APRIL 1988 

COMMISSION DECISIONS 

04-15-88 

04-20-88 

04-21-88 

Martha Perando v. Mettiki Coal Corporation 

Texasgulf, Inc. 

Danny Johnson v. Lamar Mining Co., etc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-05-88 

04-08-88 

04-11-88 

04-11-88 

04-13-88 

04-14-88 

04-20-88 

04-21-88 

04-22-88 

04-22-88 

04-22-88 

04-25-88 

04-28-88 

04-29-88 

Kenneth Courtney v. Peabody Coal Company 

Sec. of Labor v. James Robinson 

Utah Power & Light Company 

Rushton Mining Company 

U.S. Steel Mining Co., Inc. 

M & J Coal Company, Inc. 

UMWA for Don Sheeder, Terry Miller, Dan Kutruff 

v. Benjamin Coal Company 

Beckley Coal Mining Co. 

Richard B. Curtis v. U.S. Fuel Company 

James Napier v. Shamrock Coal Co., Inc. 

Consolidation Coal Company 

Homestake Mining Company 

Kaiser Coal Corporation 

Missouri Rock, Inc. 

YORK 85-12-D Pg. 491 

WEST 85-148-M Pg. 498 

KENT 87-68-D Pg. 506 

KENT 88-12-D 

WEVA 87-331 

WEST 87-226-R 

PENN 86-44-R 

PENN 86-305-R 

WEVA 87-199 

PENN 88-123-C 

WEVA 88-46 

WEST 88-99-D 

KENT 88-99-D 

VA 87-27 

WEST 87-114-M 

WEST 88-131-R 

CENT 87-65-M 

Pg. 511 

Pg. 512 

Pg. 513 

Pg. 540 

Pg. 542 

Pg. 548 

Pg. 555 

Pg. 556 

Pg. 558 

Pg. 559 

Pg. 560 

Pg. 565 

Pg. 578 

Pg. 583 
APRIL 1988 

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

Secretary of Labor,. MSHA, v. BethEnergy Mines, Inc., Docket Nos. 

PENN 87-94, 87-200-R, etc. (Judge Maurer, February 23, 1988). 

Danny Johnson v. Lamar Mining, etc., Docket No. KENT 87-68-D. (Reopened 

for enforcement of Judge Merlin's February 26, 1987 Order Approving 

Settlement). 

Secretary of Labor, MSHA v. Tennessee Chemical, Inc., Docket No. 

SE 85-63-M. (Judge Judge Fauver, March 15, 1988). 

Review was denied in the following case during the month of April: 

Secretary of Labor, MSHA v. Emery Mining Corporation, Docket Nos. 

WEST 87-208, 87-209. (Interlocutory Review of Judge Morris's November 4, 

1987 Order Denying Summary Decision). 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 15, 1988 

MARTHA PERANDO 

v. Docket No. YORK 85-12-D 

METTIKI COAL CORPORATION 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding involves a discrimination complaint brought by 

Martha Perando pursuant to the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § _801 et seq. (1982)(the "Mine Act" or "Act"). The 

issue presented is whether Mettiki Coal Corporation ("Mettiki") 

discriminated against Perando in violation of section lOS(c)(l) of the 

Mine Act when, in response to Perando's development of industrial 

bronchitis and her request for a transfer from an underground position 

to a surface position, it reassigned her to a less dusty surface 

position in the mine's laboratory at a rate of pay less than what she 

earned in her prior underground position. l/ Commission Administrative 

ll Section lOS(c)(l) of the Mine Act provides: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[Act] because such miner, representative of miners 

or applicant for employment has filed or made a 

complaint under or related to this [Act], including 

a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

health violation in a coal or other mine, or because 

such miner, representative of miners or applicant 

for employment is the subject of medical evaluations 

and potential transfer under a standard published 

pursuant to section [101] of this [Act] or because 

such miner, representative of miners or applicant 

491 
Law Judge Gary Melick concluded that Perando had a "medically substantiated inability to work underground," which in his opinion was "the 

functional equivalent of a work refusal," that this "refusal" was 

protected activity, and that the reduction in Perando's pay as a result 

of her transfer constituted unlawful discrimination under the Act. 

8 FMSHRC 1220, 1222 (August 1986)(ALJ). The judge awarded Perando back 

pay, interest and costs. 8 FMSHRC 1341 (September 1986)(ALJ). We 

granted Mettiki's petition for discretionary review and permitted the 

Secretary of Labor to participate on review as amicus curiae. ~/ We 

hold that under the circumstances of this case no pro~ected work refusal 

occurred and that Perando's transfer to a lower paying surface position 

did not violate the Mine Act. Accordingly, we reverse. 

From 1980 to 1985 Perando worked as a miner at Mettiki's underground coal mines in western Maryland. In 1983 she began to experience 

breathing problems. Perando's respiratory problems persisted, and in 

February 1984, Perando was examined by her personal physician, Dr. Karl 

Schwalm, who concluded that Perando had a bronchial illness and referred 

her to Dr. James Raver, a specialist in pulmonary medicine. Dr. Raver 

examined Perando and diagnosed her illness as industrial bronchitis. 

Both Dr. Schwalm and Dr. Raver advised Perando that working in an 

underground mining environment was not conducive to her recovery. 

Perando was given medication and told that if her condition did not 

improve she should consider employment in a different working environment. Perando reported her condition to Tom Gearhart, Mettiki's 

personnel director, who suggested that Perando take six months sick 

leave in the hope that her health would improve and also suggested that 

she see Dr. Steven Schonfeld, another pulmonary specialist. Dr. 

Schonfeld examined Perando on May 2, 1984, and confirmed that she had 

industrial bronchitis. In his report of that date conc~rning Perando's 

condition, Dr. Schonfeld stated that if the symptoms "persist unabated 

[Perando] may indeed have to change her actual job function." Mettiki 

Motion to Dismiss, Exh. C. (February 16, 1986). He further recommended 

that Perando increase therapy, have further tests and return to work. 

Id. Both Gearhart and Dr. Schwalm received a copy of Dr. Schonfeld's 

report. 

Perando followed Gearhart's suggestion that she take extended sick 

for employment has instituted or caused to be 

instituted any·proceeding under or related to this 

[Act] or has testified or is about to testify in any 

such proceeding, or because of the exercise by such 

miner, representative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this [Act]. 

30 U.S.C. § 815(c)(l). 

~/ _The Secretary's position in this case supports the mine operator. 

The Secretary submits that the Mine Act does not provide the right to a 

job transfer with pay protection to a miner suffering from a disease for 

which the Secretary.has not promulgated specific standards pursuant to 

section 10l(a)(7) of the Act. 30 U.S.C. § 8ll(a)(7). 

492 
leave. During this time her underground position was held open. While 

Perando was on sick leave, Gearhart received a letter dated May 14, 

1984, from Perando's personal physician, Dr. Schwalm, expressing his 

opinion that Perando "cannot continue in her current job" and 

"recommend[ing]" that she be placed in "a different position without 

exposure to coal dust." Mettiki Motion to Dismiss, supra, Exh. C. 

Gearhart also received from Dr. Raver two letters dated June 25, 1984, 

and August 30, 1984, the former stating that Perando "seem[ed] to be 

suffering from industrial bronchitis," which was "disabling in terms of 

her normal ability to work," and asserting that "[a]lthough she may 

respond to additional forms of therapy, [a] less dusty environment may 

be the only workable solution." M. Exh. R-3; Tr. 78 (May 1, 1986). 

While on sick leave, Perando telephoned Gearhart several times and 

asked whether Mettiki could place her in a surface mining position. On 

September 26, 1984, Gearhart asked Perando if she would be willing to 

work in the mine's surface laboratory. Perando agreed and reported for 

work at the laboratory the next day.· Perando's weekly rate of pay while 

working underground had been $520.20. In the laboratory position, 

Perando earned $383.20 per week. (While on sick leave Perando had 

received $165.00 per week. Tr. 27 (March 6, 1986)). During the period 

that she was assigned to the laboratory, Perando was absent frequently. 

On March 27, 1985, six months after she had accepted the position in the 

laboratory, Mettiki discharged Perando because she had not reported to 

work for a substantial period of time. 

Subsequently, Perando filed a complaint with the Department of 

Labor's Mine Safety and Health Administration alleging that Mettiki had 

discriminated against her in violation of the Mine Act. The Secretary 

of Labor investigated her complaint, found no violation of the Act, and 

declined to file a discrimination complaint on her behalf. 30 U.S.C. 

§ 815(c)(2). Pursuant to section 105(c)(3) of the Act, 30 U.S.C. 

§ 815(c)(3), Perando then filed a complaint of discrimination on her own 

behalf with this independent Commission. J/ 

In his decision, Judge Melick first found that Perando had 

contracted industrial bronchitis "from her exposure to coal dust while 

working at the Mettiki underground mine ..•. " 8 FMSHRC at 1221. 

J/ Perando's complaint with the Commission originally alleged five 

acts of discrimination by Mettiki. Mettiki filed a motion to dismiss 

all the charges. At a hearing on the motion, Perando withdrew two of 

her claims, and the judge denied Mettiki 1 s dismissal motion with respect 

to the other three. 8 FMSHRC 364 (March 1986)(ALJ). The remaining 

three allegations dealt with Mettiki's reduction of Perando's pay in 

connection with her transfer to the laboratory; its handling of her work 

absences while she was assigned to the laboratory; and her discharge. 

8 FMSHRC at 1222-24. In his decision on the merits, the judge denied 

Perando's complaint with regard to Mettiki's treatment of her work 

absences and her discharge. 8 FMSHRC at 1222-24. Perando did not seek 

review of those determinations by the judge. Thus, only the judge's 

determination that Perando was discriminated against when her pay was 

reduced at the time of her transfer is at issue on review. 

493 
Although indicating that "Ferando had never 'refused' to work 

underground in the traditional sense," the judge determined that her 

"medically sub~tantiated inability to work underground was the 

functional equivalent of a work refusal." 8 FMSHRC at 1222. He also 

found that Ferando's "work refusal" was based on her reasonable and good 

faith belief that further work underground would be hazardous to her 

health, and that this "refusal" was communicated to Mettiki·by the 

doctors' reports to Gearhart. Id. He concluded that Ferando 1 s "work 

refusal" was protectedactivity. The judge stated that "in recognition 

of the health hazard presented to Ms. Ferando by underground work •.. , 

Mettiki offered her the outside· job in the laboratory." Id. He then 

concluded that because the new position in the laboratory paid less than 

her prior underground position, "Mettiki did in fact discriminate 

against her because of her work refusal." Id. We conclude that the 

judge erred as a matter of law. 

The general principles governing analysis of discrimination cases 

under the Mine Act are settled~ In order to establish a prima facie 

case of discrimination under section 105(c) of the Mine Act, a 

complaining miner bears the burden of production and proof in 

establishing that (1) he or she engaged in protected activity and 

(2) the adverse action complained of was motivated in any part by that 

activity. Secretary on behalf of Fasula v. Consolidation Coal Co., 

2 FMSHRC 2786, 2797-2800 (October 1980), rev 1 d on other grounds sub. 

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); 

Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 817-18 (April 1981). The operator may rebut the prima facie case 

by showing either that no protected activity occurred or that the 

adverse action was not motivated in any part by protected activity. 

Robinette, supra, 3 FMSHRC at 818 n.20. If an operator cannot rebut the 

prima facie case in this manner, it nevertheless may defend affirmatively by proving that it was motivated by the miner's unprotected 

activity and would have taken the adver.se action in any event for the 

unprotected activity alone. Fasula, supra; Robinette, supra. See also 

Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); 

Donovan v. Stafford Construction 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 the Commission's Fasula-Robinette test). Cf. NLRB v. 

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

identical test under National Labor Relations Act). 

A miner's refusal to ·perform work is protected under section 

105(c) of the Mine Act if it is based on a reasonable, good faith belief 

that the work involves a hazard. Fasula, 2 FMSHRC at 2789-2796; 

Robinette, 3 FMSHRC at 807-12; Secretary v. Metric Constructors, Inc., 

6 FMSHRC 226, 229-31 (February 1984), aff'd sub nom. Brock v. Metric 

Constructors, Inc·., 766 F.2d 469, 471-72 (11th Cir. 1985). "The case 

law addressing work refusals contemplates some form of conduct or 

communication manifesting an' actual refusal to work." Secretary on 

behalf of Sedgmer, et al. v. Consolidation Coal Co., 8 FMSHRC 303, 307 

(March 1986). 

The claim of protected activity asserted on review is that . 

Ferando's request to work in a less dusty environment, in conjunction 

494 
with her doctors' letters that stated the medical inadvisability of her 

continued employment underground, constituted a work refusal. We find 

no evidence that Perando, in fact, engaged in a work refusal. Perando 

testified that after she was informed by the doctors who examined her 

that she had developed industrial bronchitis, she wanted to work and did 

not refuse to work underground. Tr. 44-45 (May 1, 1986). Neither 

Perando's acceptance of Mettiki 1 s offer of extended sick leave nor her 

request while on sick leave for a transfer to a surface position 

constitutes a work refusal. While acknowledging that Perando "never 

'refused' to work underground in the traditional sense," the judge 

nevertheless concluded that Perando 1 s "medically substantiated inability 

to work underground was the functional equivalent of a work refusal," 

which was conununicated to Mettiki by the doctors' reports to personnel 

director Gearhart. 8 FMSHRC at 1222. We disagree. 

None of the doctors' reports received by Mettiki (summarized 

above) stated directly or indirectly that Perando was refusing to work 

underground. The May and June 1984 letters from.Drs. Schwalm and Raver 

expressed only their own medical reconnnendations that Perando should be 

working in a different environment without exposure to coal dust. These 

medical reconunendations constitute, at most, communications from others 

concerning possible personnel actions that the operator might consider 

with respect to Perando's job assignments. Even viewing Perando's 

actions and the doctors' reports together, we find no work refusal. 

Because no work refusal in fact took place and no other claim of 

protected ·activity is involved in this proceeding, Perando's discrimination complaint must be dismissed. 

Even if we were to assume, for the sake of argument, that a work 

refusal occurred, Perando's complaint would still fail because, in the 

circumstances of this case, her: "refusal" would not have been protected 

under the Mine Act. Such an action by ~erando would have to be interpreted as a refusal by a miner (not suffering from pneumoconiosis) to 

report to work unless and until assigned to a dust-free area. Such a 

right is not granted by the Mine Act. 

Section 10l(a)(7) of the Act, 30 U.S.C. § 81l(a)(7), authorizes 

the Secretary to develop improved mandatory health or safety standards 

providing that miners whose health has been impaired by exposure to a 

designated· hazard. "shall be removed from such exposure and reassigned" 

and that such transfer shall be without loss of pay. To date, the 

Secretary has implemented this statutory mandate by providing under 30 

C.F.R. Part 90 that a miner who has been determined by the Secretary of 

Health and Human Services to have evidence of the development of 

pneumoconiosis shall be afforded the option to transfer without loss of 

pay to a mine area where the average concentration of respirable dust is 

at or below 1.0 mg/m3. 30 C.F.R. §§ 90.3, 90.100, & 90.103. See 

generally Jinuny R. Mullins v. Beth-Elkhorn Coal Corp., et al., 9 FMSHRC 

891, 896-98 (May 1987). 
As the Secretary emphasizes in her amicus brief on review, the 

Department of Labor has not promulgated any similar transfer-pay 

retention sta~dards applicable to miners with industrial bronchitis, the 

illness suffered by Perando. Also even a miner who falls within the 

protections of Part 90 does not have the right to refuse to work pending 

transfer to a job in a mine atmosphere totally free of respirable dust. 

Gary Goff v. Youghiogheny & Ohio Coal Co., 8 FMSHRC 1860, 1865 (December 

1986). Exposure to some amount of respirable dust is inherent in 

virtually all underground coal mining. Thus, even if the Secretary had 

included miners suffering from industrial bronchitis within the scheme 

of the present Part 90 transfer-pay retention regulations, Perando would 

not have had a right under those provisions to transfer with pay 

retention to a less dusty position since her underground work areas at 

Mettiki were consistently below the required Part 90 respirable dust 

level of 1.0 mg/m3. M. Exh. R-2, Tr. 74-77, 100-102 (May 1, 1986). To 

·accord Perando the right asserted in this case would confer upon her 

greater transfer-pay retention protection than that enjoyed by Part 90 

miners, an anomalous result. 

Accordingly, we conclude that Perando failed to establish 

prohibited discrimination under the Mine Act. We reverse the judge's 

decision, vacate his award of back pay, interest and costs, and dismiss 

Perando's discrimination complaint. 

Nelson, Commissioner 

496 
Distribution 

Saundra C. Rothsetin, Esq. 

Suite 1717 

201 N. Charles Street 

Baltimore, Maryland 21201 

Timothy Biddle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Mary Griffin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

497 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

TEXASGULF, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 20, 1988 

Docket No. WEST 85-148-M 

WEST 86-83-M 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY 'THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) ("Mine 

Act"), the issue is whether substantial evidence supports the finding of 

Commission Administrative Law Judge Michael Lasher that three violations 

of 30 C.F.R. § 57.21078, the mandatory "permissibility" standard for 

underground metal and nonmetal mines, were not of such a nature as could 

significantly and substantially contribute to the cause and effect of a 

mine safety or health hazard. 1/ 9 FMSHRC 748 (April 1987) (ALJ). For 

the reasons that follow, we affirm the judge's finding that the 

violations' were not of a significant and substantial nature. 

The Wyoming Soda Ash Operation of Texasgulf, Inc. ("Texasgulf"), 

is a trona mine located in Sweetwater County, Wyoming. '!:_/ On April 10, 

!/ 30 C.F.R. § 57.21078 (1986) entitled "Permissible equipment" 

stated: 

Only permissible equipment maintained in 

permissible condition shall be used beyond the last 

open crosscut or in places where dangerous 

quantities of flammable gases are present or may 

enter the air current. 

Effective October 29, 1987, section 57.21078 was eliminated. 52 

Fed. Reg. 24941 (July 1987). New regulations relating to "Approved 

equipment" have replaced section 57.21078. See 30 C.F.R. §§ 57.22302-

57. 22305 (1987). 

~/ Trana is a hard rock composed of sodium carbonate, sodium 

bicarbonate, water, and dirt. It is refined in order to obtain sodium 

bicarbonate, primarily used in making glass. 

498 
April 24 and October 15, 1985, Martin Kovick, an inspector of the 

Department of Labor's Mine Safety and Health Administration, conducted 

inspections at the mine. During each inspection, Kovick examined a 

different continuous mining machine located inby the last open crosscut 

of a working section. On the first inspection, Kovick found a gap in 

the flange joint of the main control panel on the No. 5 continuous 

mining machine. On the second inspection, he found a gap in the flange 

joint of the connection box on the No. 4 continuous mining machine. On 

the third inspection, he found a gap in the flange joint of the right 

headlight on the No. 9 continuous mining machine. While th~ maximum 

permissible clearance for such flange joints is .004 inch (30 C.F.R. 

§ 18.3l(a)(6)), the gaps were .005 inch, .006 inch, and .011 inch 

respectively. In each instance Kovick issued a citation alleging a 

violation of 30 C.F.R. § 57.21078. 

Kovick measured the atmosphere in the vicinity of the violations 

for methane. On all three occasions Kovick's hand-held methane detector 

indicated that no methane was present. Kovick then took bottle samples 

of the atmosphere. Laboratory analysis of the bottle sample taken 

during the first inspection indicated that the atmosphere contained .005 

percent methane in the vicinity of the main control panel. The latter 

two bottle samp~es indicated .009 percent methane in the vicinities of 

the connection box and the headlight. Kovick did not see any evidence 

of arcing or sparking inside the cited enclosures or evidence that the 

continuous miners were electrically malfunctioning. 

In the citations Kovick noted his conclusion, with respect to each 

violation, that the violation was of such nature as could significantly 

and substantially contribute to the cause and effect of a mine safety or 

health hazard. (See 30 U.S.C. § 814(d)(l).) He testified that methane 

could get into the main control panel, connection box, and headlight 

through the impermissible gaps and that arcing or sparking inside the 

enclosures could ignite the methane and set off larger ignitions or 

explosions of methane in the atmosphere outside the enclosures. 

Texasgulf conceded the violations but disputed the inspector's 

findings that the violations were of a significant and substantial 

nature. The administrative law judge concluded that none of the three 

violations significantly and substantially contributed to a mine safety 

hazard because there was no reasonable likelihood that all of the 

various catalysts needed to produce an ignition or explosion would 

coincide. 9 FMSHRC at 764-765. On review, the Secretary challenges 

this conclusion. In addition, the Secretary argues that in his decision 

the judge has erroneously concluded that a violation must constitute an 

imminent danger in orde.r to be designated significant and 

substantial. lf 

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

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

could reasonably be expected to cause death or serious physical harm 

before such condition or p~actice can be abated." 30 U.S.C. § 802(j). 

In view of our disposition, we need not address this aspect of the 

Secretary's argument. See n.4, infra. 

499 
Section 104(d)(l) of the Mine Act provides that a violation is 

significant and substantial if it is of "such nature as could 

significantly .and substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A 

violation is properly designated significant and substantial "if, based 

on the particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature." Cement Division, 

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

FMSHRC 1, 3-4 (January 1984) the Commission explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary 

must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard -- that is, a measure of danger to safety 

contributed to by the violation; (3) a 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. 

The Commission has explained further that the third element of the 

Mathies formulation "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) (emphasis deleted). We have emphasized that, in 

accordance with the language of section 104(d)(l), 30 U.S.C. § 

814(d)(l), it is the contribution of a violation to the cause and effect 

of a hazard that must be significant and substantial. Id. In addition, 

the evaluation of reasonable likelihood should be made in terms of 

"continued normal mining operations." U.S. Steel Mining Co., Inc., 6 

FMSHRC 1573, 1574 (July 1984). Applying these principles to the instant 

case, we conclude that the judge's holding that the cited violations 

were not of a significant and substantial nature is supported by 

substantial evidence. ~/ 

We recognize that permissibility violations have the potential for 

~/ The judge also suggests that the Commission's interpretation of 

significant and substantial is in error because the statutory language 

of section 104(d)(l), 30 U.S.C. § 814(d)(l), does not require explicitly 

that there be a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury of a reasonably 

serious nature. 9 FMSHRC at 759, 760, 765. Contrary to the judge's 

suggestion, the Commission's interpretation of the meaning of 

significant and substantial as set forth in National Gypsum, Mathies and 

the U.S. Steel decisions, including the reasonable likelihood 

requirement, is fully consistent with the Act as it harmonizes the 

statutory language of section 104(d)(l) and the overall enforcement 

scheme of the Mine Act. We therefore decline the judge's invitation to 

revisit these holdings. 

500 
serious danger. Nonetheless, whether a permissibility violation is 

significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine involved. 

The discrete safety hazard contributed to by the violations at 

issue is that methane will enter the subject enclosures on the 

continuous mining machines through the impermissibly wide gaps in the 

flange joints, be ignited by arcing or sparking of electrical components 

and trigger a larger methane ignition or explosion. The key question 

here is whether· there was a reasonable likelihood that this hazard would 

result in an ignition or an explosion. As the judge recognized, in 

order for ignitions or explosions to occur, there must be a confluence 

of factors, including a sufficient amount of methane in the atmosphere 

surrounding the impermissible gaps and ignition sources. 

As the judge found, methane is ignitable at a 1.0 to 2.0 percent 

concentration and is explosive at a 5.0 to 15.0. percent concentration. 

