MAY 1987 

COMMISSION DECISIONS 

05-28-87 

05-29-87 

Jimmy R. Mullins v. Beth-Elkhorn Coal Corp., 

and Local 1468 UMWA and International UMWA 

Jim Walter Resources, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-01-87 

05-05-87 

05-05-87 

05-06-87 

05-06-87 

05-12-87 

05-12-87 

05-12-87 

05-13-87 

05-13-87 

05-19-87 

05-20-87 

05-20-87 

05-20-87 

05-20-87 

05-20-87 

05-22-87 

05-22-87 

05-26-87 

05-27-87 

05-28-87 

05-28-87 

05-29-87 

05-29-87 

05-29-87 

Ohio River Collieries 

Grateside Coals, Inc. 

Columbia Portland Cement Co. 

Phelps Dodge Corporation 

Emko Corporation 

Ronald Tolbert v. Chaney Creek Coal Corp. 

Brian Lackey Concrete . 

Bull Run Mining Co., Inc. 

Jim Walter Resources, Inc. 

Wilfred Bryant v. Dingess Mine Service, etc. 

Secretary of Labor for Ronald G. Nelson v. 

Valley Camp Coal Co.(Donaldson Mining Co.) 

Peabody Coal Company 

Secretary of Labor on behalf of David Ward v. 

Peabody Coal Company 

Kelso Coal Company, Inc. 

Consolidation Coal Company 

Consolidation Coal Company 

Jim Walter Resources, Inc. 

Sanger Rock & Sand 

Kelley Trucking Company 

Helen Mining Company 

Triple Elkhorn Mining Co. 

Wilmon Moore d/b/a Big Blue Trucking 

Secretary of Labor on behalf of Joseph 

G. Delisio, Jr. v. Mathies Coal Co. 

Charles J. Merlo, Inc. 

Jim Walter Resources, Inc. 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Washington, D.C. 20402 

KENT 83-268-D Pg. 891 

SE 85-36-R Pg. 903 

SE 86-83 

LAKE 86-68 

KENT 87-52 

LAKE 086-38-M 

CENT 87-2-M 

WEST 87-42-M 

KENT 86-123-D 

WEST 85-175-M 

WEVA 86-272 

SE 87-41 

WEVA 85-43-D 

WEVA 87-79-D 

KENT 86-94-R 

WEVA 86-376-D 

WEVA 87-15 

WEVA 87-67 

WEVA 87-90 

SE 87-38 

WEST 86-61-M 

CENT 85-109 

PENN 87-104 

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MAY 1987 

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

Secretary of Labor, MSHA v. Texasgulf, Inc., Docket Nos. WEST 85-148-M, 

WEST 86-83-M. (Judge Lasher, April 14, 1987) 

Local Union 2333, District 29, UMWA v. Ranger Fuel Corporation, Docket 

No. WEVA 86-439-C. (Interlocutory Review of Judge Melick 1 s oral decision) 

Review was denied in the month of 

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No. 

SE 86-23-M. (Judge Koutras, March 25, 1987) 

Alvin Ritchie v. Kodak Mining Company, Docket No. KENT 86-138-D. 

(Judge Melick, April 14, 1987) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 28, 1987 

JIMMY R. MULLINS 

v. 

BETH-ELKHORN COAL CORPORATION, Docket No. KENT 83-268-D 

LOCAL 1468, DISTRICT 30, 

UNITED MINE WORKERS OF 

AMERICA 

and 

INTERNATIONAL UNION, UNITED 

MINE WORKERS OF AMERICA 

BEFORE: Backley, Doyle, Lastowka and Nelson, Connnissioners 

DECISION 

BY THE COMMISSION: 

This proceeding involves a discrimination complaint filed by Jimmy 

R. Mullins pursuant to the Federal Mine Safety and Health.Act of 1977. 

30 U.S.C. § 801 et seq. (1982)("Mine Act"), The complaint alleges that 

Mullins 1 removal from a dispatcher 1 s job pursuant to an arbitration 

award resolving a seniority grievance violated section lOS(c)(l) of the 

Mine Act by contravening his rights under 30 C.F .R. Part 90 (1'Part 

90"). ll Former Connnission Administrative Law Judge Richard C. Steffey 

lf In relevant part, section 105(c)(l) of the Mine Act provides: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[Act] because such miner, representative of miners 

or applicant for employment •.. is the subject of 

medical evaluations and potential transfer under a 

standard published pursuant to section [101] of this 

891 
found that the removal of Mullins from the dispatcher's job constituted 

unlawful discrimination, ordered that Mullins be reinstated to that 

position, and awarded back pay, expenses, and attorney's fees. 7 FMSHRC 

1819 (November 1985)(ALJ). The Commission granted petitions for 

discretionary review filed by Beth-Elkhorn Corporation ( 11Beth-Elkhorn11 ), 

Local 1468, District 30, United Mine Workers of America ( 11UMWA11 ), and 

the International Union. UMWA. 'f:./ The Secretary of Labor ("Secretary") 

filed an amicus curiae brief in support of petitioners. Because we 

conclude that miners 1 Part 90 rights do not entitle miners to particular 

transfer positions, we reverse. 

