the order 

must accordingly be regarded as true. See Old Ben Coal Co., 

7 FMSHaC 205 (1985). 

The second issue before me is whether a causal nexus 

existed between the violation of a mandatory standard and the 

"imminent danger" order. In its earlier decision in this 

case the Commission held that section 104(a) Citation 

No. 2577283, which charged a violation of a mandatory 

standard, was final and that it could not now be relitigated. 

10 FMSHRC at 619. Accordingly in the context of this case 

the assertions of violation in that citation must be accepted 

as true. Old Ben Coal Co., supra. Thus it is established 

and proven that on May 29, 1986, at the Ranger Beckley No. 2 

Mine "the bleeder system failed to function adequately to 

carry away an explosive mixture of methane in the tail 

entries of the 7 East Longwall Section (013-0) starting at 

survey station 3824 in the No. 3 entry and extending inby for 

at least 500 feet". (See Petitioner's Exhibit No. 2) 

The specific issue remaining is whether these conditions 

establishing a violation of the mandatory standard were 

sufficiently related to the existence of the "explosive 

mixture of methane gas in excess of five percent ••• present 

in the Seven East 0-13-0 Section in the No. 3 entry side of 

the longwall beginning at Spad No. 3824 and extending inby" 

[as charged in the section 107(a) withdrawal order] so as to 

constitute the required causal nexus. As previously noted, 

in evaluating the evidence in this regard the allegations in 

the withdrawal order must also be accepted as true. Old Ben 

Coal Co., supra. I therefore disregard any evidence 

conflicting with the relevant allegations of fact set forth 

in Citation No. 2577283 and Order No. 2577281. 

1477 
Given these established facts and considering the 

credible testimony of the issuing inspector, William Uhl, it 

is clear that the required causal nexus did in fact exist.~/ 

Inspector Uhl testified that while conducting his inspection 

on May 29, 1986, he heard what he considered to be a major 

roof fall in the gob area and opined that this was the· 

underlying cause for the excess methane cited in the 

withdrawal order •• Uhl also testified however that these 

methane levels which led to the issuance of the withdrawal 

order would not have been present had the cited bleeder 

system been working properly. According to the expert 

testimony of Inspector Uhl then, the inadequate bleeder 

system was-also a factor in causing the excess methane 

charged in the withdrawal order. 

Ranger Senior Safety Supervisor, Ken Purdue, disagreed 

with Uhl. He testified that the amount of air in the bleeder 

system was adequate under MSHA standards and that the 

inundation of methane in this case was so exceptional and 

abnormal as to be beyond the capabilities of even an adequate 

bleeder system. 

I find however that the testimony of Inspector Uhl is 

the more credible. According to Uhl if the bleeder system 

was adequate it would have diluted the excess methane and 

rendered it harmless. Indeed it may reasonably be inferred 

that if the bleeder system does not perform the very function 

it is designed for, then it is not an adequate system. 

Accordingly I find that the cited violative condition i.e. an 

inadequate bleeder system, was a causal factor for the 

existence of the explosive mixture of methane found and cited 

by Inspector Uhl in the withdrawal order at bar. Under the 

circumstances the requisite causal nexus has been 

established. 

Accordingly the miners listed in the Joint Stipulation 

(incorporated by reference hereto) are entitled to 

compensation equal co the wages which would have been paid to 

them (set forth in the Joint Stipulation) for work they were 

scheduled to perform on May 30-31, 1986, but were unable to 

because they were idled by Withdrawal Order 2577281. 

3/ Although the subject citation was issued on June 3, 1986, 

It is clear that it was based upon conditions existing as 

early as May 29, 1986. The issuance was delayed by the 

analysis of an air sample which had been collected on 

May 29, 1986. 

1478 
ORDER 

Ranger Fuel Corporacion is hereby directed to pay 

compensation in accordance with the Joint Stipulation 

submitted in this case and incorporated by reference hereto 

in the stated amounts and to the designated miners, plus 

interest calculated in accordance with the formula set forth 

in Secretary v. Arkansas Carbona Co., and Walker, 

5 FMSHRC 2042 (1986), within 30 days of th date of his 

decision. 

