OCTOBER 1992 

COMMISSION DECISIONS/ORDERS 

10-29-92 Carder, Inc. 

10-29-92 Carder, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-13-92 

10-16-92 

10-16-92 

10-20-92 

10-21-92 

10-21-92 

10-21-92 

10-23-92 

10-27-92 

10-28-9~ 

10-28-92 

10-28-92 

10-28-92 

10-28-92 

10-29-92 

10-29-92 

Virginia Crews Coal Company 

Aluminum Company of America 

Pyre Mining Company/Costain Coal 

Linda J. VanTassel v. Barrick Goldstrike 

Robert Foster empl. by Sun Paving, Inc. 

Ricky Hays v. Leeco, Inc. 

Eimco Coal Machinery, Inc. 

Roy Lee Stroud v. CBM Mining, Inc., et al. 

Grefco Incorporated 

Southway Construction Company, Inc. 

Tim Ragland v. Culler Rock Quarry 

Bill Burris v. Culler Rock Quarry 

Mid-Continent Resources, Inc. 

Wyoming Fuel Company 

Carder, Inc. 

Carder, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

10-08-92 Contest of Respirable Dust Samples 

Oneida Coal Company 

WEST 92-350-M Pg. 1687 

WEST 92-351-M Pg. 1689 

WEVA 92-246 

CENT 92-362-RM 

KENT 91-190 

WEST 9-197-DM 

CENT 92-72-M 

KENT 90-59-D 

WEVA 92-556 

KENT 91-986-D 

CENT 92-42-M 

CENT 91-167-M 

CENT 92-227-CM 

CENT 92-228-CM 

WEST 91-429 

WEST 91-598-R 

WEST 92-350-M 

WEST 92-351-M 

Pg. 1691 

Pg. 1721 

Pg. 1725 

Pg. 1727 

Pg. 1728 

Pg. 1732 

Pg. 1734 

Pg. 1735 

Pg. 1741 

Pg. 1743 

Pg. 1746 

Pg. 1747 

Pg. 1749 

Pg. 1758 

Pg. 1768 

Pg. 1770 

Master No. 91-1 Pg. 1773 

OCTOBER 1992 

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

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

T•ST 91-251. (Judge Lasher, September ii, 1992) 

Aluminum Company of America v. Secretary of Labor• MSHA, Docket No. 

CENT 92-362-•I. (Judge Maurer, October 16• 1992) 

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

Secretary of Labor, MSHA on behalf of Joseph A. Smith v. Helen Mining 

Company, Docket Nos. PENN 92-57-D, PENN 92-58-D. (Judge Maurer, 

September 17, 1992) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 29, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

CARDER, INC. 

Docket No. WEST 92-350-M 

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

ORDER 

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. (1988)(the "Mine Act"), 

Commission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default on September 29, 1992, finding respondent Carder, Inc. ("Carder") in 

default for failure to answer either the civil penalty petition filed by the 

Secretary of Labor or the judge's order to show cause. The judge assessed the 

civil penalty of $691 proposed by the Secretary. For the reasons that follow, 

we vacate the default order and remand this case for further proceedings. 

On October 6, 1992, the Commission received a letter dated October 2, 

1992, in which Carder requests that Judge Merlin rescind his previously issued 

default order and approve a settlement agreement negotiated between the 

parties in this case. Carder explains that, at the time the default order was 

issued, Carder was in settlement negotiation with the Secretary. Carder 

believed that the Secretary would submit the settlement agreement to the judge 

and that consequently no further response was required. 

The judge's jurisdiction over this case terminated when his default 

order was issued on September 29, 1992. 29 C.F.R. § 2700.65(c). Under the 

Mine Act and the Commission's procedural rules, relief from a judge's decision 

may be sought by filing a petition for discretionary review with the 

Commission within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). Carder's letter to the Commission seeks relief from the judgers 

default order. We will treat the letter as a timely petition for discretionary review of the judge's default order. See, e._•g•., Middle States 

Resources, I0 FMSHRC 1130 (September 1988). 

1687 
It appears from the record that Carder may have a plausible explanation 

for its failure to respond to the judge's show cause order. See e._•g•., Blue 

Circle Atlantic, Inc., ii FMSHRC 2144, 2145 (November 1989)., We are unable, 

however, to evaluate the merits of this explanation on the basis of the 

present record. We will afford Carder the opportunity to present its position 

to the judge, who shall determine whether final relief from default is 

warranted. See, e_•g•_, Blue Circle, Ii FMSHRC at 2145. If the judge 

determines that final relief from default is appropriate, he shall also take 

appropriate action with respect to the parties' settlement agreement. 

30 U.S.C. § 820(k). 

Accordingly, we grant Carder's petition for discretionary review, vacate 

the judge's default order, and remand this matter for proceedings consistent 

with this order. 

Arlene Holen, Chairman 

Richard V. Backley, Commissioner 

•oyce A. Doyle, Commissioner 

L. Clair Nelson, Commissioner 

Distribution 

Ira J. Paulin 

Carder, Inc. 

P.O. Box 721 

Lamar, Colorado 81052 

Kristi Floyd, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1585 Federal Bldg. 

1961 Stout St. 

Denver, CO 80294 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1688 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 29, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

CARDER, INC. 

Docket No. WEST 92-351-M 

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

BY THE COMMISSION: 

ORDER 

In this civil penalty proceeding arising under the Federal Mine Safety 

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

Commission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default on September 29, 1992, finding respondent Carder, Inc. ("Carder") in 

default for failure to answer either the civil penalty petition filed by the 

Secretary of Labor or the judge's order to show cause. The judge assessed the 

civil penalty of $916 proposed by the Secretary. For the reasons that follow, 

we vacate the default order and remand this case for further proceedings. 

On October 6, 1992, the Commission received a letter dated October 2, 

1992, in which Carder requests that Judge Merlin rescind his previously issued 

default order and approve a settlement agreement negotiated between the 

parties in this case. Carder explains that, at the time the default order was 

issued, Carder was in settlement negotiation with the Secretary. Carder 

believed that the Secretary would submit the settlement agreement to the judge 

and that consequently no further response was required. 

The judge's jurisdiction over this case terminated when his default 

order was issued on September 29, 1992. 29 C.F.R. § 2700.65(c). Under the 

Mine Act and the Commission's procedural rules, relief from a judge's decision 

maybe sought by filing a petition for discretionary review with the 

Commission within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). Carder's letter to the Commission seeks relief from the judge's 

default order. We will treat the letter as a timely petition for discretionary review of the judge's default order. See, e._•g•., Middle States 

Resources, i0 FMSHRC 1130 (September 1988). 

1689 
It appears from the record that Carder may have a plausible explanation 

for its failure to respond to the judge's show cause order. See e.g•, Blue 

Circle Atlantic, Inc., Ii FMSHRC 2144, 2145 (November 1989). We are unable, 

however, to evaluate the merits of this explanation on the basis of the 

present record. We will afford Carder the opportunity to present its position 

to the judge, who shall determine whether final relief from default is 

warranted. See, e__=g•, Blue Circle, ii FMSHRC at 2145. If the judge 

determines that final relief from default is appropriate, he shall also take 

appropriate action with respect to the parties' settlement agreement. 

30 U.S.C. § 820(k). 

Accordingly, we grant Carder's petition for discretionary review, vacate 

the judge's default order, and remand this matter for proceedings consistent 

with this order. 

Arlene Holen, •hairman 

L. Clair Nelson, Commissioner 

Distribution 

Ira J. Paulin 

Carder, Inc. 

P.O. Box 721 

Lamar, Colorado 81052 

Kristi Floyd, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1585 Federal Bldg. 

1961 Stout St. 

Denver, CO 80294 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1690 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

L}CT 3 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

VIRGINIA CREWS COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 92-246 

A.C. No. 46-04702-03562 

Docket No. WEVA 92-247 

A.C. No. 46-04702-03563 

No. 14 Mine 

DECISIONS 

Appearances: Patrick L. DePace, Esq., Office of the Solicitor, 

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

the Petitioner; 

David J. Hardy, Esq., Jackson & Kelly, Charleston 

West Virginia, for the Respondent. 

Before: Judge Koutras 

Statement of the Proceedinqs 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

to section ll0(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 820(a). Docket No. WEVA 92-246, concerns 

alleged violations of mandatory safety standards 30 C.F.R. 

§ § 75.220(a) (i), and 75.208, and Docket No. WEVA 92-247, 

concerns an alleged violation of mandatory safety standard 

30 C.F.R. § 75.400. 

The respondent filed timely notices of contests and answers, 

and hearings were held in Charleston, West Virginia, The parties 

filed posthearing briefs, and I have considered their arguments 

in the course of my adjudication of these cases. 

Issues 

The issues presented are (i) whether the cited conditions or 

practices constitute violations of the cited standards; 

(2) whether the alleged violations were significant and 

substantial (S&S); (3) whether the alleged violations were the 

result of the respondent's Unwarrantable failure to comply with 

the cited standards; and (4) the appropriate civil penalties to 

1691 
be assessed for the violations taking into account the civil 

penalty assessment criteria found in section ll0(i) of the Act. 

Applicable Statutory and Requlatory ProviSions 

I. The Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 301, et se•. 

2. Sections 104(d) (i), ll0(a), and ll0(i) of the Act. 

3. Commission Rules, 29 C.F.R. § 2700.1, e t s_e_q. 

Stipulations 

The parties stipulated to the following (Tr. 7-8): 

i. The No. 14 Mine is owned and operated by the respondent. 

2. The respondent and the mine are subject to the Act. 

3. The presiding judge has jurisdiction to hear and decide 

these matters. 

4, MSHA Inspector Gerald L. Cook was acting in his official 

capacity when he issued the contested citation and orders. 

5. True copies of the citation and orders were properly 

served on the respondent or its agent. 

6. The imposition of appropriate civil penalty assessments 

for the alleged violations in question will not adversely 

affect the respondent's ability to continue in business. 

7. The respondent is an average sized mine operator, and 

has a low history of prior violations as shown in an MSHA 

computer print-out (Exhibit P-l). 

8. The cited conditions and practices were abated by the 

respondent in good faith within the times fixed by the 

inspector. 

Discussion 

Docket No. WEVA 92-246 

This case concerns a section 104(d)(1) significant and 

substantial (S&S) Citation No. 3740213, issued by MSHA Inspector 

Gerald L. Cook at 7:15 a.m., April 16, 1991. The inspector cited 

a violation of mandatory safety standard 30 C.F.R. § 75.220(a)(i) 

and the condition or practice cited is described as follows: 

1692 
The approved Roof Control Plan (permit No. 4-RC-5-76- 

11069-10 dated 2-20-91) was not being compliedwith on 

the ist Left (003-0) section in No. 5 working place in 

that the face had been advanced about 15(sic) inby last 

row of bolts and not supported and evidence indicated 

that crosscut right had been advanced about 20 feet and 

not bolted traveling past openings that create 

intersection that was not supported. 

Following the issuance of the citation, Inspector Cook 

issued section 104(d)(1) "S&S" Order No. 3740214, at 7:18 a.m., 

April 16, 1991, citing a violation of 30 C.F.R. § 75.208, and he 

included a reference to the previous citation in support of the 

order. The cited condition or practice is described as follows: 

The No. 6 working place had the face advanced about 

15 feet inby last row of permanent roof support and 

crosscut turned left advanced about 20 feet inby last 

row permanent roof support and areas not posted with 

readily visible warning. This condition observed prior 

to mining started on section. This condition observed 

on ist left (003-0) section. 

Docket No. WEVA 92-247 

This case concerns a section 104(d) (I) Order No. 3739989, 

issued by Inspector Cook on April 29, 1991, citing an alleged 

violation of mandatory safety standard 30 C.F.R. § 75.400. 

Inspector Cook relied on the previously issued April 16, 1991, 

section 104(d) (i) Citation No. 3740213, in support of the Order, 

and the cited condition or practice is described as follows: 

Loose coal and coal dust was allowed to accumulate from 

3 to 24 inches deep and 16 to 18 feet wide and 6 to I0 

feet in length in about 6 locations in the left return 

off the left mains section (003-0). This accumulation 

had been pushed up and placed in these areas. 

Accumulations from 2 to 12 inches was present along 

roadways and ribs also in this area and had not been 

cleaned on cycle starting at about 70 feet inby the 

return overcast and extending inby for about 

1,000 feet. Some rock had been mixed in some of the 

accumulations and this entry is ranging from damp to 

wet conditions with some areas dry. (This company is 

not following their clean up program). 

1693 
Petitioner's Testimony and Evidence 

Section 104(d)•l) Citation No. 3740213 30 C.F.R. § 75.220•a) 

MSHA Inspector Gerald L. Cook, Sr., confirmed •hat he 

•isited the mine on April 16, 1991, to continue an inspection which began the previous day, and he rode in with the day shift 

section foreman and crew. He identified a copy of the section 

104(d)(1) citation which he issued (Exhibit P-l). Mr. Cook 

stated that he inspected the working faces, travelling from the 

No. 1 through No. 6 working places, and when he arrived at the 

No. 5 or No. 6 entry he met union representative Richard Patton 

who was performing a preshift examination. Mr. Cook stated that 

he observed that the No. 6 working face had been advanced 

approximately 15 feet inby the roof bolts, and that the crosscut 

right, turned back toward the No. 7 entry, had been advanced 

about 20 feet, and that neither roof area was supported. He 

concluded that these conditions constituted a violation of the 

roof control plan because openings that create an intersection 

must be supported before mining or miners can advance past the 

openings. He identified a copy of the plan (Exhibit P-3), and 

stated that paragraph 3 of page 4 of the plan was violated 

(Tr. 19-25). 

Mr. Cook confirmed that the cited areas were not permanently 

supported, and he saw no evidence of any temporary support. The 

No. 6 entry had been advanced inby the last row of bolts, and the 

crosscut to the right, off No. 6, had also been advanced. This 

indicated to him that someone had to pass by one of the two 

openings to mine the other opening without any roof support, and 

that this was a violation of the roof control plan. He confirmed 

that the intersection itself was supported, but that the crosscut 

right and the No. 6 heading were not. He stated that the 

respondent could have mined the right crosscut, or the heading, 

as long as a row of posts was installed across the mouth of the 

intersection before mining either opening. Mr. Cook observed 

that some coal that appeared to have been cleaned from the 

roadway was shoved into the crosscut between the No. 6 and No. 7 

entries in an area which had been mined and not supported and he 

concluded that work had been performed in that area without any 

roof support. He confirmed that this was an active area of the 

mine (Tr. 26-27). 

Mr. Cook stated that he based his "significant and 

substantial" finding on the following (Tr. 28-29): 

A. Because it's been proved -- they want to go back to the 

history of fatalities. We do have several fatalities that 

have resulted from a situation as this one where they are 

mining in past an opening that is not supported. 

1694 
We've had miners killed and we've had miners badly injured 

and it's due to the fact that we have a lot of unsupported 

top, and swinging, that could fall. If it fell, it could 

ride back past your 

-- even back past your pe•anent 

supports, which it had done before. 

Mr. Cook believed that the violation would reasonably likely 

•cause a fatality "because of the fact that we have had fatalities 

on this" and "where you're exposing miners to unsupported top, 

you're giving them a little bit extra where they can have a 

chance of having a roof fall and getting a person killed". He 

further stated that "if you go under unsupported top, you're 

asking for a fatality" and that "the company exposed the miners 

to unsupported top unnecessarily" (Tr. 29). Mr. Cook further 

explained that anytime miners are exposed to unsupported top "it 

is S&S in our criteria" (Tr. 30). He confirmed that the roof did 

not fall and that he observed no one in the area of unsupported 

roof while he was there. However, he saw evidence that someone 

had taken a scoop through the area pushing coal up into the 

breakthrough, and he saw no evidence that any temporary support 

had been installed when this was done (Tr. 32). Mr. Cook 

confirmed that this was his first visit to the underground mine 

area and he did not observe any broken or loose top in the cited 

unsupported areas (Tr. 32). 

Mr. Cook stated that he based his "unwarrantable failure" 

finding on the following (Tr. 32-33): 

A. Because the operator has a roof control plan which is 

their plan . It's supposed to be known by everybody who is 

working on that section that has to deal with roof control. 

And whenever they have an approved plan, that is their plan 

they mine by. And when they violate that plan, there is no 

way they can tell me they didn't know the plan had that 

stipulation in it, because they're supposed to-review the 

whole plan and this plan is supposed to be known by 

everybody. 

And once they violate it, the negligence come out that -- if 

you have a roof control plan that is approved, it's supposed 

to be known by everybody on that section, what the parts 

stipulate and what the parts mean. And there is no excuse 

for them to create a situation, as they did, and there is no 

way they can tell me they didn't know it existed, because 

they're supposed to know what the plan states. It is their 

plan and they're supposed to review it. 

Mr. Cook stated that after issuing the citation and order he 

spoke with section foreman Clyde Bailey who confirmed that he was 

located in the No. 6 entry. Mr. Bailey assembled the crew and 

Mr. Cook informed the crew that he had issued the citation and 

order because they had mined the cited area without any roof 

1695 
support and no one spoke up to tell him that this was not the 

case (Tr. 35-36). Since no one spoke up, Mr. Cook assumed that 

what he had observed "was the way it was done" (Tr. 36). He 

confirmed that the crew acknowledged that they kn•w about the 

roof control plan and that they were not supposed s• 

mine past an 

opening they had created without supporting it fir: 

, 

and no one 

%uggested that a violation had not occurred (Tr. 37). Mr. Cook 

confirmed that temporary supports were installed after he issued 

,the citation, and that when he next returned to abate the 

vi•ation, both entries had been permanently supported (Tr. 37). 

On "•oss-examination' Mr. Cook confirmed that he saw no 

evidence of the roof dripping or any indications that it was 

about to fall, and he saw no evidence of any roof danger in the 

cited areas (Tr. 38). Mr. Cook also confirmed that he did not 

know which crew had cut the intersection in question, but he 

believed that any crew that knows that the area is not supported 

should attend to the matter (Tr. 38). He stated that 

Mr. Bailey's morning crew had just arrived on the section, and 

Mr. Cook did not know when the area had been mined or who mined 

it (Tr. 40). He confirmed that the violation was an 

unwarrantable failure because "the plan is supposed to be known 

by the coal crews and the company. It's an approved plan and 

they're supposed to know what it requires them to do, to mine 

according to the roof control plan" (Tr. 40). 

Mr. Cook stated that he was confident that he was in the 

No. 6 to No. 7 break and at the No. 6 heading when he made his 

observations and roof measurements. He initially assumed that he 

was in the No. 1 entry, but it was not as advanced as the other 

entries. Mr. Bailey and Mr. Patton both told him he was in the 

No. 6 entry before he issued the violation, and he asked both of 

them for his location because he wanted to make sure of the entry 

location before issuing the violation (Tr. 42). Mr. Cook stated 

that he made his measurements from the last row of roof bolts, 

but he could not recall which side of the entry he measured from 

or whether the entry or face was squared up or at an angle 

(Tr.43-44). Mr. Cook stated that under the roof control plan he 

is allowed to be in four feet from the last row of roof bolts, 

and he explained the measurements he made with his tape and the 

procedures he followed (Tr. 45-47). 