L 

The parties stipulated to the relevant facts. 7 FMSHRC at 1821-

25. Mullins began working for Beth-Elkhorn at its No. 26 underground 

coal mine in 1970. At all times relevant to this proceeding, the UMWA 

represented miners at this mine for collective bargaining purposes. 

Until February 1981, Mullins worked as a repairman on a non-production 

maintenance shift. In May· 1980, Mullins had a chest x-ray that 

evidenced pneumoconiosis. and the Department of Labor's Mine Safety and 

Health Administration ("MSHA11 ) informed Mullins and Beth-Elkhorn of 

Mullins' option under Part 90 to work in an area of the mine in which 

the average concentration of respirable dust in the atmosphere was 

continuously maintained at or below 1.0 mg/m3. See 30 C.F.R. §§ 90.1 & 

90.3. Because the average concentration of respirable dust in the mine 

atmosphere in which Mullins was working was maintained at or below 1.0 

mg/m3, Mullins continued to work in his repairman's position. 

On February 3, 1981, through exercise of his seniority rights 

under the National Bituminous Coal Wage Agreement of 1981 ("the 

Agreement"), the collective bargaining agreement to which Beth-Elkhorn 

and the UMWA were , Mullins secured a job as an electrician on 

[Act] •. , or because of the exercise by such miner, 

representative of miners or applicant for employment 

on behalf of himself or others of any statutory 

afforded by chis [Act , 

30 USC " 0 ooo:}O ·1s( C\L}o )''' 

Under 30 C.F,R. Part 90 0 as relevant here, a miner determined by 

the Secretary of Health and Human Services to have evidence of the 

development of Black Lung disease (pneumoconiosis) is given the 

opportunity to work without loss of pay in an are<' of the mine where the 

average concentration of respirable dust in the mine atmosphere during 

each shift to which that miner is exposed is continuously maintained at 

or below 1.0 milligrams per cubic meter of air ("mg/m3 11 ). 30 C.F.R. 

§ 90.3. 

~/ For the sake of brevity, Local 1468, District 30, and the 

International Union of the UMWA are referred to herein as the "UMWA" or 

"the Union" unless the context requires a more specific reference. 

892 
the second shift, also a non-production shift. J/ In September 1981 a 

sampling of the atmosphere in the area in which Mullins was working 

revealed that the average concentration of respirable dust exceeded 1.0 

mg/m3. MSHA issued Beth-Elkhorn a citation alleging a violation of 30 

C.F.R. § 90.100 for failing to maintain the required low dust mine 

atmosphere where Mullins was working. Mullins became eligible again 

under Part 90 for transfer to a job in a less dusty area of the mine. 

Although Beth-Elkhorn offered to transfer Mullins to a less dusty area, 

he elected to waive his transfer option, pursuant to 30 C.F.R. 

§ 90.104(a), and to retain the electrician's job. ~/ By letter dated 

October 15, 1981, Beth-Elkhorn informed MSHA that it did not believe 

that the dust in Mullins 1 work area could be maintained at the 

appropriate level but that Mullins had elected to waive his Part 90 

transfer rights and remain in the electrician1 s position. Based on 

Mullins 1 waiver, MSHA terminated the previously issued citation. 

Approximately one ye~r later, in September 1982, the dispatcher's 

job on the second shift became permanently vacant and was advertised for 

bidding in the mine. By letter dated September 17, 1982, Mullins 

informed MSHA that he now wished to re-exercise his Part 90 rights to 

obtain that particular job. In his letter, Mullins stated, "If I cannot 

obtain this job as a dispatcher, then I do not wish to re-exercise my 

rights as a Part 90 miner. 11 Exh. 9. In response, MSHA notified BethElkhorn in November 1982 that Mullins had exercised his option 11 to work 

in a low dust area, 11 and that 11 by the 21st calendar day after receipt of 

the notification .•. [Mullins] must be working in an environment which 

meets the [ 1. 0 mg/m3] respirable dust standard. 11 Exh. 11. 

Mullins also bid on the dispatcher's job under the seniority 

provisions of the Agreement. Another bidder for the job, Norman 

Caudill, had greater mine seniority but was not a Part 90 miner. BethElkhorn awarded the job to Mullins based on the 11 superseniority 

provision" of Article XVII(i)(lO) of the Agreement, which gives a onetime job preference to Part. 90 members. 2_/ 

}/ Article XVII(i) of the Agreement specifies that the filling of all 

permanently vacant jobs and new jobs created during the term of the 

contract shall be made on the basis of Article XVII(a) 

defines 11 seniorityH as 11Length of service and the ability· to step into 

and perform the work of the job at the time it is awarded. 11 Exh. 27, 

pp. 64-76. 

30 C.F.R. § 90.104(a) provides that miners through notification 

or other actions, may waive their Part 90 rights. This section also 

permits miners to re-exercise their Part 90 rights following a waiver. 