Law Judge 

Distribution: 

Webster J. Arceneaux, III, Esq., Mcintyre, Haviland & Jordan, 

Charleston, WV CCertif ied Mail) 

Joyce A. Hanula, Legal Assistant, UMWA, 900 15th Street, 

N.W., Washington, D.C. 20005 (Certified Mail) 

John T. Scot~, III, Crowell & Moring, 1001 Penn~ylvania 

Avenue, N.W., Washington, DC 20004-2505 (Certified Mail) 

nt 

1479 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 71988 

SECRETARY OF LABOR, 

.. MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTRICK COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-119 

A.C. No. 36-07571-03516 

JPLMJ Strip Mine 

DECISION 

Appearances: Therese I. Salus, Esq., Office of the Solicitor, 

u. S. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary; 

Raymond Westrick, Owner, Westrick Coal Company, 

Patton, Pennsylvania, for the Respondent 

Before: Judge Weisberger 

Statement of the Case 

In this case, the Secretary (Petitioner) has filed a Petition 

for Assessment of the Civil Penalty alleging that the Respondent, 

on July 1, 1987, violated 30 C.F.R. § 77.1710(d). After the 

Operator (Respondent) filed an Answer, a Prehearing Order was 

issued on March 11, 1988, to which the Respondent did not comply. 

Subsequently on April 11, 1988, Petitioner filed a Motion to 

Dismiss Respondent's Notice of Contest on the ground that 

Respondent did not comply with the terms of the Prehearing Order. 

Respondent did not file any response to Petitioner's motion, and 

on April 21, 1988, a Show Cause Order was issued, directing 

Respondent to comply with the terms of the Prehearing Order, or 

show cause why it should not be held in default for failure to 

comply with the Prehearing Order. The Show cause Order further 

provided that if Respondent shall not file any response by May 2, 

1988, a default judgment shall be entered in favor of Petitioner. 

No response was filed by Respondent, and on May 25, 1988, a 

Default Decision was entered. On June 24, 1988, Respondent filed 

a Petition for a Discretionary Review. The Commission, by Order 

dated July 8, 1988, vacated the Default Decision to allow 

Respondent to present reasons for failures to respond to the 

previous Orders, and allow the Petitioner to interpose any objections to relief from the Default DecisJon. The Order further 

1480 
provided that, should it be determined that relief from default is 

"appropriate," the civil penalty issues in this matter should be 

resolved. Pursuant to the Order and pursuant to Notice, a hearing 

was held in Indiana, Pennsylvania, on August 18, 1988. 

At the hearing, Raymond Westrick, Respondent's owner, testified with regard to the reasons for his failure to respond to the 

previous Orders. I found persuasive the testimony of Westrick, a 

non-attorney, who was appearing pro se, that he did not have any 

off ice help, was personally involved with many matters dealing 

with his mine, and had health problems at the time the Orders 

were received. According to Westrick, his wife signed the registered postal receipt for the Orders concerned, and he described 

his wife as forgetful, and tending not to give messages. Westrick 

also testified that he was confused by the various correspondence 

he had received concerning this and other alleged violations. 

Taking all these factors into account, as well as Westrick's age, 

I concluded that it was in the interests of justice, and appropriate, for the case to be heard on the merits. The case was heard 

on the merits on August 18, 1988. Gerry Boring testified for 

Petitioner, and Raymond Westrick testified for Respondent. 

Citation 

Citation 2697967 issued on July 1, 1987, states as follows: 

"Observed two men working in the active _QQl pit~ 

repairing a caterpillar bulldozer, and were not wearing 

hard hats to protect them from falling hazards (debris 

from the highwall)." 

On August 25, 1987, the Citation was modified to a 104(d)(l) 

Citation. 

Regulation 

30 C.F.R. § 77.1710 provides as pertinent that each employee 

working in a surface coal mine shall be required to wear protective clothing and devices including "***(d) a suitable hard hat 

or hard cap when in or around a mine or plant where falling 

objects may create a hazard. " 

Stipulations 

1. The J.P.L.M.J. Strip Mine is owned and operated by 

Respondent, Westrick Coal Company. 

1481 
2. The mine is subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over this 

proceeding pursuant to Section 105 of the Act. 

4. The subject citation, the modification order, and terminations were properly served by a duly authorized representative 

of the Secretary of Labor upon an agent of the Respondent on the 

dates, times and places stated therein. They may be admitted 

into evidence for the purpose of establishing their issuance, but 

not for the truthfulness or the relevancy of any statement 

asserted therein. 