Referring to a mine map (Exhibit R-3), Mr. Cook identified 

the two unsupported roof locations which he observed, and he 

explained how he made his measurements while standing under the 

last row of roof bolts (Tr. 50-54). Mr. Cook confirmed that 

there were two distinct areas which were not supported, namely, 

the No• 6 heading, and the No. 6 to No. 7 break. He also 

confirmed that if the mouth of the No. 6 heading were supported 

with two rows of roof bolts into the crosscut, it would not have 

been illegal to mine the No. 6 to No. 7 break, and vice versa 

(Tr. 55). He stated that the coal accumulations in the break 

1696 
were roughly 20 to 24 inches deep, but he did not consider them 

as a barrier preventing entry into the break because the 

accumulations stopped before the last row of bolts. He did not 

know how the accumulations got there (Tr. 56). 

Mr. Cook clarified his previous "S&S" testimony by stating 

that miners are exposed to the unsupported roof areas when they 

pass by the two openings that are unsupported, and he concluded 

that they had to pass by the unsupported roof area in the No. 6 

heading when the loose coal was pushed into the break (Tr. 57). 

He stated that the "evidence" that someone had been in the area 

previously consisted of the "ridge of coal" across the mouth of 

the intersection and rubber tired scoop or tractor tracks going 

down the No. 6 entry (Tr. 59). 

In response to further questions concerning his "S&S" 

finding, Mr. Cook stated as follows at (Tr. 62-64): 

Q. What you're saying, Mr. Cook, is whether you had 

evidence of miners in this area or not, you were going to 

write this as an S&S violation. Is that what you're saying? 

A. Yes. It's an S&S violation due to the fact that -- 

Mr. Hardy: That is all. Thank you. 

Judge Koutras: Well, you can finish your answer. Go Ahead. 

Mr. Hardy: Yes. Please. 

The Witness: It's an S&S violation regardless of whether 

there is miners active in that area or not. The fact is 

it's already done. You had exposed the miners to it. And 

what we're saying is the more times you expose miners to 

this type of areas leads them up to having more chances or 

them getting roof on them. 

Mr. Cook stated that in the normal course of business the 

crew would have started producing coal, but he did not know the 

mining sequence and did not know where mining would have started. 

He confirmed that the two cited unsupported roof areas had 

already been mined, and the next step would have been for miners 

to go to those areas to support the roof before cleaning up the 

coal accumulations. If the areas were to be abandoned they would 

still have to be timbered to abate the violation (Tr. 66). He 

confirmed that the intersection itself, as shown by an "X" mark 

on the mine map (Exhibit R-3), was permanently supported. In the 

instant case, the break to the right and the heading straight 

ahead in the No. 6 entry were not supported. The heading needed 

to be supported to keep miners from going into the break under 

unsupported roof (Tr. 68). 

1697 
Section 104(d) (i) Order No. 3740214, 30 C.F.R..• 75.208. 

Inspector Cook confirmed that he issued the order after 

observing that neither of the previously cited unsupported roof 

areas contained any visible warnings devices. He s•ated that 

section 75.208, requires barriers to prevent persons from going •nder unsupported roof, or visible warning devices such as 

reflectors or surveyor's ribbons to warn miners not to pass under 

unsupported roof. In the case at hand, barriers or reflectors 

should have been located at the last row of bolts at both the 

No. 6 heading and at the No. 6 to No. 7 crosscut (Tr. 69-70). 

Mr. Cook confirmed that these unsupported areas were a part of 

the active working section, and he could find no visible warnings 

or physical barriers to alert miners about the unsupported areas 

(Tr. 71). 

Mr. Cook explained the basis for his "S&S finding as follows 

at (Tr. 71-72): 

A. By them not having any kind of means provided to show 

that this area wasn't supported, a person could go into that 

area and be out from under supported top before he realized 

he was out from under supported top. There was no means 

showing it wasn't supported. That is why we place -- that is 

why this law is in, so they can make miners aware that this 

area is unsupported. So you don't need to go past this 

area. 

Q. Why did you determine that this was reasonably likely to 

cause a fatality? 

A. Because there is no means provided and anybody could 

have been in that area. As it shows here, the way it looks, 

the evening shift might have mined that area. So the day 

shift could have thought that since there was no flag there 

or no visible means, that the area was supported. They 

might venture up into the face before they would realize 

they was out from under supported top, exposing themselves 

to the unsupported top. 

Q. What was the likelihood of a roof fall? 

A. There was no evidence right there. I'm not a specialist 

on roof. There was no evidence to show that this area was 

extremely bad and would be imminent to fall. If it was an 

extremely bad top and imminent danger, I would have issued 

an imminent danger, but the top condition in this area 

wasn't enough to show that there was a fall going to occur. 

Q. Under normal mining operations, what was the likelihood 

of a fatality occurring? 

1698 
A. Again, we've had people killed by roof and this is -- 

again, you're taking a chance, exposing the miners to the 

roof, unsupported. You're just boosting -- You're just 

increasing your chances on getting someone killed' I can't 

say that it might have led to a fatality or not, but you 

have the case of having people exposed to it. 

And this is what we're trying to prevent, people being 

exposed to this unsupported top. And there was no means 

provided to keep them out of that area, to let them know 

that the area wasn't supported. 

Mr. Cook stated that he based his "unwarrantable failure" 

finding on the following (Tr. 73): 

A. This is a statutory provision of the law which was up 

until the new roof control plan, new roof control law came 

into effect, this was part of the plan. And they took this 

part of the plan out and made it law. Everybody is aware of 

what needs to be done while they mine a place. It's a 

statutory provision of the law and it's required to be known 

on mining. 

If you're mining a section, you're supposed to know what 

parts of the roof control plan you have to abide by and what 

parts of the law pertain to roof control. 

Mr. Cook stated that the violation was abated after foreman 

Bailey obtained reflectors or ribbons and placed them at the 

crosscut and the heading to show that these roof areas were 

unsupported (Tr. 74). Mr. Cook confirmed that the regulatory 

requirement for reflectors is not included as part of the 

respondent's roof control plan (Tr. 75). 

On cross-examination, Mr. Cook confirmed that although he 

was aware of the fact that the preshift examiner's book for 

April 16, 1991, indicated that there was a reflector present in 

the intersection in question between 4:30 and 5:30 a.m., he still 

considered the violation to be an unwarrantable failure (Tr. 76). 

Mr. Cook acknowledged that in his pretrial deposition he stated 

that in his judgment one ribbon posted in the intersection would 

suffice, but he now believed that two ribbons, or reflectors, 

would be required 

(Tr. 76). 

In response to further questions Mr. Cook stated that one 

reflector would probably have been sufficient if it were placed 

in the middle of the intersection to let people know that the 

cited areas were unsupported. He then stated that he would still 

have considered this to be a violation because each of the 

1699 
unsupported entries would not have been posted with a warning. 

However, he would not consider it to be anunwarrantable failure 

because "they at least tried to post it off" (Tr. •i). In the 

instant case, however, he found no warnings posted at any 

locations. If the accumulations which were presen• were pushed 

all the way out to the last row of roof bolts, this would have 

"constltuted a sufficient physical barrier. However, the 

accumulations were two or three feet short of the last row of 

•bolts and he would not consider this to be a sufficient barrier 

(Tr. 81). 

Mr. Cook confirmed that he checked the preshift book for 

April 16, 1991, (Exhibit R-2) and after reviewing the entry for 

that day, he assumed that someone had placed reflectors in the 

areas shown, but he did not observe any at the time of his 

inspection (Tr. 86). He stated that ribbons or tape may be used, 

rather than reflectors, provided they are visible (Tr. 86). He 

confirmed that he did not check the mine production records to 

determine when anyone was last present in the area. However, 

based on the mine map (Exhibit R-2), it would appear that mining 

last took place in the area three days prior to his inspection 

(Tr. 87). He had no knowledge that anyone was travelling through the entry to reach any face area where mining was taking place, 

but someone informed him that a water pump car was brought 

through the area sometime prior to the day shift and that the car 

travelled down the No. 6 entry and over to the No. 7 crosscut. 

However, Mr. Cook did not know when this occurred, and he had no 

evidence that anyone travelled through the cited unsupported 

areas (Tr. 89). However, travelling through the supported 

intersection would be a violation of the roof control plan 

because the openings must be supported before any other work or 

travel in the intersection (Tr. 90). 

Section 104•d) (I) Order No. 3739989, 30 C.F.R. § 75.400. 

Inspector Cook confirmed that he issued the order in the 

course of an inspection on April 29, 1991 (Tr. 91-92; 

Exhibit P-5). He stated that he was accompanied by company 

representative Ronald Kennedy, and that he issued the order after 

observing accumulations of loose coal and coal dust in several 

areas along the ribs and roadways in the return airways starting 

at the overcast at the mouth of the first left section and 

extending inby for about one thousand feet. Referring to the 

mine map, (Exhibit R-3), Mr. Cook marked the mine areas where he 

found the accumulations. He stated that a lot of the 

accumulations were along the rib line and some had been left in 

the roadway. Coal had been scooped up and placed in piles at six 

locations, and the "piles" were 16 to 18 feet wide, 6 to i0 feet 

long, and 3 to 24 inches deep. The remaining accumulations were 

"here and there, numerous places along the ribs and along the 

roadway." He measured the accumulations with a rule, and 

1700 
although they varied in size, the widths and lengths were 

basically "about the same" (Tr. 91-95). 

Mr. Cook stated that the area in question is one of the 

returns off the first left section and it is required to be 

•raveled on a weekly basis by the fire boss (Richard Patton), who 

is responsible for inspecting the area. If he is not present, a 

foreman or other certified person is required to conduct a weekly 

examination of the area. Some of the area was rock dusted, and 

some of the accumulations were rock dusted (Tr. 96). 

Mr. Cook stated that he based his unwarrantable failure 

finding on the following (Tr. 97-98): 

A. Due to the fact that a lot of the accumulations were 

ranging up to one thousand foot outby the working section 

indicates that the accumulations had been there for a long 

time and were left, and in some cases were placed and left. 

75.400 requires that no accumulation shall be permitted -- 

no loose coal or coal dust or combustible material shall be 

allowed to accumulate in the coal mines. And they allowed 

this to accumulate for at least a month, month and a half 

from the time I found it. It had been placed there and 

left. 

Mr. Cook stated that he concluded that the accumulations 

were allowed to accumulate for at least a month or a month and 

half before he found them because the mine map (Exhibit R-3), 

shows that "the earliest they could have started in this area was 

3/14/91". He explained that this was the date that the engineers 

surveyed the area and they were "approximately at that location" 

at the mouth of the section (Tr. 98). Mr. Cook stated that some 

of the cited areas had been cleaned, but the accumulations were 

placed in piles and left, and some of the areas had never been 

cleaned. The violation was abated after the entire return was 

cleaned "from just around the overcast up to the section" 

(Tr. 99). 

On cross-examination, Mr. Cook agreed that if the previous 

citation No. 3740213, which he cited in support of the order, is 

found not to be an unwarrantable failure violation, the order 

would not be unwarrantable and there would be no "S&S" finding 

because it has been modified to a non-"S&S" order (Tr. i00). 

Mr. Cook could not recall whether he was told that mining in 

the area had started at the beginning of the quarter or at the 

end of the last quarter which is shown as March, 1991, on the 

mine map. The inspector who last inspected the mine before he 

did was no longer employed by MSHA when he conducted his 

inspection, and Mr. Cook's supervisor told him that "they were 

1701 
just getting ready to start up this first left at the end of the 

last quarter, which would have been the end of March" (Tr. I01). 

Mr. Cook confirmed that the coal accumulations, were damp, 

but were still combustible. However, there were n•ignition 

•ources such as power cables or electrical installations in the 

return (Tr. 101-102). Responding to questions concerning his 

prehearing deposition of July 8, 1992, Mr. Cook confirmed that he 

previously stated that the coal dust accumulations which he 

observed were not combustible (Tr. 103). Responding further, 

Mr. Cook explained that any loose coal, wet or dry, is considered 

to be combustible material, but that it needs an ignition source 

to make it burn (Tr. 103). He confirmed that he did not make any 

combustibility tests because the coal was damp and wet and there 

was no way to determine the content of the incombustible material 

at that time (Tr. 105). 

Mr. Cook stated that Company representative Kennedy did not 

travel the return airway with him until after he found the 

accumulations and issued the order. He then went back to the 

cited locations with Mr. Kennedy to show him the conditions, and 

Mr. Kennedy offered no explanation, but stated that "he could see 

what the problem was" (Tr. 106). Mr. Cook stated that he checked 

the prior weekly examination records and he believed that he 

found an entry which stated "None Observed" (Tr. 106). He 

confirmed that the accumulations did not extend continuously for 

one thousand feet, but they were "here and there" within that 

distance (Tr. 107). 

Respondent's Testimony and Evidence 

Ronald L. Kennedy, mine chief electrician, stated that he 

performed a preshift examination in the mine between 4:30 and 

5:30 a.m., on April 16, 1991, and recorded the results in his 

examiner's report (Tr. 109; Exhibit R-2). He stated that he 

found a reflector at the No. 2 to No. 3 break, and that the No. 6 

to No. 7 break, and the No. 7 to No. 8 break were not bolted, but 

were reflected (Tr. ii0). His report shows that he reported the 

results of his preshift examination to foreman Clyde Bailey 

(Tr. iii). Mr. Kennedy explained that his examination notations 

"needs bolted, reflector" for the No. 6 to No. 7 entry means that 

a crosscut was not bolted and that there was a reflector there. 

He further explained that a "reflector" is a piece of red tape 

which is hung on the last roof bolt, and he confirmed that a 

reflector was in the area when he conducted his examination, and 

if it were not present he would have installed one as a warning 

to miners not to proceed beyond the last roof bolt. He stated 

that he would not have knowingly signed the examination book if 

the reflector had not been in the No. 6 to the No. 7 area 

(Tr. 111-112). 

1702 
On cross-examination, Mr. Kennedy stated that his report 

does not reflect any observations that he may have made in the 

No. 6 heading, but he was sure that he inspected that location 

and knew of no violations. He stated that the reflectors which 

he observed and recorded were standard markers use•in the mine 

and they were hanging down four to five inches from the roof 

(Tr. 113). He confirmed that the No. 7 break needed bolting and 

was not temporarily supported,and he observed no debris or coal 

in the break (Tr. 114). 

Referring to a mine map (Exhibit R-3), Mr. Kennedy 

identified the No. 6 to No. 7 break area as the circled blue area 

on the map (Tr. 114-115). Mr. Kennedy stated that he could not 

recall seeing anything in the No. 6 entry and he did not see any 

reflector there (Tr. 115). He stated that his crew were 

maintenance people and were not in the face area, but that he had 

to travel through the intersection area to conduct his examination. He could not remember whether a pump car was in the area 

during the shift, but stated that "there might have been one in 

there" (Tr. 116). 

In response to further questions, Mr. Kennedy stated that he 

saw no need for a reflector in the No. 6 entry and that is why he 

did not note the lack of a reflector in his report. He confirmed 

that all of the reflectors noted in his report were in place, and 

that he did not put them up. He explained that reflectors are 

supposed to be hung on the last bolt after a place is mined, and 

if it is torn down, he will replace it (Tr. 117-118). Based on 

his experience as a mine examiner, he believed that there were 

adequate reflectors in the intersection. He could not recall 

whether the No. 6 entry had been mined, but he did see the 

reflector in the No. 6 to No. 7 break at the time of his 

examination (Tr. 119). 

Richard Patton, union employee and belt fire boss, confirmed 

that he accompanied Inspector Cook during his inspection on 

April 16, 1991. He stated that Mr. Cook "duckwalked" and 

"crawled a little ways" into the No. 6 tc No. 7 crosscut, and 

although he was not sure, he believed that Mr. Cook was "a little 

bit past the rib" when he told him to go and get foreman Bailey 

and that "that place was down and the one on the left was down, 

too" (Tr. 122). Mr. Patton stated that he observed some tracks 

in the area but did not know the direction of travel (Tr. 122). 

Mr. Patton stated that Mr. Cook may have been four to five feet 

into the crosscut when he measured the area, but he could not 

remember. He marked the mine map (Exhibit R-3), with a red "x" 

mark to show where he and Mr. Cook were located (Tr. 123). 

On cross-examination, Mr. Patton confirmed that he looked 

for a reflector with Mr. Cook and although a reflector 

(streamer) was laying on the ground, he could not recall the 

particular location (Tr. 124). Mr. Patton confirmed that he 

1703 
remembered the citation that was issued for unsupported roof, but 

did not remember the one concerning the reflectors (Tr. 126). He 

acknowledged that he was mistaken when he marked the mine map 

location where he and Mr. Cook were at and stated that "I must 

have been one back, because that hadn't been drove Up yet, I 

z/uess" (Tr. 127). 

In response to questions concerning the two cited roof 

locations in the No. 6 entry and the No. 6 to No. 7 break, which 

are marked in orange and blue on the mine map (Exhibit R-3), 

Mr. Patton recalled that a five or ten foot cut had been made in 

the No. 6 entry and it was not supported. With regard to the 

break, he stated that "it seemed like it might have been a row or 

something in it there. I can't remember". (Tr. 129). 

Guvenc Arqon, respondent's president, testified that he 

holds a master's degree in mining engineering from Achen, West 

Germany Technical University, and that he has worked in the 

mining industry for 34 years. He stated that he was familiar 

with the three contested violations in question, and that he has 

read the orders and citation issued by Inspector Cook. He stated 

that he prepared the mine map (Exhibit R-3), as part of his 

"investigation" to determine the locations of the violations and 

that he used the surveyors notes and foreman's daily reports from 

April Ii, 1991 through April 15, 1991, to prepare the mine legend 

and to determine where mining had taken place on those days, 

including the number of cuts taken and the mining footage. He 

explained what he believed had been done up to the morning of 

Tuesday, April 16, 1991, and confirmed that the map reflects the 

status of mining at 7:00 a.m., that day (Tr. 130-141). 

Mr. Argon speculated that Mr. Cook may have been in the 

No. 7 to No. 8 intersection rather than in the No. 6 to No. 7 

break and if he were in fact in the No. 6 and No. 7, Mr. Argon 

did not believe that Mr. Cook could have measured 20 feet, and 

that the maximum measurement would have been 14 feet (Tr. 143- 

144). Relying on the records, Mr. Argon concluded that Mr. Steve 

Bailey made the last cut in the break from the No. 6 to the No. 7 

entry late in the evening on Saturday, April 13, 1991 

(Tr. 141-145). 

On cross-examination, and in response to questions as to how 

far past the last row of roof bolts may have been mined into the 

No. 6 heading, Mr. Argon stated that "I was not there. I did not 

see it" (Tr. 153). Based on the map measurements, he concluded 

that mining may have advanced one or two feet beyond the corner 

(Tr. 153). Mr. Argon also explained some of the information 

contained in the examination reports that he used to prepare his 

mine map (Tr. 155-157). 