30 C.F.R. § 90.104(c). 

~/ Article XVII(i)(lO) states: 

If the job which is posted involves work in a 

"less dusty area" of the mine (dust concentrations 

of less than one milligram per cubic meter), the 

provisions of the Article shall not apply if one of 

893 
Under the Agreement's procedures, Caudill filed a grievance with 

respect to Beth-Elkhorn1 s decision to award Mullins the job. The UMWA's 

Local 1468, District 30 represented Caudill, and the grievance proceeded 

to arbitration. In an op1n1on issued on April 15, 1983, the arbitrator 

sustained Caudill 1 s grievance. The arbitrator held that the superseniority provision of Article XVII(i)(lO) applies only to Part 90 

miners who are members of a "production crew, 11 and that Mullins,_ as an 

electrician on a non-production maintenance shift, was not entitled to 

the one-time preference. Consequently, the arbitrator awarded the job 

to Caudill. Exh. 18. 

Subsequent to the award, Beth-Elkhorn representatives met with 

Mullins and informed him that they would comply with the arbitrator's 

ruling by giving the dispatcher 1 s job to Caudill. They also advised him 

that he could return to his former electrician1 s position or begin a new 

job as a repairman on the same non-production shift. The repairman's 

job carried the same hourly rate of pay and, in Beth-Elkhorn 1 s opinion, 

was in a mine atmosphere that (unlike the electrician's position) 

complied with the 1.0 mg/m3 dust standard. After this meeting, Mullins 

chose to return to his job as an electrician. 

In a letter dated May 2, 1983, Beth-Elkhorn informed MSHA of these 

developments and stated that, in its opinion, Mullins' choice 

constituted a waiver, pursuant to 30 C.F.R~ § 90.104, of his Part 90 

transfer rights. At about the same time, Mullins filed a complaint with 

MSHA alleging, in essence, that his removal from the dispatcher's. 

position discriminatorily denied him his Part 90 rights in violation of 

section 105(c)(l) of the Mine Act. Following an investigation of the 

complaint, MSHA determined that Mullins had not been subjected to 

illegal discrimination under the Act and declined to prosecute a 

complaint on Mullins' behalf. Mullins then instituted the present 

proceeding before this independent Commission pursuant to section 

105(c)(3) of the Act. 30 U.S.C. § 815(c)(3). 

In an eighty-page decision favoring 

Mullins had engaged in protected activity 

Mine Act when he re-exercised his Part 90 

job of dispatcher. 7 FMSHRC at 1850-54. 

Mullins, the judge found that 

under section 105(c)(l) of the 

transfer rights and bid on the 

The judge concluded that 

the bidders is an Employee who is not working in a 11 less qusty area" and who has received a letter from 

the U.S, Department of Health and Human Services 

informing him that he has contracted black lung 

disease and that he has the option' to transfer to a 

less dusty area of the mine. In such event, the job 

in the less dusty area must be awarded to the 

letterholder on any production crew who has the 

greatest mine seniority. Having once exercised his 

option, the letterholder shall thereafter be subject 

to all provisions of this Article pertaining to 

seniority and job bidding. This section is not 

intended to limit in any way or infringe upon the 

transfer rights which letterholders may otherwise be 

entitled to under. the Act. 

894 
Article XVII(i)(lO) of the Agreement itself discriminated against and 

interfered with the rights of Part 90 miners by restricting them to a 

one-time only exercise of superseniority in bidding on vacant jobs and 

by giving preference in job placement only to Part 90 production crew 

members. 7 FMSHRC at 1844-45, 1854-61. The judge held that the UMWA 

discriminated against Mullins "when [it] brought a grievance to 

arbitration and succeeded in obtaining an interpretation of Article 

XVII(i)(lO) of the [Agreement] which resulted in.an award of a job 

performed in [a low dust area] to a miner who did not have any Part 90 

rights at all. 11 7 FMSHRC at 1850. The judge further held that BethElkhorn discriminated against Mullins by removing him from the 

dispatcher 1 s job in compliance with the arbitrator's award. 7 FMSHRC at 

1868-73. In reaching this conclusion, the judge opined that BethElkhorn should have "re-examine[d] the [Agreement] ... to determine why 

it should not be revised in order to permit all Part 90 miners to bid on 

vacancies in positions performed in less than 1.0 milligrams of 

respirable dust." 7 FMSHRC at 1872. Finally, the judge concluded that 

the UMWA was an "operator" as defined in section 3(d) of the Mine Act, 

and consequently could be assessed a civil penalty for the violation of 

section 105(c)(l). 7 FMSHRC at 1841-44. 

II. 

The principal question presented is whether the judge erred in 

concluding that Mullins enjoyed the right to obtain a particular Part 90 

transfer position -- here, the dispatcher's job on the second shift --

and that Beth-Elkhorn's award of that job to another. miner pursuant to 

the arbitration decision violated section 105(c)(l) of the Mine Act. 