Tr. 63, 68-69, 168; 9 FMSHRC at 752. At the time the violations at 

issue were cited, the methane levels were .005, .009 and .009 percent, 

well below the 1.0 percent concentration necessary for an ignition. 

The judge further determined that it was not reasonably likely 

that ignitable or explosive concentrations of methane would have been 

encountered had normal mining operations continued. The methane test 

results taken by Inspector Kovick at the time that he observed the 

violations showed methane concentrations no greater than .009 percent. 

Tr. 68, 79, 84. Further, there has never been a methane ignition or an 

explosion at the mine. Tr. 62, 197, 227. Indeed, the evidence 

establishes that methane has never been detected in this mine at a level 

of concentration required for an ignition or explosion. Kovick 

testified that he had inspect~d the mine four times a year for eight 

years prior to the hearing and that he had never detected ignitable or 

explosive levels of methane in the mine. Tr. 39, 62, 75, 85-86, 90. 

Texasgulf's ventilation engineer, who worked at the mine for five years 

prior to the hearing, also testified that he had never detected 

ignitable or explosive levels of methane in the mine. Tr. 197-98, 242-

43, 251. He testified that the highest level of methane he had ever 

detected was one instance of .2 percent. Tr. 165-66, 197-98, 242, 243. 

Further, substantial evidence of record also supports the judge's 

findings that five trona mines, including Texasgulf's mine, are located 

within a 20-mile radius, in an area known as the Wyoming Trana Patch. 

All of the other mines have been subject to section 103(i) of the Act, 

which requires heightened inspection for mines liberating 200,000 cubic 

f~et of methane or more every 24 hours. 30 U.S.C. § 813(i). 21 The 

21 Section 103(i) states: 

(i) Whenever the Secretary finds that a coal or 

other mine liberates excessive quantities of methane 

or other explosive gases during its operations, or 

that a methane or other gas ignition or explosion 

has occurred in such mine which resulted in death or 

501 
Wyoming Soda Ash Operation liberates considerably less methane than each 

of the other four mines (Tr. 37, 40-41, 54, 58, 87, 222) and has.never 

been sYbject to heightened inspection pursuant to section 103(i). Tr. 

86, 160. The daily liberation of methane from the mine has been 

measured at 50,000 to 90,000 cubic feet of methane, which is well below 

the minimum at which more frequent inspections are required under 

section 103(i). Tr. 40, 161. 

Substantial evidence also establishes that only the Wyoming Soda 

Ash Operation extracts trona from Trena Bed 20, a bed possessing unique 

geological features not conducive to methane liberation. Methane 

liberated during the mining of trona generally comes from oil shale 

lying in deposits above and below a trona bed. £/ Unlike the other 

mines in the Wyoming Trena Patch that have a very high concentration of 

oil shale in the roof and the floor with resulting higher levels of 

methane, the roof and floor of the Wyoming Soda Ash Operation are 

composed of marlstone shale, a combination of clay and shale with some 

imbedded trona. Tr. 156-58. Marlstone differs from oil shale in that 

it has a higher percentage of clay. The roof of Texasgulf's mine is 

composed of green marlstone which contains virtually no methane. The 

floor is composed of a gray to light brown marlstone, which contains 

considerably less methane than oil shale. Tr. 159, 240-41, 315. 

Texasgulf's senior geologist also testified that test drilling of the 

serious injury at any time during the previous five 

years, or that there exists in such mine some other 

especially hazardous condition, he shall provide a 

minimum of one spot inspection by his authorized 

representative of all or part of such mine during 

every five working days at irregular intervals. For 

purposes of this subsection, "liberation of 

excessive quantities of methane or other explosive 

gases" shall mean liberation of more than one 

million cubic feet of methane or other explosive 

gases during a 24-hour period. When the Secretary 

finds that a coal or other mine liberates more than 

five hundred thousand cubic feet of methane or other 

explosive gases during a 24-hour period, he shall 

provide a minimum of one spot inspection by his 

authorized representative of all or part of such 

mine every 10 working days at irregular intervals. 

When the Secretary finds that a coal or other mine 

liberates more than two hundred thousand cubic feet 

of methane or other explosive gases during a 24-hour 

period, he shall provide a minimum of one spot 

inspection by his authorized representative of all 

or part of such mine every 15 working days at 

irregular intervals. 

30 u.s.c. § 813(i). 

£/ During mining the oil shale may be cut into or otherwise disturbed 

and methane emissions may result. Trana itself neither emits methane 

nor burns. 

502 
entire No. 20 Bed indicates that the geological structure of the unmined 

portion of the bed is essentially the same as that which has been mined, 

showing no oil shale above or below the trona. Tr. 315, 316. 

The unrefuted testimony regarding the structure of the No. 20 Bed 

establishes a substantial factual basis for explaining the mine's prior 

history of low methane liberation and for reasonably evaluating future 

liberation. The Secretary argues that sudden liberations of methane 

cannot be ruled out and that unexpected outbursts of methane have caused 

ignitions and serious injuries in other trona mines. The Secretary cites 

the statement of Texasgulf's senior geologist that "there is always a 

chance of something happening." Tr. 328. However, in determining 

whether a violation is of .a significant and substantial nature the 

appropriate question is whether there is a reasonable likelihood of such 

a sudden liberation of methane. In his testimony, Texasgulf's senior 

geologist further characterized the chance of such a liberation as 

"highly unlikely." Tr. 328. 

Given the detailed testimony establishing the mine's history of 

low methane emissions and the absence of previous ignitions or 

explosions, as well as the testimony establishing a reasonable 

expectation of low methane emissions in the future, we conclude that 

substantial evidence supports the judge's holding that for each 

violation at issue there was not a reasonable likelihood that the hazard 

contributed to would result in a mine ignition or explosion. Compare, 

U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1867-69 (August 1984) 

(upholding significant and substantial finding where a coal mine 

liberates over one million cubic feet of methane in 24-hour period, has 

a history of methane ignitions, and excessive accumulation of coal 

nearby); United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1128-30 

(August 1985) (upholding significant and substantial finding where a 

coal mine liberates over one million cubic feet of methane in a 24 hour 

period, has history of past methane ignitions, can liberate dangerous 

levels of methane in a relatively short period, and where ventilation is 

below that required); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677-

678 (upholding significant and substantial finding where a coal mine was 

subject to inspection pursuant to section 103(i) and sudden outburst of 

methane had occurred recently). 