1704 
Findinqs and Conclusions 

Docket No. WEVA 92-246 

Fact of Violation, Citation No. 3740213, 30 C.F.R. i 75.220(a)(i) 

Inspector Cook issued the citation after concluding that the 

respondent had violated its approved roof control plan by failing 

to provide roof support at two openings of an intersection where 

mining had advanced . The inspector cited the respondent with a 

violation of 30 C.F.R. § 75.220(a)(i), which provides as follows: 

Each mine operator shall develop and follow a roof 

control plan, approved by the District Manager, that is 

suitable to the prevailing geological conditions, and 

the mining system to be used at the mine. Additional 

measures shall be taken to protect persons if unusual 

hazards are encountered. 

The applicable roof control plan relied on by the inspector 

in support of Citation No. 3740213, is dated February 20, 1991 

(Exhibit P-3). The inspector confirmed that the specific plan 

provision which was not followed is found at pg. 4, paragraph 3 

of the plan, and it states as follows: 

3. Openings that create an intersection shall be 

permanently supported or a minimum of one row of 

temporary supports shall be installed on not more than 

4-foot centers across the opening before any other work 

or travel in the intersection. 

In the course of the hearing, respondent's counsel 

introduced Exhibit R-l, which purports to be a copy of page 4 of 

the respondent's roof control plan (Tr. 90-91). Paragraph 3 of 

the document contains the same language found in the roof control 

plan relied on by the inspector except for the addition of a last 

sentence which reads as follows: "This does not preclude 

preshift and on-shift inspections". After further consideration, 

I reject the respondent's unsubstantiated version of page 4 of 

its plan, and I accept the approved plan as submitted by the 

petitioner and received in evidence in this case as the more 

credible and applicable plan provision (Exhibit P-3). 

In the course of the hearing, respondent's counsel suggested 

that on April 16, 1991, Inspector Cook was confused and thought 

he was observing conditions in the No. 6 heading and the No. 6 to 

No. 7 break, when in fact he was looking at conditions at the 

No. 7 to No. 8 break and that he was confused as to exactly where 

he was and what he observed. Counsel asserted that there was no 

violation of the roof control plan because the No. 7 to No. 8 

area was properly bolted before the No. 7 heading was mined 

1705 
(Tr. 17-18). Counsel took issue with Inspector Cook's findings 

that both locations off the intersection in question were 

unsupported, and counsel maintained that "if you're bolted in one 

place or the other, you're legal. You can go to one or you can 

go to the other" (Tr. 48). 

/ According to the respondent's approved roof control plan, 

the company official responsible for the plan was Safety Director 

Doug Pauley (Exhibit P-3). Although respondent's counsel 

indicated during the hearing that Mr. Pauley would be a witness, 

Mr. Pauley was not called to testify (Tr. 90). However, in 

response to certain bench comments, respondent's counsel stated 

that "Doug Pauley was able to get underground about four or five 

hours after all this happened. We had already had bolts put up, 

temporary supports put up. There had been numerous abatements 

measures taken already" (Tr. 148). Inspector Cook testified that 

temporary supports were installed after he issued the citation, 

and that when he next returned to abate the violation, both cited 

locations were permanently supported (Tr. 37). 

In support of the suggestion that Inspector Cook may have 

been confused as to where he was in the mine at the time of his 

inspection on April 16, 1991, and that he was observing 

conditions at a location different from the one described in his 

citation, the respondent presented the testimony of union fire 

boss Richard Patton, who was with Mr. Cook during the inspection, 

and company president Guvenc Argon, who was not with Mr. Cook and 

did not view the cited conditions, and who reconstructed the 

conditions after reviewing the citation and certain mine records 

and reports. 

Although Mr. Patton initially testified that he and Mr. Cook 

were at an intersection in the No. 6 entry different from the 

intersection identified by Mr. Cook on the mine map 

(Exhibit R-3), Mr. Patton acknowledged on cross-examination that 

he was mistaken, and he "guessed" that the location that he had 

initially placed on the mine map had not as yet been driven 

(Tr. 127). Further, Mr. Patton specifically recalled the roof 

plan citation and he confirmed that a five or ten foot cut had 

been made in the No. 6 entry and that it was not supported 

(Tr. 128). With respect to the second location cited by 

Inspector Cook, Mr. Patton stated that "it seemed like it might 

have been a row or something in it there. I can't remember" 

(Tr. 129). 

Insofar as Mr. Argon's testimony is concerned, I am not 

persuaded or convinced that it provides a credible basis for 

establishing that Inspector Cook was at some location other than 

the one he cited and testified about. During a bench colloquy 

concerning Mr. Argon's testimony, respondent's counsel 

characterized the testimony "as speculation that perhaps he 

(Cook) was in the wrong entry" (Tr. 148). Further, although 

1706 
respondent's counsel indicated that Mr. Argon's testimony was 

presented to address foreman Steve Bailey's belief that mining 

only progressed to a certain point on April 13, 1991, and that 

Mr. Bailey might be called to testify, Mr. Bailey was not called 

(Tr. 158). 

Although Mr. Cook acknowledged that his inspection of 

April 16, 1991, was his first visit underground at the mine, and 

that he initially believed that he was in the No. 1 entry, he 

testified credibly that in order to make sure of his location 

before issuing the citation, he asked both Mr. Patton and 

Mr. Clyde Bailey about it and they told him that he was in the 

No, 6 entry (Tr. 42). Mr. Cook also testified credibly that 

after issuing the citation and subsequent order, Clyde Bailey 

assembled the crew so that he (Cook) could speak with them about 

the violation, and that no one spoke up to dispute his findings 

(Tr. 36). 

After careful consideration of all of the testimony and 

evidence in this case, I reject the respondent's suggestion that 

Inspector Cook may have been at a location different than the one 

described in his citation at the time he viewed the unsupported 

roof areas in question. I conclude and find that Inspector Cook 

was at the location described in the citation which he issued. 

The respondent's applicable roof control plan provision 

required all openings creating an intersection to be permanently 

supported or temporarily supported with a minimum of one row of 

supports on not more than 4-foot centers across the openings 

before any work or travel in the intersection. Although 

Inspector Cook confirmed that if one of the cited roof locations 

had been supported in compliance with the roof control plan, the 

failure to support the other location would not have been a 

violation, I find no credible evidence establishing that any of 

roof locations cited by Inspector Cook were supported. Inspector 

Cook's credible testimony that the cited roof location in the 

No. 6 entry was unsupported was corroborated by fire boss Patton. 

With regard to the second location, the No. 6 to No. 7 crosscut 

break, the inspector's testimony that it too was unsupported is 

corroborated by the preshift examination report of examiner 

Ronald Kennedy (Exhibit R-2), and Mr. Kennedy's testimony 

confirming that the break was not bolted or temporarily 

supported. Under the circumstances, I conclude and find that 

both of the cited roof locations off of the intersection in the 

No. 6 entry, and in the No. 6 to No. 7 crosscut break, were 

unsupported and the inspector's findings in this regard are 

affirmed. 

Although Inspector Cook confirmed that he had no evidence 

that anyone had gone out under unsupported roof in the two cited 

locations, he nevertheless concluded that someone had performed 

work and travelled through the supported intersection past the 

1707 
unsupported roof areas off of the intersection. Mr. Cook's 

conclusion in this regard was based on his observations of 

"ridges of coal" accumulations which had apparently been pushed 

into the crosscut between the No. 6 and No. 7 entries, rubbertired scoop or tractor tracks going down the No. 6 •eading, and 

his belief that miners had to pass by one of the openings off of 

the intersection to mine the other opening. Fire boss Richard 

Patton and electrician Ronald Kennedy confirmed that they 

observed the tire tracks, but did not know the direction in which 

they travelled. Mr. Kennedy believed that a pump car may have 

been in the area, but he could not recall for certain. However, 

he confirmed that he had to travel the intersection to conduct 

his preshift examination (Tr. 116). 

I conclude and find that the credible testimony of Inspector 

Cook establishes that the two cited locations off of the 

intersection in the No. 6 entry as shown on the mine map, 

(Exhibit R-3), were not supported as required by the respondent's 

approved roof control plan, and that work or travel had been 

performed in those areas without the required additional roof 

support. Under the circumstances, I conclude and find that the 

petitioner has established a violation by a preponderance of the 

evidence, and the violation IS AFFIRMED. 

pact of Violation, Order No. 3740214, 30 C.F.R. § 75.208. 

Inspector Cook issued the violation after finding that the 

unsupported roof areas which he previously cited in Citation 

No. 3740213, were lacking the readily visible warning devices 

required by mandatory safety standard 30 C.F.R. § 75.208, which 

provides as follows: 

Except during the installation of roof supports, the 

end of permanent roof support shall be posted with a 

readily visible warning, or a physical barrier shall be 

installed to impede travel beyond permanent support. 

Inspector's Cook's credible and unrebutted testimony clearly 

establishes that at the time he inspected the intersection and 

the adjacent two cited unsupported roof areas, there were no 

readily visible warnings posted to warn miners not to enter those 

areas. As a matter of fact, in the course of the hearing, 

respondent's counsel conceded that "there was no reflector in the 

intersection" when the inspector was at that location at 

7:15 a.m., and counsel asserted that the respondent has "never 

taken the position that there was a reflector there. There 

wasn't" (Tr. 18, 163). The failure to post such reflectors, or 

other appropriate warning devices, constitutes a violation of 

section 75.208. Se___ee: Day Branch Coal Co., Inc., 12 FMSHRC 247 

(February 1990); Ramblin Coal Co., 14 FMSHRC 1025 (June 22, 

1992). Under all of these circumstances, I conclude and find 

that the petitioner has established a violation of 

1708 
section 75.208, by a preponderance of the credible evidence 

adduced in this matter, and the violation IS AFFIRMED. 

Docket No. WEVA 92-247 

•act of Violation. Order No. 3739989, 30 C.F.R. § 75.400. 

Inspector Cook issued the violation after finding 

accumulations of loose coal and coal dust at the locations 

described in the order, and he cited a violation of 30 C.F.R. 

§ 75.400, which provides as follows: 

Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein. 

I conclude and find that the credible testimony of Inspector 

Cook with respect to his observations and measurements of the 

accumulations in questions has not been rebutted by the 

respondent and it clearly establishes the existence of the 

accumulations. Indeed, in the course of the hearing the 

respondent's counsel conceded that the cited accumulations did in 

fact exist (Tr. 19, 164). However, in closing arguments, counsel 

raised the issue as to whether or not accumulations of loose coal 

and coal dust which are not combustible may support a violation 

of section 75.400 (Tr. 164-165). 

Inspector Cook testified that notwithstanding the absence of 

any ignition sources, accumulations of loose coal and coal dust 

are still considered to be combustible materials that will burn 

if ignited by an ignition source (Tr. i01, 103). He acknowledged 

that he did not sample the coal or make any combustibility tests 

because he had no way to make that determination with the damp 

and wet coal which was present (Tr. 105). Mr. Cook also 

acknowledged that in his prior deposition, he answered "no" in 

response to a question as to whether he believed the cited 

accumulations were combustible (Tr. 103). In explanation of that 

answer, Mr. Cook suggested that his answer may have been taken 

out of context, and that the question may have been preceded by 

other questions dealing with his "S&S" finding (Tr. 103-104). 

The respondent's suggestion that the violation should be 

dismissed because of the inspector's failure to establish that 

the coal accumulations were in fact combustible IS REJECTED. 

Although the inspector agreed that no ready sources of ignition 

were present, he testified credibly that although the •,•i 

accumulations were damp, they were nonetheless combustible. 

Se___ee: R.B.M Enterprises, Inc., 13 FMSHRC 222 (February 1991), 

holding that wet and muddy mine conditions did not preclude a 

1709 
violation of section 75.400, since wet accumulations are still 

combustible. See also: Secretary v. Black Diamond Coal Mininq 

ComDanv, 7 FMSHRC 1117 at pgs. 1120-1121 (August 1985); and Utah 

Power & Liqht Company v. Secretary, 12 FMSHRC 965, •t pgs. 968- 

969 (May 1990), where the Commission observed that •ven though 

¢oal accumulations may be damp or wet they are still combustible. 

I conclude and find that Inspector Cook's credible and 

unrebutted testimony with respect to his personal observations 

and measurements of the cited coal accumulations establishes that 

they existed as charged in the notice of violation served on the 

respondent. With regard to the issue of combustibility, while it 

is true that Mr. Cook testified at his deposition that he did not 

believe the accumulations were combustible, after reviewing the 

deposition page submitted by the respondent's counsel, I agree 

with Mr. Cook's assertion that his response, taken in contest, 

was in connection with other questions concerning his "S&S" 

finding. In any event, it seems clear to me from Mr. Cook's 

credible and unrebutted hearing testimony that while wet and damp 

coal cannot be ignited in the absence of an ignition source, such 

accumulations are nonetheless still combustible. 

In view of the foregoing, and after careful consideration of 

all of the evidence in this case, and in the absence of any 

credible rebuttal by the respondent, I conclude and find that the 

cited coal accumulations were combustible and constituted a 

violation of section 75.400, and the violation is therefore 

AFFIRMED. 

Siqnificant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (i) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 U.S.C. § 814(d)(i). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (i) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safety1710 
contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d)(1), 

it is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., i0 FMSHRC 498 

(April 1988); Youghioqheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

Citation No. 3740213 

In support of his significant and substantial (S&S) finding 

Inspector Cook took into account his prior knowledge of fatal and 

serious accidents (not at respondent's mine) resulting from 

mining past an opening that is not supported. Although Mr. Cook 

did not personally observe anyone under unsupported top, based on 

his observations of coal accumulations and tire tracks, he 

concluded that the coal had been pushed through the breakthrough 

and that someone had passed by the unsupported roof area while 

travelling through the area doing this work. He also indicated 

that the two unsupported roof areas had been mined, and that in 

the next step in the mining cycle miners would go to those areas 

to support the roof before cleaning up the coal accumulations. 

Mine Electrician Kennedy confirmed that he had to travel through 

the intersection while performing his preshift examination, and 

this was before Mr. Cook arrived in the area. 

Although Mr. Cook confirmed that he saw no evidence that the 

roof was dripping and did not believe that there was an immediate 

danger of the roof falling, he nonetheless confirmed that he was 

concerned that the unsupported top could fall, and if it did, it 

could "ride back past your permanent supports" (Tr. 29). 

1711 
Further, even through he acknowledged that he observed no one in 

the area, he was still concerned that miners had been exposed to 

the unsupported roof areas when they were mined and he did not 

want the miners exposed again to unsupported roof a•eas because 

"the more times you expose miners to this type of areas leads 

them up to having more chances of them getting roof on them" 

(Tr. 63). 

The Commission has taken note of the fact that mine roofs 

are inherently dangerous and that even good roof can fall without 

warning. Consolidation Coal Company, 6 FMSHRC 34, 37 (January 

1984). It has also stressed the fact that roof falls remain the 

leading cause of death in underground mines, Roof Mininq Co., 

4 FMSHRC 1207, 1211 & n. 8 (July 1982); Halfway Incorporated, 

8 FMSHRC 8, 13 (January 1986); Consolidation Coal Company, supra. 

In the Consolidation Coal Company case, su_9•/_•, the 

Commission affirmed my "S&S" finding concerning an over-wide roof 

bolting pattern which had existed along a supply track for a 

period of 6-months, and stated that "[T]he fact that no one was 

injured during that period does not •so facto establish that 

there was not a reasonable likelihood of a roof fall." 

In U.S. Steel Mininq Company, inc., 6 FMSHRC 1369 1366 (May 

1984), Judge Melick found that a hazardous roof condition was 

significant and substantial notwithstanding testimony from a mine 

foreman that it was unlikely that the roof would fall "right 

away," and his belief that the condition was not unsafe because 

he and the inspector were under the roof while taking certain 

measurements. In R B J Coal Company, Inc., 8 FMSHRC 819, 820 

(May 1986), Judge Melick cited Mathies Coal Company, 6 FMSHRC 1 

(1984), in support of his finding that a hazardous roof condition 

constituted a significant and substantial violation even in the 

absence of an "immediatehazard." 

In Halfway Incorporated, supra, the Commission upheld a 

significant and substantial finding concerning a roof area which 

had not beensupported with supplemental support, and ruled that 

a reasonable likelihood of injury existed despite the fact that 

miners were not directly exposed to the hazard at the precise 

moment of the inspection. In that case, the Commission stated as 

follows at 8 FMSHRC 12: 

[T]he fact that a miner may not be directly exposed to 

a safety hazard at the precise moment that an inspector 

issues a citation is not determinative of whether a 

reasonable likelihood for injury existed. The 

operative time frame for making that determination must 

take into account not only the pendency of the 

1712 
violative condition prior to the citation, but also 

continued normal mining operations. National Gypsum, 

supra, 3FMSHRC at 825; U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574 (July 1984). 

I agree with Inspector Cook's credible and unrebutted 

testimony that in the context of continued mining operations on 

•he section, miners would be exposed to the hazards of a roof 

fall in the twocited unsupported roof areas adjacent to the 

intersection in the No. 6 entry, and that if the roof was to fall 

it could ride back past the supported intersection. If this were 

to occur, I believe one may reasonably conclude that any miners 

working or travelling the intersection would be exposed to the 

hazards of a roof fall. If a roof fall had occurred, I further 

believe that that it was reasonably likely that the affected 

miners would sustain injuries of a reasonably serious nature. 

Under all of these circumstances, I conclude and find that 

Inspector Cook's "S&S" finding was both reasonable and proper, 

and IT IS AFFIRMED. 

9rder No. 3740214 

Inspector Cook based his "S&S" finding on his belief that in 

the absence of a visible warning device someone could ventureout 

beyond the supported intersection into the areas of unsupported 

roof in the No. 6 entry and the No. 6 to No. 7 crosscut break 

where coal accumulations had been pushed. Since the areas in 

question were in an active working section, Mr. Cook believed 

that anyone could have gone into these areas under unsupported 

roof and exposed themselves to the hazards of a roof fall. 

Although Mr. Cook did not believe that there was an immediate 

danger of the unsupported roof areas falling, he nonetheless 

believed that under normal mining operations the absence of 

visible warnings to alert miners to stay out of the unsupported 

roof areas exposed them to a hazard and increased the chances of 

a fatality if the roof were to fall. 

The obvious purpose of requiring visible warnings is to 

alert miners to stay out of areas where the roof is not 

supported. Although preshift examiner Kennedy's testimony 

reflects that he found a warning tape installed at the No. 6 to 

No. 7 break when he conducted his preshift approximately two 

hours before Inspector Cook observed the area, I take note of the 

fact that Mr. Kennedy confirmed that no warning was posted in the 

No. 6 entry. However, the fact remains that Inspector Cook found 

no warning devices in place at either location when he inspected 

the areas. Under the circumstances, I agree with Mr. Cook's 

safety concerns, and I conclude and find that in the course of 

continued normal mining operations a measure of danger to safety 

was contributed to by the violation, and that it was reasonably 

likely that miners would venture beyond the unsupported areas 

which were not posted with visible warnings, thereby exposing 

1713 
them to the dangers of fall of unsupported roof. If the 

unsupported roof were to fall on a miner, I believe it would 

result in a fatality, or injuries of a reasonably serious nature. 

Under the circumstances, the inspector's "S&S" finding IS 

AFFIRMED. 