There is no dispute that a Part 90 miner, upon exercising his transfer 

option, has the right to be transferred to ! position satisfying the 

requisite Part 90 criteria. We hold, however, that a Part 90 miner is 

not entitled to dictate to the operator or otherwise specify the 

particular position to which the transfer must be made. We find no 

statutory or regulatory basis for the judge 1 s contrary views. 

The general principles governing analysis of discrimination cases 

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

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

miner bears the burden of production and proof in establishing that 

(1) he engaged in protected activity and (2) the adverse action 

complained of was motivated in any part by that activity. Secretary on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 

(October 1980) rev 1 d on other grounds sub. nom. Consolidation Coal Co. 

v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). 

The operator may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was 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, supra; Robinette, supra. See also Eastern 

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

v. Stafford Construction Co~, 732 F.2d 954, 958-59 (D.C. Cir. 1984); 

895 
Boich v. FMSHR.C, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically 

approving the Commission's Pasula-Robinette test). 

The first question is that of protected activity: Did Mullins 

enjoy the right under the Mine Act and Part 90 to transfer to a specific 

position? The Commission has established some broad guidelines relevant 

to that question. We have held that section 105(c) of the Act bars 

discrimination against ·or interference with miners who are "the subject 

of medical evaluations and potential transfer" under the Part 90 

standards. Goff v. Youghiogheny & Ohio Coal Co., 7 FMSHR.C 1776, 1780-81 

(November 1985)( 11Goff I 11 ). We have emphasized the importance of the 

rights and protections conferred by Part 90 and the related provisions 

of the Act, but have recognized that their extent is not unlimited. For 

example, neither the Act nor Part 90 entitles a qualifying miner to work 

in a mine environment totally free ~f respirable dust. Gotf v. 

Youghiogheny & Ohio Coal Co., 8 FMSHRC 1860, 1865 (December 1986)("Goff 

II 11 ). Claims of protected activity and discrimination in this context 

must be resolved upon the basis of a careful review of the structure of 

miners I rights and Operator_S I Obligations COntained in the pertinent 

statutory and regulatory texts. 

In general, key provisions of the Mine Act and related mandatory 

health standards require that the average concentrations of respirable 

dust and of respirable dust containing quartz in the atmospheres of 

active workings in coal mines be maintained at or below specified low 

levels. 30 U.S.C. §§ 842 & 845; 30 C.F.R. §§ 70.100 et seg. & 71.100 et 

seg. Section 101(a)(7) of the Act further authorizes the Secretary to 

develop improved mandatory health or safety standards providing that 

miners whose health has been impaired by exposure to a d~signated hazard 

"shall be removed from such exposure and reassigned." §_/ As we stated 

in Goff I, "Part 90 implements this statutory ma:μdate by providing for 

the transfer of miners who, as a result of exposure to the health hazard 

£/ In relevant part, section 101(a)(7) states: 

Where appropriate, [any mandatory health or safety 

standard promulgated under this subsection] shall 

provide that where a determination is made that a 

miner may suffer material impairment of health or 

functional capacity by reason of exposure to ... [a] 

hazard covered by such mandatory standard, that 

miner shall be removed from such exposure and_ 

reassigned. Any miner transferred as a result of 

such exposure shall continue to receive compensation 

for such work at no less than the regular ·.".'ate of 

pay for miners in the classification such miner held 

immediately prior to his transfer. In the event of 

the transfer of a miner pursuant to the preceding 

sentence, increases in wages of the transferred 

miners shall be based on the new work classification. 

30 U.S.C. § 811(a)(7)(emphasis added). 

896 
of respirable dust, have developed pneumoconiosis." 7 FMSHRC at 1778 

n. 3. The improved Part 90 standards supercede the interim mandatory 

health standards contained in section 203(b) of the Mine Act, 30 U.S.C. 

§ 843(b), which provided specifically for the transfer of miners with 

evidence of development of pneumoconiosis "to another position in any 

area of the mine. 11 (Emphasis added.) 

'J;he Part 90 trans·fer option encompasses three basic rights: . 

(1) to.be assigned work in "!!.!!area of a mine" where the required Part 

90 dust concentration levels are continuously maintained (30 C.F.R. 

§§ 90.3(a), 90.100 & 90.101); (2) in "an existing position" at the same 

mine on the same shift or shift rotation or, if the miner agrees in 

writing, in 11~ different coal mine, ~ newly-created position or .!!. 

position on.!!. different shift or shift rotation" (30 C.F.R. 

§ 90.102(a)); and (3) at no less than the regular rate of pay earned by 

the miner immediately before exercise of the transfer option (30 C.F.R. 

§ 90.103)(emphases added). It is the duty of operators to effectuate 

these rights as applicable with respect to their Part 90 miners. 

Nothing in the quoted texts -- from superseded section 203(b) of 

the Mine Act (supra) to the present Part 90 standards -- requires that 

eligible miners be transferred to particular positions. On the 

contrary, placement in .!!. position meeting the relevant dust 

concentration criteria is all that is required. As the Secretary points 

out in his amicus curiae brief, 11Part 90 allows an operator to respond 

with flexibility to a miner's request to work in a less dusty area. 11 S. 