503 
Because the judge's conclusion that the violations were not of a 

significant and substantial nature within the meaning of section 

104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), is consistent with 

applicable precedent and is supported by substantial evidence, the 

judge's decision is affirmed. . 

~~~ oyc~e, CommiSSiOil 

am:; !~astow~Conmissioner 

~jf~~ L. Clair Nelson, Commissioner 

504 
Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Theodore W. Brin, Esq. 

Downey & Murray 

Suite 5000 

8480 East Orchard Road 

Denver Technological Center 

Englewood, Colorado 80111 

Administrative Law Judge Michael Lasher 

Federal Mine Safety & Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

505 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 21, 1988 

DANNY JOHNSON 

v. 

LAMAR MINING COMPANY, 

LARRY E. WILLIAMS, C. GRAHAM 

MARTIN, and WILLIAMS & MARTIN 

COAL COMPANY 

Docket No. KENT 87-68-D 

BEFORE:. Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY: THE COMMISSION: 

This discrimination proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" 

or "Act"), was dismissed following approval by Commission Chief Administrative Law Judge Paul Merlin of the parties' settlement agreement. 

9 FMSHRC 367 (February 1987)(ALJ). Subsequently, counsel for complainant Danny Johnson filed with the Commission a motion to reopen and 

remand this proceeding, a motion to amend the order approving settlement, and a motion for an award of interest on the balance of the 

judgment owed. For the following reasons, we reopen this matter for the 

limited purpose of amending the order approving settlement. We confirm 

the enforceability of the settlement agreement and the order approving 

the agreement, but deny the motion for an award of interest. 

Based on the pleadings filed herein, it appears that complainant 

Danny Johnson was employed by Lamar Mining Company ("Lamar") at one of 

its surface coal mine operations located in Knott County, Kentucky. 

Johnson was laid off by Lamar on June 27, 1987. Subsequently, he filed 

a complaint with the Department of Labor's Mine Safety and Health 

Administration alleging that his layoff violated section lOS(c)(l) of 

the Mine Act. 30 U.S.C. § 81S(c)(l). The Secretary of Labor did not 

file a discrimination complaint on Johnson's behalf, however, and 

Johnson thereupon filed his own discrimination complaint with this 

independent Commission pursuant to section 10S(c)(3) of the Act. 30 

U.S.C. § 81S(c)(3). In addition to Lamar, Johnson's complaint named as 

respondents Larry E. Williams and C. Graham Martin, individually, and 

Williams & Martin Coal Co., Inc., as a successor to Lamar. Johnson's 

complaint alleged that he had been unlawfully laid off because of his 

refusal to drive a truck with unsafe brakes. 

Shortly after Johnson filed his complaint with the Commission, 

Johnson, Lamar and Larry E. Williams concluded a settlement agreement 

506 
dated February 11, 1987. The agreement provided that in exchange for 

withdrawal of Johnson's complaint and waiver of reinstatement and 

attorney's fees, respondents Lamar and Larry E. Williams would pay 

Johnson damages of $5,000, in four installments of $1,250 each, due 

between February 18, 1987, and May 18, 1987. The agreement was signed 

by Johnson and his attorney, by respondent Larry E. Williams, and by 

Bobby Williams, as attorney for Lamar. Johnson filed the settlement 

agreement with the Commission along with a motion to withdraw his 

discrimination complaint and to dismiss the proceeding. 

In an Order Approving Settlement and Order of Dismissal issued on 

February 26, 1987, Judge Merlin approved the settlement as being 11 in 

accord with the purposes" of the Mine Act, granted the motion to 

withdraw and dismissed the case. 9 FMSHRC at 367. No party sought 

rev1ew of the judge's final order, and forty days after its issuance it 

became a final decision of the Commission by operation of the Mine Act. 

30 u.s.c. § 823(d)(l). 

In December 1987, counsel for Johnson filed with the Commission a 

Motion to Reopen and to Remand to Chief Administrative Law Judge, a 

Motion to Amend the Court's Order Approving Settlement and Order of 

Dismissal, and a Motion for Interest on Balance of Money Owed pursuant 

to Settlement Agreement. In these motions, supported by counsel's 

affidavit, counsel alleges that respondents Lamar and Larry E. Williams 

have paid to Johnson only the first $1,250 installment of the total of 

$5,000 in agreed damages. Counsel asserts that he requested the 

Department of Labor to initiate legal action in enforcement of the 

judge's settlement approval order, pursuant to the enforcement powers 

vested in the Secretary by section 106(b) of the Act, 30 U.S.C. 

§ 816(b)(see generally Tolbert v. Chaney Creek Coal Corporation, 

9 FMSHRC 1847 (November 1987)). Counsel further alleges that he was 

informed by a representative of the Department of Labor's Solicitor's 

Off ice that the Secretary would not take such enforcement action because 

the judge's order itself did not expressly direct respondents to comply 

with the settlement agreement. In relief, Johnson requests the 

Commission to reopen this closed proceeding and to remand it to the 

judge so that he may entertain the motions seeking amendment of his 

prior order by adding specific direction for compliance and the award of 

interest. 

The Commission directed respondents to file a response to 

Johnson's motions and afforded the Secretary an opportunity to respond 

as well. The respondents' response does not deny Johnson's assertion 

that the agreed damages have not been paid in full but states merely 

that Larry E. Williams and C. Graham Martin should not be joined in this 

action individually, because Johnson was employed by Lamar, a corporate 

entity. The response seeks dismissal of Williams and Martin as 

respondents. (Johnson filed a reply conceding that Martin had not 

signed the settlement agreement and was not liable to pay thereunder but 

contending that no proper legal basis existed at this juncture of the 

proceeding to dismiss the individual respondents as parties.) The 

Secretary's response does not address Johnson's allegations concerning 

her objection to the absence in the judge's order of express language 

directing compliance with the settlement agreement. Rather, the 

507 
Secretary states that her decision seeking or declining to pursue 

enforcement of a final Commission order is a matter committed to her 

prosecutorial.discretion. The Secretary asserts: 

The complainant may enforce the settlement agreement 

in a state court contract action. Because the state 

court remedy is available to Mr. Johnson, the 

Secretary has determined not to file an enforcement 

action pursuant to section 106(b) of the Mine Act at 

this time. 

S. Response 2 (January 22, 1988). 

Essentially, Johnson's motions request the reopening of this 

proceeding on the grounds that the settlement agreement approved by 

Judge Merlin has been materially breached or effectively repudiated by 

respondents. In support of his efforts to enforce the approved settlement agreement, Johnson asks that the judge's order be amended to 

specifically direct compliance with the agreement. We first examine the 

jurisdictional issue posed by these motions. 

Under our procedural rules incorporating, as appropriate, the 

Federal Rules of Civil Procedure, the Commission may entertain and act 

upon motions requesting the reopening of, or other relief from final 

Commission decisions. 29 C.F.R. § 2700.l(b) (Federal Rules of Civil 

Procedures apply in absence of applicable Commission rule); Fed. R. Civ. 

P. 60 (Relief from Judgment or Order). See,~·· M.M. Sundt Constr. 

Co., 8 FMSHRC 1269, 1270-71 (September 1986). Fed. R. Civ. P. 60(b)(6) 

states: 

On motion and upon such terms as are just, the 

court may relieve a party from a final judgment, 

order, or proceeding for the following reasons: 

•.. (6) any other reason justifying relief from the 

operation of the judgment. 

Ample judicial authority supports the general proposition that Rule 

60(b)(6) authorizes a federal tribunal to reopen a proceeding that had 

previously been dismissed by it on the basis of the parties' settlement 

agreement. See,~·· Fairfax Countywide Citizens Assn. v. Fairfax 

County, 571 F.2d 1299, 1302-03 (4th Cir.), cert. denied, 439 U.S. 1047 

(1978), and authorities cited; Aro Corp. v. Allied Witan Co., 531 F.2d 

1368, 1371-72 (6th Cir.), cert. denied, 429 U.S. 862 (1976). See also 

In re Corrugated Containers Antitrust Litigation, 752 F.2d 137, 141-42 

(5th Cir. 1985). Based on the rationale in these decisions, we hold 

that in appropriate circumstances the Commission may, in its discretion, 

reopen one of its proceedings pursuant to Fed. R. Civ. P. 60(b)(6) upon 

a proper showing that an underlying settlement agreement approved by the 

Commission has been materially breached or repudiated. Upon consideration of the motion and responses before us, it is not disputed that 

respondents abrograted the settlement agreement shortly after the 

Commission approved the agreement and dismissed the proceeding. 

Accordingly, in the circumstances presented by the present record, we 

grant Johnson's motion to reopen this matter so that we may turn to 

508 
consideration of his other motions. 

We need not discuss extensively the suggestion that the judge's 

order is deficient because it does not contain express language 

directing the parties to comply with the settlement agreement. Upon the 

unopposed motion of complainant, the settlement was approved by the 

judge. Plainly, the agreement is not intended to be self-defeating, and 

the judge's order approving the settlement was not issued as a nullity. 

The judge's order approving the settlement and dismissing the proceeding 

obviously and.inherently directs compliance with the settlement 

agreement. We therefore hold that both the agreement and the judge's 

order approving the settlement are valid, binding and enforceable. To 

place this result beyond dispute, we hereby amend the judge's order by 

adding the following sentence at the end of the second paragraph of the 

judge's order: "The parties to the settlement are directed to comply 

with the terms of the settlement within the period specified therein." 

Because we have granted the relief sought in the motion to amend, 

it is unnecessary to remand this matter to the judge. Johnson is free 

to pursue all appropriate remedies that he may have for enforcement of 

the judge's order. 

Concerning Johnson's request for an award of interest on the 

balance of the judgment, we note that the settlement agreement provided 

only for a total payment of $5,000 and that no provision was made for 

interest on this amount during the period of installment payments. A 

damage award in the form of interest on the unpaid principal is a proper 

remedy in an enforcement action by Johnson, but consideration by the 

Commission of an award of interest at this juncture would be inappropriate. Accordingly, we deny Johnson's motion for interest. Similarly, 

given our disposition, we need not address the Secretary's prosecutorial 

discretion with respect to Johnson's request that the Secretary enforce 

the order approving settlement. Finally, no proper basis has been 

advanced by respondents for the dismissal of any of the individual 

party-respondents from this proceeding and respondents' motion to that 

effect is denied. 

509 
In summary, we reopen this matter, amend the judge's order and 

confirm the enforceability of the parties' settlement agreement and the 

judge's order as a final Commission order. Johnson's motions for remand 

and interest are denied, and respondents' motion to dismiss the 

individual respondents is also denied. 

Distribution 

Tony Oppegard, Esq. 

Appalachian Research and Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

Bobby D. Williams, Esq. 

P.O. Box 509 

Hindman, Kentucky 41822 

Larry Williams 

Williams Building 

Main Street 

Hindman, Kentucky 41822 

C. Graham Martin 

P.O. Box 507 

Hindman, Kentucky 41822 

Colleen Geraghty, Esq. 

Office of the Solicitor 

U.S. D'epartment of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~L/(/. oyc~Doyle, Comm1ss10~ 4~ 

L. Clair ~elson, Commissioner 

Chief Adm~nistrative Law Judge Paul Merlin 

~;deral ~1ne Safety & Health Review Commission 

30 K Street, 3.W., Suite 600 

Washington, D.C. 20006 

510 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

APR 5 1988 

KENNETH COURTNEY, DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 88-12-D 

v. MADI CD 87-08 

PEABODY COAL COMPANY, Camp No. 11 Mine 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On January 26, 1988, an Order to Show Cause was issued 

asking you to provide the necessary documentation in order that 

we may properly process your complaint. No response to this 

order has been received and the time to respond has lapsed. 

Accordingly, it is hereby ORDERED that this matter be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Mr. Kenneth Courtney, 142 Chapelwood, Henderson, KY 42420 

(Certified Mai .. l) 

Peabody Coal Company, Camp No. 11 Mine, Route 5, Morganfield, KY 

42437 (Certified Mail) 

I gl 

511 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 8 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

JAMES ROBINSON, 

Respondent 

1988 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 87-331 

A.C. No. 46-0552-03510 

Robinson No. 1 Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Petitioner's motion filed March 31, 1988, to dismiss its 

civil penalty proposal filed in this case on the ground that 

the contested citation has been vacated because the cited 

standard relied on by the inspector was not controlling IS 

GRANTED, and this matter IS DISMISSED. 

~eorg . Koutras 

c{{~ Administrative Law Judge 

Distribution: 

Therese I. Salus, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Mr. James Robinson, Jr., Vice President, Route 1, Box 522, 

Clarksburg, WV 26301 (Certified Mail) 

/fb 

J 

512 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

UTAH POWER & LIGHT COMPANY, 

MINING DIVISION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

APR 111988 

CONTEST PROCEEDING 

Docket No. WEST 87-226-R 

Citation 3043248; 6/23/87 

Cottonwood Mine 

Mine ID 42-01944 

DECISION 

Appearances: Susan E. Chetlin, Esq., Crowell & Moring, 

Washington, D.C., 

Before: 

Background 

for Contestant; 

Robert Cohen, Esq., Office of the Solicitor, u. s. 

Department of Labor, Arlington, Virginia, 

for Respondent. 

Judge Lasher 

This proceeding arose upon the filing of a notice of contest 

on July 23, 1987, pursuant to Section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815(d)(l977), herein 

the Act. There was no related ~enalty docket extant at the time 

of the hearing in this matter. _/ 

By its initiation of the proceeding the Contestant (herein 

UPL) sought to obtain review of Section 104(a) Citation No. 

3043248 issued June 23, 1987, by MSHA Inspector Robert L. 

Huggins, charging it with a violation of 30 C.F.R. § 75.200 which 

provides in pertinent part: 

"Each operator shall undertake to carry out on a continuing 

basis a program to improve the roof control system of each 

coal mine and the means and measures to accomplish such 

system. The roof and ribs of all active underground 

roadways, travelways, and working places shall be sup-

!/ The hearing was held during a 2-day period, August 27, 28, 

1987. There are separate transcripts for each day- both 

beginning with page one. Accordingly, transcript citations will 

be prefaced with "I" and "II", respectively, in this matter: "I 

T. " and "II T. " 

513 
ported or otherwise controlled adequately to protect 

persons from falls of the roof or ribs." 

The Citation, in section 8 thereof, describes the alleged 

violation as follows: 

"The travelway in the 5th east bleeder 2; is not adequately 

supported to protect persons from falls-of roof and ribs. 

The cribs being used for roof supports are crushing and 

starting to roll out at numerous locations in the bleeder. 

The crosscuts next to the bleeder entry have no additional 

supports and they are riding over into the bleeder entry 

pushing out the cribs." 

In its Notice of Contest filed herein on July 23, 1987, UPL 

listed four grounds for its contest: 

1. The citation does not identify the location of the 

offending cribs and therefore is too vague to have adequately informed UP&L as to which of the hundreds of cribs 

along the 4,500-foot bleeder entry were not providing 

adequate travelway support. 

2. On June 3~ 1987, mine management declared approximately 1,800 feet of the 5th East Bleeder too dangerous 

to travel pursuant to 30 C.F.R. § 75.316-2Cf)(3) because 

of serious roof and ground hazards. ~/ To the extent the 

Citation covers cribs in that area, it is invalid because 

the closed portion of the bleeder entry was not an active 

area, a prerequisite for applicability of § 75.200. 

3. The remainder of the travelway in the 5th East Bleeder 

was adequately supported by the cribs installed along the 

entry and no violation of 30 C.F.R. § 75.200 occurred. 

4. If it is held that certain cribs in the active areas 

of the 5th East Bleeder entry were not providing adequate 

support, the hazard of setting posts or attempting other 

means of abatement was greater than the hazard of leaving 

2/ Herein "5EB". 

3/ This seemingly would constitute an admission that an 1800 

foot, portion of 5EB was unsafe. However, UPL convincingly explained at the hearing that part of the area was only a "buffer" 

zone for the particular area that was particularly hazardous (II 

T. 19-22, 61, 101-102) and MSHA's evidence does not otherwise 

support a finding for the entire 1800 foot area (that between 

crosscuts 20 and 38). 

514 
the area undisturbed, there was no other way to protect 

the miners and a petition for modification would have been 

inappropriate in light of the provisions of 30 C.F.R. 

§ 75.316-2(f)(3). 

(emphasis added) 

30 C.F.R. § 75.316-2 is entitled "Criteria for approval of 

ventilation system and methane and dust control plan." Subparagraphs (f)(l), (2) and (3), of particular pertinence here, 

provide: 

"Cf)(l) Bleeder entries developed after June 28, 1970, 

should be adequately maintained and free of water to 

permit safe travel or, if such bleeder entries cannot 

be traveled without exposing the mine examiner to undue 

hazard, such bleeder system should be designed and maintained so that bleeder entry performance can be evaluated 

for adequacy and continuity by a means approved by the 

Coal Mine Safety District Manager. !I 

(2) When the mine operator deems that safe examination 

can be made such examination should be made at least once 

each week by a certified person designated by the operator 

to do so and the results of such examinations shall be 

recorded in a book as prescribed in § 75.305. The certified person shall place his initials, the time and the 

date at as many locations in the bleeder entries as are 

necessary to indicate that the entire length has been 

examined. 

(3) When bleeder entry travel is considered unsafe the 

evaluation of bleeder entry performance should be adequate 

to indicate that the bleeder system is functioning as 

specified in§ 75.316-3Ce)(l) and shall be made at least 

once each week by a certified person or persons and the 

results shall be recorded in a book as prescribed in 

§ 75.305. To protect the safety of the miners when bleeder 

entry performance evaluation requires altering the normal 

airflow through the affected area, such evaluation should 

be made during idle shifts with power cut off from the 

affected area. Due precaution should be taken so as not 

to endanger any other area of the mine and suitable examinations for methane should be made at the edges of the 

pillar and such other places as may be required." ~/ 

4/ I find no basis in this regulation to conclude, as UPL has 

urged (I T. 206-209) that a mine operator may unilaterally close 

down a bleeder entry and put up a bleeder evaluation point 

without MSHA approval. 

5/ MSHA's interpretation of this regulation is that the entry is 

required to be traveled on a weekly basis by an examiner until 

such time as the MSHA District Manager approves some other 

"means", i.e., the establishment of bleeder evaluation points CI 

T. 130, 135-137, 155, 157). 

515 
Enlightening with respect to the nature and purpose of 

bleeder entries and systems is Subsection "e" of 30 C.F.R. S 75.-

316-2, likewise pertaining to "Ventilation system and methane and 

dust control plan": 

"Ce) Bleeder entries, bleeder systems, or equivalent means 

should be used in all active pillaring areas to ventilate 

the mined areas from which the pillars have been wholly 

or partially extracted, so as to control the methane content in such areas. Bleeder entries or bleeder systems 

established after June 28, 1970, should conform with the 

requirements of this § 7$.:'.U,9-2. 

Cl) Bleeder entries shall be defined as special aircourses 

developed and maintained as part of the mine ventilation 

system and designed to continuously move air-methane mixtures from the gob, away from active workings and deliver 

such mixtures to the mine return aircourses. Bleeder 

entries should be connected to those areas from which 

pillars have been wholly or partially extracted at straegic locations in such a way to control airflow through 

such gob area, to induce drainage of gob gas from all 

portions of such gob areas and to minimize the hazard 

from expansion of gob gases due to atmospheric pressure 

change. 

(2) Bleeder systems shall include any combination of 

bleeder entries, bleeder entry connections to any area 

from which pillars are wholly or partially extracted and 

all associated ventilation control devices. Such systems 

should extend from active pillar line of such gob to the 

intersection of that bleeder split with any other split 

of air, and shall not include active workings." 

Issues 

The chief issue is whether the violation charged in the 

Citation actually occurred CIT. 59-60). At the hearing UPL 

abandoned one its original contentions that the 5EB was an 

"inactive" area CI T. 209) and thus not subject to the quoted 

provisions of 30 C.F.R. § 75.200. Also, although portions of the 

transcript and briefs are devoted to it, any defense of UPL based 

on the premise that a mine operator can unilaterally establish 

bleeder evaluation points without MSHA approval was expressly 

removed in UPL's supplemental brief (See letter from counsel 

dated December 2, 1987). This question has other relevance, 

however. 

To establish a violation of the cited regulation (§ 75.200) 

MSHA must show that roof and/or ribs in 5EB on June 23, 1987, 

were hazardous, i.e., that they were not "supported or otherwise 

controlled adequately to protect persons from falls of the roof 

516 
or ribs." 6; Determination of the primary issue raised calls in 

part for resolution of the conflict in the opinion testimony 

offered by UPL's and MSHA's witnesses. 

A considerable portion of the record was devoted to the 

question of whether wooden cribs installed by UPL as secondary 

roof support in 5EB were adequat_e. "!.../ 

Summary of Record and General Findings 

The cottonwood mine of UPL is a large underground coal mine 

located approximately 50 miles southwest of Price, Utah. UPL has 

a payroll of 230 employees at the mine who work in 3 shifts- 2 

production and 1 maintenance CIT. 16). 

On June 23, 1987, when the Citation was issued, part of the 

mine was not active and sealed and there were only two active 

working sections--one section mined coal using a continuous 

mining machine and the other section mined the 7th East longwall 

panel using the longwall mining method CIT. 191; Jt. Ex. 2). 

5EB was at all material times an active work area where miners 

normally worked and travelled CIT. 32, 33). 

The conditions existent in 5EB when the Citation was issued 

did not constitute an imminent danger CIT. 61, II T. 18). 

~/ In a recent decision, Southern Ohio Coal Company v. 

Secretary, 10 FMSHRC 138, 141 (February 10, 1988),,the Commission 

pointed out the dual nature of Section 75.200: "Section 75.200 

requires both compliance with a roof control plan approved by the 

Secretary and that the roof be supported or otherwise controlled adequately-.~An operator's failure to comply with either 

requirement violates the standard." (emphasis added) The instant 

matter was tried and argued on the basis of a violation of the 

Section's proscription against inadequate roof support/control--

not on the basis of an infraction of Respondent's roof control 

plan CI T. 58, 59) • 

7/ Cribs are a type of roof support used to supplement minimum 

roof control methods; they are built of 8" x 8" x 36" wood blocks 

cross-stacked one on top of another similar to Lincoln log 

construction and they extend from floor to roof. At the Cottonwood mine they are employed in all tailgate entries, longwall 

panels and bleeder systems around pillared areas and in areas on 

mine haulageways or mine return airways where long life must be 

achieved. Their purpose is to maintain roof integrity and keep 

such areas open for travel and as aircourses CIT. 197-198). 

Cribs are depicted in the record in Exs. C-3 through C-8, C-11, 

and Joint Ex. 3. 

517 
The Fifth east Bleeder entry (SEB) is a longlife entry (I T. 

167). It runs a distance of approximately 4000 feet from Crosscut No. 5 to Crosscut No. 46. (IT. 22, 23, 112, II T. 67). The 

purpose of SEB is to "bleed the gob gasses, black damp or 

whatever" from the working areas of the mine (I T. 22, 23, 77, 

193). At the time the Citation was issued, approximately 1200 

cribs had been installed in SEB (II T. 67). 

The area cited in the Citation included the most hazardous 

area between crosscuts 27 and 30, because miners were being 

exposed to the hazardous conditions and Respondent had not 

provided all the support that was needed (I T. 29-32, 61, 102, 

110, 139-140). ·Between crosscuts 27 and 30 the roof height is 

approximately 4 1/2 to 5 feet; in most other areas of SEB the 

height is higher (IT. 36). 

On June 23, 1987, it was apparent Respondent had attempted 

to put in additional support in the 27-30 crosscut area by 

installing donut cribs- some of which met manufacturer's 

specification and some of which did not (IT. 61, 62). 

Bleeder entries such as SEB are required to be traveled by a 

certified person on a weekly basis for the purpose of determining 

if conditions- involving such as methane, black damp, roof, rib, 

walkways, timbering--- are hazardous (IT. 24, 25). Theimimportance of keeping bleeder entries open or travelable is to 

insure against the buildup of methane, black damp (an oxygendeficient area) and gob gasses (I T. 26, 132). Bleeder entries 

also serve as possible escapeways for miners (IT. 106, 133). 

Inspector Huggins explained this purpose by analogy to the 

Wilberg mine disaster: 

A. Well, if the -- you know, alternate routes. I can go 

back to Wilberg. I hate to bring that up; but I think 

that if, you know, they were maintained and kept open 

there at times -- which they were opened and miners were 

all aware of it, they could have come out that way. 

Q. So it's possible if the bleeder entry is allowed to remain open or kept open and it could be used as a possible 

escapeway by miners of the section in an emergency? 

A. Yes. (IT. 26, 27) 

SEB was a possible escapeway not a designated escapeway 

( I T • 7 8 , l 0 6 , 13 3 ) • ~/ 

~/ UPL's Managing Director of Health, Safety and Training, Dave 

D. Lauriski, testified that SEB was not a "viable" alternate 

route of travel from the 7th East longwall face because it was a 

longer route to the surface, it was remote, it was not designated 

518 
In a memorandum dated June 2, 1987 (Ex. R-3) for District 9 

SubDistrict Managers and Field Office Supervisors CIT. 166), 

District Manager John W. Barton addressed the subject of "Roof 

Support for Longlife Entries": 

"As part of the six month review of roof control plans, 

all operators are being requested to address long life 

entries in their roof control plans. It is very important 

that long life entries be properly supported in order to 

serve the purpose for which they are designed or intended. 

Specifically, this means entries such as bleeders, longwall 

headgates and tailgates, escapeways, main air courses, 

main haulageways, and travelways be addressed in the plan 

as long life entries with an explanation of proposed means 

of primary and necessary supplemental roof support to 

insure these entries remain open and travelable for--:their 

entire life. The intent is to maintain bleeder entries 

and not allow their condition to deteriorate to a point 

where safe travel is impossible, thus causing operators to 

seek approval for the establishment of evaluation points. 

Escapeways must be maintained and adequately supported and 

not rerouted as a means to avoid installation of supplemental support. Longwall headgate and tailgate entries 

as well as main air courses and haulageways must be supported throughout their life to serve the function originally designed or intended. 

It is the purpose of this request to impress upon operators 

the seriousness with which MSHA views protection of long 

life entries. 

It is the responsibility of all inspectors, during normal 