Order No. 3739989 

In the course of the hearing, petitioner's counsel requested 

that the prior "S&S" finding made by the inspector be modified to 

non-"S&S" (Tr. 16, 97). In support of the request, counsel 

stated that the inspector has now determined that the violation 

was not significant and substantial (Tr. 16-17). Inspector Cook 

confirmed that this was the case, and he stated that in the 

absence of any ignitions sources, and any history of excess 

liberation of methane, he did not believe that the cited damp and 

wet coal accumulations constituted a significant and substantial 

violation (Tr. 104-105) Respondent's counsel agreed that in the 

absence of any ignition sources, the accumulations which were 

present in the damp return entry did not constitute a significant 

and substantial violation (Tr. 19). Under the circumstances, the 

petitioner's request to modify the violation to non-"S&S" was 

granted from the bench, (Tr. 97), and my decision in this regard 

is herein reaffirmed. 

Unwarrantable Failure Violations 

The governing definition of unwarrantable failure was 

explained in Zeiqler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an 

inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several subsequent decisions concerning the 

interpretation and application of the term "unwarrantable 

failure," the Commission further refined and explained this term, 

and concluded that it means "aggravated conduct, constituting 

more than ordinary negligence, by a mine operator in relation to 

a violation of the Act." Emery Mininq Corporation, 9 FMSHRC 1997 

(December 1987); youqhioqheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987); Secretary of Labor v. Rushton Mininq Company, 

1714 
i0 FMSHRC 249 (March 1988). Referring to its prior holding in 

the Emery Minina case, the Commission stated as follows in 

youqhiogheny & Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

is "inadvertent," "thoughtless", or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

"Failure" is defined as "neglect of an assigned, 

expected, or appropriate action." Webster's Third New 

International Dictionary (Unabridqed) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

Citation No. 3740213 

Inspector Cook testified that he considered the violation to 

be an unwarrantable failure because the approved roof control 

plan is the respondent's plan and everyone working on the section 

should review it and know what the plan requires (Tr. 32-33; 40). 

Mr. Cook also testified that when he assembled the crew after the 

citation was issued to speak to them about the matter, they 

acknowledged that they were aware of the roof control plan for 

supporting the cited locations and no one spoke up to the 

contrary or suggested that a violation had not occurred 

(Tr. 35-37). 

Inspector Cook had no knowledge as to which production crew 

may have last mined the cited areas and he confirmed that he did 

not review any mine production records to determine when anyone 

was last present in those areas. Based on the reconstructed mine 

map and legend produced by the respondent (Exhibit R-2), Mr. Cook 

stated that it would appear that mining took place in the area 

three days prior to his inspection (Tr. 87). Although Mr. Cook 

believed that a water pump car may have travelled through the 

1715 
area, and he observed coal pushed into the break adjacent to the 

intersection in the No. 6 entry, he had no evidence to establish 

when these events may have occurred, and he conceded that these 

activities would have occurred under supported roof in the 

intersection, and he had no evidence that anyone ac•ually 

travelled under unsupported roof. 

The cited roof control plan requires roof support across an 

intersection opening before any other work or travel in the 

intersection. Thus, it would appear that such support is not 

required until such time as men are expected to work or travel in 

the intersection. Mr. Argon testified that the foreman's report 

for April 12, 1991, shows that the No. 6 entry was bolted, but 

that the April 13, 1991, report shows that it was not bolted. 

Mr. Argon could not further explain these entries and he deferred 

to foreman Steve Bailey, the individual whose signature appears 

on the reports. However, Mr. Bailey was not called or subpoenaed 

for testimony and it does not appear that he was deposed. In the 

absence of any credible testimony from witnesses who were 

actually present during the mining activities which may have 

taken place during the days prior to Mr. Cook's inspection, I 

find no credible evidence to establish that the respondent 

deliberately and consciously failed to act, or engaged in conduct 

which one may reasonably conclude was aggravated. I also note 

the absence of any prior violations of section 75.220(a) (i). 

Under the circumstances, and coupled with the inspector's belief 

that the violation was an unwarrantable failure because the 

respondent "knew or should have known" about the requirements of 

its own roof control plan, I cannot conclude that the petitioner 

has carried its burden of proof to establish that the violation 

was in fact an unwarrantable failure violation within the 

parameters established by the Commission's decisions. 

Accordingly, the inspector's unwarrantable failure finding IS 

VACATED, and the section 104•d) (i) citation IS MODIFIED to a 

section 104(a) citation. 

Order No. 3740214 

Inspector Cook testified that the requirement for visible 

warning devices at the end of permanent roof supports was a part 

of the respondent's roof control plan until it was enacted as a 

part of MSHA's mandatory safety standards. Mr. Cook based his 

unwarrantable failure finding on his belief that the respondent 

should have known about any roof control requirements as well as 

the regulatory standards pertaining to roof control (Tr. 73). 

However, Mr. Cook confirmed that after reviewing the preshift 

inspection book for April 16, 1991, he assumed that someone had 

placed warning reflectors in the areas shown in the book entries 

(Tr. 86). Further, although his prior deposition testimony that 

one warning reflector placed in the middle of the intersection 

would suffice to comply with section 75.208, was contrary to his 

hearing testimony that two reflectors would be required (one at 

1716 
each cited location), Mr. Cook candidly conceded that he would 

not consider this to be an unwarrantable failure violation 

because "they at least tried to post it off" (Tr. 81). 

I accept as credible the unrebutted testimony#of mine 

electrician Ronald Kennedy who conducted a preshift examination 

On April 16, 1991, approximately two hours before Inspector Cook 

arrived on the section to conduct his inspection. Mr. Kennedy 

testified that he observed a reflector at the No. 6 to No. 7 

break and that the inspection book contained no additional 

notations as to what he may have observed in the No. 6 entry. I 

take note of the fact that the foreman's reports for the three or 

four days prior to the inspection on April 16, 1991, contain no 

information that reflectors were needed at the cited locations in 

question (Exhibit R-3). I also note the absence of any prior 

citations for violations of section 75.208, in the respondent's 

history of prior violations (Exhibit P-l). 

After careful consideration of all of the evidence and 

testimony in this case, I find no credible evidence of any 

egregious or aggravated conduct on the part of the respondent in 

connection with this violation. In my view, the inspector's 

belief that the respondent knew or should have known about the 

requirements found in section 75.208, falls short of the standard 

of conduct required by the Commission's decisions to support an 

unwarrantable failure violation. Accordingly, the inspector's 

unwarrantable failure finding IS VACATED, and the contested order 

IS MODIFIED to a section 104(a) citation. 

Order No. 3739989 

In support of the order in question, Inspector Cook relied 

on the previously issued section 104(d) (i) Citation No. 3740213, 

which has been modified to a section 104(a) citation. With 

regard to his prior "S&S" finding with respect to the order, 

Inspector Cook changed his position and agreed that the violation 

was non-"S&S", and the order was modified accordingly. Inspector 

Cook agreed that if the section 104(d) (i) citation which he cited 

in support of the order is found not to be an unwarrantable 

failure citation, the order would not be an unwarrantable failure 

order and the violation would not be "S&S" because it has been 

modified to a non-"S&S" violation (Tr. i00). 

In its posthearing brief the respondent argues that the 

order was issued at the end of a "d-chain" beginning with 

Citation No. 3740213, and it believes that this citation, as well 

as Citation No. 3740214, should be modified to section 104(a) 

citations. Assuming that this is done, the respondent further 

believes that Order No. 3739989, is no longer part of a "d-chain" 

and should initially be considered as a section 104(d)(1) 

citation and nor an order. However, the respondent concludes 

that a section 104(d)(1) citation must describe a significant and 

1717 
substantial condition, and that since the cited condition has 

been modified to a non-significant and substantial violation, it 

concludes that a section 104(d)(1) citation cannot stand as a 

matter of law and that the order should be modified•to a 

section 104(a) citation. # 

After careful review of all of the facts and circumstances 

surrounding the issuance of the order in question, and the 

arguments presented by the parties, I agree with the respondent's 

position and adopt its aforementioned arguments as my findings 

and conclusions. Accordingly, the contested section 104(d)(1) 

order IS MODIFIED to a section 104(a) non-"S&S" citation. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue to Business. 

The parties have stipulated that the respondent is an 

average sized mining operator and that the imposition of 

appropriate civil penalty assessments will not adversely affect 

its ability to continue in business. I conclude and find that 

the civil penalty assessments which I have imposed for the 

violations which have been affirmed are appropriate and will not 

adversely affect the respondent's ability to continue in 

business. 

History of Prior Violations 

The parties stipulated that the respondent has a low history 

of prior violations, and I cannot conclude that its compliance 

record is such as to warrant any additional increases in the 

civil penalty assessments which I have made for the violations in 

question. 

Gravity 

On the basis of my "S&S" findings and conclusions, I 

conclude that the roof control and warning device violations 

(Citation Nos. 3740213 and 3740214) were serious violations, and 

that the coal accumulation violation (Citation No. 3739989) was 

non-serious. 

Negliqence 

I conclude and find that the roof control and warning device 

violations were the result of the respondent's failure to 

exercise reasonable care to prevent the violative conditions 

which it knew or should have known existed on the section and 

that this amounts to ordinary or moderate negligence. With 

regard to the coal accumulations violation, I conclude and find 

that the inspector's credible testimony concerning the duration 

of the existence of the cited accumulations, including his 

testimony that the coal was pushed into piles and left unattended 

1718 
and not cleaned up, supports a finding of a high degree of 

negligence for this violation. I therefore conclude and find 

that the violation resulted from a high degree of negligence on 

the part of the respondent because of its failure t• promptly 

clean up and remove the cited accumulations in queszion. 

Good Faith Compliance 

The partie s stipulated that the respondent exhibited good 

faith in timely abating the violations in question and I adopt 

this as my finding and conclusion with respect to all of the 

violations. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section ll0(i) of the Act, I conclude and find that the 

following civil penalty assessments are reasonable and 

appropriate for the violations which have been affirmed: 

Docket No. WEVA 92-246 

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

3740213 4/16/91 75.220(a) (1) $275 

3740214 4/16/91 75.208 $150 

Docket No. WEVA 92-247 

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

3739989 4/29/91 75.400 $225 

ORDER 

IT IS ORDERED THAT: 

i. The initial section 104(d)(1) "S&S" Citation 

No. 3740213, April 16, 1991, citing a violation of 30 C.F.R. 

§ 75.220(a) (i), IS MODIFIED to a section 104(a) "S&S" 

citation, and as modified, IT IS AFFIRMED. 

2. The initial section 104(d)(1) "S&S" Order No. 3740214, 

April 16, 1991, citing a violation of 30 C.F.R. § 75.208, 

IS MODIFIED to a section 104(a) "S&S" citation, and as 

modified, IT IS AFFIRMED. 

3. The initial section 104(d)(1) "S&S" Order No. 3739989, 

April 29, 1991, citing a violation of 30 C.F.R. § 75.400, IS 

MODIFIED to a section 104(a) non-"S&S" citation, and as 

modified, IT IS AFFIRMED. 

1719 
4. The respondent shall pay civil penalty assessments in 

the amounts shown above for the three (3) violations which 

have been affirmed. Payment is to be made to MSHA within 

thirty (30) days of these decisions and Order, mand upon 

receipt of payment, these proceedings are dismissed. 

Geo.rge/A..Kou•ras _ . Admlnlstratlve Law Judge 

Distribution: 

Patrick L. DePace, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

/ml 

1720 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 6 ]992 

ALUMINUM COMPANY OF AMERICA, 

Contestant 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. CENT 92-362-RM 

Order No. 4107581; 9/11/92 

Point Comfort Operations 

Mine ID 41-00320 

Appearances: 

DECISION 

Timothy P. Ryan, Esq., Eckert Seamans Cherin & 

Mellott, Pittsburgh, Pennsylvania, for Contestant; 

Gretchen Lucken, Esq. Office of the Solicitor, 

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

for Respondent. 

Before: Judge Maurer 

This proceeding concerns a Notice of Contest filed by the 

contestant pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977, challenging the legality and propriety of a 

section 103(k) order issued at its Bayer Alumina•Plant on 

September ii, 1992. An expedited hearing was requested and 

subsequently held on October 6, 1992, in Victoria• Texas, and the 

parties appeared and participated fully therein. Afterthe 

Secretary rested, contestant moved that the secti0n 103(k) order 

at issue herein be vacated. I granted that motion onthe record 

at the hearing. For the purposes of ruling on contestant's 

motion, I accepted as true all the factual testimony in the 

record and all the Secretary's expert testimony aswell, save 

their legal conclusions that a section 103(k) order was an 

appropriate legal device to address the instant mercury contamination problem at the contestant's Point Comfort Facility. 

Pursuant to the Rules of Practice before this Commission• this 

written decision confirms the benoh decision I rendered at the 

hearing. 

Order No. 4107581, issued pursuant to section 103(k) of the 

Act on September II, 1992, by Supervisory Inspector Fink, states 

as follows: 

Mercury contamination has occurred at all the R-300 

facility and area approximately 70 feet west extending 

to the paved roadway parallel to the R-300 facility to 

1721 
be covered by this 103(k) order. In order to protect 

the health and safety, all persons are prohibited from 

entering this area, except with the approval of the 

District Manager or his representative pending further 

investigation of the extent of the hazard. 

In my opinion, there is no question that the Secretary has 

turned up a serious incidence of mercury contamination at the 

contestant's R-300 facility and adjacent area and it must be 

dealt with. The sooner the better. I only disagree with the 

legality of the means the Secretary has chosen to address the 

problem. 

Section 103(k) of the Mine Act states: 

In the event of any accident occurring in a coal 

or other mine, an authorized representative of the 

Secretary, when present, may issue such orders as he 

deems appropriate to insure the safety of any person in 

the coal or other mine, and the operator of such mine 

shall obtain the approval of such representative, in 

consultation with appropriate State representatives, 

when feasible, of any plan to recover any person in 

such mine or to recover the coal or other mine or 

return affected areas of such mine to normal. 

An "accident" is a necessary precondition tothe issuance of 

a section 103(k) order and there has been no discernible accident 

proven by the Secretary in this case. Simply calling it an 

"accident" does not make it so. Likewise, forming an "accident 

committee," does not make whatever that committee is investigating an "accident." Furthermore, although the list is not meant 

to be exclusive or exhaustive, I note that mercury contamination, 

or indeed any type of chemical spills or contamination is not 

included in the definition of "accident" provided by section 3(k) 

of the Mine Act. Nor is this type of situation included in the 

definition of "accident" in the MSHA regulations found at 

30 C.F.R. § 50.2(h). 

Legal niceties aside, the Secretary urges that as a remedial 

statute, the Mine Act should be interpreted broadly to effectuate 

its important health and safety purposes. I certainly agree with 

that proposition but the basis for my vacation of the order at 

bar is the very candid testimony of Inspector Fink, the man who 

issued the contested section 103(k) order in the first instance. 

Inspector Fink testified that the section 103(k) order was 

actually issued to force compliance with several sections of 

30 C.F.R. Part 56. He also agreed that section 104 of the Act or 

in a proper case, section 107(a), was the more usual compliance 

1722 
tool. Most importantly, in response to questioning by the court, 

he admitted that the result obtained by the issuance of the 

103(k) order could have also been obtained by regular enforcement 

of the mandatory standards pursuant to section 104 of the Act. 

The inspector testified at Tr. 133: 

Q. Okay, so basically those . . . standards, if they 

were enforced, would do everything that you want to do 

with this 103(k) order, correct? 

A. Yes sir, if they were enforced, by all parties 

concerned. 

By his qualification, the inspector meant that the section 104 

enforcement would only be effective if the company complied. But 

I believe that the mechanism exists in section 104 to force 

compliance upon even the most reluctant operator if it is 

properly used. 

I also believe that Inspector Fink was directed to issue the 

instant 103(k) order by the district manager because MSHA was 

concerned about what they perceived to be a lack of compliance 

disposition on the part of ALCOA concerning previous citations 

issued to the company with regard to the mercury contaminated 

area. In a reactive manner, MSHA impermissibly stretched the law 

to force compliance with the applicable mandatory standards when 

the Mine Act has an existing, readily usable and legal mechanism 

to do exactly that in section 104 or in the proper case, 107. 

If violations of mandatory standards were involved, as they 

apparently were, MSHA should have proceeded apace with enforcement under section 104. This course of action was embarked on, 

but later abandoned by MSHA in favor of the quicker fix thought 

to be available in section 103(k). Moreover, if at any time MSHA 

determines that an imminent danger is involved, an imminent 

danger withdrawal order under section 107(a) could be issued. 

But a section 103(k) accident control order is not a legally 

viable option in this situation. An "accident" is a statutory 

precondition to its issuance, and without torturing the 

terminology, simply cannot be found herein. 

ORDER 

In •iew of the foregoing findings and conclusions, the 

contested section 103(k) Order No. 4107581, issued on 

September ii, 1992, IS VACATED, and the Notice of Contest filed 

by the contestant IS GRANTED. 

Admi•s•ative Law Judge 

1723 
Distribution: 

Timothy P. Ryan, Esq., William J. Klemick, Esq., Eckert Seamans 

Cherin & Mellott, 600 Grant Street, 42nd Floor, Pittsburgh, PA 

15219 (Certified Mail) 

Gretchen Lucken, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

dcp 

1724 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 61992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

COSTAIN COAL INCORPORATED, 

Successor-In-Interest 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-190 

A.C. No. 15-13881-03749 

Pyro No. 9 Slope 

DECISION APPROVING SETTLEMENT 

Appearances: Stephen D. Turow, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia,for the Petitioner; 

Catherine A. Lamey, Legal Affairs Manager, 

Pyro Mining Company, Sturgis, Kentucky, 

for the Respondent 

Before: Judge Melick 

This case is before me upon a petition for assessment 

of civil penalty under Section 105(d) of the Federal Mine 

Safety and Health Act of 1977 (the Act). At hearing, Petitioner 

filed a motion to approve a settlement agreement ands:to dismiss 

the case. A reduction in penalty from $i,500 to $i,200 was 

proposed. I have considered the representations and documen, : 

tation submitted in this case, including the representations 

, 

and conclude that on the•proffered the record at hearing I 

settlement is appropriate under the criteria set forth:in 

Section ll0(i) of the Act. 

WHEREFORE, the motion for a•pr•al:of sett•en• is 

GRANTED, and it is ORDERED tha• •es•••ena • 

$1,200 within 30 days of this 

••• 

Gary Me•±ck • 

" 

Admini•ative Law•udge 

1725 
Distributioni 

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

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

Catherine A. Lamey, Legal Affairs Manager, Pyro Mining Company, 

P.O. Box 267, Sturgis, KY 42459-0267 (Certified Mail) 

Robert I. Cusick, Esq., Wyatt, Tarrant and Combs, Citizen Plaza, 

Louisville, KY 40202 (Certified Mail) 

/lh 

1726 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303} 844-5266/FAX (303} 844-5268 

'i I'.:'f 2 01992 

LINDA J. VAN TASSEL, 

Complainant 

V. 

BARRICK GOLDSTRIKE, INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 91-197-DM 

WE MD-04 

ORDER OF DISMISSAL 

Before: Judge Morris 

The parties moved that the above case be dismissed with 

prejudice. 

The motion is GRANTED and the hearing scheduled in Elk., 

Nevada, for October 27, 1992, is CANCELED. 