5. The Parties stipulate to the authenticity of the exhibits, but not to the relevance nor to the truth of the matters 

asserted therein. 

6. The alleged violation was promptly abated. 

7. The J.P.L.M.J. Strip Mine, the only mine operated by 

Westrick Coal Company, was producing 37,279 annual production 

tons in 1987. 

Finding of Facts and Discussion 

Gerry Boring, a MSHA Inspector, testified that on July 1, 

1987, when he inspected Respondent's JPLMJ Strip Mine, he observed 

two men in the pit doing repair work on a dozer. These men were 

not wearing hard hats. He indicated that there was no hazard of 

falling rocks to these men from either the highwall, where clearing was performed 100 to 150 feet away, nor was there a hazard of 

falling objects from the loading of trucks which were hauling dirt 

from the highwall. However, according to Boring, trucks transporting stones and rocks had, on their way to the haul road, which 

was at an elevated grade, passed within 15 to 20 feet from and on 

the same level of the men repairing the dozer. It was Boring's 

testimony that the trucks, transporting items that varied from 

pulverized material to rocks weighing a couple hundred pounds, 

were open at the rear end, had a slight pitch, and were not 

covered. As such, he opined that as these trucks travel approximately 5 miles an hour over a "rough" road, they could bounce and 

sway, causing rocks to fly out of the trucks, (Tr. 62), and hit 

the men on the head, causing a possible fracture to the skull, 

depending upon the size of the material thrown out of the trucks. 

With regard to the condition of the road, he testified that 

Respondent had four or five ·trucks going back and forth, loading 

and unloading, and this truck traffic "creates" ruts in the road 

which is made out of dirt and stone (Tr. 89). He also indicated 

that there was a hazard to the men in being hit in the head when 

performing the repair work with wrenches. 

1482 
According to Boring, one of the men performing the repair 

work without a hard hat was Alfred Lieb, Respondent's pit foreman. In the opinion of Boring, the latter should be familiar 

with the requirement with regard to wearing hard hats. Boring 

opined that Lieb did not show reasonable care in not wearing a 

hat, and did not set a proper example for the men he had to 

supervise. However, Boring indicated that he does not know of 

any such cases where one has been injured due to the lack of 

wearing a hard hat. He also indicated that he never observed 

such an incident~ Also, on cross-examination, he was asked 

whether he saw anything that could fall off the side of the 

trucks, and indicated that he did not recall. Also, on crossexamination, he was asked whether he observed how high the 

material was piled in the trucks and he indicated that he could 

not recall. 

Raymond Westrick, Respondent's owner, testified that the 

trucks in question had a bed which sloped down to the cab which 

had a protector to prevent the stones from hitting the cab. He 

also indicated that the materials that the trucks were transporting from the overburden contain stones which weighed up to 

40 pounds. According to his testimony, the trucks were loaded 

with buckets, each one containing 6 to 8 tons. He said that the 

35-ton trucks were loaded with three buckets, and the 50-ton 

trucks were loaded with four buckets. He said that he observed 

the trucks loaded on July 1, 1987, and the biggest piece of rock 

in the trucks was about 50 to 60 pounds, and the trucks were 

loaded only about 60 percent. He said that in his opinion, there 

was no danger of rocks falling out of the trucks, and that he had 

never observed rocks falling out of the trucks. According to his 

testimony, loaded trucks traveled from the overburden to the haul 

road .and passed the men in question, who were approximately 

175 feet away. He described the surface that the trucks traveled 

on from the overburden to the haul road as being "smooth as 

glass" and comprised of solid slate (Tr. 130). He described the 

surface as being real hard and up to 3 inches thick. He said 

that the last time it was scraped by a loader was probably the 

previous day, but that he did not recall. Also, his testimony 

indicated, in essence, that there was no physical barrier preventing the trucks traveling closer to the men in question while 

going from the overburden to the haul road and back again. 