inspection activities, to determine if roof support in 

these long life entries is adequate and the requirements 

of the roof control plan are being met. The District 

Off ice must be advised of any instances where compliance 

with the approved roof control plan fails to maintain adequate long life support." 9/ 

(emphasis supplied) 

footnote 8 can't 

and marked for travel, and accordingly, miners were not trained 

to use it as a travelway CIT. 196-197, 222). He conceded, 

however, that such a bleeder has value as an "additional" travelway CIT. 219), even though he felt SEB was not a "viable" 

alternative CIT. 222). 

9/ Lee H. Smith, MSHA District 9 Roof Control Supervisor, who 

wrote the memorandum for Barton, explained its purpose: 

"It was felt that after Wilberg, that entries that have a 

longlife, possibly and probably for the life of my-- such as main 

519 
In a letter dated June 3, 1987 (Exs. C-1 and R-2), to MSHA 

District Manager John Barton, UPL's Mine Manager, John Boylen, 

requested MSHA approval to establish a bleeder evaluation point 

in 5EB and stated: 

"Roof conditions in the 5th East Bleeder have become 

hazardous to the extent that we feel it is not safe for 

the weekly examiner to travel from crosscut 20 to crosscut 

38. 10; We request approval to establish a bleeder evaluationpoint at 38 crosscut in 5th East Bleeder. Bleeder 

effectiveness will be evaluated weekly at crosscut 38 and 

the bleeder will be physically examined from crosscut 38 

to crosscut 45 and from crosscut 5 to crosscut 20. 

A revised page 26, Rev. 06-03-87, is included reflecting 

addition of 5th East Bleeder evaluation point. Once approved, this page supersedes the former page 26. Figure 

IV A should be added to the plan also as page 26.1. 

Your cooperation in this matter is appreciated." 11; 

(emphasis added) 

In response to this letter, MSHA Coal Mine Inspector Robert 

L. Huggins, visited the mine on June 23, 1987, to evaluate the 

5EB. He was accompanied by his supervisor, William E. Ponceroff, 

Jim Bailey, a company representative, and Don Cologie, a union 

representative. (IT. 17, 18). Upon completion of his inspection 

on June 23,· 1987, Inspector Huggins issued the subject Citation. 

The following day, June 24, 1987, Inspector Huggins returned for 

a closeout conference and advised UPL officials that the area in 

SEB between crosscuts 27 and 30 would not have to be resupported 

since he agreed that evaluation points should be established at 

each end of this smaller area (IT. 67-69). After abatement time 

was once extended, the conditions charged in the Citation were 

considered abated on July 20, 1987, after UPL installed 300-350 

footnote 9 con't 

air courses, gate entries, including -- and also bleeders, main 

haulage ways and other travelways, reassess the roof control in 

order to extend their life. So that those entries could serve 

the purpose for which they're designed was intended, or that that 

could be used as an alternate route of travel." CI T. 167) 

10/ The distance between crosscuts 20 and 38 is approximately 

1800 feet CIT. 27, 38). 

11/ This letter constitutes an admission. See Fn. 3. At the 

hearing, Mr. Boylen denied being aware of the Barton "Longlife 

Entry" memo (Ex. R-3), when he forwarded this June 3 letter to 

Barton (II T. 55-56). Mr. Boylen said he was prompted to write 

the letter when two subordinates, his longwall Superintendent, 

and his Safety Director (Randy Tatton) expressed concern about 

the entry on May 29, 1987 CII T. 56). 

520 
wood posts as supplemental support (IT. 64~66, II T. 77). Inspector Huggins was not aware of any UPL opposition to abatement 

on the basis .that the area was too hazardous to attempt abatement 

(IT. 66). Inspector Huggins described the roof and rib 

conditions he observed as follows: 

"A. In the Fifth East bleeder, we had roof breaking up 

between the cribs, coming across the entry. We had wire mesh 

from across the top of the cribs which was starting to sag down 

with stuff in it. Slabs of ribs had fallen off, pushing the 

cribs, causing them to belly out. And I think it was the 

crosscut 15 or 16, I'm not for sure -- but they .had a pump switch 

which was located in the crosscut with no additional supports to 

this crosscut; cable running up behind the cribs -- energized 

cable which they had used to energize the pump 25 crosscut of 

water. 

Q. Now, those were the conditions of the roof? 

A. Yes. Some of them, yes. 

Q. Did you observe the conditions as far as the ribs? 

A. Yes. Large slabs of ribs had fallen off. Some of the 

crosscuts had already fallen in -- the roof of the cribs. 

Q. Now, did the entry have any means of roof support? 

A. Yes, a double row of cribs. There was some additional 

support installed, if I remember right, between 27 and 30. 

Q. And did you get a chance to observe the condition of the 

cribs themselves? 

A. Yes. 

Q. An could you briefly describe the conditions that you 

found the cribs in? 

A. A lot of the cribs were crushed down; a majority of them 

were, especially on the right side, as we were walking in from 

walking toward the 40's in -- rather in the entry. The right 

side of the cribs were bellied out, crushed down. What I mean by 

bellied out, they were bowed in such -- I don't know how you 

would describe it -- more or less like a pregnant woman. And a 

lot of the blocks on top, instead of cribbing flush against the 

top of the block, they had a lot of blocks on top of them, quite 

a few wedges. On the fiber creek, the donut cribs, the ones that 

were crushing out had, like, four to six wedges. I didn't count 

them exactly; just wedged on the top. And then the ones that 

were staying good, had thicker blocks five to six inches on top 

of those. 

521 
Q. Was there any particular conditions present in the 

crosscuts of the bleeder entry that you observed? 

A. Yes. A lot of the crosscuts had fallen; quite a few 

were still hanging. You know, bad top in them with pieces 

hanging around the bolts, each down along both ribs "those ones 

out there that were starting, too. CI T. 19, 20) 

xxx xxx xxx 

"Q. Irrespective of the condition of the cribs, could you 

have issued a violation just on the condition of the roof and 

ribs itself? 

A. Yes. 

Q. And explain that, please. 

A. The roof itself was cracked out into the walkway over 

the wire mesh. No support coming between the roof bolts and mass 

that were in there also. The ribs itself were slammed down into 

the cribs and parts of it were coming out into the walkway." CI 

T. 64)." 

It is noted here that the problem in crosscut 15-16 near the 

pump switch was not specified in the Citation CIT. 78). 

Inspector Huggins felt the most hazardous area in SEB was 

between crosscuts 27 and 30 CIT. 31). When asked to explain why 

the entire bleeder was cited, he gave this explanation: 

"There was deep water back in here between 11 and 12, which 

we did issue a citation on. Some of the cribs back there were 

starting to roll. And it was later explained to management that 

the only ones outlined in those areas, the area we're talking 

about between 20 and 38, was to correct those ones out there that 

were starting, too." CI T. 31) 12/ 

On June 24, 1987, Gary s. Williams, a union safety 

committeeman who as a timberman had at one time built and 

installed cribs in 5EB, observed the entire length of the entry. 

He described the situation as follows: 

12/ Despite effort to obtain such at the hearing, Inspector 

Huggins did not, or was unable to, specify the areas that much in 

his general descriptions of roof and rib conditions applied teether than testimony relating to the area between .crosscuts 27 

and 30 CIT. 30-31, 41-42, 50-53, 55-56, 63-64, 69, 79-81). This 

was generally true of MSHA's witnesses. Further, with respect to 

the charges in the last two sentences of Section 8 of the 

Citation, no attempt was made by MSHA to determine the loadcarrying capacity of the cribs in SEB CIT. 86). 

522 
"A. Well, on vari_ous locations, the roof was cracked and 

fractured. There was a lot of coal in the cap rock laying in the 

mesh that was set above the screens. The ribs in a lot of places 

were butted into the crib line on both sides of the -- on the 

panel side and on the barrier side. 

Q. Did you -- Do you have an opinion as to whether the roof 

and ribs in the bleeder entry were being adequately supported? 

A. No. Other than the cribs being set down the middle of 

the entry, there was no provision made for any rib control at 

all. 

Q. Do you think the condition that you observed in the 

entry presented a hazard to anybody traveling into the -- in the 

area? 

A. Yes. There was approximately 300 to 400 feet of 

extremely bad top, which weekly examiner had to travel under. 

There was also bad ribs and bad top in and around the pump, in 

the location of the pump control where the upper fire boss 

examiner had to turn the pump on." CI T. 101, 102) 

<emphasis supplied) 

xxx xxx xxx 

Q. Okay. Had the cribs, in your opinion, from the time you 

set the cribs to the time you observed them again on June 24th, 

deteriorated? 

A. Yes. Quite a bit. 

Q. And could you explain what you mean by that? 

A. Well, there was a lot of cribs that had rolled severely 

toward the panel side. There was a lot of them that were crushed 

and broken out. Some just were rolled so bad that there was --

their way -- in my opinion, they were doing anything but just 

laying there CIT. 103)." 

Mr. Williams agreed with Inspector Huggins that the "worst" 

area was between crosscuts 27 and 30 CIT. 31, 102). 

The opinion of MSHA Supervisory Inspector William E. 

Ponceroff, who accompanied Inspector Huggins on the inspection, 

generally supported the opinions of Inspector Huggins and Mr. 

Williams that conditions in 5EB, particularly in the 27-30 

crosscut area, were hazardous (IT. 117, 119, 123-128. 150). 

His most specific, and thus probative, description of a 

hazardous condition in 5EB related to the area around crosscuts 

27-30: 

523 
Just in general, the cribs were in that specifically 27 

to 30 or right around that area that were crushing and 

similar to one of the photographs here. The ends were 

splitting. Some of the cribs were not installed so that 

all of the corners were against the top. There was some 

cases where they had the crib blocks in but there was 

wire. CIT. 117-118). 

In addition he felt that "some" of the so-called "donut" cribs in 

5EB had been improperly installed CIT. 118, 150, 160). 

Inspector Ponceroff indicated that prior to issuance of the 

Citation UPL had been advised as to procedures for requesting 

permission to install bleeder evaluation points CI T. 131-132, 

148). He explained that the Citation was issued on June 23, 

1987, ever;i though UPL had requested such permission (letter from 

Boylen to Barton dated June 3, 1987) because the area had already 

become hazardous. Thus, Inspector Pbnceroff testified: 

"A. The difference here is when we arrived, the area was 

hazardous. They hadn't taken the proper action to install the 

supports so that the area was no longer safe to travel through. 

If they had installed the cribs and additional support, and then 

the condition continue to worsen, that was the time then to get 

ahold of us and then-- while it was still safe for a man to walk 

through there. They could have put posts between the cribs to 

prevent those ribs from coming out and getting -- posts or donuts 

or clusters. They could have put donuts or more cribs. They had 

spaces in cases to put cribs in between those that had rolled 

severely and they had -- they could -- they had room to put 

donuts there. They had room to do that and still stagger posts. 

So they could have --" 

(emphasis supplied) CI T. 148) 

The cited conditions, including those in the 27-30 crosscut 

area, occurred gradually and would have taken one month to two 

months to have occurred CI T. 33, 105-106, 119, 139, 148, II T. 

18). 

Lee Smith, MSHA's roof control specialist, testified that 

afte·r a crib loses its vertical alignment against a bow-out or 

deform from the roof, it can reach the point where it is no 

longer supporting the roof and is a hazard-because after it 

attempts to roll out, it can be projected away from its original 

location at a high rate of.speed. CIT. 175). 

He also gave this expl~nation of the last sentence of the 

violation described in the Citation: 

"The majority of the crosscuts in the entry were not 

supported with cribs. They were supported all with the initial 

roof supporting installation, which was, we were told was five 

foot between the bottom of the ribs and the top of the roof mats. 

As that roof deteriorated in the crosscuts, and as it began to 

524 
weaken and sag, that roof would fall. So when it would fall, 

with no additional support in the crosscut, it would continue out 

toward the entry. Even if it did not enter the entry, it would 

expose roof strata to the weathering affects -- the weathering 

affects of the high humidity in the air, which would again weaken 

the area above the very entry that they're trying to support. On 

the other hand, we went into -- we went around the roof fall and 

around crosscut seven in by -- toward the fall, and we saw one 

crosscut in particular where the mine people had installed cribs 

and it had done its job. It had prevented the roof fall from 

extending out of the crosscut into the entry. So that's a clear 

demonstration that had they put cribs in the entry, it may not 

prevent all of the roof strata from sagging and separating, but 

it would have added additional support and probably extended the 

life of that bleeder entry." 

CI T. 179) (emphasis added) 

Dave D. Lauriski, Managing Director of Health, Safety and 

Training for UPL's Mining Division, testified that on the 

evening of June 23, 1987, after the Citation had been issued, he 

and Mr. Boylen examined the SEB. He conceded that they noticed 

some areas between crosscuts 27 and 30 "where the immediate roof 

had broken loose from the main roof, and was causing a sag in the 

chain link fence that had been put up" and he added: "but we also 

noticed a severe deformation to the crib due to convergence in 

that area." Mr. Lauriski testified that: "We did not really 

notice any other severe roof conditions, other than in the area 

of 27 to 30 •••• " CIT. 200-202). Mr. Lauriski and Mr. Boylen did 

not travel the entire SEB that evening CIT. 202). The following 

admission in Mr. Lauriski's testimony is also directly relevant: 

"Q. You mentioned that there were some conditions with 

immediate roof fall in certain areas in the area from 27 to 30 

crosscut. 

A. I did not see a roof fall. I saw where the immediate 

roof had broken loose from the main sandstone roof and was 

causing the material to be caught up by the chain link fence, but 

the chain link fence was in affect, bellying down, and in and of 

itself was ca~sing a hazard or could have caused a hazard to a 

miner. Beyond that, the area was under extreme convergence and 

was becoming very narrow, both in height and width." 

CIT. 203-204)(emphasis added) 

Mr. Lauriski also testified that "Outside of the area 27 to 

30 or 31 crosscut, I did not personally see in my opinion, 

conditions ••• from the roof that constituted a danger to the 

miners because.of a poor roof" CIT. 208). Finally, it was 

conceded that no danger sign had been put up in the area and that 

"those persons who were authorized" were free to travel in the 

area CI T. 214). 

525 
According to Mr. Lauriski, there was an indication in the 

weekly examiner's book about a week before June 23, 1987, "that 

there had been a small fall" in the area of the 27-30 crosscuts, 

and that "there had been some breaking away, the immediate roof 

into the chain link, and that there was a heed for some action." 

CI T. 222-223). 

UPL first became aware of roof problems in SEB in October of 

1986, at which time at the behest of Mr. Boylen, Morgan Moon 

(currently Director of Technical Services of UPL's mining 

division) was directed to monitor the area by walking it on a 

weekly basis (II T. 12-13). On Moon's recommendation, additional 

support was installed. Subsequently, .according to Boylen, UPL 

"really became concerned over the area converging together and 

becoming hazardous to travel for the mine examiner" and the 

June 3 letter was sent CII T. 13). Mr. Boylen explained why he 

requested MSHA approval to establish evaluation points even 

though he didn't think such approval was required (II T. 47-48): 

Q. When you say spirit of cooperation, did you -- did you 

think that you were required to send this letter? 

A. No. I didn't then and I don't now. I haven't done it in 

the past. 

Q. Weli, let's just step back a minute. Why did you think 

you were not required to send the letter? 

A. As I said, I haven't done it before. 

Q. When you say "It", what do you mean? 

A. I haven't asked for permission to establish evaluation 

points. 

Q. And 'what did you do instead in terms of setting up 

bleeder evaluation points? 

A. Weekly examiner; a lot of times it will inform us of the 

problem. And we would have it checked and just move the danger 

sign out ourselves. 13; 

Q. And did moving the danger sign and establishing the 

points, require in your view, approval of MSHA? 

A. No, ma'am, it does not. 

Q. But Mr. Boylen, in this letter, you say that "We request 

approval." Why did you say that if you didn't believe that you 

had to? 

13/ Prior to June 23, 1987, when the Citation was issued, no such 

danger sign in SEB had been put up, however. 

526 
A. That would be an oversight on my point. I read the 

letter and in my opinion, we don't have to ask for permission. 

But again, with the Wilberg situation and then the way everything 

went there, we had to ask for a lot of permission over there to 

do a lot of different things. And I think it was-- the letter 

was drafted and I overlooked it. 

(II T. 15-16)(emphasis added) 

Mr. Boylen indicated that the hazard he had in mind in the 

June 3 letter to Barton was "the convergence of the roof with the 

floor" 14; and that there were areas that were but three and half 

feet high (II T. 17). 15/ Significantly, he felt the "area" was 

getting worse week after week and that such became evident 

beginning in January 1987. He also felt that the degree of the 

hazard was not "imminent" CII T. 18). He was most concerned 

about the area between crosscuts 27 and 30, and when he inspected 

it on the evening of June 23, 1987, after the Citation had been 

issued, he thought "it would be too hazardous to try to put 

additional support" in this area (II T. 27). 

Mr. Boylen said his position was that if an .area becomes 

hazardous he would shut it down (II T. 25, 47), and that he would 

learn from the fireboss whether the area was not travelable CII 

T. 25). He also testified, however, when asked how hazardous the 

area was for a person walking through it, as follows: 

"I did not consider it eminent [sic]. If it would have 

been eminent ~sic], I would have shut it down immediately."~/ CII T. 18)./ 

14/ It should be noted, however, that in his June 3 letter, Mr. 

Boylen actually stated that "Roof conditions in the 5th East 

Bleeder have become hazardous, etc." In his testimony, Mr. 

Boylen also indicated that there was "more of convergence problem 

with the ground" than with the roof CII T. 49). 

15/ Although in this early portion of his testimony, Mr. Boylen 

considered the "hazard" to be the convergence of the floor-roof 

distance to 3 1/2 feet, he subsequently testified that such a 

"squeeze" was not an unusual situation for a bleeder entry CII T. 

58). 

16/ It goes without saying that for roof and rib conditions to 

infract Section 75.200, such do not have to be so hazardous as to 

constitute an imminent danger. While Mr. Boylen was probably 

speaking in the context of the convergence problem at this 

juncture, nevertheless, it is also a fair reading of the record, 

and I so find in connection with UPL's raising of the Colorado 

Westmoreland defense, infra, that the authority he mentioned to 

shut the area down, would not have been exercised unless a 

considerable hazard had developed (II T. 15, 18, 19, 23, 25, 27, 

28, 34, 47-49, 51-53, 56, 58, 60). 

527 . 
"Danger" signs had not been erected (I T. 207, 214) in any 

part of 5EB as of the time the Citation was issued, June 23, 1987. 

The area between crosscuts 27 and 30 was first dangered off 

thefollowing morning, June 24, 1987 (II T. 27, 28). 

5EB was scheduled to be permanently sealed on or about 

October 15, 1987 (II T. 1.7, 103) upon completion of the Seventh 

East Longwall panel. 

By letter dated July 15, 1987 (Court Ex. 2), Mr. Boylen 

requested inter alia that Mr. Barton approve an evaluation point 

at crosscuts 30 and 31 for evaluation of the 27-30 crosscut area. 

Such request was approved in a Barton-to-Boylen letter dated July 

17, 1987 (Court Ex. 3). 

Mine Superintendent Anthony c. Pollastro, testified that at 

the closeout conference he attempted to find out from MSHA 

representatives what crib conditions throughout the 5EB would 

constitute inadequacy: 

And basically asked what criteria they were talking about 

as far as the failure of the crib or ineffectiveness of 

a crib. At that time from the questioning in that, I was 

told that "Any crib that had rolled, needed additional 

support placed beside it." I asked "What are we talking 

about, what degree of roll?" And I searched around and 

finally I said "You mean anything that's out of a vertical 

plane, as far as a crib, needs additional support?" The 

answer was Yes. (II T. 74). 

Kevin F. Tuttle, UPL's Senior Safety Specialist, in this 

same connection, testified that at the closeout conference, 

Inspector Huggins indicated that any time a crib was "bowed" that 

it was ineffective (II T. 108-110). 

Pollastro, based on prior experience, disagreed with MSHA's 

position as stated at the closeout conference (II T. 75, 80) that 

cribs out of vertical alignment were defective or inadequate. 

Mr. Pollastro felt that the cribs in 5EB were "far superior to 

the timbers" that UPL abated the violation with, and that there 

was no need for additional support. He thus testified: 

As far as additional support or to warrant the citation 

that was given, I thought was quite ridiculous in that 

situation there. We had added additional support in the 

areas that we thought were needed or that the area that 

was yielding or converging. And some of the other area 

that they had cited or they talked about, or to cite the 

whole entry, was, I felt, quite ridiculous. (II T. 80). 

Morgan Moon, Manager of Technical Services for UPL, 

testified that in January 1986 (it is believed he meant 1987), he 

observed "deterioration" in 5EB, that in the vicinity of crosscut 

528 
30 the "deterioration" began to accelerate as the longwall went 

by, that there were "some roof falls" and "pressure on the 

cribs", that the entry was in a "convergence mode" and that 

supplemental support in the form of additional cribs and donut 

cribs were installed to help stabilize the area CII T. 218, 221). 

He conceded that somewhere between crosscuts 25 to 32 there were 

areas where the immediate roof had separated, and small layers of 

broken rock had come down between the cribs and the wire mesh 

(II T. 221). Mr. Moon agreed that "roof fall hazard" has much 

more serious consequences than convergence (II T. 222). With 

respect to the nature of cribs, Mr. Moon, a mining engineer (Ex. 

C-2) gave this significant testimony: 

When the pressure comes on in the case of a crib, you'll 

see that crib begin to deform. It may roll some. You 

may get some differential compaction within crib blocks 

theirself. And it will -- From appearances, it looks 

like it's all out of vertical and horizontal alignment 

and it is. This is not uncommon in cribs and that is the 

main design of cribs. They are placed there because 

they're a fairly large structure. They have large load 

carrying capacities. And they resist ground movement 

within certain limitations. They do not fail rapidly because they are designed to converge and yield and still 

maintain a large load carrying capacity. (II T. 223) 

Mr. Moon indicated that cribs are used in 5EB because of 

this ability to compress (decrease in height} and still· maintain 

a "very large load carrying capacity." (II T. 224, 225-228). 

Mr. Moon was of the opinion that all of the cribs in 5EB 

except those in the 27-30 crosscut area were functioning properly 

(II T. 229-231, 237, 272). He had traveled 5EB from October 1986 

to June 1987 (II T. 256). In connection with abatement, he indicated that there "really was no need to place any cribs", and 

with respect to 5EB areas other than the 27-30 crosscut area, he 

said that since abatement the majority of that area had not taken 

any weight, the installation of timbers was "purely cosmetic" and 

that the cribs were functioning properly CII T. 272). 

In answer to the question how it can be ascertained when 

roof is in good condition, Mr. Moon replied: 

You don't see any roof fall material in the walkway. The 

wire mesh is flush against the roof. The mats are flush 

against the roof. The bolts are in find shape. I think 

this is a -- It's normal that people look at a crib, and 

they assume that the crib problem is caused by roof conditions. This is not the case the majority of the time in our 

mines. It's due to bottom heave and the pressures applied 

from the bottom. In fact, the roof is in sound -- sound 

shape and you don't have a problem with it. 

529 
Q. Is that also true of the Fifth East bleeder? 

A. That's true with the Fifth East bleeder. 

(II T. 246-247). 

With respect to the effectiveness of cribs which did not 

contact the roof with all four top corners, Mr. Moon gave this 

incisive explanation: 

A. The effectiveness of a crib in an eccentrically loaded 

condition --

Q. What does eccentrically loaded mean? 

A. That means the load is not vertically applied or the 

crib is not in an absolutely vertical condition. Eccentrically loading, or a crib that's tilted, does not appreciably 

lose any load carrying capacity .within the ranges that we 

see underground. This is just published by the US Bureau 

of Mines. They've done some testing at their Pittsburg 

Research Center. And there is a paper out now that will be 

published very shortly~ and they substantiate this with full 

scale model testing in their mine roof simulators, where 

they actually displaced the cribs and loaded them and 

showed there was actually very little load carrying capability lost due to this condition in the cribs or the 

loading mechanisms. (II T. 251-252) 

In reference to the charge in the Citation that the 

crosscuts next to 5EB "have no additional supports" and are 

"riding into the bleeder entry pushing out the cribs", Mr. Moon 

testified that leaving the crosscuts unsupported relieves stress 

on the entry and that there was no reason for anyone to leave the 

entry travelway to go into the crosscuts (II T. 245-246, 249). 

When asked about his role in the preparation of the Boylen 

letter of June 3, Mr. Moon gave this testimony: 

The Court: Now, when you say you conferred, tell me -- So 

you did have something to do with the letter being written? 

The Witness: Not the actual letter. They said "Why don't 

you go take a look at it? Tell us what you think." We walked it. 

I said "Yes. The convergence is continuing. This area is 

starting to look a little tough. I don't think there's any 

eminent (sic) danger of collapsing. The condition seems to be 

migrating both out-by and in-by. And it probably will continue 

to do so until we get the panel pulled and the area sealed." 

The Court: Explain the out-by and in-by. 

The Witness: Out-by refers to going towards 

530 
The Court: No, no, no. You know, I mean --where's your 

reference point there? 

The Witness: From the 27 to 30 crosscut. 

The Court: Okay. 

The Witness: In-by in other words, an area that was 

starting to exhibit what abnormal convergence or it was a 

migrating thing; and also out-by -- for a ways, there was an area 

there that was showing signs of convergence and a deterioration 

of cribs. 

The Court: Okay. So you did report that to Mr. Barton. Did 

you know he was going to write that letter? 

The Witness: Yes. I knew that he had planned on 

establishing a monitor point. (II T. 269-270) (emphasis added) 

Dr. J.F.T. Agapito, holding a doctorate in rock mechanics 

(See Ex. C-9) was called as an expert witness by UPL. He is 

president of J.F.T. Agapito & Associate, Inc., a consulting firm 

(Ex. C-10) in the areas of technical engineering and mining 

engineering among other fieldi..,.CII T. 276). 17; He indicated 

expertise in pillar and crib stability (II T-.-277, 279). His 

examination of the Cottonwood mine and preparation for the 

hearing occurred in July 1987. CII T. 280-281, 288). 

Based at least partly on a study of crib deformation 

(lateral displacement where the top and bottom of the tested crib 

become displaced in relation to each other as much as 12 inches) 

by the U.S. Bureau of Mines (Ex. C-12; II T. 284-287) Dr. Agapito 

reached the important and convincing conclusion that cribs can 

undergo very large deformations and still retain their strength. 

He also concluded that deformed cribs in 5EB- which he referred 