V Adminis Law Judge 

Distribution: 

Victor Alan Perry, Esq., Gloria M. Basterrechea, Esq., PERRY & 

SPANN, P.C., 6130 Plumas Street, Reno, NV 89509 i(Certified Mail) 

Charles R. Zeh, Esq., BECKLEY, SINGLETON, DE LANOY, JEMISON &i 

LIST, CHTD., i00 West Liberty Street, Suite 700, Reno, NV 89501 

(Certified Mail) 

ek 

1727 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT Z ! ;992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROBERT FOSTER, Employed by 

SUN PAVING INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-72-M 

A.C. No. 41-03504-05520 

Four Mile Draw 

DECISION 

Appearances: J. Phillip Smith, Esq., Office of the Solicitor, 

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

Petitioner; 

Robert Foster, Michael F. Harrison, E1 Paso, 

Texas, for Respondent. 

Before: Judge Barbour 

BACKGROUND 

This case concerns proposals for assessment of civil 

penalties filed by the Secretary of Labor, Mine Safety and Health 

Administration ("MSHA"), Petitioner, against Robert Foster, 

Respondent, pursuant to Section ll0(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 820(c). Petitioner seeks 

civil penalty assessments for two alleged violations of certain 

mandatory safety standards for surface metal and non-metal mines 

found in Part 56, Title 30, Code of Federal Regulations. The 

Secretary alleges that Respondent, as the agent of corporate mine 

operator Sun Paving Incorporated, knowingly authorized, ordered 

or carried out the subject violations. The Respondent filed an 

answer and the case was docketed for hearing on the merits in E1 

Paso, Texas on September 29, 1992, at 8:30 A.M. 

THE PROCEEDINGS 

On September 29, 1992, shortly before the start of the 

hearing, I was advised by Counsel for the Secretary that he had 

received a telephone call from Respondent on the previous night 

at counsel's hotel in E1 Paso and thatRespondent had stated he 

wished to settle the matter by paying in full the proposed civil 

1728 
penalties for the violations. Counsel further stated that he had 

advised Respondent that although this would be a satisfactory 

resolution of the case as far as the Secretary was concerned, any 

such result would have to be approved by me. 

When Respondent, representing himself, arrived at the 

hearing he and Counsel for the Secretary conferred briefly in 

private. Following their conference, I convened the hearing and 

Counsel for the Secretary explained on the record the 

circumstances of the telephone call and further stated that 

Respondent admitted liability and wished to pay in full the 

proposed civil penalties, i Counsel further stated the 

Secretary believed the proposed penalties to be appropriate for 

the violations and that this resolution was acceptable to the 

Secretary. Tr. 6-7 

Respondent then stated on the record that Counsel had 

described their agreement accurately. When asked by me whether 

he admitted that the violations had occurred and that he had 

knowingly authorized them, he stated, "Yes." Tr. 8. He further 

stated that he is the president and general operating manager of 

Sun Paving Incorporated, and that although the company had been 

assessed civil penalties in the past this was the first instance 

in which he or the company had been involved in the 

administrative hearing process. Tr. 8-9. Finally, Respondent 

apologized for his tardiness in contacting Counsel for the 

Secretary regarding this matter. Tr. ii. 

IThe violations are cited in an order of withdrawal and a 

citation. The order, citation and proposed civil penalty amounts 

are as follows: 

Order/ 30 C.F.R. 

Citation No. Date Section Assessment 

3448601 11/5/90 56.14101 $700 

3448615 11/5/90 56.1400(b) $300 

Order No. 3448601 states that Respondent knowingly permitted 

a front end loader to operate without a service brake capable of 

holding or stopping the loader with its typical load on the 

maximum grade it traveled. Citation No. 3448615 states that 

Respondent knowingly permitted the front end loader to operate 

with a loose steering mechanism. 

1729 
I accepted Respondent's apology, but I explained to 

Respondent that his procrastination had put the government to a 

great deal of unnecessary expense, and that I expected in the 

future he would resolve such matters on a timely basis. I 

emphasized that I was not required to accept the parties' 

proposal, and I explained that only because this was his first 

experience with the hearing process would I do so in this 

instance. Tr. i0-ii. 

FINDINGS AND CONCLUSIONS 

Respondent acknowledged liability and authorizing the 

violations, and I so find. I further find that the violations 

were serious in that they could have contributed to a haulage 

accident. In addition, Respondent abated the violations in a 

timely fashion. Finally, Respondent is small in size and has a 

medium applicable history of previous violations. 

After review and consideration of the statements in support 

of the proposed resolution of this matter made by Counsel for the 

Secretary and the by the Respondent, and keeping in mind Counsel 

for the Secretary's assurance that the Secretary is fully 

satisfied that payment in full of the proposed civil penalties is 

appropriate, I conclude the proposed civil penalties accurately 

reflect the statutory civil penalty criteria. The patties are 

put on notice, however, that in the future I will accept such 

last minute agreements only in the most extraordinary of 

circumstances. 

ORDER 

Respondent IS ORDERED to pay in full the proposed civil 

penalties in the amounts shown above in satisfaction of the 

violations in question. Payment is to be made to MSHA within 

thirty (30) days of the date of this decision and upon receipt of 

payment, this proceeding is DISMISSED. 

Administrative Law Judge 

(703) 756-5232 

1730 
Distribution: 

J. Phillip Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 

(Certified Mail) 

Mr. Robert Foster, Mr. Michael F. Harrison, 1840 Lee Trevino, 

Suite ii0, E1 Paso, TX 79936 (Certified Mail) 

/epy 

1731 
FEDERAL MINE BAFE• KHD HEKLTH REVIEW COI•TBBION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

0 2 1 ]992 

RICKY HAYS, 

V. 

LEECO, INC., 

Complainant 

Respondent 

; DISCRIMINATION PROCEEDING 

: Docket No. KENT 90-59-D 

: MSHA Case No. BARB CD 89-32 

: No. 62 Mine 

DECISION APPROVING SETTLEMENT 

an__dd 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Statement of the Case 

This case is before the Commission on remand from the United 

States Court of Appeals for the District of Columbia Circuit, 

•eeco, Inc. v. Ricky Hays & FMSHRC, 965 F.2d 1081 (1992). On 

August 3, 1992, after the judgment of the Court remanding the 

case, counsel for complainant Ricky Hays filed a motion with the 

Commission requesting that the proceeding on remand be dismissed 

onthe basis that "Hays and Leeco have entered into a settlement 

agreement of this matter". Thereafter, on September 22, 1992, 

the Commission remanded the matter to me with instructions to 

consider the motion to dismiss and, if necessary, for further 

proceedings consistent with the Court's opinion. 

In his motion to dismiss, complainant's counsel stated that 

the parties have reached a full and final settlement of this 

litigation, including the matter of attorneys fees, and that 

their dispute has been fully resolved without the need for 

further court proceedings. Counsel further stated that the 

settlement agreement is confidential, and that since it fully 

resolves the matter, there is no need for the Commission to 

reconsider the matter. However, given the Commission's comments 

on remand that "Oversight of proposed settlements is an important 

aspect of the Commission's adjudicative responsibilities under 

the Mine Act and is, in general, committed to the Commission's 

sound discretion", and notwithstanding the confidentiality of the 

settlement, I issued an order directing the parties to file a 

copy of their settlement agreement with me for my in camera 

review and appropriate disposition. 

1732 
Discussion 

The parties have complied with my Order and e copy of their 

settlement agreement has been filed for my •n camera review. The 

complainant's counsel has confirmed that the parties have fully 

complied with the terms of the settlement agreement, and that the 

complainant Ricky Hays and the respondent Leeco, Inc., jointly 

request that I approve the settlement and dismiss this matter. 

Conclusion 

After careful review and consideration of the motion and 

supporting settlement agreement, I conclude and find that the 

settlement disposition is reasonable and in the public interest. 

Accordingly, the settlement disposition is APPROVED, and the 

motion to dismiss IS GRANTED. 

ORDER 

In view of the mutually agreeable settlement disposition of 

this case, this matter IS DISMISSED. 

Administrative Law Judge 

Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508 

(Certified Mail) 

Timothy Joe Walker, Esq., Reece, Lang & Breeding, 400 South 

Main Street, P.O. Drawer 5087, London, KY 40745-5087 

(Certified Mail) 

/ml 

1733 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

l 2 11992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

EIMCO COAL MACHINERY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-556 

A. C. No. 46-01456-03501 JDC 

Federal No. 2 

DECISION 

Appearances: Javier I. Romanach, Esq., 

Arlington, VA, for Petitioner; 

James A. Liotta, Esq., Fairmont, 

WV, for Respondent. 

Before: Judge Fauver 

At the hearing on September 22, 1992, at Morgantown, West 

Virginia, the parties moved for approval of a settlement 

agreement. For the reasons stated on the record, the motion is 

GRANTED. 

Accordingly, it is ORDERED that Respondent shall pay the 

agreed civil penalty of $140 within 30 days from the date of this 

Decision. 

Administrative Law Judge 

Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, U. S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

James A. Liotta, Esq., Liotta & Janes, Attorneys at Law, P. O. 

Box 1509, First National Bank Building, Fairmont, WV 26554 

(Certified Mail) 

/fcca 

1734 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

0 F,T 2, 3 1992 

ROY LEE STROUD, 

V. 

Complainant 

CBM MINING, INC., 

ROY F. COLLIER AND 

JAMES H. BOOTH, 

Respondents 

DISCRIMINATION PROCEEDING 

Docket No. KENT 91-986-D 

PIKE CD 91-09 

No. 2 Mine 

DECISION 

Appearances: Tony Oppegard, Esq., Appalachian Research & Defense 

Fund of Kentucky, Inc., Lexington, Kentucky, for 

Complainant; 

Michael J. Schmitt, Esq., Wells, Porter, Schmitt 

& Walker, Paintsville, Kentucky, for Respondent. 

Before: Judge Maurer 

This proceeding concerns a discrimination complaint, as 

presently amended, filed by the complainant, Roy Lee Stroud, 

against the corporate respondent, CBM Mining, Inc. (CBM), and the 

individual respondents, Roy F. Collier and James H. Booth, who 

are both part-owners and corporate officials of CBM, pursuant to 

section i05(c) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 e t s_e_q. (the "Act"). 

Pursuant to notice, a hearing was conducted in Paintsville, 

Kentucky, on April 15-16, 1992. Subsequently, both parties filed 

post-hearing briefs and/or proposed findings and conclusions, 

which I have considered along with the entire record of 

proceedings in this case in making the following decision. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

i. Complainant, Roy Lee Stroud, is the brother-in-law of 

respondent, Roy F. Collier. Collier is married to Stroud's 

sister, Patricia. 

2. Over the previous several years, going back to at least 

1986, Stroud had sought employment at one or the other of 

Collier's businesses to no avail. They had a very poor personal 

and family relationship and Collier absolutely did not like 

Stroud for a variety of personal reasons. The record reflects a 

long history of animosity between them. However, Collier's wife, 

1735 
Patricia, wanted him to give her brother a job, so at one point 

he finally gave his approval for Stroud to work for CBM and he 

was subsequently hired as a belt shoveler at $8.00 per hour. 

3. His career at CBM was short-lived, however. Stroud's 

first day of work was January 29, 1991. He worked 8 hours that 

day. The next day, January 30, 1991, he worked 2 hours and 

walked off the job over a dispute with the mine superintendent 

about his rate Of pay. The superintendent had erroneously told 

him that his rate of pay was going to be $6.00 per hour. When 

Collier learned of this later, and was teased about it, he became 

quite upset and threatened to whip Stroud the next time he saw 

him. 

4. On February 5, 1991, Stroud filed a complaint of 

discrimination with MSHA, falsely alleging that he had been fired 

from his job as a beltline shoveler, by Superintendent Tommy 

Rouse on January 31, 1991, ostensibly because he had complained 

to Rouse about his smoking underground. 

5. MSHA mailed two separate copies of Stroud's 

discrimination complaint to CBM on February 5, 1991, each with a 

cover letter informing the company that a discrimination 

complaint under section I05(c) of the Mine Act had been filed 

against it. One of the letters was addressed to Booth 

(Complainant's Exhibit No. 3); the other letter was addressed to 

Rouse (Complainant's Exhibit No. 4). The complaints were both 

received by the company on February 7, 1991. 

6. Even though Collier and Booth claim not to have known 

about this section i05(c) complaint until sometime later, the 

circumstantial evidence is strong that both Collier and Booth 

knew that Stroud had filed a section i05(c) complaint with MSHA 

on or about February 7, 1991, and in any event before the assault 

actually took place on February 8, 1991 (See Finding and 

Conclusion No. 8, infra). In accordance with the preponderance 

of that evidence I find that all the respondents did have 

knowledge that Stroud had engaged in protected activity, i.e., 

filed a section i05(c) complaint, prior to the adverse action 

that was taken against him. 

7o In the days between January 30, 1991 and February 8, 

1991, Collier was becoming still angrier with Stroud because he 

would stop by the mine office frequently trying to pick up his 

paycheck for the I0 hours pay he had coming° The regular payday 

was not until February 15, 1991• but Stroud continued to stop in 

the office seeking his check° Collier had asked one of the 

clerks there, Gladys Parsons, to notify him the next time Stroud 

came into the office. 

1736 
8. On February 8, 1991, Stroud once again was on his way to 

the mine office to check on his paycheck. On his way to the 

office, Stroud drove by Collier's home in nearby Beauty, 

Kentucky. When Stroud passed Collier's home around noon, Collier 

wasstanding outside talking with Booth. Collier and Booth saw 

him and followed him to the mine office, arriving separately, but 

simultaneously a few minutes later. Collier told Booth to clear 

the female employees out of the front office and he picked up an 

18-inch long piece of hydraulic hose and went into the office 

after Stroud. Booth did as he was requested. Collier then 

entered the office and started whipping Stroud with the hydraulic 

hose. He struck him multiple blows on the head and back while 

Stroud attempted to fend off the blows. Booth did not 

participate in the assault. 

9. Prior to February 8, 1991, Booth and Stroud had no 

personal relationship whatsoever; and I find no credible evidence 

in this record to prove that Booth participated in the assault on 

Stroud. The only evidence to that effect comes from Stroud 

himself, whose credibility approaches zero. The mere fact that 

Booth was present in the office and did not come to the aid of 

Stroud or try to stop Collier does not amount to taking adverse 

action against Stroud on the part of Booth. Therefore, I am 

ordering dismissal of Stroud's complaint against Booth on this 

basis alone. 

I0. On February 8, 1991, after being examined at a hospital 

for the injuries he received during the assault, Stroud notified 

MSHAby telephone of the assault. MSHA thereafter investigated 

Stroud's assault claim as part of his previously filed 

discrimination case. 

Ii. On April 3, 1991, MSHA issued its determination that in 

its opinion, a violation of section i05(c) had not occurred. 

Stroud then filed a pro se complaint with the Commission alleging 

that he had been discharged by CBM for reporting safety 

violations and that he had also been "beaten by officials of the 

company" after reporting safety violations to the Department of 

Labor, meaning the original discrimination compliant filed with 

MSHA. 

12. On October 22, 1991, I granted Stroud's motion to amend 

his pro se complaint. By this time he was represented by 

counsel. Stroud's amended complaint dropped his claim that he 

had been discharged by CBM in violation of section i05(c) of the 

Mine Act, but retained the claim that he had been assaulted by 

officials of the company because of the filing of his original 

discrimination complaint with MSHA. In addition, the amended 

complaint added Collier and Booth as individual respondents, 

based on Stroud's allegation that Collier and Booth assaulted him 

on February 8, 1991. 

1737 
PISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS 

The general principles governing analysis of discrimination 

cases under the Mine act are well settled. In order to establish 

a prima facie case of discrimination under section 105(c) of the 

Act, a complaining miner bears the burden of production and proof 

in establishing that (i) he engaged in protected activity and 

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

that protected activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev'd on other qrounds 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 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 in no part motivated by protected activity. If an 

operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

activity alone. Pasula, su_9•/_a; Robinette, su_•p_ra. 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 Pasula-Robinette 

test). Cf. NLRB v. Transportation Manaqement Corp., 

462 U.S. 393, 397-413 (1983) (approving nearly identical test 

under National Labor Relations Act). 

There is no doubt that Stroud engaged in protected activity 

in this instance. The mere filing of a discrimination complaint 

under section i05(c) of the Mine Act constitutes protected 

activity. And that is so even if that complaint contains 

allegations which are known to be false by the complainant at the 

time he makes them. There is also no doubt that adverse action 

in the form of a physical assault on the person of Stroud was 

taken by Collier on February 8, 1991, some 3 days after he filed 

that discrimination complaint. Furthermore, the preponderance of 

the circumstantial evidence is clearly to the effect that 

Collier's assault on Stroud was motivated at least in part by 

complainant's filing of the discrimination complaint with MSHA. 

The coincidence in time alone is enough to convince me that the 

two events are related. 

Collier has, however, raised an affirmative defense in this 

case. He maintains that he was motivated to assault the 

complainant by his unprotected activity and in fact assaulted him 

for that reason alone. But since I have already determined above 

that he was motivated at least in part by Stroud's protected 

activity, he then urges that this is a mixed motivation case and 

that he would have taken the adverse action in any event for 

Stroud's unprotected activity alone. 

1738 
There is certainly more than adequate evidence in this 

record of trial that there have been hostile feelings both ways 

between Stroud and Collier for years prior to this assault at 

bar. They have been on the threshold of coming to blows on 

several prior occasions. The police have been called on one 

occasion. There is jealousy on the part of Stroud over Collier's 

material possessions. There is disdain on the part of Collier 

towards Stroud because he perceives him to be a ne'er-do-well, 

dependent on the charity of his family, most particularly when it 

involves his own wife, Patricia. The fact that Collier for years 

would not give him a job in one of his many businesses grated on 

Stroud. Then when Collier finally relented and gave him a job, 

he only lasted 2 hours into the second day before he quit. That 

embarrassed and grated on Collier, especially when others teased 

him about it, as did State Mine Inspector Sexton at the CBM Mine 

Office the same day that Stroud quit. Collier at that time 

already promised to whip Stroud the next time he saw him. Stroud 

continued to aggravate the situation by frequently stopping by 

the mine office trying to pick up his paycheck for the short time 

that he did work. Collier perceived this as harassment of his 

clerical help. Finally, he received word somehow, I am quite 

sure, that Stroud had filed the discrimination complaint with 

MSHA. 

It is difficult in this case to determine at what exact 

point Collier was pushed to his limit and formed the intent to 

perpetrate the assault on Stroud. It does not help that there is 

little in the way of credible evidence contained in this lengthy 

record from the principals involved. I find the credibility of 

Stroud, Collier, and Booth to be tainted by inconsistent and 

illogical testimony. And the testimony of the supporting 

witnesses, which primarily consists of various members of the 

Stroud family, is mostly in direct conflict depending on which 

side that particular witness supports. The Stroud family 

siblings are split over whether they are on the side of Collier 

and his wife, Patricia, or Stroud and his wife, Rose. 

This is basically a domestic relations case that wound up 

before this Commission simply because a coal mine was 

peripherally involved as the situs of employment of the 

complainant. The case has nothing to do with mine safety or 

health issues. The incident giving rise to the case could just 

as easily have played out in one of Collier's gas stations. 