Based upon the testimony of both witnesses, it appears uncontroverted that uncovered trucks, open in the bacK, containing 

materials with rocks up to 60 pounds, were traveling in the pit 

area at approximately 5 miles an hour. Should these trucks sway 

or bounce, it is not entirely inconceivable that some rocks might 

1483 
fall out and hit the men in question, depending upon their 

distance from the truck. Accordingly, since there is some possibility of this hazard occurring, and that it is not totally 

impossible, I must conclude that section 77.1710Cd), supra, has 

been violated, in that the men, not wearing hard hats, would be 

exposed to this hazard. 

Petitioner herein has alleged the violation to be significant and substantial. In essence, according to Boring there was 

a likelihood of a rock being thrown from the uncovered, openended trucks based upon their uncovered condition, speed of 

5 miles an hour, the rough condition of the road with ruts, and 

the proximity of 15 to 20 feet from the men in question. However, 

I found Westrick's testimony more persuasive with regard to the 

condition of the surface the trucks traveled and the path they 

took in relation to the men. It does not appear that Boring 

observed Respondent's operation on more than the one occasion 

when he made his inspection on July 1, 1987. Neither the contemporaneous notes of Boring (Government Exhibit 4), nor the 

narrative of the Citation issued on July 1, 1987, contains any 

description of the road condition, the level of the material in 

the trucks, or the distance that the men in question were from 

the path taken by the trucks which were loaded. It would thus 

appear that Boring's testimony was based upon his current 

recollection of one visit more than 2 years ago. In contrast, I 

find Westrick's description of the path taken by the loaded 

trucks to be more accurate, as he related the path taken to ~th 

the haul road and the overhang where the trucks actually did 

their loading. Also, inasmuch as Westrick was in the pit on a 

frequent and regular basis, I find his description of the surface 

more credible. This conclusion is also based upon my observations 

of his demeanor. Also, although Boring could not recall how high 

the material was piled in the truck, I find westrick's testimony 

that the trucks were filled to only 60 percent of their space more 

credible, as it was based upon his recollection of the tonnage 

capacity of the trucks and the n~~ber of buckets each truck was 

loaded. Hence, I find that it has not been established that the 

road was rough, and that the material in the truck was piled more 

than 60 percent of the vol~~e capacity. Nor has it been 

established that the trucks were traveling within 15 to 20 feet of 

the men, nor has it been established that the trucks traveled in 

an upgrade from the men in close proximity. I therefore find that 

it has not been established that there is any likelihood of the 

hazard of falling rock occurring. In addition, I note that even 

Boring indicated that, in essence, he does not have any knowledge 

of men without hats being injured from rocks falling out of trucks 

in similar circumstances. Also Boring indicated that there was no 

hazard from material falling on the men from the highwall work or 

from the loading of the trucks. He indicated that the men might 

have been injured from the wrenches they were working with. 

1484 
However, it is clear that this hazard is not within the purview of 

section 77.1710(d), supra, which refers to a hazard from "falling 

objects." Further, there is no evidence upon which to conclude 

that there was a likelihood to any degree of this injury occurring 

from a wrench. Therefore, for these reasons, I must conclude that 

it has not been established that the violation herein was signif icant and substantial (See, Mathies Coal Company, 6 FMSHRC 1 

(January 1984)). 

Petitioner relies upon Secretary v. Turner Brothers, Inc., 

6 FMSHRC 2125 (January 1984). However, I do not find Turner 

Brothers, supra, to be relevant to the disposition of this case 

at bar. In Turner Brothers, supra, Judge Koutras affirmed a 

finding of significant and substantial with regard to a violation 

of section 1710, supra, as the testimony indicated that the 

miners therein, not wearing hard hats, were exposed to the hazard 

from falling rocks from the highwall. In contrast, in the case 

at bar, according to Boring, there was no evidence of any hazard 

of rocks falling from the highwall. 

The citation herein was modified on August 25, 1988, and 

upgraded to a 104(d)(l) Citation, because, according to Boring, 

one of the men not wearing a hard hat was Respondent's foreman, 

who "should be familiar with the requirements with reference to 

wearing hard hats" (Tr. 80). There was no further evidence 

adduced with regard to the issue of unwarrantable failure. The 

Commission has recently held that unwarrantable failure is more 

than ordinary negligence and requires aggravated conduct. (Emery 

Mining Corporation 9 FMSHRC 1997 (December 1987) ). Inasmuch as 

the evidence herein has failed to establish a likelihood of a 

hazard created by falling objects, I conclude that there was no 

aggravated conduct in Respondent's foreman not having worn a hard 

hat. Accordingly, I conclude that the violation herein was not 

caused by Respondent's unwarrantable failure. 