Br. 8. Not only may the operator offer the Part 90 miner transfer to a 

range of qualifying positions within less dusty areas (30 C.F.R. § 

90.102), but also may elect to maintain or bring the miner's existing 

work area into compliance with the applicable Part 90 dust standards (30 

C.F.R. §§ 90.100 & 90.101). 45 Fed. Reg. 80,760-761 (December 5, 

1980)(Secretary1 s official commentary on final Part 90 regulations). 

The pertinent legislative and regulatory histories make clear that 

the fundamental purpose of these transfer provisions is the protection 

of miners 1 health -- not the distribution of specific jobs. Thus, in 

originally enacting as part of the 1969 Coal Act the provision that 

became section 203(b) of the Mine Act, a key House report states: "The 

committee considers this section ... equal in importance to the dust 

control section for decreasing the incidence and development of 

pneumoconiosis. 11 H. Rep. No. 563, 91st Cong,, 1st Sess. 20 (1969), 

reprinted in Senate Subcommittee on Labor, Committee on Labor and Public 

'Jelfare, 94th Cong., 1st Sess., Part I Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, at 1050 (1975); see 

also Id. at 1071-72, 1199 & 1551. The legislative history of the Mine 

Act again reveals that the congressional emphasis is on decreasing the 

incidence of pneumoconiosis. S. Rep. No. 181, 95th Cong., 1st Sess. 22-

23 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 610-11 (1978); see also Id. at 1320. 

Moreover, the Secretary's official comments concerning the final 

Part 90 standards adopted by him expressly indicate that while a Part 90 

miner is entitled to an opportunity to remove himself from potentially 

897 
harmful concentrations of respirable dust, a mine operator retains 11 a 

margin of latitude" and "some flexibility" in the placement of a Part 90 

miner, particularly in view of "unforeseen situations and unexpected 

mine and market conditions." 45 Fed. Reg. at 80,765-66. Thus, while an 

operator is required to provide a miner exercising his Part 90 option 

with a job that meets the applicable dust concentration limit, the 

operator retains an important measure of discretion to choose the 

specific job that is offered, provided the job meets the criteria 

specified in Part 90 regarding the mine involved, the shift or shift 

rotation, and the rate of pay. To the extent that the judge interpreted 

the Secretary's official comments as supporting a conclusion to the 

contrary (7 FMSHRC at 1838-39), the judge erred. ZI 

We also note the explanatory construction of the Part 90 

regulations provided us by the Secretary on review: 

The intent of Part 90 is that the specific job 

assignment of a Part 90 miner remains essentially a 

management decision made by the operator ••.. In 

promulgating Part 90, the Secretary did not intend 

that an operator be required to give an eligible 

miner a specific job, but instead that the operator 

be obliged only to give him the opportunity to work 

in low dust concentrations. Any. other interpretation of Part 90 destroys the flexibility the 

regulation is intended to provide. For example, it 

would be pointless for the standard to give an 

operator the option of bringing the dust level on 

the miner's present job into compliance with the 

standard if the miner nevertheless could require the 

·operator to transfer him to a different specific job 

of his own choosing. 

So Bro 8-9., 

In sum, we find nothing in the language, purpose or history of the 

Mine Act or of Part 90 that grants Part 90 miners the right to secure 

specific jobs thab they desire. Here, Mullins attempted to exercise his 

Part 90 transfer option by seeking only the specific job of dispatcher. 

(As noted, Mullins 1 transfer request to Beth-Elkhorn stated: "If I 

cannot obtain this job as a dispatcher. then I do not wish to reexercise my rights as a Part 90 miner. 11 ) Mullins, of course, had the 

II In his Federal Register comments the Secretary rejected a 

reconnnendation that Part 90 miners be assigned only to vacant existing 

job to avoid 11 bumping" non-Part 90 miners from their jobs. 45 Fed. Reg. 

at 80,766. We read the Secretary's statement that 11 there will be 

occasions where an operator will assign a Part 90 miner to a position 

currently held by a non-Part 90 miner" not as an indication that a Part 

90 miner is entitled to a particular job over a miner with more 

seniority, but rather as recognition that in the exercise of the 

operator's perogative of offering Part 90 miners qualifying jobs, such 

"bumps" may be inevitable. 

898 
general right to re-exercise his Part 90 transfer option. To the extent 

that he sought Part 90 transfer to a particular position, however, his 

goal was outside the rights afforded by the Mine Act. 

From the standpoint of Beth-Elkhorn 1 s Part 90 obligations, it 

follows that the operator did not violate the Mine Act by failing to 

retain Mullins in the dispatcher's job. Beth-Elkhorn1 s only duty was to 

offer Mullins a position.that satisfied the Part 90 criteria. The 

operator fulfilled its responsibilities by offering him the repairman's 

job -- a position at the same mine, on the same shift, at no loss in 

pay, and in a low dust area of the mine. 30 C.F.R. §§ 90.100 & 90.102. 