Perhaps more appropriately, there is also concurrently a civil 

tort action pending in state court in Kentucky for damages as a 

result of the admitted assault. 

After reviewing the evidence once again and considering the 

arguments of the parties, I find that the assault on Stroud by 

Collier was based upon long-standing personal animosity between 

the two men, and would have taken place with or without Stroud 

filing the discrimination complaint. Accordingly, I find that 

1739 
Collier would have taken the adverse action complained of herein 

because of the unprotected activity of the complainant, Stroud, 

alone° 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all the credible testimony and 

evidence adduced in this case, I conclude and find that the 

complainant has failed to establish a violation of section I05(c) 

of the Act. Accordingly, his complaint IS DISMISSED, and his 

claims for relief ARE DENIED. 

Adm•?rative Law Judge 

Distribution: 

Tony Oppegard, Esq., Mine Safety Project, Appalachian Research & 

Defense Fund of Kentucky, Inc., 630 Maxwelton Court, Lexington, 

KY 40508 (Certified Mail) 

Michael J. Schmitt, Esqo, Wells, Porter, Schmitt & Walker, 

327 Main Street, P. Oo Box 1179, Paintsville, KY 41240-5179 

(Certified Mail) 

dcp 

1740 
FEDERAL •INE SAFET%• •%ND •EALT• •EV•W COM•IX•SXON 

1244 SPEER BOULEVARD #280 

DENVER8 CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

2 7 J992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

GREFCO INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 92o42uM 

A.C. No. 29-01433-03526 

Grefco Inc. 

DECISXON 

Appearances: 

Before: 

Robert A. Fitz, Esq., Office of the Solicitor, 

UoS. Department of Labor, Dallas, Texas, 

for Petitioner; 

Michael Conley• Esq., GENERAL REFRACTORIES 

COMPANY, Bala Cynwyd, Pennsylvania, 

for Respondent° 

Judge Lasher 

At the commencement of hearing in this matter in Albuquerque, New Mexico, on September 9, 1992u the parties announced 

their accomplishment of a settlement covering the three enforcement documents (citation and two withdrawal orders) involved. 

The agreement reached was considered and approved from the bench 

on the record (T. 8) and such is here AFFIRMED. The settlement 

called for the withdrawal of Section 104(d) (i) Citation No. 

3448924 and the modification of Section 104(d) (i) Withdrawal 

Order No. 3446523 from an Order to a 104(d) l) Citation. Withdrawal Order No. 3448925, also issued under the authority of 

Section 104(d) (i) of the Act was not modified. Thus, with the 

modification of Order No. 3446523 to a 104(d) (1) Citation, such 

enforcement document became the underlying Citation for 104(d)(1) 

Order No. 3448925 in the 104(d) chain. Petitioner agreed that 

appropriate penalties for Citation No. 3446523 and Order No. 

3448925 were $18,500 and $13,500, respectively, and Respondent 

agreed to the payment of such as part of the settlement. Such 

penalties are here ASSESSED. In effectuation of this settlement, 

the following order is entered: 

1741 
ORDER 

i. Citation No. 3448924 is VACATED. 

2. Withdrawal Order No. 3446523 is MODIFIED to change its 

nature from a Section 104(d)(i) Withdrawal Order to a Section 

104 (d) (i) Citation. 

3. section 104(d)(i) Withdrawal Order No. 3448925 is 

AFFIRMED. 

4. Respondent, if it has not previously done so, SHALL, 

within 30 days from the date of issuance hereof, PAY to the 

Secretary of Labor the total sum of $31,500 as and for the civil 

penalties here assessed. 

, f 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Robert A. Fitz, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Michael Conley, Esq., GENERAL REFRACTORIES COMPANY, 225 City 

Avenue, Bala Cynwyd, PA 19004 (Certified Mail) 

ek 

1742 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

OCT 2 81992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

: 

SOUTHWAY CONSTRUCTION COMPANY,: 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 91-167-M 

A.C. No. 29-01880-05501 BY 2 

Goat Ridge Mine 

DECISION 

Appearances: William E. Everheart, Deputy Regional Solicitor, 

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

for Petitioner; 

Mr. John T. Ungefug, Engineer, SOUTHWAY CONSTRUCTION CO., INC., Alamosa, Colorado, 

for Respondent. 

Before: Judge Morris 

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

Health Administration (MSHA), charges Southway Construction 

Company, Incorporated ("Southway") with violatingsafety 

regulations promulgated under the Federal Mine Safety and Health 

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

A hearing on the merits was held in Alamosa, Colorado, on 

April 7, 1992. The parties waived the filing of post-trial 

briefs. 

At the commencement of the hearing, Southway moved to 

withdraw its notice of contest as to Citation No.s 3900555 and 

3900556. The motion should be granted. 

STIPULATION 

The parties stipulated as follows: 

i. Southway is subject to the jurisdiction of the 

Commission. 

i743 
2. The operator's size is 57,690 hours of work per year. 

3. The Citations herein were abated in good faith and 

civil penalties will not affect the operator's ability to 

continue in business. 

4. The Goat Ridge Mine is not owned by Southway. 

owner is Lucina Mine. 

The 

ISSUE 

The issue is whether Southway is required to provide a 

suitable qommunication system at a mine owned by another party. 

Citation 3900557 alleges a communication system was not 

provided. The regulation, 30 C.F.R. § 56.18013 provides that 

"[a] suitable communication system shall be provided at the mine 

to obtain assistance in the event of an emergency,." 

Southway maintains it is the obligation of the mine owner 

(Lucina) to provide the communication system. 

WILLIAM TANNER, experienced in mining, inspected this open 

pit silica mine on April 2, 1991. There were four Southway employees at the mine using a crusher, conveyor belts, loaders, and 

haul trucks. Southway was crushing for the mine owner. There 

were no Lucina employees on the site. 

The morning after the inspection, the foreman said he had a 

radio but no one knew the call numbers. Abatement was achieved 

by the presence of the foreman with a radio. 

JOHN •GEFUG confirmed that Southway was working as the 

crusher contractor. He further submitted quotes and copies of 

start-up and termination activities. (Ex. RI-RS). 

DISCUSSION 

Section 3 of the Mine Act states as follows: 

For the purposes of this [Act], the 

(d) "Operator" means any owner, lessee, or 

other person who operates, controls, or 

supervises a coal or other mine or any independent contractor performing services or 

construction at such mine; 

1744 
The uncontroverted evidence establishes that Southway is 

within the statutory definition of an "operator" cf. Otis 

Elevator Company, ii FSMHRC 1896, 1899 (1989), aff'd, 921 F 2d 

1285 (1990); Bulk Transportation Services, Inc., 13 FMSHRC 1354 

(1991) . 

Southway was the crusher operator, both controlling and 

supervising the crushing operation. This operation is an integral portion of the mineral extraction process. Accordingly, 

Southway was an operator within the meaning of the Act. As such, 

Southway is obligated to furnish a suitable communication system 

to be used in the event of an emergency. Citation No. 3900557 

should be affirmed. 

Considering the criteria under Section llO(a) of the Act, 

I find that the penalties assessed herein are appropriate. 

ORDER 

I. Citation No. 3900555 and the proposed penalty of $98 

are AFFIRMED. 

2. Citation No. 3900556 and the proposed penalty of $20 

are AFFIRMED. 

3. Citation No. 3900557 and the proposed penalty of $20 

are AFFIRMED. 

4. Respondent is ORDERED TO PAY to the Secretary of Labor • 

the sum of $138 within 40 days of the date of this decision. 

dmini•ative Law Judge 

Distribution: 

William E. Everheart, Esq., Deputy Regional Solicitor, 525 Griffin Square Building, Suite 501, Dallas, TX 75202 (Certified 

Mail) 

Mr. John T. Ungefug, SOUTHWAY CONSTRUCTION CO., INC., 117 White 

Pine Drive, Alamosa, CO 81101 (Certified Mail) 

ek 

1745 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

0 CT 2, 81992 

TIM RAGLAND, 

Complainant 

v. 

CULLOR ROCK QUARRY, 

Respondent 

COMPENSATION PROCEEDING 

Docket No. CENT 92-227-CM 

Mine No. 23-01924 

ORDER OF DISMISSAL 

Before: Judge Feldman 

The complainant has filed a request for authority to 

withdraw his complaint for compensation in the captioned case. 

For the reasons stated by the complainant, permission to withdraw 

is granted. This case is therefore DISMISSED with prejudice and 

the hearing in this matter scheduled for November 5, 1992, in 

Joplin, Missouri is canceled. 

Distribution: 

Feldman•• 

• 

Administrative Law Judge 

(703) 756-5233 

Mr. Tim Ragland, 2123 W. Austin, Nevada, Missouri 64772 

(Certified Mail) 

Mr. Jim Cullor, Cullor Rock Quarry, Rt. i, Eldorado Springs, 

Missouri 64744 (Certified Mail) 

Cullor, Incorporated, 20th and Sidney, Ft. Scott, Kansas 66701 

/vmy 

1746 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

3CT 3 8 ]992 

BILL BURRIS, 

Complainant 

v. 

CULLOR ROCK QUARRY, 

Respondent 

COMPENSATION PROCEEDING 

Docket No. CENT 92-228-CM 

Mine No. 23-01924 

ORDER Of DEFAULT 

ORDER OF DISMISSAL 

Before: Judge Feldman 

A hearing in the captioned matter was scheduled for 

November 5, 1992, in Joplin, Missouri. During the course of a 

September 17, 1992, telephone conversation with Mr. Tim Ragland, 

a co-complainant in this matter who has withdrawn his complaint 

for compensation, I was advised that Mr. Burris may no longer be 

interested in pursuing his complaint. Mr. Ragland also informed 

me that Mr. Burris did not have a telephone. In a letter dated 

October i, 1992, I requested Mr. Burris to contact my office 

within ten days to inform me whether he still wished to proceed. 

I indicated that his failure to timely respond would be construed 

as an indication that he was no longer interested in prosecuting 

his compensation case. 

Having failed to reply to my October i, 1992, request, on 

October 13, 1992, I ordered Mr. Burris to show cause (explain 

why) in writinq on or before October 19, 1992, why a default 

decision should not be issued dismissing with prejudice his 

complaint for compensation. The order was delivered via express 

mail. 

Despite my repeated requests, the Mr. Burris has failed to 

convey that he is interested in prosecuting his complaint. 

ACCORDINGLY, judgement by default is hereby entered in favor of 

the respondent and the compensation complaint filed by Mr. Burris 

is DISMISSED with prejudice. Consequently, the hearing in this 

matter is canceled. 

••• 

Jerold Feldman 

Administrative Law Judge 

(v03) vs6-5233 

1747 
Distribution: 

Mr. Bill Burris, 1002 E. Berry Nevada, MO 64772 

(Certified Mail) 

Mr. Bill Burris, 2123 W. Austin, Nevada, Missouri 64772 

(Certified Mail) (Old Address) 

Cullor, Incorporated, 20th and Sidney, Ft. Scott, Kansas 66701 

(Certified Mail) 

/vmy 

1748 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

OCT 2 81992 

: CIVIL PENALTY PROCEEDINGS 

: Docket No. WEST 91-429 

: A.C. No. 05-02342-03509 

: Coal Basin Mine 

: Docket No. WEST 91-595 

A.C. No. 05-00351-03501 

Bear Creek Mine 

MID-CONTINENT RESOURCES, INC.,: 

Respondent 

DECISION 

Appearances: 

Before: 

Tambra Leonard, Esq., office of the Solicitor, 

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

for Petitioner; 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C. 

Glenwood Springs, Colorado, 

for Respondent. 

Judge Morris 

These cases are civil penalty proceedings initiated by Petitioner• the Secretary of Labor, against Respondent, Mid-Continent 

Resources, Inc. ("Mid-Continent"), pursuant to the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801, et se• (the 

"Act"). The civil penalties sought here are for the violation of 

mandatory regulations promulgated pursuant to the Act. 

A hearing on the merits was held in Glenwood Springs, Colorado, on February 26, 1992. The parties filed post-trial briefs. 

Docket No. WEST 91-429 contains a 104(a) Citation and a Sec, 

tion 104(b) order for failure to abate. 

Citation No. 3410979 alleges Mid-Continent violated 30 

C.F.R. § 75.1711. The Citation reads as follows: 

Work to seal this inactive mine was not 

commenced promptly after a 90-day period 

elapsed during which the mine was not 

ventilated by means of the main fan. 

1749 
The regulation provides as follows: 

75.1711 sealing of m•nes. 

[STATUTORY PROVISIONS] 

On or after March 30, 1970, the opening of 

any coal mine that is declared inactive by 

the operator, or is permanently closed, or 

abandoned for more than 90 days, shall be 

sealed by the operator in a manner prescribed by the Secretary. Openings of all 

other mines shall be adequately protected in 

a manner prescribed by the Secretary to 

prevent entrance by unauthorized persons. 

Docket No. WEST 91-595 involves a Section 104(a) Citation. 

Citation No. 3410732 alleges Mid-Continent violated 30 

C.F.R. § 75.1204. The Citation reads as follows: 

A revised mine map was not filed with the 

Secretary after a 90-day period elapsed from 

the date the mine was permanently closed. 

The regulation provides as follows: 

S 75.1204 Mine olosure; filing of map with 

Seoretary. 

[STATUTORY PROVISIONS] 

Whenever an operator permanently closes or 

abandons a coal mine, or temporarily closes a 

coal mine for a period of more than 90 days, 

he shall promptly notify the Secretary of 

such closure. Within 60 days of the permanent closure or abandonment of the mine, or 

when the mine is temporarily closed, upon the 

expiration of a period of 90 days from the 

date of closure, the operator shall file wi•h 

the Secretary a copy of the mine map revised 

and supplemented to the date of the closure. 

Such copy of the mine map shall be certified 

by a registered surveyor or registered engineer of the State in which the mine is io1750 
cated and shall be available for public 

inspection. 

ISSUES 

The issues are whether Mid-Continent violated the regulations. If so, what penalty is appropriate? 

BRIEF SUMMARY OF THE EVIDENCR 

Phillip R. Gibson, Jr., Gary K. Frey, an•-Lee H. Smith testified for the Secretary. 

James E. Kiser testified for Mid-Continent. 

On September 29, 1989, MSHA Inspector Gibson inspected the 

Coal Basin Mine. The mine was not mechanically ventilated and 

the coal silo had been removed. (Tr,_335, 57, 58). Further, 

daily examinations were not being made and •i was being 

produced. Mr. Gibson issued Citation No. 3410979. Extensions 

were also granted. 

On July 8, 1991, one of the portals had not been sealed. 

Mid-Continent had ceased all operations in its mines on 

January 25, 1991. (Tr. 77, 78). 

According to MSHA's Supervisor Lee H. Smith, Mid-Continent 

did not ventilate the two mines involved here mine after 1983. 

The company's equipment had been removed. (Tr. 94, 95). There 

was no employment nor was any coal being produced according to 

Mid-Continent's reports. (Tr. 97). 

The Coal Basin Mine was taken off i03(i) status on October i, 1981. (Tr. 106). 

In concluding the mines were abandoned, Mr. Smith considered 

the physical condition of the mines, the removal and reassignment 

of miners, and the cannibalizing of equipment. (Tr. 128, 129, 

181; Ex. P-4). 

DISCUSSION AND FURTHER FINDINGS 

The evidence here is essentially uncontroverted. 

MSHA's position is that the mines in question should be 

sealed since they were "abandoned" by the operator. Mid1751 
Continent takes a contrary view and urges the operator did not 

"abandon" the mines. 

The regulations, 30 C.F.R. § 75.1711 and § 7_5.1204 both use 

the term "abandon," although in slightly different fashion. A 

resolution of the meaning of the term would appear to resolve the 

conflict. 

It is appropriate to place certain uncontroverted evidence 

in focus: 

After 1981 and 1982, the operator removed the face-mining 

equipment, the continuous miner, loading machines, and shuttle 

cars from the Coal Basin and Dutch Creek mines. In addition, 

Mid--Continent removed the main fans, a conveyor belt, the coal 

silo and the diesel equipment. It was basically a salvage 

operation. 

Further, all personnel were removed, daily examinations were 

not made, and no coal was produced. After 1983 Mid-Continent was 

no longer mechanically ventilating the mines. 

On September 29, 1989, Mr. Gibson an MSHA Inspector, confirmed the lack of activity and the failure of Mid-Continent to 

seal the mine. 

Section 75.1711 does not define the term "abandoned" or 

"abandoned mine," but the definitional section of Part 75 does 

contain a definition of "abandoned area" in Section 75.2(h), 

which provides: 

"Abandoned areas" means sections, panels, and 

other areas that are not ventilated and examined in the manner required for working 

places under Subpart D in this Part 75. 

Mid-Continent argues a finding of abandonment must be based 

on the congruence of two elements: non-use together with a concurrent intention by the operator to abandon. 

I find Mid-Continent's evidence concerning its intentions to 

be credible but such future intentions cannot override the objective facts. These facts clearly establish that the operator had, 

at least on a prima facie basis, abandoned the Coal Basin Mine 

and the Bear Creek Mine. 

In support of its views, Mid-Continent cites the definition 

from the American Heritaqe Dictionary, Second Colleqe Edition 66 

(Houghton Mifflin Co., 1976), wherein "abandoned" is defined as: 

1752 
[Abandoned ... i. Deserted or forsaken, 

2. Recklessly unrestrained; shameless. 

The dictionary definition cannot take precedence over the 

technical definition in Section 75.2(h). The evidence established the Coal Basin and Bear Creek Mines were neither ventilated nor examined as required by the Part 75 definition. Accordingly, they were "abandoned." 

In Sewell Coal Company, 1 MSHC 1641, March 30, 1978, Judge 

Richard C. Steffey reached a similar result ruling the operator's 

failure to properly ventilate renders the unit "abandoned" within 

the meaning of 30 C.F.R. § 75.2(h). Further, in Sewell, the 

operator raised as a defense and relied on the definition of 

"given up, forsaken, or deserted." 1 MSHC at 1642; Judge Steffy 

rejected this contention. 

Citation 3410979 should be affirmed. 

Order No. 3586533 was issued by Inspector Gary K. Frey for 

the failure of Mid-Continent to abate Citation No. 3410979. T•e 

Inspector testified as to the issuance of the Order (Tr. 67-72) 

and the parties addressed the Order in their post-trial briefs; 

however, the Order does not appear in the Commission files. 

The parties were so advised and counsel for the Secretary 

forwarded the Judge a facsimile of the Order and its modifications. They further agreed the Judge could consider the Order 

and its modificiations in rendering the decision in this case. 

The •ecord reflects that Inspector Frey issued the Order on 

July 8, 1991, when he was told by Mid-Continent representatives 

that the mine was not completely sealed. (Tr. 67, 70). The 

Order was for a failure to abate Inspector Gibson's Citation No. 

3410979. The Order read "no apparent effort was made by the 

operator to seal the mine." On July i0, 1991, Inspector Frey 

modified the Order to read from "no apparent effort" to "little 

effort." 

The uncontroverted evidence establishes the Section 104(b) 

Order was properly issued and Order No. 3586533 should be affirmed. Since no penalty was sought in the penalty proposal, 

none will be assessed. 