As analyzed above, infra, because it has not been established 

that an injury herein was likely to occur, I conclude that the 

gravity herein was low. I conclude that Respondent's foreman, 

Lieb, who did not wear a hard hat, should have been aware of the 

regulation in question and should have set a better example for 

the men that he had to supervise. Accordingly, I rate the negligence herein as moderately high. Westrick indicated, in essence, 

that imposition of a penalty herein would affect Respondent's 

ability to continue in business as it is ready to go out of business, and that this Citation, along with other Citations that it 

had received, is forcing it into bankruptcy. However, although he 

indicated that it was hard to answer whether Respondent had a 

prof it in 1987 and 1986, he indicated that it did pay taxes and 

that Respondent was always able to pay its employees on time. 

Accordingly, I conclude that the imposition of a penalty herein 

1485 
would not affect the Respondent's ability to continue in business. 

I also have taken into account all the remaining statutory factors 

as stipulated to by the Parties. Based upon all the above, and 

especially the low level of gravity herein, I conclude that a 

penalty of $50 is appropriate. 

ORDER 

It is ORDERED that the Citation 2697967 is hereby amended to 

reflect the fact that the violation is not significant and 

substantial, nor is it a result of Respondent's unwarrantable 

failure, and accordingly it is amended to a 104(d) Citation. It 

is further ORDERED that the Respondent shall pay a civil penalty 

herein of $50 within 30 days of the date of this Decision. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Therese I. Salus, Esq., Office of the Solicitor, U. S. Depart~ent 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Mr. Raymond Westrick, Owner, Westrick Coal Company, R. D. 1, 

Box 457, Patton, PA 16668 (Certified Mail) 

dcp 

1486 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 3l1988 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEVA 86-190-R 

Order No. 2705915; 2/19/86 

Docket No. WEVA 86-194-R 

Order No. 2705881; 2/20/86 

Martinka No. 1 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-254 

A.C. No. 46-03805-03723 

Martinka No. 1 

DECISION UPON REMAND 

Before: Judge Maurer 

These cases are before me upon remand by the Commission on 

August 19, 1988, to consider Southern Ohio Coal Company's 

(SOCCO's) contest of the Secretary's findings that the violation 

charged in Order No. 2705915 was significant and substantial and 

resulted from the operator's unwarrantable failure to comply with 

the notice of safeguard and to assess an appropriate civil 

penalty. Southern Ohio Coal Co. v. Secretary, 10 FMSHRC 963 

(August 19, 1988), reconsideration denied, 10 FMSHRC 

(September 19, 1988). 

After these matters were remanded to me, SOCCO filed a 

motion with the Commission, essentially for reconsideration, but 

more specifically to enter a new decision in SOCCO's favor or in 

the alternative to expand the remand order to me to allow for the 

taking of further evidence on the general applicability of the 

subject safeguard. That motion was denied. 

I now have before me SOCCO's motion to reopen the 

proceedings for the introduction of further evidence on the issue 

of whether Safeguard No. 2034480 sets forth requirements that are 

generally applicable to coal mine~, rather than mine-specific. 

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The Secretary opposes the motion to reopen. I believe I am bound 

by the Commission's remand order which was reiterated by the 

Commissioners in their order of Sept~nber 19, 1988, denying 

SOCCO, in the alternative, the more expansive remand order it 

sou.ght. Therefore, the instant motion to reopen is denied. 

As a further housekeeping matter, Docket No. WEVA 86-194-R 

was disposed of by my decision reported at 9 FMSHRC 273 (February 

1987) (ALJ) and was not at issue on review and therefore also 

pursuant to the Commission's order of September 19, 1988, "need 

not be subject to further proceedings on remand." 

The Significant and Substantial Violation Issue 

A "significant and substantial" violation is described in 

section 104(d)(l) of the 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 

(1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (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 signif_icant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to 

safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

we have explained further that the third element 

of the Mathies formula 'requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury.' U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

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accordance with the language of section 104Cd)(l), it 

is the contribution of a violation to fhe cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1573, 1574-75 (July 1984). 