Nor is there any evidence in the record that Beth-Elkhorn's 

actions otherwise were tainted in any part by an intent to discriminate 

against Mullins or interfere with his exercise of any legitimate 

protected activity. Prior to the dispute over the dispatcher's job, 

Beth-Elkhorn and Mullins had reached a mutually acceptable accommodation 

concerning Mullins' work as an electrician. Beth-Elkhorn initially 

awarded the dispatcher's job to Mullins pursuant to the superseniority 

provision of Article XVII(i)(lO) of the Agreement. The UMWA sought 

Mullins' removal from that position pursuant to the grievance and 

arbitration procedures of the Agreement. We cannot conclude that either 

the UMWA, in pursuing a grievance over Mullins' initial placement in the 

dispatcher's position, or Beth-Elkhorn, in ~emoving Mullins from the job 

pursuant to the arbitration award, violated the Mine Act. 

As independent grounds for declaring Mullins' removal unlawful, 

however, the judge determined that Article XVII(i)(lO) of the Agreement 

and the grievance arbitration proceedings taken in this matter amounted 

to invalid restrictions upon Mullins' Part 90 and Mine Act rights. We 

hold that the judge erred and exceeded the limits of his authority in so 

ruling. 

The Mine Act is not an employment statute; the Commission does not 

sit as a super grievance or arbitration board. When required to do so 

for purposes of resolving issues arising under the Mine Act, we must 

interpret the meaning and application of parties' bargaining agreements 

with appropriate restraint. As .the Commission has stated: "It is true 

that we do not decide cases in a manner which permits parties 1 private 

agreements to overcome mandatory safety requirements or miners' 

protected rights; nor do we unnecessarily thrust ourselves into 

resolution of labor or collective bargaining disputes." Loe. U. No. 

781. Dist. 17 2 UMWA v. Eastern Assoc. Coal Corp., 3 FMSHRC 1175, 1179 

(May 1981). See also United Mine Workers of America on behalf of James 

Rowe, et al. :;:-P~dy Coal Co., 7 FMSHRC 1357, 1364 (September 1985), 

pet. for review filed, No. 85-1717 (D.C. Cir. October 30, 1985). 

The wisdom or fairness of Article XVII(i)(lO) is not the Commission's concern. Nor does the Commission's role include assessing 

whether the arbitrator's construction of that provision represents sound 

or unsound collective bargaining law. Also, there being no Part 90 

right to secure particular positions, the superseniority effect of the 

Article in question may, in fact, operate to grant some Part 90 miners 

899 
more rights than conferred by Part 90 and the Mine Act. The Mine Act 

does not bar operators and unions from agreeing to give Part 90 miners 

placement rights more generous than those provided by statute and 

regulation. See,!:..:...&·• Franks v. Bowman Transportation Co., 424 U.S. 

747, 778-79 (1976); Moteles v. Univ. of Penn., 730 F.2d 913, 921 (3d 

Cir.), cert. denied, 469 U.S. 855 (1984); Tangren v. Wackenhut Services, 

Inc., 658 F.2d 705, 70l (9th Cir. 1981), cert. denied, 456 U.S. 916 

(1982). Further, the complained-of distinction in Article XVII(i)(lO) 

between production and non-production P~rt 90 miners is a seniority 

matter negotiated between the contracting parties and was drawn in a 

context of providing an elevated level of rights to Part 90 miners. 

Such contractual distinctions, above the statutory/regulatory "floor," 

do not violate the Mine Act or Part 90. In short, Mullins pad no Part 

90 claim to the dispatcher's job; his initial award of the job, pursuant 

to the superseniority provisions of the Agreement, went beyond any 

entitlement under Part 90; and his removal from that job pursuant to the 

same Agreement and proposed transfer to another Part 90-qualifying 

position did not violate any of his Part 90 rights. 

Accordingly, we conclude that Mullins did not engage in protected 

activity in seeking the dispatcher's job, and neither the Union nor 

Beth-Elkhorn violated section lOS(c) of the Mine Act in connection with 

his removal from that position. ~/ 

III. 

Finally, we briefly address the judge's holding that for purposes 

of this proceeding the UMWA is an "operator" under the Miti.e Act subject 

to a civil penalty for the violation of section lOS(c)(l). 9/ Section 

3(d) of the Act, 30 U.S.C. § 802(d), defines "operator" as iiany owner, 

lessee, or other person who operates, controls, or supervises a coal or 

other mine or any independent contractor performing services or · 

construction at such mine. 11 The judge noted that Article lA of the 

Agreement provides that Beth-Elkhorn may not contract out certain types 

of mine construction or extraction jobs 1'unless all [UMWA] employees 

with necessary skills to perform the work are working no less than 5 

days per week." 7 FMSHRC at 1843. The judge concluded that 11 by 

restricting [Beth-Elkhorn 1 s} right to contract out construction and 

other work at the mine, [the UMWA] makes itself an 1 independent 

contractor performing services at the mine' and makes [itself] an 1 operator 1 within the meaning of section 3 ( d) of the Act. 11 7 FMSHRC at 

1843. We disagree. 

~/ During the course of this proceeding, the Union sought and the 

judge denied his disqualification or recusal. 7 FMSHRC at 1897. The 

UMWA sought review of the judge's ruling but at oral argument advised 

the Commission that it had abandoned the recusal issue. Tr. Oral Arg. 