Citation No. 3410979 issued for the Bear Creek Mine alleged 

the operator violated 30 C.F.R. § 75.1204 in that a final mine 

map was not filed with MSHA. 

I again reject Mid-Continent's renewed argument concerning 

the operator's future intentions to operate these mines. 

1753 
Mid-Continent contends that the Secretary's arguments are 

based on the mistaken assumption that MSHA has the ultimate 

authority'to determine whether a mine operator has, in law and in 

fact, abandoned or temporarily closed a mine. I disagree with 

this argument. The facts and not MSHA determine whether an 

operator has abandoned a mine. In this case, there were mo•e 

than sufficient facts to justify MSHA's conclusions. 

Mid-Continent states that Judge Steffey's decision in Sewell 

Coal Company, supra, correctly applied section 75.2(h) in relation to § 74.316-2(c). The latter section applies to discrete 

areas that are being abandoned in a working mine. However, when 

the entire mine which is unconnected to other mines is idled, 

there is no threat to the ventilation. 

Contrary to Mid-Continent's views, I conclude other hazards 

exist besides lack of ventilation. In fact, the very lack of 

ventilation could cause oxygen deficiency and methane accumulation - both serious mine hazards. In sum, "abandoned area" within the meaning of § 75.2(h) means "areas not ventilated and [not] 

examined." The definition is broad enough to include an entire 

mine. 

The Secretary urges the Commission to analogize to the 

definition of "abandoned mine" found in 30 C.F.R. § 57.2 which 

provides: 

[A]n [a]bandoned mine means all work has 

stopped on the mine premises and an office 

with a responsible person in charge is no 

longer maintained at the mine. 

I decline to make such an analogy. Section 57.2 has no 

relationship to underground coal mines which are controlled by 

Part 75 of 30 C.F.R. 

Mid-Continent further asserts the Commission should define 

"abandonment" in accordance with its historical and traditional 

meaning. For example, it refers to the U.S. Department of Interior Volume A, Dictionary of Mineral and Related Terms (DMMRT) 

1968). Respondent's Exhibit R-I indicates that both non-use and 

intention to abandon are required. The DMMRT at page 2 defines 

abandoned workings as follows: 

.Abandoned Workimgs: Excavations, either 

caved or scaled, that are deserted and in 

which further mining is not intended and 

opening workings which are not ventilated and 

inspected regularly. U.S. BuMines Federal 

Mine Safety Code--Bituminous Coal and Liqnite 

1754 
Mines, Pt. Underqround Mines, October 8, 

1953. (Ex.-R-I). 

It is true that the Commission frequently refers to DMMRT. 

However, as previously noted, a definition of "abandon" already 

is contained in the definition section of Part 57. It is unnecessary to explore elsewhere for other definitions. 

Mid-Continent states that abandonment is a question of fact 

to be determined from all the evidence. United States v. Eaton 

Shale Co., 433 F. Supp. 1256, 1274 (D. Colo. 1977). Further, the 

burden rests on the party asserting it. Finally, the burden of 

proving an intention to abandon must be by clear and convincing 

evidence and rests upon the party asserting it. 

I disagree with Mid-Continent's statement that "clear and 

convincing evidence" is required. The burden of proof rests on 

MSHA but the burden is a preponderance of the evidence. Brennan 

v. OSHRC, 511 F.2d 1139 (9th Cir. 1975); 5 U.S.C. § 556(d). 

Mid-Continent further compares abandonment of an underground 

mine to abandonment of a water right under Colorado law, citing 

15 Colo. Rev. Stat. § 37-92-103(2) (1990 Real. Vol.). Such comparison is not warranted. Part 75 C.F.R. regulates underground 

mines. On the other hand, the law of Irrigation and Water Rights 

of Colorado seeks to accomplish other objectives much broader 

than regulatingcoal mines. 

I agree MSHA's supervisor, Lee Smith, did not contact MidContinent's management to learn their intentions. However, given 

the objective uncontroverted evidence, MSHA could only have concluded that the two mines has been abandoned irrespective of management's future intentions. 

A portion of the Secretary's evidence deals with Mid-Continent's possible motives for claiming the Coal Basin and Bear 

Creek Mines have not been abandoned. It was stated that a declaration of abandonment would require Mid-Continent to reclaim and 

restore the area to its natural state and abandonment may result 

in the loss of Mid-Continent's federal coal lease. (Tr. 177- 

178). 

I am not persuaded by the foregoing evidence. Mr. Smith was 

not qualified as an expert on either the Colorado Mined Land Reclamation Act, 14 Colo. Rev. Stat. § 34-32-101 to 125 (1984 and 

Supp. 1991) or on the federal mineral leasing program. 

Mid-Continent further argues Citation No. 3410732 alleges 

the mine was permanently closed. Accordingly, Mid-Continent 

advances the argument that the Secretary cannot prevail because 

she states the mine was abandoned or temporarily closed. 

1755 
Section 75.1204 requires the filing of a map under various 

circumstances. Since the parties litigated and briefed the issue 

of abandonment, it is appropriate to amend the Citation to conform to the evidence. 

Both citations herein should be affirmed. 

CIVIL PENALTIES 

The statutory criteria to assess civil penalties are contained in Section ll0(i) of the Act, 30 U.S.C. § 820(i). 

Mid-Continent must be considered a small operator especially 

since the company is no longer producing coal and only a small 

crew remains at the mine. 

The operator is no longer in business and the $20 penalties 

assessed in this decision are the same as those proposed by the 

Secretary. 

By way of previous history the evidence indicates the company had no violations in the two years ending November 4, 1990, 

and for the two years ending September 28, 1989. (Exs. P-l, 

P-2). 

The company was negligent in that it failed to seal the mine 

and file a mine map. 

The gravity of the violations was low as no miners were 

placed at risk. 

Mid-Continent did not promptly seal the mine but it promptly 

filed the mine map. 

Payment of the penalties herein are subject to the approval 

of the Bankruptcy Court. 

For the above reasons stated herein I enter the following: 

ORDER 

DOCKETNO. WEST 91-429 

. 

AFFIRMED. 

 

Citation No. 3410979 and the proposed penalty are 

Order No. 3586533 for a failure to abate is AFFIRMED. 

1756 
DOCKET NO. WEST 91-595 

3. Citation No. 3410732 and the proposed penalty are 

AFFIRMED. 

4. Respondent filed a case under Chapter ii of the Bankruptcy Code and is operating its bankruptcy estate as a debtorin-possession. Accordingly, upon approval of the United States 

Bankruptcy Court in Case No. 91-11658 PAC, it is ordered that 

civil penalties will be assessed against the Respondent in the 

amount of $40 and Petitioner is authorized to assert such assessment as a claim in Respondent's bankruptcy case. 

Adm•istrative Law Judge 

Distribution: 

Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Office Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail) 

ek 

1757 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303} 844-5268 

-OCT 2 81992 

WYOMING FUEL COMPANY, 

Contestant 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

WYOMING FUEL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. WEST 91-598-R 

Order No+ 3244426; 7/28/91 

Golden Eagle Mine 

Mine I.D. 05-02820 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-335 

A.C. No. 05-02820-03616 

Golden Eagle Mine 

DECISION 

Appearances: 

Before: 

Charles W. Newcom, Esq., SHERMAN & HOWARD, Denver, 

Colorado, 

for Contestant; 

Margaret A. Miller, Esq., Office of the Solicitor 

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

for Respondent. 

Judge Morris 

These cases arise under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801, et seq• (the "Act"). 

In WEST 91-598-R Contestant Wyoming Fuel company ("WFC") 

challenged Order No. 3244426 issued by the Secretary of Labor 

under Section 104(d) (2) of the Act; 

After notice to the parties, a hearing on the merits took 

place in Denver, Colorado, on December i0, 1991. The parties 

filed post-trial briefs. 

1758 
On June 30, 1992, by agreement of the parties, the contest 

proceedings were consolidated with the civil penalty proceedings, 

WEST 92-335. 

WFC is charged with violating the regulatory standard at 30 

C.F.R. § 715.316. I 

The contested Order No. 324442 reads as follows: 

.The operator was not complying with the approved ventilation methane and dust control 

plan dated 11-15-90, p. 37, Item E, in that 

water ranging from 4" to 28" was allowed to 

accumulate in different locations in the #i 

and #2 bleeder rooms starting at the exhaust 

air shaft to cross-cut #69 of the tailgate 

entries. In the #I bleeder room starting at 

exhaust air shaft back to cross-cut #70 of 

the tailgate entries, there was no air pump 

installed in this area. Water was not being 

pumped on the #2 entry of headgate. Water 

accumulated between #73 and #74 cross-cut a 

distance of about 70 feet. In #3 entry of 

the headgate water accumulated from cross-cut 

#70 to cross-cut #75, all the conditions 

would prevent the fire boss from making a 

S 75.316 Ventilation system and methane 

and dust control plan. 

[Statutory Provisions] 

A ventilation system and methane and dust 

control plan and revisions thereof suitable to 

the conditions and the mining system of the 

coal mine and approved by the Secretary shall 

be adopted by the operator and set out in 

printed form on or before June 28, 1980. The 

plan shall show the type and location of mechanical ventilation equipment installed and 

operated in the mine, such additional or improved equipment as the Secretary may require, 

the quantity and velocity of air reaching each 

working face, and such other information as 

the Secretary may require. Such plan shall be 

reviewed by the operator and the Secretary at 

least every 6 months. 

1759 
WFC denies it violated the ventilation plan. If a violation 

is found, the operator contends it was not significant and substantial ("S&S"), nor was it a result of the operator's "unwarrantable failure." 

The part of the ventilation plan, as contained in Exhibit 

S-2, provides that "[p]umps will be installed to remove water 

that accumulates in sufficient quantity or depth to present a 

hazard." 

Brief Statement of the Evidenc• 

On July 28, 1991, MSHA coal mine Inspector Melvin Shiveley 

inspected WFC's Golden Eagle Mine. He accompanied Gene Costelio, 2 WFC fire boss. He saw water accumulations at crosscut 73 

and it was necessary to walk the rib line to avoid the water. 

(Tr. 20). Some of the water in the No. 2 bleeder was as high as 

his boots.' 

Mr. Shiveley followed Mr. Costello who was making his normal 

daily run. (Tr. 22, 23). On July 28 the depth of the water 

ranged from 4 to 28 inches. (Tr. 26). Mr. Costello walked in 

the 28-inch water after putting on hip waders. In some areas the 

water was up to Mr. Costello's "belly." (Tr. 27). It was unsafe 

to walk along the ribs. 

Mr. Shiveley first observed the water on July 22, when 

Mr. Felthager was attempting to get the pumps operational. 

(Tr. 33, 34). 

When Mr. Costello entered the No. 2 bleeder room from crosscut 68 to 69, he was knee-deep in water and wearing his waders. 

(Tr. 36). Mr. Shiveley considered the violation S&S. (Tr. 40). 

On July 28 the pumps were not operating but Mr. Shiveley did 

not know if they were operating between July 22 and 28. 

NED ZAMARRIPA inspected various parts of the mine on 

July 25. On that day the pumps were operating and no citations 

were written. Mr. Zamarripa believed there were slip, trip, and 

fall hazards when Mr. Shiveley wrote his order. 

RONALD G. THOMPSON, WFC mining engineer, installed the 

equipment to pump out the water. Six hundred feet of pipe was 

laid and installed. Mr. Thompson did not believe he could have 

gotten the air pumps operational after MSHA's citations for 

electrical pumps. (Tr. 127). 

Misspelled as "Caustillo" in transcript. 

1760 
RONALD G. THOMPSON, WFC mining engineer, installed the 

equipment to pump out the water. Six hundred feet of pipe was 

laid and installed. Mr. Thompson did not believe he could have 

gotten the air pumps operational after MSHA's citations for 

electrical pumps. (Tr. 127). 

During the weekend of July 22, the water wend down 21 

inches. Two additional pumps were installed on July 29. 

In addition to Ron Thompson, Daniel McClain and Gene Costelio testified for WFC. WILLIAM REIT2E, MSHA's mining engineer, 

testified primarily concerning the hazards from an excessive 

water accumulation. 

Discussion and Further Findinqs 

The initial issue is whether WFC violated its ventilation 

control plan. The issue framed by the record is whether there 

was an accumulation of water of a sufficient quantity or depth 

to present a hazard. 

I credit Inspector Shiveley's testimony. On July 28 he 

followed Mr. Costello as the fire boss inspected the bleeder 

system. There was water throughout the bleeder stem but it is 

necessary to ascertain whether areas of water accumulation 

presented a hazard. 

Accumulations that presented a hazard were: in the area of 

crosscut 73 it was necessary for the men to walk the rib line and 

some of the water in the #2 bleeder room was boot high. On July 

28 the depth of the water ranged from 4 to 28 inches in different 

locations. When Mr. Costello entered the #2 bleeder room from 

crosscut 68 to 69, he was waist deep in water. Mr. Costello 

walked through the 28-inch deep water to do the bleeder 

evaluation. 

The use of waders by Mr. Costello is particularly persuasive 

on the issue of excessive water that presented a hazard in the 

bleeder system. Waders are hardly standard issue in an underground coal mine. Water up to Mr. Costello's belly would be of a 

sufficient depth to cause a hazard. 

In sum, I agree with the uncontroverted statement by 

Mr. Shiveley to Mr. Costello that there was "quite a bit" of 

water. Mr. Costello agreed with the statement. 

I further credit the testimony of Messrs. Shiveley, Zamarripa, and Reitze concerning the hazards caused by the accumulated 

water in the bleeder system. The hazards are numerous: unstable 

footing in unclear water, possible weak ribs, the necessity of 

walking the rib line, the possibility of drowning, as well as the 

1761 
hazard of stepping into a large sump hole. The record fairly 

establishes the accumulation of water was of a sufficient depth 

so as to present a hazard. 

The Judge is aware of WFC's witnesses - Ron Thompson, Daniel 

McClair, and Gene Costello. However, on the issue of water accumulations and related hazards, their testimony is not persuasive. 

Mr. Thompson testified principally as to the installation 

and operation of the air pumps. His testimony on the air pumps 

principally related to the unwarrantable failure issue, infra. 

Mr. Thompson's testimony as to the bleeder system is not persuasive since he indicates he did not walk every area in the bleeder 

system. (Tr. 136, 138). 

In contrast, Mr. Shiveley indicated he walked all of the 

bleeder system (marked in blue on Exhibit S-3). 

DANIEL McCLAXN, safety director for WFC, testified the 

company received a 107(a) order around Monday, July 15. The 

order required that electric pumps be replaced with air pumps. 

(Tr. 162). Mr. McClain was involved with Mr. Shiveley's inspection on July 22. (Tr. 164). No citations were written on 

July 22. Between July 22 and July 29 the water dropped i0 to 12 

inches. (Tr. 166). 

Mr. McClain further testified that Mr. Zamarripa did not 

write any citations on the 24th or 27th for the water accumulation. (Tr. 169). The witness also expressed certain legal 

opinions in connection with issues in the case. (Tr. 170-176). 

Mr. McClain agreed there was 24 inches of water in the headgate corner but he differed as to whether it was a hazardous condition. However, he agreed a person could slip or fall on dry 

ground. (Tr. 181). 

As previously noted on the hazard issue, I credit MSHA's 

witnesses. In addition, MSHA's witnesses are confirmed by WFC's 

preshift mine examiner's reports from July 21, through July 28. 

They describe water in the bleeders as a "hazardous condition." 

(Ex. WF-2) . 

EUGENE COSTELLO is a diesel mechanic for WFC. On July 28, 

1991, he was fire boss and pumper. The pumps were working on 

that day. Mr. Costello met Mr. Shiveley at the bottom of the 

mine. He checked some pumps on the way into the bleeders. 

Mr. Costello put on his waders that morning so he wouldn't get 

wet. 

There was water in the bleeder that morning but he didn't 

feel it presented a hazard in firebossing the area. Water has 

1762 
never bothered Mr. Costello. Even if the water is several inches 

deep, you can see the bottom. 

Mr. Costello described how he took his readings. He could 

not remember being in water up to his belly that day. (Tr. 197). 

The deepest part would be when he was going out to move or check 

a pump. 

Mr. Costello did not contradict MSHA's witnesses in the 

critical area of whether the water depth presented a hazard. 

For the foregoing reasons, Order No. 3244426 should be 

affirmed. 

Siqnificant and Substantial 

WFC contends the violation was not S&S and accordingly such 

special findings should be stricken. 

A "significant and substantial" violation is described in 

section 104(d) (i) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." A 

violation is properly designated significant and substantial "if, 

based upon the particular facts surrounding the violation there 

exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious 

nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981). 

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

Commission explained its interpretation of the term "Significant 

and Substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary of Labor must prove: (I) 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 injury in question will be of a reasonably serious nature. 

In United States Steel Mininq Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

1763 
We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mininq Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984). We have emphasized 

that, in accordance with the language of section 104(d) (i), it is the contribution of a 

violation to the cause and effect of hazard 

that must be significant and substantial. 

U.S. Steel Mininq Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mininq 

Company, Inc., 6 FMSHRC 1573, 1574-1575 (July 

1984). The question of whether any specific 

violation is S&S must be based on the particular facts surrounding the violation. 

Texasqulf, Inc. i0 FMSHRC 498, 500-501 (April 

.1988). Youqhioqheny and Ohio Coal Co., 

9 FMSHRC 2007, 2011-12 (December 1987). 

The record here establishes that WFC violated its ventilation plan. Such a plan has the force and effect of a 

mandatory regulation. Accordingly, the first criteria is 

established. 

The second facet, a discrete safety hazard, is established 

by the evidence. 

In connection with the third feature, I agree with Inspector 

Shiveley that the violation was S&S. (Tr. 40, 43). In particular, the insecure footing would be an obvious contribution to the 

hazard. Waders by themselves can cause the wearer to slip, particularly where the mine bottom is neither apparent not easily 

seen. 

I further concur with MSHA's witnesses that it is reasonably 

likely that the injury in question will be of a reasonably serious nature. Drowning, misstepping in the bleeder system, the 

possibility of pulling down a loose rib, all appear to be factors 

that could reasonably cause a serious injury. 

WFC argues no S&S violation existed and in support thereof 

cites Eaqle Nest, Incorporated, 13 FMSHRC 843, May 1991. 

In Eaqle Nest there were accumulations of murky water to the 

top of the Inspector's 16-inch boots. The water extended 20 feet 

across the entry and outby as far as the Inspector could see. 

Anyone walking in the area would be exposed to slipping hazards. 

Given the described scenario, Judge Weisberger held the hazard 

1764 
"can be mitigated by walking cautiously to feel for submerged 

objects so they may be avoided." 13 FMSHRC at 847. 

On July 28, 1992, after WFC's brief was filed, the Commission reversed the holding in Eaqle Nest, 14 FMSHRC 1119. Specifically, the Commission noted that the "exercise of caution" is 

not an element in determining whether a violation rises to the 

level of S&S, 14 FMSHRC at 1124. 

The S&S designation is within the criteria of the Commission's rulings and said allegations should be affirmed. 