Starting from the proposition that I have been handed down, 

i.e., that the safeguard at ba.c is val id, then it is really , 

uncontested that it and 30 C.F.R. § 75.1403 were violated on the 

occasion in question. 

The safeguard itself is remarkably simple. It flatly states 

that in this mine (Martinka No. 1), there shall be 24 in6hes of 

clearance on both sides of the coal feeders. On February 19, 

1986, when Inspector Delovich saw it, there were only 12 inches 

of clearance between the left coal line rib and the coal feeder. 

for a distance of some six feet. This much is admitted .by SQCCO. 

·rhe hazard presented by the violation is tha.t there is a 

reasonable likelihood that an individual walking between the coal 

feeder and the left rib line while coal was being dumped into the 

feeder could be crushed between the coal feeder and coal rib if 

the car dumping coal into the feeder hit the feeder and moved it 

towards the left rib line. This is precisely th~ Situation the 

operator contends accounts for the coal feeder being within 

twelve inches of the rib line in the first instance. I find it 

to be a reasonably likely occurrence and the most probable cause 

of the violation itself. I also find that the likely injury to 

an individual, if the incident occurred, would oe of a reasonably 

serious nature. Accordingly, I find that the violation is a 

"significant and substantial" one. 

The unwarrantable Failure Issue 

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

appeal dism'd per stip., No. 88-1019 (D.C. Cir. March 18, 1988), 

and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (Decenber 

1987), the Commission held that "unwarrantable failure means 

aggravated conduct, constituting more than ordinary negligence, 

by a mine operator in relation to a violation of the Act." 

In this case, the Secretary argues that SOCCO demonstrated a 

high degree of negligence. I disagree. 

The most likely scenerio that led to this violation and the 

one that I find credible is that the coal feeder was initially 

set on cribs in the middle of the entry with approximately 24 

inches of clearance on each side, in compliance with the 

safeguard. At some point between the afternoon of February 18, 

1986 and the morning of February 19, 1986, when the inspector 

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observed the violation, the feeder was inadvertantly knocked or 

pushed towards the left rib line. There were fresh marks on top 

of the crib blocks which indicated that the back end of the 

feeder had been moved approximately 12 inches from its original 

location on the crib blocks. A reasonable assumption is that a 

shuttle car dwn~ing coal into the feeder, accidently bQmped the 

feeder, moving it approximately twelve inches. 

Assuming that this is in fact what happened, there is no 

evidence of how long before the order was issued that the 

incident occurred. It might well have been only shortly before 

the order was issued at 10:00 a.m. on the morning of February 19. 

Therefore, I find that the record will not support a finding 

of aggravated conduct or "high negligence" on the part of SOCCO 

with respect to this violation. Accordingly, I will modify the 

§ 104(d)(2) order at bar to a cit~tion issued under§ 104(a) of 

the Act, and affirm the significant and substantial violation of 

30 C.F.R. § 75.1403 as such. 

Civil Penalty Assessment 

I conclude and find that the violation was serious, and that 

the operator's failure to exercise reasonable care to insure 

compliance with the safeguard constitutes a moderate degree of 

negligence. I further find that SOCCO exhibited good faith in 

timely abating the violations. 

On the basis of the foregoing findings and conclusions, and 

taking into account all of the civil penalty assessment crit2ria 

found in section llO(i) of the Act, I conclude that an 

appropriate penalty for the violation found herein is $400. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order No. 2705915 properly charged a violation of 30 

C.F.R. § 75.1403 and properly found that the violation was 

significant and substantial. However, the order improperly 

concluded that the violation resulted from SOCCO's unwarrantable 

failure to comply with the mandatory safety standard i.n.volved. 

Therefore, the violation was not proparly cited in a§ 104(d)(2) 

order. Accordingly, Order No. 2705915 IS HEREBY MODIFIED to a 

§ 104(a) Citation and AFFIRMED. 

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2. The Southern Ohio Coal Company IS HEREBY ORDERED TO P~Y 

a civil penalty of $400 within 30 days of the date of this 

decision. 

urer 

ative Law Judge 

Distribution: 

David )1. Cohen, Esq., A...rnerican Electric Power Service 

Corporation, P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

James E. Culp, Esq., U.S. Oeartment of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

slk 

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