to as cribs which were "unsymetrically loaded" (meaning that each 

of the four corners was carrying a different load) -- maintained 

a "very high strength" CII T. 302-303, 326). 

Dr. Agapito's ultimate conclusion was that the cribs in SEB 

were effective to maintain stability for the life of SEB CII T. 

302, 311-312, 319, 332, 333, 341-343, 363). He described the 

basis for this conclusion: 

I based that evaluation on actual measurements of the same 

type of cribs, and the same size of cribs in the same seam, 

done at the Plateau Mine. That's very relevant because 

I repeat myself; the wood is the same type of wood, the 

17/ 3 of UPL's expert witnesses were mining engineers, Moon, 

Pollastro, and Agapito. 

531 
seam is the same type -- is the same seam; and the deformations that we measure are on the same order of the roof 

and floor deformations that we are measuring at UP&L. 

(II T. 302). 

Dr. Agapito's opinion was aided by comparative in-situ 

measurements taken between cribs at a mine owned by Plateau 

Mining Company and UPL's Deer Creek Mine which is adjacent to the 

subject Cottonwood Mine and similar to it in terms of depth, 

stresses and relationship to the longwall CII T. 294, 295, 314, 

328). Measurements of cribs in 5EB were not taken, however, due 

to insufficient time to do so CII T. 306). 

with respect to the third sentence of the charge in the 

Citation that the crosscuts next to 5EB "have no additional 

supports" and are "riding over into the bleeder entry pushing out 

the cribs", Dr. Agapito said he "didn't see anything like that" 

and that the stresses --from the crosscuts-- were not riding into 

the entries. This opinion was based on computer analyses (II T. 

345-346). 

Discussion, Ultimate Findings, and Conclusions 

The evidence pertaining to allegedly violative conditions in 

5EB divides somewhat into two general segments-- that relating to 

hazardous conditions in the area of crosscuts 27-30, and that 

relating to the adequacy of cribs in the remaining areas of the 

4000-foot length of 5EB. 18; The question of pressure and 

stresses from the unsupported crosscuts "pushing out the cribs" 

in 5EB (charged in the 3d sentence of the alleged violation) 

seems to relate more to a cause of alleged 5EB crib inadequacy 

than to constitute an independent•charge of violation. 

In Secretary v. Canon Coal Company, 9 FMSHRC 667 (1987) the 

Federal Mine Safety and Health Review Commission set forth a 

general explanation of the standard involved here and the 

approach to be followed: 

Section 75.200 which reflects section 302(a) of the Mine 

Act, 30 u.s.c. § 862Ca>, is a mandatory safety standard 

of central importance in the crucial regulatory area of roof 

control in underground coal mines. With respect to the 

requirement in section 75.200 that roof and ribs "be supported or otherwise controlled adequately," this standard 

is expressed in general terms so that it is adaptable to 

myriad roof condition and control situations. See generally Kerr-McGee Corp. , 3 FMSHRC 2496, 2497 (November 1981). 

18/ In view of the flaws in some of the evidence in terms of 

specificity, clear articulation, and supportive measuring and 

testing (particularly on the MSHA side), this decision should be 

seen as pertinent only to the matter at hand and not particularly 

authoritative in other matters. 

532 
Questions of liability for alleged violations of this broad 

aspect of this standard are to be resolved by reference to 

whether a reasonably prudent person, familiar with the 

mining industry and the protective purpose of the standard, 

would have recognized the hazardous coridition that the 

standard seeks to prevent. Cf. Ozark-Mahoning Co., 8 FMSHRC 

840, 841-42 (May 1983); U.S. Steel Corp., 5 FMSHRC 3, 5 

(January 1983); Alabama By-Products Corp., 4 FMSHRC 2128, 

2129 (December 1982). Specifically, the adequacy of particular roof support or other control must be measured 

against the test of whether the support or control is what 

a reasonably prudent person, familiar with the mining industry and protective purpose of the standard, would have 

provided in order to meet the protection intended by the 

standard. We emphasize that the reasonably prudent person 

test contemplates an objective -- not subjective -- analysis 

of all the surrounding circumstances, factors, and considerations bearing on the inquiry in issue. See, e.g., Great 

Western, supra. 5 FMSHRC at 842-43; U.S. Steel, supra. 5 

FMSHRC at 5-6." 

Proving that reasonably prudent persons can differ, there 

was strong disagreement between UPL expert witnesses and 

officials and those of MSHA on the general question of the 

adequacy of the cribs in 5EB. Any disagreement as to the 

hazardous nature of the roof and rib conditions in the area of 

crosscuts 27-30 was not sharply etched, and these two questions 

are discussed separately. 

A. The 27-30 Crosscut Area. 

It is useful to keep in mind that the situation for this 

area (and for that matter, the other areas of 5EB) on June 23, 

1987, when the Citation issued was (a) MSHA approval for the 

establishment of bleeder evaluation points had not been granted 

Cb) the area had not been dangered off by ropes or by installation of "Danger" signs, and (c) miners were being permitted to 

work in (travel through) the area. 

Although MSHA's evidence was general, UPL's Director of 

Health, Safety and Training candidly and commendably conceded the 

existence in the 27-30 crosscut area of specific severe roof 

conditions (set forth in detail above) which he further conceded 

would constitute a hazard to miners. I also consider, in 

conjunction therewith, the Boylen letter of June 3 to constitute 

an admission of hazardous roof conditions in this general area. 

By all accounts, the 27-30 crosscut area was the most severe in 

SEB and UPL officials were aware of the deterioration (a 

"gradual" process) going on in the entry generally for a period 

of several months (from at least October 1986) prior to to 

issuance of the Citation. Significantly, UPL's Manager of 

Technical Services, who monitored the deterioration in 5EB for a 

period of several months prior to issuance of the Citation, 

testified: 

533 
Q. Now, after you wrote -- After the letter of June 3rd 

1987 was written to the District Manager, was additional 

supports put in the 27 to 30 crosscut? Did you continue 

to put in additional supports? 

A. Not to my knowledge. It was our opinion that we would 

discontinue traveling the bleeder and establish a monitoring point. 

Q. But I take it a man did travel that area up until --

on a weekly basis up until the time the citation was issued? 

A. That's correct, I believe. 

Q. But you did -- After the letter, you did stop putting 

any additional supports in between 27 and 30? 

A. To my knowledge, we did, yes. 

(II T. 257-258). 

Thus, while UPL had hopes of establishing bleeder evaluation 

points to cover this area, and ultimately intended to close down 

and permanently seal the 5EB some 4 months from the date the 

Citation issued, it evidently had not barred miners from this 

area or dangered it off. It is therefore concluded on the basis 

of this record that the roof and ribs in 5EB between crosscuts 27 

and 30 which were observed by Inspector Huggins on June 23, 1987, 

had not been adequately supported and this area was hazardous and 

not adequately controlled when cited CI T. 30, 31, 33-36, 41, 64, 

67-68, 102, 110, 117-119, 136, 139, 145, 148, 150, 200, 201, 

202-204, 207, 208, 211, 212-213, 214, 222, II T. 28, 48-49, 51, 

59-60, 86, 221, 257, 366-367, Exs. C-1, R-6). Two persons were 

exposed to the hazards in this area of 5EB, the person who 

conducted the weekly examination and the "pumper" who was 

described by the inspector as the person who "goes in and pumps 

water out" CI T. 32, 88) approximately one to three times a week. 

Accordingly, a violation of 30 C.F.R. § 75.200 is found to 

have occurred as charged in the first sentence of Section 8 of 

the Citation. 

I am unable, however, to conclude that the entire area 

between crosscuts 20-38 (specifically mentioned in the Boylen 

letter of June 3) was hazardous either from defective cribs or 

from other unsafe roof/rib conditions because of Cl) the lack of 

probative .evidence and C 2) my resolution of conflicts in the 

opinion evidence discussed in various parts of this decision (By 

way of further illustration, see dialogues at I T. 31-32 and 

53-56). 

Finally, it is mentioned that UPL, in addition to some 

contentions it has now abandoned (noted above), has raised other 

arguments. One is that: 

534 
natural convergence caused by vertical pressures is 

not covered by Section 75.200, ie.e., convergence in the 

5th East.bleeder was not a roof control problem and did not 

create the kind of roof and rib fall hazards addressed by 

the regulation." (Contestant's brief, pg. 19). 

While there was a problem with convergence in 5EB, there was 

also a problem with inadequate support in the area of crosscuts 

27-30 as charged by MSHA. The fact that there was a problem with 

the floor rising to meet the roof, does not alter the fact that 

there existed the violation charged by MSHA. While the effect, 

i.e., convergence itself, can be the hazard, convergence can also 

be a cause-or con~ributing cause-of violative roof and the rib 

conditions. I find no merit in this contention of UPL's and it 

is rejected. 

B. Remainder of 5EB---Crib Adequacy 

The essence of the second and third sentences of Section 8 

of the Citation involves the adequacy of cribs. As pointed out 

in MSHA's brief, the "major dispute at the hearing concerned the 

adequacy of the wooden cirbs which were being used as secondary 

support in the 5th East bleeder entry." 

Proving such allegation of "inadequate" support (or 

inadequate controls) requires evidence as to what type of support 

or controls a reasonably prudent person would install under the 

circumstances. Quinland Coals, Inc., 9 FMSHRC 1614 (1987); U.S. 

Steel, supra. This "reasonably prudent person" test mandates an 

objective, not subjective, analysis of all the su~rounding 

circumstances and factors. I take it that one facet of this 

analytical approach is that even though it may have been reasonable for the issuing Inspector to believe a violative hazard 

existed from eyeballing a troublesome situation in the mine, that 

if further testing, analysis, informational input and informed 

judgment establishes that such was not a hazard the initial 

determination must be set aside. The adequacy of particular roof 

support must be measured against what the reasonably prudent 

person would have provided in order to afford the protection 

intended by the standard. Southern Ohio Coal Company v. 

Secretary, supra. 

Here, as fairly pointed out in UPL's brief, every mining 

engineer (all of whom were UPL witnesses) who testified at the 

hearing was of the opinion that the cribs throughout 5EB were 

effective to support the entry. In addition, Mr. Lauriski, while 

candidly conceding the hazardous roof conditions in the 27-30 

crosscut area, was of the opinion that there were no dangerous 

conditions outside that area. There was evidence presented 

indicating that the issuing inspector felt that cribs were inadequate because they were out of vertical alignment (deformed). 

UPL firmly and convincingly rebutted this proposition through 

witnesses who evinced a greater familiarity with 5EB conditions 

535 
and crib behavior than MSHA's as well as the well-documented 

testimony of its expert, Dr. Agapito. His conclusions were based 

on empirical testing of cribs identical to those at the subject 

mine under mining conditions more adverse than at the subject 

mine, and also on tests conducted by the Bureau of Mines. I find 

such opinions of a higher quality and entitled to greater weight 

than opposing views based solely on visual examination and 

diminished in other ways noted herein. UPL's evidence that the 

cribs in 5EB were not inadequate due to deformation (and 

compression), being the more persuasive, is accepted. 

MSHA's opinion evidence as to crib adequacy generally (and 

as to any single crib) was not supported by measurements or any 

type of testing. Although such evidence from MSHA inspectors is 

generally and in the abstract entitled to considerable weight, 

when challenged by better supported, higher quality opinion 

evidence, it is subject to rejection. MSHA's evidence was exceedingly vague and general. No specific crib (or cribs) was 

pin-pointed or described in such a way that opinion evidence 

could be directed to it or them. Nor did MSHA show the number of 

cribs out of the approximately 1200 cribs in the entry, that 

could actually be said to be defective, ineffective, or hazardous. 

Where descriptions of conditions were relatively vivid, the 

locations of such were usually not ascertainable, and vice versa. 

Scrutiny of the record thus does not produce substantial, 

reliable or probative evidence that locations other than the 

27-30 crosscut area were in violation. The brief and general 

summary of its witnesses' testimony in MSHA's brief Cpgs. 5 and 

8) is a fairly accurate representation, and perhaps fallout from, 

the testimonial imprecision of their accounts. Thus, the 

references are to "many of the cribs", "in various locations" 

"others", "cribs" "in the crosscut areas" and "areas". 

Since the evidence of UPL's witnesses successfully rebutted 

that of MSHA's, to the extent that generalities can be dealt 

with, it is concluded that it was not established by the preponderance of the reliable, probative evidence that other than in 

the 27-30 corsscut area, the cribs in 5EB, or any single crib, 

deformed or otherwise, at the time the Citation was issued, did 

not maintain sufficient load-carrying capacities sufficient to 

adequately support the entry. 

Remaining Issues 

Three remaining matters (raised by UPL in this matter and 

litigated) remain to be discussed, UPL's contention that it has 

the right to unilaterally establish bleeder evaluation points 

without MSHA approval, the "greater hazard" defense, and vagueness of the charges. 

536 
(1) Evaluation Points. 

Although in its supplemental brief, UPL sought to remove the 

"unilateral right to establish evaluation points" issue, it 

nevertheless made the argument in its initial brief that its 

intent to and attempt to establish evaluation points was part of 

its effort to take remedial measures to correct the violative 

conditions and thus any violation should be excused under the 

rationale of Colorado Westmoreland, Inc., 4 FMSHRC 194 (1982) 

CUPL Brief, pgs. 25, 26). This contention was not removed in its 

supplemental brief. The question was extensively litigated and I 

have previously concluded that the regulation seems clearly to 

contemplate MSHA approval for the establishment of evaluation 

points (See Fn. 4). Upon consideration of this question, I 

conclude that Colorado Westmoreland, supra, is inapplicable to 

the facts of this case, since, contrary to the situation there, 

UPL was dilatory in seeking to establish evaluation points. 19/ 

The position of MSHA which is well stated in MSHA's brief, i"S"° 

here adopted: 

Besides contesting the actual conditions stated in the 

citation, UP&L views this case as a vehicle to limit the 

role of MSHA's District Managers in approving mine ventilation and roof plans. UP&L contends that 30 C.F.R. 

75.316-2(f)(3) permits an operator at his option to elect 

to have a bleeder evaluation point established in lieu of 

maintaining a bleeder entry in travelable condition. Thus, 

UP&L would merely notify MSHA that it is establishing an 

evaluation point. By taking the language of 30 C.F.R. 

75.316-2(f)(3) totally out of its intended context as part 

of the approval criteria, UP&L seeks to distort the regulatory scheme. As indicated in the first sentence of 

section 75.316-2, "this section set out the criteria which 

District Managers will be guided in approving a ventilation 

system and dust control plan on a mine by min~ basis. As 

criteria to be used as guidelines by the District Manager 

in the plan approval process, the regulation cannot supercede the mandatory language of 30 C.F.R. 75.200 which requires mine operators to support all active areas where men 

19/ The record makes some case for the proposition that UPL may 

have been failing to install additional adequate support, or 

delaying such, because the entry would ultimately be closed by 

convergence or permanent sealing CI T. 105-106, 136-137, 179; II 

T. 27, 45-47, 49, 53, 58, 59-60, 78, 98-99, 101, 104-105, 257, 

270, 366). See fn. 16. It was conceded that Inspector Ponceroff 

had advised UPL's personnel "to anticipate" the problems when he 

instructed them on the procedures for requesting approval to 

establish evaluation points (II T. 98, 101). 

537 
are required to work or travel. Only after the District 

Manager exercises his approval function and approves a 

specific bleeder evaluation point as an addition or amendment to an existing ventilation plan is the mine operator 

permited [sic] to examine for hazardous conditions from 

that point. Taken to its logical conclusion, UP&L 1 s reading of the regulation could remove every bleeder entry in 

their mines for being traveled by mine examiners. It 

would condone and encourage an operator's neglectful maintenance of bleeder entries. This result was not the intent 

of 30 C.F.R. 75.316-2(f). The criteria assumes that an 

operator has undertaken full and constant efforts to maintain roof and rib conditions in its bleeder entry. Only 

after those vigorous efforts have failed and rehabilitation 

is likely to be unsuccessful should an operator seek permission to establish a bleeder evaluation system. In such 

a situation, District Managers have authority to approve 

the request. Here, the District Manager properly denied 

the request for all but the area between crosscuts 27-30. 

Furthermore, it appears that UP&L's June 3, 1987 letter 

addressed to MSHA's District Manager, requesting approval 

to establish a bleeder evaluation point at Crosscut 38 

undermines their legal position on this issue. The letter 

is the best evidence of UP&L's clear intention to seek 

MSHA's approval to revise its present plan, and not to 

merely inform MSHA that it had taken unilateral action. 

UP&L continued to require the weekly mine examiner to 

travel entirely the bleeder entry to examine for hazardous 

conditions." 

UPL's assertion of the Colorado Westmoreland defense is 

found to lack merit and is denied. 

(2) "Greater Hazard" Defense. 

As noted hereinabove, UPL, in its Notice of Contest (and by 

letter of August 14, 1987) alleged that should it be found that 

certain cribs in 5EB were not providing adequate support, the 

hazard of achieving abatement-- by setting additional posts or 

other means-- would be greater than leaving the area undisturbed. 

I conclude that UPL has abandoned this defense since it was 

not raised or argued in its post-hearing brief, and also since it 

was npt mentioned as an issue at the hearing (IT. 59-60). It is 

further noted Cl) that UPL's representatives did not raise the 

question when it discussed with MSHA officials how to proceed to 

abate the Citation CIT. 66), (2) that during the closeout 

conference it was made clear that the area between 27-30 crosscuts would not be required to be supported since conditions had 

become too hazardous there CIT. 67), and (3) that UPL apparently 

had no trouble in its abatement efforts (II T. 75-79). 
In any event I am unable to find in this record, evidence which 

meets the three-prong test for establishing this defense, to wit: 

Cl) the hazards of compliance are greater than non-compliance; 

(2) alternative means of protecting miners are unavailable; and 

(3) a modification proceeding under section 101Cc) of the Mine 

Act would not have been appropriate. Penn Allegh Coal Co. Inc., 

3 FMSHRC 1392 (June 1981). See also Sewell Coal Co., 5 FMSHRC 

2026 (December 1983). ~- -~-

For these various reasons, any such defense is found to lack 

merit and is rejected. 

C3) Vagueness. 

In its Notice of Contest, UPL initially, and I think justifiably, raised the contention that the Citation was too vague to 

sufficiently inform UPL of the charges. The problem with general 

allegations and testimony carried through MSHA's entire case and 

has been noted and discussed throughout this decision. In the 

final analysis, it has had much to do with the conclusion that 

the charges in the last two sentences of Section 8 of the 

Citation were not established. 

ORDER 

\ 

Section 8 of Citation No. 3043248, consisting of three 

sentences wherein the description of the alleged violation is set 

forth, is modified: 

Cl) so that the first sentence thereof reads as follows: 

"The travelway in the 5th East bleeder between crosscuts 

27 and 30 is not adequately supported to protect 

persons from falls of roof and ribs"; and 

(2) to strike the second and third sentences thereof. 

As modified, Citation No. 3043248 is affirmed. 

"ffi6~£ d. ~--£--- Y2._ 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Susan E. Chetlin, Esq., Crowell & Moring, 1001 Pennsylvania 

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

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Representative of Miners, 

Company, Mining Division, ;bc1

eftif ied Mail> 

Cottonwood Mine, Utah Power & Light 

P.O. Box 310, Huntington, UT 84528 

539 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 111988 

RUSHTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND hEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND hEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. PENN 86-44-R 

Order No. 2404261; 11/5/85 

Rushton Mine 

Mine I.D. 36-00856 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-92 

A.C. No. 36-00856-03554 

Rushton Mine 

DECISION ON REMAND 

Before: Judge Broderick 

On this case, the Commission reviewed my decision 

insofar as it related to order 2404227 issued under section 

104(d) (2) of the Act and alleging a violation of 30 C.F.R. 

§ 75.1434(a) (2). On March 22, 1988, the Commission affirmed 

my conclusion that a vioiation occurred, and reversed my 

conclusion that it resulted from Rushton Mining Company's 

(Rushton's)unwarrantable failure to comply with the mandatory 

standard. Rushton Mining Company, 10 FMSHRC (1988). 

The proceeding was remanded to me for reconsideration of 

the civil penalty. 

Rushton is a large operator. It had a moderate history 

of prior violations. The violation here was promptly abated 

in good faith. The violation was moderately serious and 

resulted from Rushton's ordinary negligence. Considering 

these conclusions under secti~n llO(i) of the Act, I believe 

that $375 is an appropriate penalty for the violation 

found. 

540 
ORDER 

Rushton is ORDERED TO PAY within 30 days of the date 

of this decision the sum of $375 for the violation of 

30 C.F.R. § 75.1434(a} (2) charged in order 2404227 (modified 

by the Corrunission to a 104(a) citation). 

Distribution: 

l iu.£5 /WJ:~~e;f James A. Broderick 

Administrative Law Judge 

R. Henry Moore, Esq., Buchanan Ingersoll Professional Corp., 

600 Grant Street, 58th Fl., Pittsburgh, PA 15219 (Certified 

Mail) 

Joseph T. Kosek, Jr., Esq., P.O. Box 367, Ebensburg, PA 

15931 (Certified Mail) 

Covette Rooney, Esq., U.S. Department of Labor, Office of 

the Solicitor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

slk 

541 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 131988 

U. S. STEEL MINING CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING CO., INC., 

Respondent 

CONTEST PROCEEDING 

Docket No. PENN 86-305-R 

Order No. 2685834; 8/28/86 

Maple Creek Mine 

Mine I.D. 36-00970 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-241 

Maple Creek Mine 

DECISION 

Appearances: Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor; 

Billy M. Tennant, Esq., Pittsburgh, Pennsylvania, 

for U.S. Steel Mining Co., Inc. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

U.S. Steel filed a notice of contest, challenging an order 

of withdrawal issued on August 28, 1986, charging an 

unwarrantable failure violation of 30 C.F.R. § 75.400. The order 

alleged that there were accumulations of loose, fine coal in 

certain locations in the subject mine •. In the penalty 

proceeding, the Secretary seeks a civil penalty for the alleged 

violation. Because the two proceedings involved the same alleged 

violation, they were consolidated for the purposes of hearing and 

decision. Pursuant to notice the consolidated cases were called 

for hearing in Pittsburgh, Pennsylvania, on January 14, 1988. 

Inspector Francis Wehr testified for the Secretary; Paul Gaydos, 

Barry Kovell, and Robert Bryan testified on behalf of U.S. Steel. 

542 
Both parties have filed posthearing briefs. I have considered 

all the evidence and the contentions of the parties, and make the 

following dec~sion. 

FINDINGS OF FACT 

U.S. Steel was the owner and operator of the Maple Creek 

Mine, an underground coal mine located in Washington County, 

Pennsylvania. The mine is classified as a gassy mine, and 

liberates over one million cubic feet of methane in a 24 hour 

period. For this reason, it is subject to a 103(i) spot 

inspection every five days. U.S. Steel produces over 9 million 

tons of coal annually, and the subject mine produces almost 

2 million tons annually. The subject mine was assessed for 

571 violations in the 24 months immediately preceding the 

issuance of the order involved in this proceeding, of which 69 

were violations of 30 C.F.R. § 75.400. 

On February 4, 1986, a 104Cd) order (2683120) was issued to 

U.S. Steel charging a violation of 30 C.F.R. § 75.400. The 

assessment for this violation was paid. On April 15, 1986, a 

104(d)(2) order of withdrawal (2680602) was issued charging the 

same violation. There is no evidence in the record of any 

further 104(d) orders issued thereafter prior to the order 

contested in this proceeding. Between July 22, 1986 and 

August 26, 1986, Federal Mine Inspector Francis Wehr issued seven 

104Ca) citations alleging violations of 30 C.F.R. § 75.400 in 

various locations at the subject mine. Inspector Wehr stated 

that during this period he discussed the mine's failure to clean 

up the loose coal with management representatives. 

On August 28, 1986, Inspector Wehr was engaged in a regular 

safety and health inspection of the subject mine. He found 

accumulations of loose coal in nineteen different locations along 

the 7-Flat, 13-Room belt conveyor. The accumulations varied in 

depth from 1 to 16 inches, in width 16 to 17 feet, and in length 

from 10 to 12 feet. The accumulations were for the most part 

wet, and some of them were actually under water. But in two 

locations (splits 8 and 10), the loose fine coal accumulations 

were dry. The bottom undu~ated, so that portions of the other 

accumulations extended above the water and were dry or drying. 

Because of this condition, Inspector Wehr issued the 104(d}(2} 

order involved in this proceeding. Witnesses for U.S. Steel 

disputed the testimony of Inspector Wehr that some of the 

accumulations were dry. I accept the testimony of Inspector Wehr 

which was supported by his contemporaneous notes CGovt's Ex. 2). 

The accumulations were of such an extent that they must have 

taken 3 to 4 months to occur. The areas involved had been 

rockdusted. The Inspector did not take a methane reading. At 

the time the order was issued, the belt conveyor was energized 

543 
and a power cable 5 to 6 feet above the accumulations of coal was 

hung on J hooks. Prior to the issuance of the order, the 

operator was in the process of cleaning up coal spilled at the 

"front end 6f the belt conveyor entry." 

Inspector Wehr testified that the mine was on a "104(d)(2) 

chain." He stated that he checked the mine file prior to 

beginning the inspection to determine this. The mine is 

inspected quarterly, the first quarter being October, November 

and December. Inspector Wehr testified that he began his 

quarterly inspection during which the order here was issued on 

June 1, 1986. It appears, however, that in fact it began on 

July 1, 1986. He also testified that it took approximately 

3 months to completely inspect the mine. 

The condition was abated by miners shovelling the coal on to 

the belt and loading it out. The abatement took approximately 

four to six days. Because the accumulations were for the most 

part very wet, it was necessary to build dams on the belt with 

bags of rock dust to keep the coal from falling off. There is no 

evidence of any defects in the belt rollers or cable at the time 

the order was issued. 

REGULATION 

30 C.F.R. § 75.400 provides as follows: 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electrical equipment 

therein. 

ISSUES 

1. Did the violation charged in the contested order occur? 

Specifically, did the cited accumulations consist of combustible 

material? 

2. Did the Secretary show that there was no "clean 

inspection" of the mine between the time of the last 104(d) order 

and the order contested herein? 

3. If a violation is established, was it the result of the 

operator's unwarrantable failure to comply with the standard? 

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

substantial? 

544 
5. If a violation is established, what is the appropriate 

penalty? 

CONCLUSIONS OF LAW 