13-14. We therefore do not address that issue. 

9/ Section llO(a) of the Act states that "[t]he operator of a 

;ine11 in which a violation of the Act occurs shall be subject to a civil 

penalty. 30 U.S.C. § 820(a). 

900 
Without deciding whether a union may ever be an 11 operator 11 under 

the Mine Act, we conclude that on the facts presented here the UMWA is 

not an "independent contractor performing services or construction." 

The Union did not itself "contract to perform services or construction 

at [the] mine. 11• See 30 C. F. R. § 45. 2 ( c). Of equal importance, under 

the Agreement the power of the UMWA to restrict Beth-Elkhorn's right to 

contract out construction and other work at the mine is far removed from 

the kind of participat1on in the running of the contracted activity or 

service that could support a finding under the Mine Act of independent 

contractor status. See,~., Old Dominion Power Company v. Donovan, 

772 F.2d 91, 96 (4th Cir. 1985); National Industrial Sand Ass'n. v. 

Marshall, 601 F.2d 689, 701 (3d. Cir.· 1979). We vacate the judge's 

finding that the UMWA is an "operator" under the Mine Ai:t. 

IV. 

For the foregoing reqsons, the judge's decision is reversed and 

Mullins' complaint of discrimination is dismissed. 10/ 

10/ Chairman Ford did not participate in the consideration or 

disposition of this case. 

901 
Distribution 

Ron E. Meisburg, Esq. 

Michael T. Heenan, Esq. 

Smith, Heenan & Althen 

1110 Vermont Avenue, N.W. 

Washington, D.C. 20005 

(for Beth-Elkhorn) 

Gregory Ward, Esq. 

P.O. Box 2068 

Pikeville, Kentucky 41501 

(for UMWA, District 30) 

Earl R. Pfeffer, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

(for International UMWA) 

Mary Bruce Carter, Esq. 

25 Fleener Building 

P.O. Box 87 

Hartford, Kentucky 42347 

(.for Jimmy Mullins) 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

(for Secretary of Labor) 

902 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JIM WALTER RESOURCES, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

JIM WALTER RESOURCES, INC. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

JIM WALTER RESOURCES, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 29, 1987 

Docket No. SE 85-36-R 

Docket No. SE 85-62 

Docket No. SE 85-109 

Docket No. SE 85-123 

Docket No. SE 85-124 

Docket No. SE 86-83 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

In these consolidated contest and civil penalty proceedings 

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

§ 801 et seq. (1982)(the "Mine Act 11 ), the issue is whether Jim Walter 

Resources, Inc. ("Jim Walter") violated 30 C.F.R. § 75.316 by failing to 

comply with its approved methane and dust control plan by not maintaining line brattice to within 10 feet of "all faces. 11 1/ Commission 

l/ 30 C.F.R. § 75.316, a mandatory safety standard for underground 

coal mines, repeats § 303(0) of the Mine Act, 30 U.S.C. § 863(0). 

903 
Administrative Law Judge George Koutras held in Docket No. SE 85-36-R, 

etc. that the Secretary of Labor ("Secretary") did not establish a 

violation. 8 FMSHRC 568 (April 1986)(ALJ). ~/ In Docket No. SE 86-83 

Connnission Administrative Law Judge James Broderick concluded that a 

violation was established and assessed a civil penalty of $750. 11 

9 FMSHRC 109 (January 1987)(ALJ). We granted petitions for 

discretionary review of both decisions. We consolidated the cases on 

review and heard oral argument. For the reasons that follow, we affirm 

Judge Koutras• decision and reverse Judge Broderick's. 

I. 

The antecedents of these controversies arose in 1972 when a 

methane ignition occurred at Jim Walter's No. 3 mine. The mine is 

located in Tuscaloosa County, Alabama, and has a history of high methane 

liberation. At the time of the methane ignition, the No. 3 mine 1 s 

approved ventilation plan required that line brattice be maintained to 

within 10 feet of all working faces while. coal was being cut and loaded. 

After mining of the face ceased, the line brattice was taken down and 

cleanup operations in the face area were conducted. A continuous mining 

machine being used during the cleanup caused a methane ignition. 

Following the ignition, Jim Walter was cited by the Secretary of 

Interior's Mining Enforcement and Safety Administration ("MESA") for a 

Section 75.316 provides in part: 

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 .•.. 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. 

~/ Docket No. SE 85-36-R is a contest proceeding filed by Jim Walter 

challenging a withdrawal order. Docket Nos. SE 85-62, SE 85-109, SE 85-

123, and SE 85-124 are penalty proceeding~ initiated by the Secretary. 