Unwarrantable Failure 

In Emery Mininq Corp., 9 FMSHRC 1997, 2000-2004 (December 

1987), and Youqhioqheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 

(December 1987), the Commission held that "unwarrantable failure 

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

This conclusion was based on the ordinary meaning of the term 

"unwarrantable failure," the purpose of unwarrantable failure 

sanctions in the Mine Act, the Act's legislative history, and 

judicial precedent. The Commission stated that while negligence 

is conduct that is "inadvertent", "thoughtless," or "inattentive," conduct constituting an unwarrantable failure is conduct 

that is "not justifiable" or "inexcusable." Emery, supra, 9 

FMSHRC at 2001. 

The testimony by WFC's witness Ronald G. Thompson indicates 

WFC was attempting to comply with MSHA's order. Mr. Thompson's 

testimony (supra), describes these efforts. I credit his testimony since he was the "hands on" engineer in charge of the 

effort. 

The Secretary's post-trial brief relies on the sequence of 

events that occurred in the two weeks before Mr. Shiveley issued 

MSHA's order. 

I am not persuaded by MSHA's view. Mr. Shiveley had no 

recollection of the water depth on July 22. (Tr. 50). Further, 

he is hardly in a position to refute WFC's efforts at pumping 

since he had "no idea" of the extent to which the pumps were 

operating between July 22 and July 28. (Tr. 49, 50). 

Given the circumstances involved here, I conclude WFC made a 

reasonable effort to comply and the allegations of unwarrantable 

failure should be stricken. 

1765 
Pursuant to the stipulation of the parties filed on May 19, 

1992, the decision should address all issues presented in WEST 

91-598-R as well as the penalty case, WEST 92-335• 

CIVIL PENALTIES 

Section ll0(i) of the Act mandates consideration of six criteria in assessing a civil penalty. 

According to the Secretary's proposed assessment, WFC is a 

large company, as indicated by its 19,539,257 production tons. 

The size of the Golden Eagle Mine itself is 675,916 production 

tons. The penalty in this order is appropriate in relation to 

the size of the company and is should not affect the operator's 

ability to continue in business. 

By way of prior history: Exhibit S-I shows WFC was assessed 

19 violations in the period from June i, 1991, to September 24, 

1991. In the period before June I, 1991, no violations were 

assessed. 

The operator's negligence was moderate. While the accumulated water was extensive, as noted on Exhibit S-3, such accumulations were not always a sufficient depth to present a hazard. 

The gravity of the violations was high for the reasons previously discussed. 

WFC demonstrated good faith in attempting to achieve prompt 

abatements. 

For the reasons stated herein, I enter the following: 

ORDER 

In WEST 91-598-R 

I. The allegations of unwarrantable failure in Order No. 

3244426 are STRICKEN. 

2. The contest of Order No. 3244426 is DISMISSED. 

In WEST 92-335 

3. Order No. 3244426 is AFFIRMED. 

4. A civil penalty of $200 is ASSESSED. 

•M°trvieS Law Judge 

1766 
Distribution: 

Charles W.. Newcom, Esq., SHERMAN & HOWARD, 633 17th Street #2000, 

Denver, CO 80202 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, Colorado 80294 (Certified Mail) 

ek 

1767 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON. D.C. 20006 

October 29, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CARDER INCORPORATEDo 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-350-M 

A.C. No. 05-04117-05507 

Screening Operation #2 

ORDER VACATING DEFAULT 

DECISIONAPPROVING SETTLRMRWT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Merlin 

This case is before me pursuant to Order of the Commission 

dated October 29, 1992. 

Upon review of the file, I find that relief from the default 

is warranted. 

The Solicitor has filed a motion to approve settlements. A 

reduction in the penalty from $691 to $359 is proposed. The 

Solicitor also requests that Citation Nos. 3451187, 3451188, 

3451191, and 3451194 be modified to delete the significant and 

substantial designation and to reduce the possibility of injury 

to unlikely. I have considered the representations and documentation submitted in this case, and I conclude that the proffered 

settlements are appropriate under the criteria set forth in 

section ll0(i) of the Act. 

In light of the foregoing, it is ORDERED that the default 

dated September 29, 1992, be and is hereby VACATED. 

It is further ORDERED that the motion for approval of 

settlements be GRANTED. 

It is further ORDERED that Citation Nos. 3451187, 3451188, 

3451191, and 3451194 be modified to delete thesignificant and 

substantial designation and to reduce the possibility of injury 

to unlikely. 

1768 
It is further ORDERED that the operator pay a penalty of 

$359 within 30 days of the date of this decision. 

Paul Merlln 

Chief Administrative Law Judge 

Distribution: By Certified Mail 

Kristi Floyd, Esq., office of the Solicitor,•U. S. Department of 

Labor, 1585 Federal office Building, 1961 Stout Street, Denver, 

CO 80294 

Ira J. Paulin, Carder, Inc., P, O. Box 721, Lamar, CO 81052 

/gl 

1769 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 29, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

CARDER INCORPORATEDo 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-351-M 

A. C. No. 05-04209-05507 

Crusher Operation #2 

ORDER VACATING DEFAULT 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Merlin 

This case is before me pursuant to Order of the Commission 

dated October 29, 1992. 

Upon review of the file, I find that relief from the default 

is warranted. 

The Solicitor has filed a motion to approve settlements. A 

reduction in the penalty from $916 to $474 is proposed. The 

Solicitor also requests that Citation Nos. 3451182, 3629194, 

3629195, 3629196, and 3629197 be modified to delete the significant and substantial designation and to reduce the possibility of 

injury to unlikely. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlements are appropriate under the criteria set 

forth in section 110(i) of the Act. 

In light of the foregoing, it is ORDERED that the default 

dated September 29, 1992, be and is hereby VACATED. 

It is further ORDERED that the motion for approval of 

settlements be GRANTED. 

It is further ORDERED that Citation Nos. 3451182, 3629194, 

3629195, 3629196, and 3629197 be modified to delete the significant and substantial designation and to reduce the possibility of 

injury to unlikely. 

1770 
It is further ORDERED that the operator pay a penalty of 

$474 within 30 days of the date of this decision. 

Chief Administrative Law Judge 

Distribution: By Certified Mail 

Kristi Floyd, Esq., Office of the Solicitor, U. S. Department of 

Labor, 1585 Federal Office Building, 1961 Stout Street, Denver, 

CO 80294 

Ira J. Paulin, Carder, Inc., P. O. Box 721, Lamar, CO 81052 

/gl 
1772 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT-8 1992 

IN RE: CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

ONEIDA COAL COMPANY, INC., 

Contestant, 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent. 

ONEIDA COAL COMPANY, INC., 

Contestant, 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent. 

ONEIDA COAL COMPANY, INC., 

Contestant, 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent. 

MASTER DOCKET NO. 91-1 

CONTEST PROCEEDINGS 

Docket Nos. WEVA 91-I041-R 

through WEVA 91-I055-R 

Citation Nos. 9862040 

through 9862054 

Oneida Mine No. 1 

Docket No. WEVA 91-I056-R 

Citation No. 9862222 

Oneida Mine No. 4 

Docket Nos. WEVA 91-I057-R 

through WEVA 91-I065-R 

Citation Nos. 9862257 

through 9862265 

Oneida Mine No. 11 

1773 
ONEIDA COAL COMPANY, INC., 

Contestant, 

Vo 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent. 

ONEIDA COAL COMPANY, INC., 

Contestant, 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket Nos. WEVA 91-I066-R 

through WEVA 91-I073-R 

Citation Nos. 9862311 

through 9862318 

Oneida Mine No. 12 

Docket No. WEVA 91-I074-R 

Citation No. 9862687 

Oneida Mine No. 16 

ORDER DENYING MOTION TO DISMISS 

On April 4, 1991, the Secretary of Labor (Secretary) issued 

34 citations to five mines operated by Oneida Coal Company, Inc. 

(Oneida). On April 29, 1991, Oneida filed notices of contest 

with the Commission for all of the citations. Each notice 

asserted that there was no violation of 30 C.F.R. 70.209(b) as 

alleged, and that the actions described in the citation did not 

occur. On May 9, 1991 (received by the Commission May i0), the 

Secretary filed an answer and a motion for stay of proceedings 

until June 25, 1991, in each of the contest cases. On May 15, 

1991, the cases were assigned to me. Because of inadvertence, I 

did not act on the motions for stay. 

On June 17, 1991, the Secretary issued proposed penalty 

assessment notices to Oneida proposing penalties of $1,200, 

$1,300, and $1,400 for the alleged violations. The form notice 

states in part: 

Pursuant to 30 C.F.R. 100.7, you have 30 days 

from receipt of this proposed assessment to 

either pay the penalty, or notify MSHA that 

you wish to contest the proposed assessment 

and that you request a hearing on the 

violations in question before the Federal 

Mine Safety and Health Review Commission. If 

you do not exercise the rights herein 

described within 30 days of receipt of this 

proposed assessment, this proposed assessment 

will become a final order of the Commission 

1774 
and will be enforced under provisions of the 

Federal Mine Safety and Health Act of 1977. 

Each notice included a form entitled "Request for Hearing 

with Review Commission" (the "blue card") intended to be used by 

the operator to request a hearing on the penalty assessment. 

Oneida did not return the blue card or otherwise notify MSHA that 

it wished to contest the proposed penalties and request a hearing 

before the Commission. On July 30, 1991, the MSHA Civil Penalty 

Compliance Office sent letters to Oneida demanding payment for 

the penalties proposed on June 17, on the ground that the 

penalties "became delinquent 30 days after the final order of the 

... Review Commission." On August Ii, 1991, Oneida's Safety 

Director wrote to the Compliance Office informing it that Oneida 

had filed notices of contest for each of the citations on 

April 29, 1991. MSHA replied by letter dated October 15, 1991, 

that because Oneida failed to request a Commission hearing within 

30 days of its receipt of the proposed penalty assessments, the 

penalties were deemed by operation of law final orders of the 

Commission. It further stated that "[c]ontest of the underlying 

citations does not constitute a contest of the associated 

proposed civil penalty." On November 5, 1991, Oneida's counsel 

wrote MSHA stating that he was "reiterating for the record our 

intention to challenge not only the citations themselves, but 

also the related proposed civil penalties." The letter argued 

that Oneida believed that the notices of contest had indicated 

its intention to challenge the citations and that a further 

response to the penalty documents was unnecessary. 

On September 18, 1992 (more than one year after the letters 

demanding payment), the Secretary filed a motion to dismiss the 

notices of contest cases on the ground that Oneida failed to 

timely request a hearing after the notices of •sessment of civil 

penalties were served. On October 2, 1992, Oneida filed an 

opposition to the motion to dismiss. 

Issue 

The question presented by the motion is whether Oneida's 

failure to contest proposed penalty assessments within 30 days of 

their receipt mandates dismissal of previously timely filed 

notices of contest. 

Section 105 of the Mine Act 

Section 105(a) of the Mine Act provides that if an operator 

fails to notify the Secretary within 30 days from the receipt of 

the Secretary's notification of the civil penalty proposed to be 

assessed that the operator intends "to contest the citation or 

the proposed assessment of penalty, ... the citation and the 

proposed assessment of penalty shall be deemed a final order of 

the Commission and not subject to review by any court or agency." 

1775 
Section 105(d) provides that if an operator notifies the 

Secretary within 30 days of receipt of "an order issued under 

section 104, or citation or a notification of proposed assessment 

of a penalty issued under subsection (a) or (b) of this section" 

that he intends to contest it, the Secretary shall immediately 

advise the Commission of the notification, and the Commission 

shall afford an opportunity for a hearing. Thus the Mine Act, 

unlike the 1969 Coal Act, provides two avenues by which a mine 

operator may challenge a citation. 

Commission Decisions 

In an early decision under the Mine Act, Energy Fuels 

Corporation, 1 FMSHRC 299 (1979), the Commission, after reviewing 

the legislative history of the Act, found that section 105(d) 

permitted an operator to contest an abated citation immediately 

upon its issuance prior to the assessment of a penalty for the 

violation charged. The Commission stated that absent an urgent 

need for an immediate hearing, the contest proceeding would be 

continued and subsequently consolidated with the penalty case, 

after "the penalty is proposed, contested, and ripe for hearing." 

In Old Ben Coal Company, 7 FMSHRC 205 (1985), the Commission 

affirmed the dismissal of a contest proceeding after the mine 

operator paid the proposed penalty. The Commission held that an 

operator cannot deny the existence of a violation and at the same 

time pay a civil penalty because "paid penalties that have become 

final orders reflect violations of the Act and the assertion of 

violations contained in the citation is regarded as true." I_dd. 

at 209. In a concurring opinion, Commissioner Nelson stated that 

"while I agree that an operator cannot pay the penalty proposed 

... and thereafter maintain before the Commission its challenge 

to the underlying citation, I do not share the view that absent 

such a payment, an operator must file a notice of contest of the 

Secretary's subsequently proposed civil penalty in order to 

continue to press its earlier filed challenge to the •nderlying 

citation" I_dd. at 211. The Commission considered the relationship 

between the two subsections at some length in Quinland Coals, 

Inc., 9 FMSHRC 1614 (1987) and observed at pages 1620-21: 

The contest provisions of section 105 are an 

interrelated whole. We have consistently 

construed section 105 to encourage 

substantive review rather than to foreclose 

it. 

The interrelationship between a contest 

proceeding and a civil penalty proceeding 

has, in the past, been a source of confusion 

and dispute over the issues that may be 

raised properly in each proceeding and over 

1776 
their preclusive effect once raised. In 

resolving these arguments we have afforded a 

wide latitude for review and eschewed 

preclusion. 

More recently, with respect to the payment of the penalty, 

the Commission stated in Westmoreland Coal Company, ii FMSHRC 

275, 276 (1989), that "where a civil penalty has been paid by 

genuine mistake, the operator's right to contest the violation 

may not be lost." In a compensation proceeding, •ocal 2333 v. 

Ranger Fuel, I0 FMSHRC 612, 618 (1988), the Commission held that 

"once a civil penalty is paid or becomes a final order by 

operation of section 105(a), the assertion of violation contained 

in the citation cannot be contested in a subsequent proceeding 

under the Mine Act." (emphasis added). In Rivco Dredging 

Corporation, i0 FMSHRC 624 (1988), the Commission vacated an 

order of dismissal of contest proceedings because the operato• 

apparently acting in good faith, misunderstood the need to object 

to the proposed penalty assessment in addition to its prior 

contest of the citations and orders. The Commission order stated 

that "in cases like this, innocent procedural missteps alone 

should not operate to deny a party the opportunity to present its 

objections to citations or orders.', See also Blue Diamond Coal 

Company v. Secretary, ii FMSHRC 2629 (1989) (ALJ) (allowed late 

filing of notice of contest of citation). In Beaver Creek Coal 

Company v. Secretary, Ii FMSHRC 1213 (1989) (ALJ), Commission 

Judge Cetti, during the course of a hearing on the merits of 

contest proceedings, approved a settlement between the parties 

which in part granted the operator's motion to vacate the final 

order to pay resulting from its failure to contest the penalty 

assessments. 

Rule 60(b) 

The Commission's Procedural Rules provide that the 

Commission and its judges "shall be guided so far as practicable 

by any pertinent provisions of the Federal Rules of Civil 

Procedure ..." 29 C.F.R. 2700.1. Oneida argues that the 

principles and policies underlying Rule 60(b)(1) of the Federal 

Rules of Civil Procedure, which authorizes a court on motion to 

relieve a party from a final judgment or order because of 

mistake, inadvertence, surprise, or excusable neglect, require 

denial of the Secretary's motion. However, Rule 60(b) requires 

that such a motion be filed within a reasonable time, and if 

based on mistake, inadvertence, surprise, or excusable neglect, 

"not more than one year after the judgment, order or proceeding 

was entered or taken." In this case, if the proposed assessment 

became a final order of the Commission, it did so on July 17, 

1991. Oneida's response to the Secretary's motion, which it asks 

be deemed a motion for relief from the Secretary's demand orders, 

was not filed until October i, 1992. I note that the Secretary 

waited for more than one year to file her motion to dismiss. 

1777 
However, I cannot consider the November 5, 1991 letter from 

Oneida's counsel to MSHA as a motion for relief from a final 

order. I conclude that relief under Rule 60(b) is not available 

to Oneida. 

Mistake, Procedural Missteps 

It is clear that Oneida in theperson of Edward Bauer, its 

Director of Safety and Training, believed that the notices of 

contest filed on April 29,1991, with the Commission were 

sufficient to indicate that it contested the citations and the 

subsequent penalty assessments. There is nothing in the record 

to indicate that its belief was other than a good faith mistake. 

Unlike Rivco, Oneida was represented by counsel. Unlike Beaver 

Creek, Oneida's counsel is experienced in mine safety matters and 

has handled many cases before the Commission. Onthe other hand, 

the notices of the proposed assessments were not sent to Oneida's 

counsel although he had filed the contest cases many months 

before and the Secretary was aware of his representation. I 

conclude that Onelda's failure to file notices contesting the 

penalty assessments resulted from a good faith misunderstanding 

of "the need to object separately to the two different aspects of 

the same dispute." Rivco, supra. The dual requirements of 

sections 105(a) and 105(d), and their relationship are 

misunderstood by many mine operators and attorneys. I was one of 

the drafters of the Commission's Interim Procedural Rules in 

1978, and they were less than crystal clear to me. A 

misunderstanding such as happened here is not an uncommon 

occurrence and is not surprising. 

Prejudice 

In the case of any failure to comply with time limitations, 

the question whether it resulted in prejudice to the other party 

is a very important consideration. The Secretary has not 

contended that she was prejudiced by Oneida's failure to file 

timely contests of the penalty assessments, and prejudice is not 

apparent from the record before me. Therefore, I conclude that 

she was not prejudiced. 

Substance v. Formalism 

Realistically, there is no doubt that Oneida intended to 

contest the citations and the violations alleged in the 

citations. It clearly indicated that intention to the Secretary 

by filing the notices of contest. Requiring Oneida to again 

notify the Secretary that it objected to the proposed penalty 

assessments (a "different aspect of the same dispute" as the 

1778 
•vco order terms it) is to elevate formalism I 

over substance. 

Oneida's failure to return the forms contesting the penalty 

proposals was a mistake. The mistake has not misled the 

Secretary or the Commission. It shouldnot operate to severely 

penalize Oneida anddeny it the opportunity to present its 

objections to the proposed penalties in proceedings before the 

Commission. I hold that under the circumstances present here, 

where the operator filed timely notices of contest of the 

citations, but mistakenly failed to contest the proposed penalty 

assessments, the citations and proposed penalties did not become 

final orders of the Commission. 

ORDER 

Accordingly, the motion to dismiss the above captioned 

contest cases is DENIED. 

ames A. Broderick 

Administrative Law Judge 

Distribution: 

Timothy M. Biddle, Esq., Thomas C. Means, Esq., J. Michael Klise, 

Esq., Crowell & Moring, i001 Pennsylvania Avenue, N.W., 

Washington, D.C. 20004 (Certified Mail) 

Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

/fcca 

1 Formalism is defined in the Concise Oxford Dictionary (8th 

ed. 1990)as "excessive adherence to prescribed forms ..." It is 

defined in the American Heritage Dictionary of the English 

Language (3rd ed. 1992) as "[r]igorous or excessive adherence to 

recognized forms ..." 

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