VIOLATION 

The existence of the accumulations in the areas cited in the 

contested order is not seriously disputed. U.S. Steel contends, 

however, that they were not combustible because of the water in 

the area. But I have found as a fact that in at least two areas, 

the accumulations were dry. Further, even wet accumulations of 

loose coal are combustible. The Commission directly addressed 

this issue in Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 

(1985): 

Even if, as Black Diamond asserts, the accumulation was 

damp or wet, it was still combustible. For example, in 

the case of a fire starting elsewhere in a mine, the 

heat may be so intense that wet coal can dry out, 

ignite and propagate the fire. 

I conclude that the accumulations here were combustible, and that 

a violation of 30 C.F.R. § 75.400 is established. 

INTERVENING CLEAN INSPECTION 

Section 104Cd)(2) of the Act requires that after a 

withdrawal order has been issued under section 104(d)(l), another 

withdrawal order be issued for "similar violations" found on a 

subsequent inspection, "until such time as an inapection of such 

mine discloses no similar violations." The burden of proof is 

placed on the Secretary to establish that all areas of the mine 

were not inspected for all hazards during the time period in 

question, in this case, between April 15, 1986 and August 28, 

1986. Kitt Energy Corp., 6 FMSHRC 1596 Cl984), aff'd sub nom. 

UMWA v. FMSHRC, 768 F.2d 1477 (D.C. Cir. 1985); U.S. Steel Corp., 

6 FMSHRC 1908 (1984). The Secretary introduced evidence that 

MSHA's records indicated that the subject mine was on a 

"104Cd)(2) chain," but failed to show that a "clean inspection" 

had not occurred during the four month period from April 15 to 

August 28, 1986. The Commission and the Court of Appeals ruled 

that an intervening clean inspection is not limited to a regular 

quarterly inspection so long as the entire mine is inspected for 

all hazards. Inspector Wehr testified that it takes 

approximately three months to inspect the entire mine. I 

conclude therefore that the Secretary failed to establish in this 

case that a clean inspection did not occur between April 15 and 

August 28, 1986·. Therefore-104(d)(2) order was improperly issued. 

545 
The underlying violation, however, survives the vacation of a 

104(d) withdrawal order. Kitt Energy, supra. 

UNWARRANTABLE FAILURE 

In Emery Mining Corp., 9 FMSHRC 1977 (1987), the Commission 

stated that "unwarrantable failure means aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act." The inspector in this 

proceeding cited the violation as unwarrantable because the same 

violation had been cited a number of times in other areas of the 

mine, and the operator had been instructed to clean up 

accumulations. These other areas CS-Flat and 9-Flat), however, 

were both dry sections. The area cited here (7-Flat) was 

extremely wet, and water continued to come in from the bottom, 

ribs and roof. The operator believed (erroneously) that because 

the accumulations were wet, and cleaning them up was extremely 

difficult, it was not required to clean the~ up. The condition 

resulted therefore not from negligence but from the operator's 

willful conduct. This is not to say that it willfully violated 

the standard, but that it willfully failed to clean up the 

accumulations which it was aware of but "didn't consider ••• 

enough of a hazard to clean up." (Tr. 98.) I conclude that the 

violation resulted from the unwarrantable failure to comply with 

the standard. 

SIGNIFICANT AND SUBSTANTIAL 

A violation is properly cited as significant and substantial 

if it contributes to a safety hazard reasonably likely to result 

in serious injury. Mathies Coal Co., 6 FMSHRC 1 (1984). The 

accumulations here were substantial, but were largely extremely 

wet. Although they were combustible; they were not reasonably 

likely to contribute to the hazard of a mine fire. Although the 

mine is gassy, there is no evidence of methane present, and no 

evidence of any defect in the cable or other electrical equipment. 

I conclude that the violation was not shown to be significant and 

substantial under the Mathies test. 

PENALTY 

Although the violation was not shown to be significant and 

substantial, it was moderately serious because of the extent of 

the accumulations, the gassy condition of the mine, and the 

presence of energy sources. It was caused by the operator's 

willful conduct. The operator is a large operator, with a 

significant history of prior violations. The violation was 

abated in good faith. Based on all of the above findings, and 

considering the criteria in section llOCi) of the Act, I conclude 

that an appropriate penalty for the violation is $600. 

546 
ORDER 

Based on the above findings of fact and concludions of law, 

IT IS ORDERED: 

Cl) Order of Withdrawal 2585834 issued August 28, 1986, is 

MODIFIED to a 104{a) citation; 

(2) Within 30 days of the date of this decision, U.S. Steel 

Mining Company shall pay the sum of $600 as a civil penalty for 

the violation of 30 C.F.R. § 75.400 found in this decision. 

Distribution: 

, , 

_,, I ·/ , ./ 

,.J..f,t/V'-A--&:5 /f(J t J)ck/:/7-(/'-._ 

~ ~ames A. Broderick 

Administrative Law Judge 

Billy M. Tennant, Esq., U.S. Steel Mining Co., Inc., 600 Grant 

St., Rm. 1580, Pittsburgh, PA 15230 {Certified Mail) 

Linda M. Henry, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market St., Philadelphia, PA 19104 {Certified 

Mail) 

slk 

547 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 14 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

M & J COAL COMPANY, INC., 

Respondent 

DECISION 

Docket No. WEVA 87-199 

A.C. No. 46-06225-03533 

Docket No. WEVA 87-200 

A.C. No. 46-06225-03534 

Mine No. 1 

Appearances: William T. Salzer, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA, 

for Petitioner: 

w. Henry Lawrence IV, Esq., and Louis E. Enderle, 

Esq., Steptoe & Johnson, Clarksburg, WV, for 

Respondent. 

Before: Judge Fauver 

These are consolidated civil penalty proceedings in which 

the Secretary of Labor alleges violations of safety standards 

under the Fede+al Mine Safety and Health Act of 1977, 30 C.F.R. 

§ 801 et ~ 

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 

Citation 2699438 - WEVA 87-199 

1. On November 16, 1986, at 3:20 p.m., MSHA began an 

investigation at Respondent's No. 1 Mine, in response to a report 

of a mine fire. MSHA Supervisor Raymond Ash was informed of the 

mine fire by John Markovich, superintendent of M & J Coal 

Company, by phone at 2:22 p.m., on November 16. Mr. Markovich 

informed Mr. Ash that the fire was located approximately 300 feet 

inby the opening to the mine. Mr. Ash issued a § 103Ck> order, 

closing the mine subject to an investigation of the fire by 

representatives of the Secretary. 

2. An MSHA representative arrived at the mine site around 

3:00 p.m. with methane and carbon monoxide detectors, and safety 

548 
gear. At that time, Mr. Markovich revised his statement 

regarding the location of the fire, placing it 1000 feet inby the 

pit mouth. 

3. MSHA assisted Respondent on November 16 and thereafter 

by using carbon monoxide and methane detectors to test for the 

presence of explosive gases, providing technical assistance 

regarding the methods of building fire seals, providing 

self-contained oxygen equipment to individuals fighting the fire 

to protect them against smoke inhalation, providing expertise in 

testing the mine roof, which can weaken during a fire, providing 

a back-up team in the event of injury to the individuals fighting 

the fire, and by providing expertise in recommending the 

installation of additional phones for better communication. 

4. Beginning November 11, and each day from November 11 

through November 15, Mr. Markovich or C.J. Tharp, mine foreman, 

or both, observed smoke along the roof above the No. 1 tailpiece 

and No. 2 head drive. The smoke had a "sooty smell." The smoke 

originated from within the underground mine and was not drawn in 

from outside the mine. Respondent did not notify MSHA of a mine 

fire until November 16. 

5. On November 11, Respondent's Mine No. 1 was not in 

production. The only persons who entered the mine on 

November 11 were Superintendent John Markovich and General 

Foreman C. J. Tharp. Mr. Markovich and Mr. Tharp entered the 

mine to check the operation of certain "stand pumps." 

6. On November 11, Mr. Markovich and Mr. Tharp observed 

pockets' of white or gray smoke along the mine roof near the No. 1 

belt tail piece and No. 2 belt head. Mr. Markovich testified 

that he initially thought the smoke might be coming from a trash 

fire outside the mine near the mine intake fan. He investigated 

outside the mine but found no indication of a fire near the 

entrances to the mine. 

7. Mr. Markovitch testified that, when he saw no evidence 

of a fire near the mine entrances, he began to suspect that a gob 

pile 100 to 200 feet from the pit mouth of the mine might be 

smoldering. On November 13 or 14, he ordered a D-6 caterpillar 

bulldozer brought in to doze the pile to see whether or not the 

gob pile was burning and producing smoke that might be pulled 

into the mine by the ventilation fan. He testified that they 

discovered that the gob pile was burning and producing smoke, and 

he ordered that the gob pile be dozed until the burning material 

was uncovered and extinguished. That operation took place on 

November 14, 1986. 

8. The smoke in the mine did not dissipate after the dozing 

of the gob pile near the pit mouth and ventilation fan. 

Mr. Markovitch testified that he then began to suspect that the 

mine smoke (that was found each day) might be caused by a fire in 
a gob pile that was owned by another company and lay on the 

surface over the area mined by M & J Coal Company. He testified 

that he thought that if there were a fire in that gob pile it 

might be forcing smoke into the mine through cracks in the coal 

seam, and that on November 15, in an attempt to test this theory, 

he caused three bore holes to be drilled through the gob pile and 

into the mine in order to sample the gob pile strata. The 

samples of the material brought up by the drill showed no 

evidence of burning or hot material in the gob pile. 

9. On November 15, Mr. Markovich and Mr. Tharp continued to 

see white or gray smoke along the mine roof, deep within the 

mine. 

10. Mr. Markovitch testified that on November 16, for the 

first time, he observed £lames and dense black smoke in Mine No. 

1 and immediately notified MSHA. 

Order 2710147 - WEVA 87-200 

11. On January 2, 1987, MSHA Inspector Richard Herndon 

inspected the No. 1 coal conveyor belt tail roller and the No. 2 

coal conveyor belt drive and head roller. These were aligned so 

that coal would move from the No. 2 belt onto the tailpiece of 

the No. 1 belt. The No. 2 head drive supplied power and torque 

to move the No. 2 conveyor belt. 

12. The tailpiece of No. 1 conveyor housed a 20-inch 

diameter tail roller that rotated while the conveyor was in 

operation and extended 8 inches out from the tail piece. There 

was no guard over the roller; the exposed section of'the tail 

roller was about 30 inches long, an area of about 290 square 

inches. The top of the tail roller was about knee level. 

13. The head roller was about shoulder height and was 

20 inches in diameter. It also was unguarded. The head roller 

was connected to the drive rollers by a conveyor belt, which also 

was not guarded. The length of e~posed belt between the drive 

rollers and head roller was about 12 faet. 

14. The drive motor for the No. 2 belt was provided with a 

gear guard, but the two drive rollers extended about four inches 

above the guarded motor and were exposed. These drive rollers 

rotated while the belt was in operation. 

15. Individuals could accidentally come into contact with 

the above unguarded rollers and belt when they were in operation. 

16. A walkway, with a maximum width of two feet, was 

adjacent to the No. 1 and No. 2 belts. It was used by persons 

coming to clean, monitor or service the belts. Persons using the 

walkway would be exposed to a hazard of slipping and falling into 

the belt drive, tail roller, drive rollers, or other exposed 

550 
moving parts. If an individual came into contact with such 

moving parts he or she could become entangled or pulled into the 

machinery causing a serious injury or even a fatality. At the 

time of inspection, the walkway was wet and slippery; this 

condition increased the likelihood of a slipping and falling 

accident. 

17. No guards were provided for any of the rollers on the 

tight side of the No. 1 and No. 2 belts. Within reasonable 

probability, individuals assigned to perform clean-up or service 

operations on the tight side of the belts could have an accident 

and come into contact with a roller. 

18. The conveyor belts were used between.November 16 and 

the time of the inspection {January 2, 1987) to move supplies, 

such as parts, concrete blocks and bags of concrete, for the 

construction of fire seals. workers who traveled near the belts 

were exposed to the unguarded moving parts. The mine was not in 

production during that period. 

19. Respondent paid civil penalties for 20 violations from 

October 25, 1985, through November 15, 1986. No citations were 

issued during the above period for violations of 30 C.F.R. § 1722 

or 30 C.F.R. Part 50. Of the 20 citations, 15 were assessed as 

significant and substantial violations. No violations were 

charged in 1984. 

20. Respondent's Mine No. 1 produced 34,470 tons of coal in 

1985 and 38,171 tons in 1986. 

DISCUSSION WITH FURTHER FINDINGS 

Citation 2699438 

On November 11, 1986, Respondent discovered white or gray 

smoke deep within its Mine No. 1. It did not notify MSRA of a 

mine fire. It checked outside the mine to see whether local 

residents were burning trash near the intake fan entrance to the 

mine. There was no indication of a trash fire. Respondent still 

did not notify MSHA of a mine fire. Over the next several days, 

Respondent investigated a number of possible sources of a fire 

outside the mine, without contacting MSHA. On November 16 

Respondent saw flames and black smoke deep within the mine and 

notified MSHA of a mine fire. By that time, Respondent had a 

major mine fire on its hands; the fire continued to burn, and it 

was not until January, 1987, that the fire was sealed off and 

controlled so that part of the mine could be re-opened for mining. 

After the fire was reported-to MSHA, MSHA provided substantial 

technical and safety assistance to Respondent to investigate, 

seal off and control the fire. 

The regulations provide that a mine operator "shall 

immediately contact ••. MSHA" if an "accident occurs" {30 C.F.R. 

551 
§ 50.10) and define reportable accidents to include "an unplanned 

mine fire not extinguished within 30 minutes of discovery" 

(§ 50.2(h)(6)). 

I conclude that smoke, with a sooty smell, found deep within 

an underground coal mine is a reportable mine fire within the 

meaning of the regulations if its source is not discovered and 

extinguished within 30 minutes. After Respondent saw smoke in 

the mine, and checked outside the fan entrance to the mine, but 

saw no evidence of an external £ire, it was clear that it would 

not be able to discover the source of the smoke and extinguish it 

within 30 minutes of discovery. Therefore, Respondent had a 

clear duty to notify MSHA of a mine fire on November 11 and on 

each of the following days through November 16. 

I do not agree with MSHA's alleg~tions of low gravity and 

low negligence as to this violation. I find that Respondent 

showed gross negligence on November 11 by failing to report smoke 

found deep within its mine. 

This was a serious violation, because it jeopardized the 

safety of persons who might enter the mine after the smoke was 

first discovered. This could include Federal or state inspectors 

or other persons in addition to the two men who in fact entered· 

the mine at various times from November 11 through November 16. 

By failing to notify MSHA immediately, Respondent attempted to 

arrogate to itself the authority to exclude MSHA from 

investigating a mine fire, providing technical and safety 

assistance and, if needed, giving directions to protect the 

safety of persons attempting to discover the source of the fire 

and to extinguish or control it. 

Considering Respondent's size, compliance history, and the 

other criteria in § llOCi) of the Act, I find that a civil 

penalty of $400 is appropriate for this violation. 

Order 2710147 

Respondent contends that the regulation cited in this order 

(30 C.F.R. § 75.1722) does not apply to unguarded machine parts 

that are not moving or energized at the time of the inspection. 

I reject this narrow interpretation of the standard. A 

preponderance of the credible evidence shows that from 

November 16, 1986, until the time of the inspection, in January, 

1987, Respondent operated the conveyor belts without the required 

guards to transport parts and equipment to seal or control the 

mine fire. Personnel were exposed to serious hazards of 

accidental contact with moving, exposed machinery parts, as shown 

in the Findings of Fact. The risk of injury was accentuated by 

the existence of a narrow walkway, with a maximum width of two 

feet, alongside the head and tail rollers and the fact that the 

walkway was also slippery and wet, creating a reasonably high 

risk of slipping and falling into or against the exposed moving 

552 
machine parts. I uphold the allegation of a "significant and 

substantial" violation. · 

I also uphold the allegation of an "unwarrantable" 

violation. The guards were not provided for a substantial 

period, from at least November 16 until the time of the 

inspection, January 2, 1987. The violative conditions were 

visible throughout that time and should have been corrected by 

Respondent before the January 2 inspection. 

Considering all of the criteria for civil penalties in § 

llO(i) of the Act~ I find that a civil penalty of $450 is 

appropriate for this violation. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jursdiction in these 

proceedings. 

2. Respondent violated 30 C.F.R. § 50.10 as alleged in 

Citation 2699438. 

3. Respondent violated 30 C.F.R. § 1722 as alleged in Order 

2710147. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation 2699438 and Order 2710147 are AFFIRMED. 

2. Respondent shall pay the aoove civil penalties in the 

total amount of $850 within 30 days of this Decision. 

3. The parties' motion at the hearing to approve a 

settlement·concerning Citations 2710148 (civil penalty of $85), 

2710149 (civil penalty of $85), and 2710151 (civil penalty of 

$58) is GRANTED, and Respondent shall pay those additional 

penalties (a total of $228) within 30 days of this Decision. 

Distribution: 

' ';; ;) \ J--- ~Wl'I.- / ti,L-t vi-""l--

lliam Fauver 

Administrative Law Judge 

William T. Salzer, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

553 
w. Henry Lawrence IV, Esq., Steptoe & Johnson, Union National 

Center East, P.O. Box 2190, Clarkesburg, WV 26302-2190 (Certified 

Mail) 

554 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

UNITED MINE WORKERS OF 

AMERICA ON BEHALF OF 

DONALD SHEEDER, 

TERRY MILLER AND 

DAN KUT RUFF, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 20, 1988 

COMPENSATION PROCEEDING 

Docket No. PENN 88-123-C 

Benjamin No. 1 Strip 

Complainants 

v. 

BENJAMIN COAL COMPANY, 

Respondent 

Before: Judge Merlin 

ORDER OF DISMISSAL 

The United Mine Workers of America, on behalf of complainants, has filed a motion to withdraw its complaint filed 

in this case on the grounds that complainants have been 

compensated for the time they were idled. 

Accordingly, the motion is GRANTED and this case is 

DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Joyce A. Hanula, Legal Assistant, 900 15th Street, N.W., 

Washington, OC 20005 (Certified Mail) 

Mr. John B. Martyak, Manager, Personnel/Safety, Benjamin Coal 

Company, La Jose, PA 15753 (Certified Mail) 

I g 1 

555 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND hEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BECKLEY COAL MINING CO., 

Respondent 

APR 211988 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-46 

A.C. No. 46-03092-03678 

Beckley Mine 

ORDER OF DEFAULT 

Before: Judge Broderick 

On December 14, 1987, the Secretary of Labor filed a 

petition to assess civil penalties for alleged violations 

of the Federal Mine Safety and Health Act of 1977. Respondent 

did not file an answer to the petition. 

On February 25, 1988, an order was issued to Respondent 

to show cause why it should not be deemed to have waived 

its right to a hearing and why the proposed order of assessment 

issued by the Secretary should ·not sun;unarily be issued as 

the final order of the Conunission. On March 4, 1988, Respondent 

filed "an informational response" to the order to show cause, 

advising that Respondent had filed a petition for reorganization 

under the Federal Bankruptcy Act. Respondent stated that 

it had been directed not to defend this proceeding. On 

March 8, 1988, the case was assigned to me. On April 8, 1988, 

Petitioner filed a Motion for Default Judgment. Respondent 

has not replied to the motion. 

Therefore, IT IS ORDERED that Respondent is IN DEFAULT. 

It is UFRTHER ORDERED that the penalties proposed in the 

Assessment Orner attached as Exhibit A to the petition in the 

total amount of $750 are imposed as the final order of the 

Commission. IT IS FURTHER ORDERED that Respondent shall 

pay such penalties in the amount of $750 within 30 days of 

the date of this order. 

,iM.£ t ffirotfbn t/_ 

James A. Broderick 

. Administrative Law Judge 

556 
Distribution: 

Sheila K. Cronan, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203 

(Certified Mail) 

Edward Hall, Esq., Robinson & McElwee, P.O. Box 1580, Lexington, 

KY 40592 (Certified Mail) 

slk 

557 

\ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

RICHARD B. CURTIS, 

Complainant 

v. 

U.S. FUEL COMPANY, 

Respondent 

Before: Judge Lasher 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

APR 221988 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. WEST 88-99-D 

DENV CD 88-1 

By letter to me dated April 12, 1988, the Complainant, 

Richard B. Curtis, indicated his desire to "discontinue" his 

case on the basis that he had received legal advice indicating 

that the basis thereof was "contractual." 

Pursuant to this Commission's Procedural Rule 11 C29 CFR 

2700.11) a party may withdraw a pleading at any stage of a 

proceeding with the approval of the Commission or the Judge. 

Accordingly, good cause having been shown therefor, 

Complainant's letter is construed to be a motion to withdraw, 

such is granted, and this proceeding is dismissed. 

Distribution: 

P$~-~-?' ~· ~&~-fa - Michael A. Lasher, Jr. 

Administrative Law Judge 

Mr. Richard B. Curtis, 1632 Airport Road, Price, UT 84501 

(Certified Mail) 

Mr. Joseph H. Abbott, Manager, Industrial Relations, United 

States Fuel Company, P.O. Box A, Hiawatha, UT 84527 

(Certified Mail) 

/ot 

558 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JAMES NAPIER, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 221988 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 88-99-D 

v. 

No. 10 Mine 

SHAMROCK COAL COMPANY, INC., 

Respondent BARB CD 88-03 

ORDER OF DISMISSAL 

Before: Judge Fauver 

Complainant's motion to dismiss his complaint is 

GRANTED, and this proceeding is DISMISSED. 

cJdt~ William __ fct_-qver ~VfA. Administrative ~~Vl__Judge 

Distribution: 

Neville Smith, Esq., Smith & Smith, 110 Lawyer Street, Manchester, 

KY 40962 (Certified Mail) 

Larry F. Sword, Esq., 209 American Federal Building, 107 S. Main 

Street, P.O. Box 1222, Somerset, KY 42501 (Certified Mail) 

Charles J. McEnroe, Esq., P.O. Drawer 10, Somerset, KY 42501 

(Certified Mail) 

kg 

559 
FEDERAL MINE SAFETY AND HEALTH REVIEW- COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 221988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL CO., 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. VA 87-27 

A.C. No. 44-04856-03521 

Buchanan No. 1 Mine 

DECISION 

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

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

for Petitioner; Michael R. Peelish, Esq., 

Consolidation Coal Co., Pittsburgh, P1mnsylvania, 

for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Sectetary of Labor .(Secretary) seeks a civil penalty for 

a~ alleged violation of 30 C.F.R. § 50.20(a) for failure to 

properly report an occupational injury occurring August 25, 1986, 

resulting in a lost workday. Respondent, Consolidation Coal Co. 

(Consol), denied the alleged violation. The parties agreed to 

submit the case for decision on the depositions of the injured 

miner, Timothy Smith, and Federal Mine Inspector 

Kenneth Shortridge., the exhibits submitted at the depositions, an 

affidavit of the superintendent of the subject mine, Joseph Aman, 

and the computer printout of Consol's assessed violation history 

from March 1, 1986 to February 29, 1988. CI do not know the 

relevance of these dates, but since the parties have agreed on a 

penalty amount if a violation is found, it is unimportant.) 

On April 5, 19 88·, the Secretary filed a Motion for Summary 

Judgment with a Memorandum in Support of the Motion. On 

February 11, 1988, Re~pondent tiled a Response in Opposition to 

the Motion. I have considered the entire record and the contentions of the parties and make the following decision. 

560 
FINDINGS OF FACT 

Consol was the owner and operator of an underground mine in 

Buchanan County, Virginia, known as the Buchanan No. 1 Mine; 

Timothy Smith was employed at the subject mine as a miner. Smith 

worked the midnight shift as a general inside laborer. On 

August 25, 1986, at about 1:45 a.m., Smith's right little finger 

and thumb were injured when his hand was caught between two 

timbers. He left the mine and was driven to the Buchanan General 

Hospital. He was examined there by Dr. Yusuf Chanbhry. The 

diagnosis was fracture of the right hand fifth finger. He 

applie~ a splint and referr~d Smith to an orthopedist, 

Dr. Bendigo. Dr. Chanbhry stated that Smith was disabled for 

work and would be able to return to light work September 1, 1986, 

and to regular work September 15, 1986. Smith was driven back to 

the mine from Buchanan General, arriving between 4 and 5 a.m. 

The shift foreman told him to clean up and go home. However, 

Smith rode to and from work with two other miners, so he waited 

in the car for them. He was unable to sleep because the car was 

uncomfortable and his finger (thu..~b?) nail was throbbing. The 

shift ended at 8:00 a.m. and they left the mine about 8:45 or 

9:00. Smith arrived home at about 9:30 or 9:45. He ate breakfast and called Dr. Bendigo's office. He received an appointment 

to see him at 2:00 p.m. the same day, and was instructed to have 

an x-ray taken at about 1:00. 

Smith then went to bed and slept about an hour and a half. 

He drove to the office where the x-ray was taken, and then to 

Dr. Bendigo's office. He was seen by Dr. Bendigo at about 3:00 

p.m •. The doctor put a cast on the hand running up to within 

about 3 inches of the elbow. He also drilled two srnall holes in 

the thumb nail which relieved the discomfort in the thumb. Smith 

was also given a prescription for pain medication, and told to 

return "in a couple weeks." He drove home, arriving at about 

5:00 p.m. After eating dinner, he decided to call his supervisor 

to tell him he would not be in because he had not had much sleep. 

He called his shift foreman but was unable to reach him, so he 

called his utility foreman Chis "immediate boss") and told him he 

would not be in. He did not tell him why. The foreman, who was 

aware of Smith's injury, merely said "okay." Smith testified 

initially that he merely told the utility foreman that he would 

not be in ("I just told him I wouldn't be in. And he said, 

'okay'"). (Smith dep. 19) Later he testified that he told him 

he was going to take a "Consol day." (Smith dep. 22) It was 

Smith's normal practice to leave home for the mine at about "a 

little after 10:00 p.m.," and he would arrive at the mine about 

11:00 or 11:15. He normally slept from about 10:00 a.m. to 5:00 

or 6:00 p.m., a total of at least seven hours. 

561 
Smith began working at the subject mine in June 1986. When 

he was hired he was told that he would have two days off per year 

(known as "Consol days") which he could take whenever he wanted 

"as long as it didn't interfere with the company." Advance 

notice is not required, but a request to take a Consol day must 

be cleared with the shift foreman who has responsibility for 

ensuring that he has sufficient manpower on his shift. Consol 

does not provide sick leave, and at the time of his injury, Smith 

had not worked long enough to have earned vacation days. 

When Smith returned to work the following day, the shift 

foremall asked if he could have worked the previous day. Smith 

stated that this was "the first time I had been confronted with 

the idea, that I sort of felt why is he asking me. And I said 

'yes' • " (Smith dep. 31) Smith continued wor.king. He made an 

appointment to return to Or. Bendigo, but did not keep it since 

he removed the cast himself and his finger "felt fine." 

In April 1987, Federal Mine Inspector Kenneth Shortridge 

conducted a Part 50 audit at the subject mine, and reviewed the 

form 7000-1 submitted by Consol on Smith's injury. He asked why 

Smith did not work on the shift following the injury and was told 

that Smith had been up all day, asked for and was granted the 

next day off. Smith issued a 104(a) citation charging a violation of 30 C.F.R. § S0.20(a) because the form submitted by Consol 

indicated that the injury did not cause any lost workdays. 

REGULATION 

30 C.F.R. § S0.20(a) provides in part: 

* * * Each operator shall report each accident, 

occupational injury, or occupational illness at the 

mine • • • in accordance with the instructions and 

criteria in§§ 50.20-1 though 50.20-7. 

30 C.F.R. § 50.20-7Ca> provides in part that the operator 

shall: 

• • • Enter the number of workdays • • • on which the 

miner would have worked but could not because of 

occupational injury or occupational illness. The number of 

days away from work shall not include the day of injury 

••••• If an employee loses a day from work solely 

because of the unavailability of professional medical 

personnel for initial observation or treatment and not as a 

direct consequence of the injury or illness, the day should 

not be counted as a day away from work. 

562 
ISSUE 

Whether the absence of an employee from work on the day 

following an occupational injury because necessary medical treatment on the day of the injury resulted in his loss of sleep 

constitutes a day away from work because of the occupational 

injury? 

CONCLUSIONS OF LAW 

Consol is subject to the provisions of the Mine Safety Act 

in the~operation of the subject mine, and I have jurisdiction 

over the parties and subject matter .of this proceeding. The 

facts in this case are clear and uncomplicated. A miner received 

~ ~ignificant injury to his hand at work. He was given initial 

medical treatment and referred for specialist treatment. As a 

result of the referral, he was awake during nearly all -of the 

period when he usually slept. In fact, he slept for about one 

and a half hours. Because of his lack of sleep, he decided to 

take the following day off, although he testified that he could 

have worked. The employee's opinion that he could have worked is 

of some significance, but is not conclusive. In fact he did not 

work, and his failure to work is related to the injury because it 

is related to the m~dical treatment which was necessary because 

of the injury. I conclude that the employee's absence from work 

on August 26, 1986, resulted from his occupational injury on 

August 25, 1986. 

The fact that the employee regarded the day off as a 

"Consol" day and that Consol so recorded it, is, of course, not 

determinative, or even relevant in deciding the issue whether the 

day away from work resulted from the injury. 

Consol seems to argue that the day away fro1n work resulted 

from the unavailability of professional medical personnel for 

initial observation and treatment and therefore should not be 

recorded as a day away from work resulting from the occupational 

injury. I do not so interpret the facts. Professional medical 

personnel were available for initial observation and treatment. 

Whether or not the referral to the orthopedist was part of the 

initial observation and treatment, the lost work day did not 

result from the unavailability of the orthopedist. The orthopedist was available. The lost work day resulted from the time 

spent receiving treatment and diagnosis, including necessary 

travel, all of which resulted in a loss of sleep. Therefore, I 

conclude that the lost workday resulted from the loss of sleep, 

which resulted from the necessary medical care which resulted 

from the injury. It should have been reported as a day away from 

work because of the injury. The citation properly charged a 

violation of 30 C.F.R. § 50.20(a). 

563 
The parties have stipulated that if I find a violation, the 

proposed penalty of $200 is an appropriate penalty under the 

statutory criteria. I accept the stipulation. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, the Secretary's Motion for Summary Decision is GRANTED; 

Respondent is ordered to pay within 30 days of the date of this 

decision the sum of $200 for the violation found herein. 

/"') , 

j u ~t.L-5 ~:f ;-cdA/l&):., 

James A. Broderick ,, Administrative Law Judge 

Distribution: 

Page H. Jackson, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Michael R. Peelish, Esq., Consolidation Coal Co., Consol Plaza, 

1800 Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

slk 

564 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

HOMESTAKE MINING COMPANY, 

Respondent 

April 25, 1988 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-114-M 

A.C. No. 05-00413-05517 

Bulldog Mountain Operations 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

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

for Petitioner; 

Charles W. Newcom, Esq., Sherman & Howard, Denver, 

Colorado, 

for Respondent. 

Before: Judge Morris 

This case is before me under Section 105(d) of the Federal 

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

"Act") to challenge the issuance by the Secretary of Labor of a 

citation charging Homestake Mining Company, ("Homestake") with 

violating the regulatory standard at 30 C.F.R. § 57.18025. 

A hearing on the merits took place in Denver, Colorado on 

December 2, 1987. The parties filed post-trial briefs. 

Jurisdiction 

As a threshold matter Homestake asserts its mine is not 

subject to the Act. Specifically, the uncontroverted evidence 

shows the Bulldog mine ceased all production on January 29, 1985. 

As a result it does not meet the definition of a "coal or other 

mine" under Section 3(h)(l) of the Act. In addition, even if it 

is deemed to be a "mine" this operation did not have products 

entering commerce and thus falls outside the coverage of Section 

4 of the Act. 

Discussion 

The evidence in this case shows that Homestake, an 

underground gold and silver producer, has its principal place of 

business in California. In addition, it has at least two mines 

in Colorado (Bulldog Mountain Operation and North Amethyst 

Project). Further, Homestake's legal identity report shows it 

has a 20% or greater interest in 23 other mines (Ex. R4, R6). 

565 
These factors establish that Homestake is clearly subject to 

the Act and, as a matter of law, its activities affect commerce. 

Homestake's narrow issue here concerning jurisdiction is 

that that the Bulldog mine had ceased all production almost 22 

months before MSHA issued its citation. Homestake cites no 

persuasive authority in support of its view. l; Once an operator 

is subject to the Act its coverage does not cease at one of its 

individual mines merely because production stopped at that 

location. Contrary to Homestake's contention the Bulldog 

operation continued to be a 11mine 11 1 otherwise, why did the 

company direct its supervisor to maintain the pumps? Under Homestake' s defense a miner would be protected one day during production but not the following day when production ceased. 

However, the Commission has clearly ruled that "[t]he Act provides an expansive definition of a "mine" which Congress stated 

must be given the 'broadest possible interpretation', with doubts 

resolved in favor of inclusion" Cypress Industrial Minerals 

Corp., 3 FMSHRC 1 (1981). 

For the foregoing reasons Homestake's motion to dismiss for 

lack of jurisdiction is denied. 

The regulation involved here provides as follows: 

UNDERGROUND ONLY 

§ 57.18025 Working alone. 

No employee shall be assigned, or allowed, or be required 

------to perform work alone in any area where hazardous conditions exist that would endanger his safety unless his 

cries for help can be heard or he can be seen. 

Findings of Fact and Discussion 

At the outset it is necessary to consider whether Homestake' s supervisor was "working alone" under conditions where his 

cries for help could not be heard or where he could not be seen. 

If this is determined in the affirmative it is then necessary to 

consider whether "hazardous conditions" existed in the areas 

where he was working. 

The uncontroverted evidence on the "working alone" issue is 

established by Homestake employee Bobby Rae Webb and confirmed by 

MSHA Inspector Lyle Marti. 

BOBBY RAE WEBB, experienced in mining, was Homestake's chief 

electrician and foreman on December 10, 1986 when the contested 

1/ Oatville Sand and Gravel Co., 5 FMSHRC 400, 405 (1983) merely 

holds that a mine in the process of shutt1ng down still remains 

subject to the Act. 

566 
citation was issued at the Bulldog mine (Tr. 21-26, 115, 117, Ex. 

R 7). 

After production stopped on January 29, 1985, Webb was 

responsible for maintaining the mine and its pumps. No one 

worked for him at the mine (Tr. 29). However, one hundred fifty 

miners had been employed at the mine before production stopped 

(Tr. 29). 

The 480 volt three phase insulated and protected pumps, the 

subject of Webb's inspection, consisted of two deep well pumps, 

one MRV pump and one fly pump. The cables carrying the 

electricity for the pumps were located on the same travelways 

used by Webb. When production terminated the company was shorthanded and Webb personally began checking the pumps. He would 

check the pumps on Monday and Friday (Tr. 30-34, 103, 104, 112). 

Webb's procedure was to advise Bev Larson, the company's 

Secretary in the main off ice, that he was going underground. She 

was located half a mile from the mine and if something happened 

she could send someone looking for him (Tr. 37). Usually Webb 

would say he'd be back in two hours. When he came back out Webb 

would advise her that he had returned. Occasionally Webb would 

also advise Don Rolfe he was going underground. 

After advising Ms. Larson of his intentions Webb would get 

his cap-lamp and tag out. Thereafter he'd start the main fan, 

part of the ventilation system (Tr. 40, 86). There was also 

natural ventilation in the mine (Tr. 41). 

Webb would then start the compressors to build up 125 pounds 

of air pressure in the piping system. This supplied air to the 

hoist and the air doors CTr. 43). 

During his tenure at the Bulldog mine the hoists have, on 

occasion, malfunctioned but no malfunction occurred during the 

time Webb inspected the pumps. The logs for the hoist probably 

weren't up to date. In addition,· there have been power outages 

in certain parts of the mine (Tr. 142, 143, 146). 

Depending on whether he rode the locomotive or a bike it 

took five to ten minutes to go from the portal to the hoist, a 

distance of about 5000 feet. At the hoist another air compressor 

was started. If a power failure occurred the compressors would 

shut off (Tr. 44, 45). 

After waiting a few minutes for a pressure buildup from 

compressed air Webb would descent 360 feet in the hoist to the 

9000 foot level (Tr. 46, 88). He would then exit the hoist and 

go approximately 5000 feet to inspect the furthest water pump 

(Tr. 48). He would then return on an electric locomotive to the 

next pump station 3000 to 4000 feet away (Tr. 49, 50). 

567 
Webb wore rubber boots and the pumps were submerged in water 

CTr. 51, 105). 

To reach the third pump it was necessary to leave the main 

drift and go 400 or 500 feet down a crosscut CTr. 52, 53). Webb 

could usually do his "tour" in less than two hours, normally 85 

minutes (Tr. ·54, 55). 

After the stripping of the mine had been completed there 

were no other miners in the mine during Webb's inspections. In 

addition, no one could see or hear him'!:_! (Tr. 56). 

The routes taken by Webb were travelways and under normal 

operating conditions you could expect to see other miners in 

these areas (Tr. 66, 76, 77). But even when the mine was active 

it could be much longer [than two hours] before someone would 

come looking for the individual checking the pumps (Tr. 110). 

The telephones were stripped out of the mines after 

production stopped. But Webb could not recall when the phones 

were removed (Tr. 70). He did not carry a pager so there was no 

way he could have reached the surf ace when he was underground. 

Nor was there anyway the surface could communicate with him CTr. 

70, 71). 

If Webb broke a leg while underground he would either crawl 

out or his secretary would send someone to look for him (Tr. 71). 

Anyone searching for him would not know his whereabouts but they 

would know the route he was traveling CTr. 72, 111). 

None of the first aid supplies had been removed from the 

mine (Tr. 75). But they were removed the week before the mine 

was flooded (Tr. 76). 

This was not a gassy mine and the ventilation system provided fresh air for miners (Tr. 80, 87). Webb has no ventilation 

training but he could feel air on his face and he concluded the 

mine was ventilated by some kind of chimney effect CTr. 84, 90, 

131). On his inspections he did not carry a flame safety lamp 

(Tr. 87). He could not hear the fan running at all times while 

he was underground (Tr. 90). 

There were lights at various pump stations. Also there were 

signal lights down the drifts but no overhead lighting (Tr. 89). 

Webb and the inspector used cap lights (Tr. 90). None of the 

lights had been removed in any part of the mine (Tr. 146, 148). 

Webb did not keep a bar with him to test any loose (Tr. 93). 

During the 20 month period the mine was inactive dust accumulated 

on the back and roof (Tr. 93). The accumulation made it more 

2/ For a drawing of Webb's extensive route see Exhibit Pl (Tr. 

56-66). 

568 
difficult to make a visual determination of the loose (Tr. 94). 

Webb didn't know if any loose had been barred down during the 

time he inspe<;ted the pumps (Tr. 94). He himself had not done 

any barring down but if.he had observed any bad ground he would 

have reported it (Tr. 112, 120). 

Webb was familiar with the escapeway for the mine but he 

didn't know the contents of the written escape plan (Tr. 99, 100). 

There was one mine map at the 9360 hoist and other places. But 

Webb didn't know the extent to which they were updated (Tr. 100, 

101). 

The lack of a communication system prevents a miner from 

being advised of a potential emergency (Tr. 102). The inspector 

did not comment about any hazard he had observed (Tr. 124, 125). 

While underground Webb never exposed himself to any hazards that 

he recognized (Tr. 144). 

The Commission has previously reviewed the "working alone" 

regulation. Specifically, in construing 30 C.F.R. § 57.18-25 

(the unchanged predecessor from 30 C.F.R. § 57.18025) the 

Commission observed that the regulation does not prohibit 

employees from working alone. Further, hazardous conditions do 

not automatically exist merely because an employee is "working 

alone", Cotter Corporation, 8 FMSHRC 1135 (1986). 

In Cotter the Commission did-not consider the issue of 

hazardous conditions but addressed "the crucial issue of whether 

Lopez [the miner] had sufficient contact with other [Cotter] 

miners" within the meaning of the regulation • Specifically, 

according to the Commission, the precise issue presented before 

them was whether the contact between Lopez and the other Cotter 

employees was (1) of a regular and dependable nature and (2) 

commensurate with the hazard presented. 

After considering the evidence the Commission concluded that 

the presence of other Cotter workers "was in general accord with 

a plan to provide periodic contact with Lopez on a regularized 

basis." 

In the case at bar there was no periodic contact whatsoever 

between Homestake and Webb. At best the evidence shows Webb 

would advise the Homestake secretary, Bev Larson or his 

supervisor, that he was going underground. If he did not return 

in two hours ~/ she was to advise other authorities to organize a 

search party. 

3/ A credibili.ty issue arises as to the length of time it 

normally took Webb to complete his inspection. Considering the 

conflicting testimony of Webb and Marti and the distances 

involved, as well as possible varying methods of travel, I conclude the pump inspection trip would normally take two to three 

hours. 

569 
Merely advising the Homestake secretary that he was going 

underground did not constitute communication or contact of a 

regular or dependable nature as required by the regulation. 

Further, it is obvious that any cries for nelp by Webb could not 

be heard nor could he be seen while he was underground. 

Mr. Robertson, Webb's supervisor, testified he knew when 

Webb was going underground. In addition, they would go look for 

him if he didn't return. Mr. Robertson's involvement, with a 

paucity of supporting evidence, is basically on the same level as 

the company's secretary. 

Accordingly; I conclude that Webb was "working alone" within 

the meaning of 30 C.F.R. § 57.18025. 

In its post-trial brief Homestake relies on Cotter 

Corporation, and Old Ben Coal Company, 4 FMSHRC 1800 (1982). 

However, for the reasons stated above these ·cases support the 

Secretary and not Homestake. 

Further Findings and Discussion 

The Commission has previously observed that the Secretary 

may promulgate standards prohibiting certain tasks from being 

performed alone Cotter Corporation, 8 FMSHRC at 1137 (footnote 

3) • 

However, the pivotal issue here is whether there existed 

"hazardous conditions" 4; in the Bulldog mine that would endanger 

Webb. Inspector Marti's testimony addresses these issues. The 

hazards, as envisioned by th~ inspector involved lighting, lack 

of communication, electrical shock, 'ventilation, ground 

conditions, escapeways, and the non-operating status of the mine. 

Lyle K~ Marti, a person experienced in mining, has been an 

MSHA inspector since 1975 (Tr. 151-156, 179, 183, 184). 

On December 10, 1986, he inspected Homestake's Bulldog mine. 

It was a regular inspection as mandated by the Act (Tr. 156). 

Mr. Marti accompanied Webb on his inspection of the pumps. 

They followed the general route and procedures as described by 

Webb in his testimony (Tr. 157). The inspection took three to 

three and one-half hours. In a non-stop effort the area could be 

covered in two hours (Tr. 160). If a hazard existed then both 

the inspector and Webb were exposed to it (Tr. 222). 

There were no lights in the area. The men used cap lamps 

for the four miles they traveled (Tr. 161). At the cage the two 

,!/ "Hazardous" has been defined as [e]xposed to or involving 

danger; perilous; risky." Black's Law Dictionary 647 (5th ed. 

1979). 

570 
men discussed the fact that the hoist logs were not being 

maintained (Tr. 162). One man could not conduct the hoist 

inspection ·properly because the controls were not in the same 

area as the cage (Tr. 163). 

After the men left the hoist at the 9000 foot level they had 

a lengthy discussion about Webb's inability to communicate with 

the surface if he discovered a hazard, such as a fire. The 

telephones had been removed (Tr. 164, 166, 173). All mine rescue 

systems are built around communications. 

Webb normally went underground on Monday, Wednesday and 

Fridays. Webb would also tell his wife whenever he was going 

underground alone (Tr. 164, 173). He expressed to Marti a 

specific concern about his safety~~n working alone. He also was 

worried about his secretary's memory -(Tr. 165). 

They mentioned the possibility of electrical shock and the 

lack of any person to render first aid (Tr. 167). No citation 

was written for any electrical hazard and Marti agreed he wasn't 

an exp__ert in the electrical field_ {T-F-• Z32, 250) • 

Mr. Marti observed that at the junction of three crosscuts 

there was no stopping. This condition could create a short 

circuit of air (Tr. 167, 168). No citation was written but if a 

short circuit occurred there would be insufficient oxygen with 

resulting loss of consciousness (Tr. 168, 218). Two air samples 

taken by Marti; when analyzed at a later time they showed the air 

had sufficient oxygen content (Tr. 238, 241, 242, Ex. R8). In 

the inspector's opinion no one could determine how long the power 

would be off before the oxygen level became deficient (Tr. 247). 

In any event the inspector did not consider himself to be an 

expert in ventilation (Tr. 250). Without other ·~iners in the 

area no one would be available to check the ventilation or repair 

it (Tr. 169). At the closeout conference no one disagreed with 

Marti's assessment of the short circuiting of the ventilation and 

they agreed the mine map was out of date. The company representatives were non-committal about the lack of communication, 

and the buildup of dust on the ribs and back (Tr. 170, 171). 

Marti wrote citations for "working alone" and the "escape plan" 

(Tr. 171). 

In Marti's opinion the lack of production in the mine 

dramatically increased the hazards to Mr. Webb (Tr. 172). 

There was no equipment in the mine to sound the ribs and 

back (Tr. 201). An abnormal amount of dust had settled on the 

ribs and backs. This accumulation obliterated the inspector's 

ability to make a visual determination as to whether these areas 

were sound (Tr. 202, 203, 225, 229). If you don't visually 

determine if ground is bad you normally don't test it (Tr. 203). 

In fact, no bad ground was observed (Tr. 226, 228, 231). 

571 
The mine escape plan was not adequate. An additional 

development was not shown on the map. An updated plan would show 

the flow of air, telephones and the location of emergency 

equipment (Tr. 204). If anything happened to Webb his rescuers 

wouldn't know his whereabouts (Tr. 205). There were no signs 

pointing to escapeways (Tr. 206). It was not known when the 

escapeway had been last traveled (Tr. 207). It is the responsibility of the mine manager to check and maintain the escapeways 

(Tr. 208). If the escapeways hadn't been checked no one would 

know whether they were even passable (Tr. 209, 210). 

Mr. Marti felt the two citations he issued, when considered 

with the recommendations as to ventilation and the follow up 

procedures, were sufficient (Tr. 212). He didn't write 

additional citations because he has always received good 

cooperation from mine management (Tr. 249). 

The inspector considered that the hazards confronted when 

Webb was underground alone were significant and substantial (Tr. 

217). 

In the inspector's opinion, in determining the hazard it 

makes a difference whether a mine is operational or shut-down 

(Tr. 252, 259). 

Thomas M. Robertson testified for Homestake. He is a person 

experienced in mining and currently the general manager at the 

Bulldog Mountain Operation (Tr. 277-278, 284). There were no 

lost time accidents underground in 1983, 1985, 1986 or 1987. In 

1984 there was one lost time accident when a miner broke his 

finger (Tr. 279). The mine received safety awards for 1983, 1984 

and 1985 (Tr. 280, 281). 

After production was stopped in the mine all explosives were 

removed, and all tools were brought to a central location. In 

the two years before the shut-down about 70 miners worked underground. 

The witness was not aware of any tests by the company or 

MSHA that showed bad air (Tr. 281, 282). 

After the mine closed MSHA continued its inspections but the 

emphasis was on the North Amethyst mine. No citations were ever 

written for conditions underground (Tr. 282, 283). 

Mr. Robertson always asked about Webb's whereabouts in the 

mine. 

On December 10, 1986, the existing escapeway maps covered 

the area involving Webb's route to the pumps (Tr. 283). 

572 
Since the shut-down in January 1985 Robertson has been in 

the underground area four times 5; (Tr. 285) 

In Robertson's opinion Webb was not exposed to any hazard 

when he inspected the pumps without being accompanied by another 

person. This is so because he was traveling in a known area 

where the air was known to be of good quality. Further, the 

company knew the duration· of the visit and the ground conditions 

were good (Tr. 285). In addition, Webb has good mining experience and was reliable; further, he was a staff supervisor 

(Tr. 286). 

Mr. Robertson did not observe any excessive buildup of dust. 

There was nothing that would limit a person's ability to assess 

the ground conditions (Tr. 287). 

At the time of the hearing Robertson only had 16 employees. 

As a result he would be responsible for knowing whether Webb was 

going into the mine (Tr. 291). It would be important to know 

when Webb came back out of the mine. If he didn't appear they 

would go after him (Tr. 292). 

Evaluation of the Evidence 

The record here addresses several areas of alleged hazardous 

conditions. As previously noted, these areas, with their varying 

degrees of complexity involve lack of lighting, lack of 

communication, electrical shock, ventilation, ground conditions, 

escapeways and the non-operating status of the mine. 

Homestake's broad view is that none of the "hazards" 

enumerated by Inspector Marti triggered application of 30 C.F.R. 

§ 57.18025. It is, accordingly, necessary to review the evidence 

in further detail. 

Concerning the lack of lighting~/: Mr. Marti failed to 

present any credible evidence that the lights were not 

5/ The witness also testified he had been underground 12 to 15 

times since the shut-down «Tr. 286). 

6/ This is not an enforcement proceedings but the relevant 

regulation is § 57.17001 which provides : 

Illumination sufficient to provide safe working conditions shall 

be provided in and on all surface structures, paths, walkways, 

stairways, switch panels, loading and dumping sites, and working 

areas. 

Further, § 57.17010 Electric lamps provides: 

Individual electric lamps shall be carried for illumination by 

all persons underground. 

573 
functioning. I credit Webb's contrary testimony that the lights 

were in place and functioning, just as when the mine was active. 

Company electrician Webb would be particularly attentative to the 

lighting conditions. As chief electrician he should have been in 

charge of removing the lights. 

Concerning the lack of communications: It is uncontroverted 

that the telephone system had been removed from the mine before 

the inspection. Webb's situation underground was that he could 

not contact anyone outside the mine and, conversely, they could 

not contact or respond to him. 

In recently reviewing the two way communication requirement (pertaining to underground coal mines) the Commission 

observed that "(t)he obligation imposed on an operator by the requirement of 30 C.F.R. § 75.1600-1 that there be an outside 

person to respond to miners underground in the event of an 

emergency is an important requirement and any violation of the 

standard has serious safety implications". Harlan L. Thurman v. 

Queen Anne Coal Co., 10 FMSHRC 131 (1988). 

The parallel regulation affecting Homestake's underground 

metal and non-metal mine is contained in 30 C.F.R. § 57.18013 7;. 

While this case is not an enforcement proceeding for the violation of the communication regulation I find that the Commission's statements constitute persuasive support for the view 

that the lack of a communication system was a hazardous condition 

that could endanger Webb while performing work underground. 

Homestake asserts that Inspector Marti did not issue a 

citation for this condition nor did his concern for communications stop him from conducting the inspection. 

As noted the issue here is whether "hazardous conditions" 

existed. The issuance of a citation for a violative condition is 

not a condition-precedent for the proof necessary to establish a 

violation of § 57.18025. I further agree that at no time was 

Webb ever trapped by a fire. But merely because he was not involved in such a dynamic event his work environment was nevertheless hazardous. 

Homestake's position is that its personnel on the surface 

knew when, where and how long Webb would be underground. This 

argument overlooks the key reason why the condition was hazardous -- there was a lack of communication between surf ace and underground. 

7/ § 57.18013 provides that "A suitable communication system 

shall be provided at the time to obtain assistance in the event 

of an emergency". 

574 
Homestake claims Webb had greater contact with the surface 

after the production shut-down than before. I disagree. Webb had 

no communication whatsoever with the surface after the communication system was removed. 

Concerning electrical shock: no credible evidence indicated 

the pumps and electrical equipment were hazardous. s; Inspector 

Marti admitted his lack of electrical expertise. -

Concerning ventilation: at the start of his many inspections 

Webb would turn on the ventilation. The relevant regulation, 30 

C.F.R. § 57.8527, does not require oxygen deficiency testing. 

However, the air in all active workings shall contain at least 

19.5 percent oxygen (30 C.F.R. § 57.5015). The inspector's test, 

analyzed after the inspection, indicated an oxygen concentration 

of 20.85 percent (Exhibit RS). The mine has a history of 

adequate air and, in addition to its ventilation system, it 

appears to be naturally ventilated. 

The foregoing factors cause me to reject the inspector's 

opinion and conclude that no hazardous conditions existed due to 

inadequate ventilation (Tr. 189-191). 

In their trip underground the two men carried self-contained 

respirators but the one hour rescuers would be insufficient from 

the depth of the mine (Tr. 196-199). 

Concerning the ground conditions: I find from the credible 

evidence that an accumulation of dust obliterated the inspector's 

ability to inspect the back and ribs. However, no bad ground was 

ever observed. The related regulations, 30 C.F.R. § 57.3022 and 

§ 57.18002, require examination of working places and adequate 

action, if necessary. However, on this record, no conditions 

existed that could have endangered Webb while underground alone. 

Concerning the escapeways: the inspector issued a non s & S 

citation for the failure of Homestake to maintain a current 

escape plan (Exhibit R9). The citation was not contested. However, I find from the credible evidence that the citation was 

issued because' the mine map failed to include a development unrelated to Webb's routes. However, additional evidence by 

Inspector Marti is uncontroverted: An updated mine map would 

show the flow of air, as well as the location of telephones and 

emergency equipment. Further, there were no signs pointing to 

escapeways. The failure to provide this escapeway information 

subjected Webb to hazardous conditions within the meaning of 

§ 57.18025. 

8/ For electrical requirements see Subpart K - electricity, 30 

C.F.R. § 57.12001 et seq. 

575 
Concerning the non-operating status of the mine: the 

inspector expressed the opinion that an added element of hazard 

resulted from the fact that the Bulldog was not operating. The 

Commission condemned such a view of the "working alone" 

regulation in Cotter Corporation, 8 FMSHRC at 1137. In short, 

the Secretary is obliged to show that hazardous conditions 

existed, they cannot be presumed because the mine is not 

operating. 

Homestake contends the citation should be invalidated 

because of MSHA's interpretative statement. The statement, after 

citing the "working alone" regulation reads as follows: 

APPLICATION: This standard is applicable where hazardous 

conditions exist, such as in development headings, stopes, 

pillar recovery, shafts and raises, and any area where 

timber repair or ground control work is required or any unusual measures are necessary to alleviate hazards. 

This standard should not be applied to work conducted in 

areas where the environs have been made safe and are kept 

well maintained such as is normally found at shaft landings, 

underground pumprooms, hoist rooms, repair and maintenance 

shop areas, magazine sites, and travelways that are provided with safeguards, clearances or shelter holes and warning devl.ces. 

This standard does not apply to examinations of areas of the 

mine or working places by qualified personnel such as fire 

bosses, shift bosses, foremen and safety personnel unless 

unsafe conditions are known to exist prior to such examination and unless such personnel would be endangered by 

such examination. 

Exhibit Rl 

Contrary to Homestake's views I conclude the initial paragraph is not applicable. The failure to provide a communication 

system and proper escapeway information, as previously stated, 

establishes conditions that are hazardous. 

The second paragraph does not assist Homestake because those 

defective situations must have been known to Homestake since the 

company had removed the system and failed to update the mine map. 

dn the same basis the third paragraph of the Secretary's 

bulletin is not applicable. 

In any event, MSHA policy is not binding on the Commission, 

Old Ben Coal Company, 2 FMSHRC 2806 (1980); Brock v. Cathedral 

Bluffs Shale Oil Co., 796 F.2d 533 CD.C. Cir. 1986). 

The citation should be affirmed. 

576 
Civil Penalty 

The stat~tory criteria to access civil penalties is 

contained in section llO(i) of the Act. 

The evidence shows that for the two years before the 

contested citation was issued 13 violations were assessed against 

Homestake's Bulldog Mountain Operations (Ex. P2). Inasmuch as it 

has an interest in 23 other mines, the company should be 

considered a large operator. The company was negligent in that 

it removed the communication system and failed to update the mine 

map. In the absence of any facts to the contrary I conclude that 

the payment of a penalty will not cause the operator to 

discontinue its business. Buffalo Mining Co., 2 IBMA 226 (1973) 

and Associated Drilling, Inc., 3 IBMA 164 (1974). The gravity of 

the violations were high since Webb could have been trapped 

underground due to either condition. The operator should be 

credited with statutory good faith since it abated the violative 

conditions. 

On balance, I deem that a civil penalty of. $100 is 

appropriate. 

ORDER 

Based on the foregoing findings of fact and conclusions of 

law it is hereby ordered that: 

Citation No. 2638753 is affirmed and a civil penalty of $100 

is assessed. 

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) 

Charles w. Newcom, Esq., Sherman & Howard, 633 17th Street, Suite 

3000, Denver, CO 80202 (Certified Mail) 

/bls 

577 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 281988 

KAISER COAL CORPORATION 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE.SAFETY AND HEALTH 

ADMINISTRATION (MSHA) ,-

Respondent 

and 

UNITED MINE WORKERS OF AMERICA: 

Intervenor 

APPLICATION PROCEEDING 

Docket No. WEST 88-131-R 

Sunnyside 1, 2 & 3 Mines 

DECISION 

Appearances: John A. Macleod, Esq. and Susan E. Chetlin, Esq., 

Crowell & Moring, Washington, D.C., for Applicant; 

Thomas Mascolino, Esq., and Edward H. Fitch, Esq., 

U.S. Department of Labor, Office of the Solicitor, 

Arlington, Virginia for Respondent; 

Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C., for the Intervenor. 

Before: Judge Melick 

This case is before me upon the application of Kaiser Coal 

Corporation (Kaiser) for a declaratory judgment holding that the 

regulatory standard at 30 C.F.R. § 75.326 does not operate to 

prohibit two-entry mining at its Sunnyside Nos. 1, 2, and 3 mines. 

Commission jurisdiction to grant declaratory relief exists under 

section 5(d) of the Administrative Procedure Act, 5 U.S.C. § 

554(e), the "APA". Climax Molybdenum Co. v. Secretary of Labor, 

703 F.2d 447 (10th Cir. 1983). Such authority is discretionary 

but may be used "to terminate a controversy or remove 

uncertainty." Section 5(d) of the APA, Climax, supra., at p. 452. 

Specific authority for these proceedings to be conducted before a 

Commission Administrative Law Judge is granted under section 

113(d)(l) of the Federal Mine Safety and Health Act of 1977, 30 

U • S • C • § 801 et. seq. , the "Act • " 

The Sunnyside mines opened in 1896 and began longwall mining 

operations with two-entry gateroads in 1960. Two-entry mining 

has apparently continued at the Sunnyside mines until recently. 

578 
On September 11, 1985, the Federal Mine Safety and Health 

Administration CMSHA) notified Kaiser that it was "re-examining 

certain of its policies and practices regarding operators' use of 

belt haulage entries as ventilation entries, and particularly the 

application of 30 C.F.R. § 75.326 to mines opened prior to 

March 30, 1970."l/ This notification was apparently the result 

of MSHA's reevaluation of two-entry mining following the 1984 

fire at the Wilberg mine. MSHA further informed Kaiser at this 

time "that in all future mining areas sufficient entries can be 

developed so as to permit adequately the coursing of intake or 

return air through such entries without utilization of the belt 

entry" and that Kaiser could no longer develop two-entry 

gateroaas at its Sunnyside mines without a granted petition for 

modification under section 10l(c) of the Act.~/ 

1/ The regulatory standard at 30 C.F.R. § 75.326 tracks the 

language of section 303Cy)(l) of the Federal Coal Mine Health and 

Safety Act of 1969, which was effective March 30, 1970, and later 

reenacted as Section 303(y)(l) of the Federal Mine Safety and 

Health Act of 1977. As relevant hereto it provides as follows: 

Whenever an authorized representative of the Secretary 

finds, in the case of any coal mine opened on or prior 

to March 30, 1970, which has been developed with more 

than two entries, that the conditions in the entries, 

other than belt haulage entries, are such as to permit 

adequately the coursing of intake or return air through 

such entries, (a) the belt haulage entries shall not be 

use to ventilate, unless such entries are necessary to 

ventilate, active working places, and Cb) when the belt 

haulage entries are not necessary to ventilate the 

active working places, the operator of such mine shall 

limit the velocity of the air coursed through the belt 

haulage entries to the amount necessary to provide an 

adequate supply of oxygen in such entries, and to 

insure that the air therein shall contain less than 1.0 

volume per centum of methane. 

~/ Section 10l(c) provides as follows: 

Upon petition by the operator or the representative of 

miners, the Secretary may modify the appliction of any mandatory 

safety standard to a coal or other mine if the Secretary 

determines that an alternative method of achieving the result of 

such standard exists which will at all times guarantee no less 

than the same measure of protection afforded the miners of such 

mine by such standard, or that the application of such standard 

to such mine will result in a diminution of safety to the miners 

in such mine. Upon receipt of such petition the Secretary shall 

579 
Kaiser thereafter on January 3, 1986, filed a petition for 

modification of section 75.326, with the Secretary of Labor. On 

October 27, 1987, the Secretary's representative, MSHA's 

Administrator for Federal Mine Safety and Health granted the 

Kaiser petition. The United Mine Workers of America (UMWA) 

thereafter filed a request for hearing to challenge that decision 

before a Department of Labor Administrative Law Judge. See 30 

C.F.R. § 44.20- § 44.32. Kaiser's application for relief pending 

appeal to effectuate MSHA's grant of the Petition during the 

pendency of the Department of Labor proceeding, was denied on 

April 22, 1988. Kaiser argues that based on past experience in 

which a similar petition for modification of the same regulatory 

standard has been pending for more than a year before a Labor 

Department Judge, a similar delay in disposition of its present 

petition may reasonably be expected. 

Kaiser further argues that in order to maintain the proper 

mining sequence, two-entry development mining must resume at the 

Sunnyside mines during the latter part of April, 1988. It points 

out that it is already in Chapter 11 status under the bankruptcy 

laws and cannot withstand a prolonged idlement while the merits 

of its petition for modification are being "debated" in further 

Labor Department review proceedings. It therefore urges that 

declaratory relief be granted and that section 75.326 should be 

held not to prohibit two-entry mining at the Sunnyside mines. 

When declaratory relief will not be effective in terminating 

the underlying controversy it should generally be denied. See 

Greater Los Angeles Council on Deafness, Inc., v. Zolin, 812 F.2d 

1103 (9th Cir. 1987); U.S. v. State of Washington, 759 F.2d 1353, 

2/ (continued) 

publish notice thereof and give notice to the operator or the 

representative of miners in the affected mine, as appropriatev 

and shall cause such investigation to be made as he deems 

appropriate. Such investigation shall provide an opportunity for 

a public hearing at the request of such operator or 

representative or other interested party, to enable the operator 

or the representative of m1ners in such mine or other interested 

party to present information relating to the modification of such 

standard. Before granting any exception to a mandatory safety 

standard, the findings of the Secretary or his authorized 

representative of the miners at the affected mine. The Secretary 

shall issue a decision incorporating his findings of fact 

therein, and send a copy thereof to the operator or the 

representative shall be made public and shall be available to the 

representative of the miners, as appropriate. Any such hearing 

shall be of record and shall be subject to section 554 of Title 5 

of the United States Code. 

sao 
(9th Cir. 1985) cert. den., 106 s.ct. 407. In this case, 

regardless of the decision, the underlying controversy would not 

be terminated. Thus even assuming, arguendo, that I ·should find 

section 75.326 inapplicable to the Sunnyside mines, Kaiser would 

nevertheless still find it necessary to obtain the Secretary's 

approval before engaging in two-entry mining through the process 

of submitting ventilation and roof and rib-control plans for 

approval. While such plans had been approved for two-entry 

mining in the past MSHA has made it clear that it would be 

compelled to evaluate anew any plans for future two-entry mining. 

(Tr. 50, 56-60). Thus even a decision in this case favorable to 

the mine operator would not terminate the underlying controversy 

and decTaratory relief is accordingly inappropriate.~/ 

The UMWA also maintains that even should section 75.326 be 

found inapplicable to the Sunnyside mines, the application of 

another regulation (30 C.F.R. § 75.1704) would nevertheless 

prohibit mining without separate and distinct escapeways 

ventilated with separate splits of air (See UMWA's Response to 

Kaiser Coal Corporation's Application for Declaratory Relief and 

Cross Application for Declaratory Relief pp. 5-6). Indeed the 

UMWA maintains that should section 75.326 be found inapplicable 

to the mines at issue then further declaratory proceedings will 

be necessary to determine the applicability of section 75.1704. 

It is therefore apparent that the underlying controversy herein 

i.e. the use of two-entry mining at the Sunnyside mines, worild 

not be resolved solely on the basis of a determination of the 

applicability of section 75.326. The litigation would only 

continue on new issues. For this additional reason declaratory 

relief is inappropriate. 

Finally, it appears that a comprehensive solution to the 

underlying conflict may soon be reached in the section 101Cc) 

modification proceedings now pending before a Department of Labor 

Administrative Law Judge. The case reportedly is on a "fast 

track", a pretrial conference is scheduled to be held within a 

few weeks, and trial may commence as early as this June (Tr. 

20-24). It is accordingly reasonable to expect resolution of 

that case in the near future with a comprehensive solution to the 

underlying conflict. See Wright and Miller, Federal Practice and 

Procedure: Civil, §§ 2758 and 2763. Those proceedings also 

provide the UMWA with an opportunity to participate as a party in 

3/ In light of the history of the underlying iss_ue it is 

also likely of course that any final resolution of this cas_e_ - would be delayed for years as the case works its way through the 

appellate process. 

581 

ll 
the resolution of an issue of particular concern to the miners 

who must ultimately work in the affected mines. 

Under the circumstances I do not find this case to be an 

appropriate one in which to consider declaratory relief. 

ORDER 

The application for declaratory relief is ENIED. 

Distribution: 

Susan E. Chetlin, Esq., Crowell & Moring, 1001 Pennsylvania Ave., 

N.W., Washington, D.C. 20004 (Certified Mail) 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

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

npt 

582 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MISSOURI ROCK, INC., 

Respondent 

APR 2 9 1988 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 87-65-M 

A.C. No. 23-01670-05504 

Missouri Rock Plant No. 2 

DECISION 

Appearances: Tobias B. Fritz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Kansas City, Missouri, 

for Petitioner; James L. Burgess, Esq., Johnson, 

Lucas, Bush, Snapp & Burgess, Kansas City, 

Missouri, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In this proceeding, the Secretary of Labor (Secretary) seeks 

civil penalties for three alleged violations of the mandatory 

safety standard contained in 30 C.F.R. § 56.9003. Respondent 

challenges the allegations that the violations occurred, and 

contests the proposed penalties as excessive. Both parties 

engaged in pretrial discovery. Pursuant to my prehearing order, 

the Secretary filed its responses on November 30, 1987. It 

listed its witnesses as Eldon Ramage, Richard Laufenberg, and 

Representative of Caterpillar Tractor Co. (specific identity as 

yet unknown). Respondent filed its response on December 1, 1988, 

and listed its witnesses as W. A. Ellis, Jesse B. Case, 

Merrill Gordon, John Strosnider, Jim Fiser, Bill Mcclanahan, and 

Ken Messerli. I issued a notice of hearing on December 7, 1987, 

scheduling the matter for hearing commencing February 10, 1988, 

in Kansas City, Missouri. On February 8, 1988, I received copy 

of a letter from counsel for the Secretary to counsel for 

Respondent informing him that John L. Robinson, an employee of 

Everett Quarries, would testify on the Secretary's behalf 

pursuant to subpoena, "in lieu of a representative of Caterpillar 

Co., as indicated in the prehearing exchange." On February 

8, 1988, Respondent filed a motion to exclude the testimony of 

John L. Robinson. 

583 
The case was called for hearing on February 10, 1988, in 

Kansas City, Missouri. The parties argued the motion to exclude 

on the record, prior to the calling of any witnesses. I reserved 

my ruling on the motion and stated that I would permit the 

Secretary to call Mr. Robinson and would rule on the 

admissibility of his testimony when I decided the merits of the 

case. Counsel for Respondent them indicated that he wished to 

call a Robert Matter to testify; the Secretary objected and I 

again ruled that he would be permitted to testify, and I would 

rule when I decided the case, whether the testhnony was properly 

received. 

Eldon E. Ramage and John Robinson Cin rebuttal> testified on 

behalf of the Secretary. Kenneth Messerli, William Ellis, 

Robert Matter, Merrill Gordon, Jesse Case and William Mcclanahan 

testified on behalf of Respondent. Both parties filed 

posthearing briefs. I have considered the entire record and the 

contentions of the parties and make the following decision. 

MOTION TO EXCLUDE TESTIMONY 

As I indicated earlier, each party has engaged in pretrial 

activity. My prehea~ing order was originally issued on 

August 28, 1987, and required responses, including disclosure of 

the names of witnesses, by October 30, 1987. By order issued 

October 5, 1987, I extended the time to November 30, 1987. 

Responses were filed by both parties, and on December 7, 1987, I 

issued the notice of hearing for February 10, 1988. The failure 

of counsel to notify each other and the court of the identity of 

proposed witnesses Robinson and Matter precluded the possibility 

of their being interviewed or deposed. No sufficient 

justification for the failure to disclose the names of the 

witnesses has been advanced. CI reject the notion that 

Robinson's identity is protected under 29 § C.F.R. 2700.59 as a 

"miner witness"). Therefore, I will not consider the testimony 

of either Robinson or Matter in making this decision. 

FINDINGS OF FACT 

Respondent was at all pertinent times, the owner and 

operator of a limeston~ quarry in Clay County, Missouri. During 

the calendar year 1986, 26,527 man hours were worked at the mine. 

In the 24 month period prior to the citations and orders involved 

in this case, there were two paid violations of mandatory health 

and sa~ety standards at the mine. The penalties proposed h~rein 

would not affect Respondent's ability to continue in business. 

On February 3, 1987, Federal Mine Inspector Eldon Ramage 

performed a regular inspection of the subject mine. Caterpillar 

584 
tractor scraper No. 643 was removing overburden in the Northwest 

corner of the quarry. The terrain was relatively hilly, with a 

10 to 15 percent grade between the cut and the fill. The 

inspector wished to test the brakes on the scraper and directed 

the driver to apply brakes while the equipment was moving. The 

scraper was on a slight downgrade at the time. The driver 

dropped the pan and the unit stopped. The Inspector then 

directed him to stop by using the wheel brakes. The wheel brakes 

did not stop the vehicle. The driver stated that he had no air 

pressure for the wheel brakes. The Inspector then issued 

citation 2846910 charging a violation of 30 C.F.R. § 56.9003 for 

failure to provide adequate brakes on powered mobile equipment. 

The citation directed that it be corrected by February 4, 1987. 

Jn February 20, 1987, the Inspector modified the citation, 

increasing his evaluation of the gravity of the violation and 

denominating the violation as significant and substantial. The 

original citation was served upon Merrill Gordon, Respondent's 

safety director, who accompanied the inspector. He had the 

scraper sent to the mechanics. The Superintendent Jesse Case 

left on vacation at the end of the week and apparently did not 

tell his successor about the brake problem on the scraper. 

On February 25, 1987, Inspector Ramage returned to the mine. 

He had scraper 643 tested and· again found that it had no brakes. 

He issued a 104(b) order for noncompliance with the previous 

citation. He also tested scrapers 648 and 641 which were being 

operated in the quarry stripping overburden, and found that they 

had inadequate wheel brakes. He thereupon issued citations 

2846916 and 2846917. 

All of the scrapers are operated both in the quarry and in 

the parking area where maintenance work was performed. 

The scrapers weigh about 35 tons empty. A fully loaded pan 

or bowl weighs an additional 35+ tons. Respondent's equipment 

operators customarily stop the unit by dropping the bowl. The 

wheel brakes, in Respondent's practice, are used only when moving 

the equipment from one location to another. 

After the order and citations were issued on 

February 25, 1987, the brakes were repaired and the citations and 

order were terminated on March 16, 1987. 

REGULATION 

30 C.F.R. § 56.9003 provides: 

Powered mobile equipment shall be provided with adequate brakes. 

585 
ISSUES 

1. Whether the fact that a powered mobile tractor-scraper 

can be and ordinarily is stopped by dropping the pan or bowl 

establishes that the scraper is provided with adequate brakes? 

2. If the violations charged are established, what are the 

appropriate penalties. 

CONCLUSIONS OF LAW 

JURISDICTION 

Respondent is subject to the provisions of the Federal Mine 

Safety and Health Act (the Act) in the operation of the subject 

mine. I have jurisdiction over the parties and subject matter of 

this proceeding. 

VIOLATION 

The scrapers cited in this proceeding were clearly powered 

mobile equipment. The wheel brakes or service brakes were 

clearly defective. Respondent's position is that the pan or bowl 

provided adequate brakes. 

The term "brake" is defined in the American Heritage 

Dictionary of the English Language (New College Edition 1976) as: 

1. A device for slowing or stopping motion, as of a 

vehicle or machine, especially by contact friction. 

2. Often plural. Any check that slows or stops 

action. 

The same term is defined in A Dictionary of Mining, Mineral and 

Related Terms (U.S. Dept. of the Interior 1968) in part as 

A device (as a block or band applied to the rim of a 

wheel) to arrest the motion of a vehicle, a machine or 

other mechanism and usually employing some sort of 

friction ••• 

In an early case under the Act, a caterpillar loader was 

found to have a substantial air leak in its braking system. The 

mine operator was charged with violating 30 C.F.R. § 56.9-2 which 

requires that equipment defects affecting safety be corrected 

before the equipment is used. In affirming the citation, 

Commission Judge Koutras rejected as a defense "Respondent's 

arguments and suggestions that the loader could be stopped by 

dropping and dragging the bucket or by using the transmission." 

Secretary v. Evansville Materials, Inc., 2 FMSHRC 2321, 2326 

586 
(1980). In the case of Mineral Exploration v. Secretary, 6 

FMSHRC 316 (1984), Judge Morris considered citations charging two 

scrapers with having inadequate brakes. The scrapers were also 

equipped with retarders. In upholding the citations, the Judge 

said at page 321: 

I conclude that retarders under certain conditions will 

reduce an engine's RPMs and, consequently, they will 

reduce the speed of a vehicle. However, down shifting 

the transmission on an automobile also will reduce its 

speed but no one considers that a transmission is part 

o~ a braking system. 

In the recent case of Secretary v. Brown Brothers, 9 FMSHRC 

636 (1987) involving a citation for inadequate brakes on a truck, 

Judge Koutras said at page 656: 

The fact that the respondent used a variety of 

methods to stop the truck is irrelevant. 

In the same case, MSHA's argument that "'Adequate brakes' clearly 

requires at least service brakes and not the use of other methods 

or the ingenuity of the employee to stop a vehicle" was adopted 

by the Judge. Id. at 657. 

The testimony in the case berore me establishes that 

dropping the pan is the usual method of stopping the scrapers 

while operating in the quarry. In many situations it is the 

quickest and safest way to stop it. However, there ~re instances 

when dropping the pan is not safe or effective: when operating 

on pavement or on other hard surfaces, dropping the pan cannot be 

used; when the scraper engine fails while ascending a hill, 

dropping the pan will not stop the scraper going backwards 

downhill; in the case of buried rock or a limestone knoll, 

dropping the pan could injure the scraper operator. 

The primary purposes of the pan or bowl on a scraper are, of 

course, to scrape, to strip, to load. Stopping the vehicle is 

not a primary function of tpe pan. Wheel or service brakes are 

intended to stop the vehicle; they are installed for that 

purpose. 

I conclude that the term "brakes" in the standard involved 

here refers to the wheel or service brakes. They are required to 

be adequate, i.e., to be able to stop the equipment in a 

reasonable distance. The fact that there are other effective 

means of stopping the equipment does not satisfy the standard. 

Therefore I conclude that the violations charged in the citations 

involved here have been established. 

587 
PENALTY 

DE NOVO 

Under section llOCi) of the Act, the Commission has de novo 

authority to assess civil penalties for violations of the Act 

considering the six statutory criteria. Therefore the fact that 

the Secretary assessed penalties under the "special assessment" 

provisions of 30 C.F.R. Part 100 is irrelevant. Sellersburg 

Stone Co., 5 FMSHRC 287 (1983) aff'd, Sellersburg Stone Co. v. 

FMSHRC, 736 F2d. 1147 (7th Cir. 1984). 

SIZE AND PRIOR HISTORY 

Respondent is a large operator. Its history of previous 

violations is small, and penalties otherwise appropriate should 

not be increased because of its history. 

GRAVITY 

The scrapers are normally operated at no more than 12 to 15 

miles per. hour, and ordinarily at much less than that. I have 

found that they are normally stopped by dropping the pan. 

However, I further found that the service brakes may be required 

in some situations. The scrapers are extremely heavy and in the 

event they collided with a pedestrian or another piece of 

equipment could cause serious injury. I conclude that the 

violations were moderately serious. 

NEGLIGENCE 

Normal routine inspection and maintenance would have shown 

Respondent that the brakes were defective. It either knew or 

should have known that they were inadequate. In the case of 

scrapers 648 and 641 cited on February 25, 1987, Respondent had 

been put on notice by the citation issued February 3, 1987, on 

scraper 643 that the brakes should be inspected on its equipment. 

The violation charged in citation 2846910 was the result of 

Respondent's negligence1 the violations charged in citation 

2846916 and 2846917 were the result of gross negligence. 

GOOD FAITH COMPLIANCE 

Respondent did not abate the violation charged in citation 

2846910 until a 104(b) order was issued three weeks later. It 

did not demonstrate good faith in attempting to achieve rapid 

compliance, and the penalty will be increased because of its 

failure. With respect to the violations charged in the other 

588 
citations (2846916 and 2846917), it did show good faith 

compliance. 

PENALTY.AMOUNTS 

Considering the criteria in section llOCi> of the Act, I 

conclude that the appropriate penalties for the violations are: 

Citation 

2846910 

2846916 

2a46911 

ORDER 

Penalty 

$ 800 

600 

600 

$2000 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED that Respondent pay the sum of $2000 within 30 days 

of the date of this decision for the violations found herein. 

~1.1u: $ //f::icdx/[.~L_ James A. Broderick · Administrative Law Judge 

Distribution: 

Tobias B. Fritz, Esq., U.S. Department of Labor, Office of the 

Solicitor, 911 Walnut Street, Kansas City, MO 64106 (Certified 

Mail) 

James L. Burgess, Esq., Johnson, Lucas, Bush, Snapp & Burgess, 

1414 Horne Savings Building, 1006 Grand Avenue, Kansas City, MO 

64106 (Certified Mail) 

slk 

589 
590 

•u. s. Government Printing Office 1988: 201-735/83003