Docket No. SE 85-124 was inadvertently omitted from Jim Walter's 

petition for discretionary review. The parties agree that it should 

have been included, and consequently, we deem it before us on review. 

In Docket No. SE 85-124, Judge Koutras also found a violation of the 

permissibility standard, 30 C.F.R. § 75.503. This violation is not 

before us on review. 

}/ In addition, Judge Broderick found a second violation of section 

75.316 in that Jim Walter allowed methane on a longwall section to 

exceed the maximum permissible limit. This violation is not before us 

on review. 

904 
violation of section 75.316, but the proceeding was dismissed after it 

was determined that coal was not being mined at a "working face 11 when 

the ignition occurred, and that the cited provision in the ventilation 

plan therefore was inapplicable. MESA thereafter concluded that the 

ventilation plan~ at certain of Jim Walter's mines should be revised to 

require that line brattice be maintained to within 10 feet of "the area 

of deepest penetration of all faces in all working places inby the last 

open crosscut" (the "all faces provision"), rather than just working 

faces.: f:!../ 

Accordingly, in 1973 Jim Walter submitted to the appropriate MESA 

district manager for his review and approval a ventilation plan for the 

No. 7 mine, which also is located in Tuscaloosa County and also has a 

history of high methane liberation. As submitted by Jim'Walter, the 

plan applicable to the No. 7 mine contained a provision that line 

brattice be maintained to within 10 feet of all working faces. The MESA 

district manager sent Jim Wa~ter a letter that approved the plan with 

the proviso that line brattice be maintained to within 10 feet of "all 

faces," as stated above. Between 1973 and 1984, each time the 

ventilation plan for the No. 7 mine was reviewed at six-month intervals, 

as required by statute and the Secretary's regulation, Jim Walter 

submitted a plan that required line brattice to be maintained to within 

10 feet of all working faces and the MESA (and MSHA) district manager 

responded with a letter stating that the plan was approved provided that 

line brattice "be maintained to within ''.lo feet •.• of all faces." 

Apparently, between 1973 and November 13, 1984, no citations were 

issued either by MESA or MSHA alleging a violation of the all faces 

provision at Jim Walter's mines. On November 13, 1984, however, an MSHA 

inspector issued the first citation alleging such a violation at Jim 

Walter's No. 4 mine, also in Tuscaloosa County. Jim Walter asserted 

that there was no violation because mining had ceased at the face and 

would not be resumed for several days, and it was not required by the 

plan to maintain line brattice within 10 feet of idle faces. Following 

an evidentiary hearing, Judge Broderick ruled against Jim Walter and 

found that the area at issue was a face within the meaning of the all 

faces provision. Jim Walter Resources, Inc., 7 FMSHRC 1471 (September 

1985)(ALJ). ?._/ 

MESA administered the Federal Coal Mine Health and Safety Act of 

1969, 30 U.S.C. § 801 et seg. (1976)(amended 1977), the predecessor of 

the Mine Act. When the Mine Act became effective in 1977, enforcement 

jurisdiction transferred from the Secretary of the Interior to the 

Secretary of Labor and MESA was replaced by the Mine Safety and Health 

Administration ( 11MSHA"). 

21 Jim Walter did not seek Commission review of this decision. The 

parties stipulated that the issue in Docket Nos. SE 85-36-R, etc. is 

identical to the issue in the case involving the November 13, 1984 

citation. The Secretary argues that Judge Koutras erred in not finding 

Jim Walter collaterally estopped from relitigating the issue. We reject 

this contention. The Secretary did not argue collateral estoppal below, 

nor has he shown any cause for failure to do so. The Mine Act and 

905 
II. Docket No. SE 85-36-R, etc. £/ 

On April 8, 1985, MSHA Inspector Judy McCormick inspected the No. 

7 mine. In the No. 13 section of the mine, Inspector McCormick found 

that a crosscut had been driven to the left for 24 feet off the No. 2 

entry toward the No. 1 entry. Prior to driving the crosscut, the 

continuous mining machine had advanced the No. 2 entry a distance of 8 

feet inby, creating an 8 foot extension of the No. 2 entry inby the 

crosscut (location Yon Exh. G-3). Line brattice was not maintained to 

within 10 feet of location Y. However, line brattice was maintained to 

within 10 feet of the end of the crosscut (location X on Exh. G-3). 

Inspector McCormick believed that under the all faces provision both 

location X and location Y were faces within 10 feet of which line 

brattice had to be maintained. Therefore, Inspector McCormick issued a 

withdrawal order alleging a violation of section 75.316. Jim Walter 

abated the alleged violation by installing line brattice to within 10 

feet of location Y. 

Jim Walter contested the validity of the withdrawal order 

asserting that under its approved ventilation plan line brattice was not 

required at location Y. For a variety of reasons, Judge Koutras agreed. 

In his decision, Judge Koutras noted that section 75.316 requires that 

the plan approved by the Secretary and adopted by the operator be 

suitable to the mine. The judge found _the·all faces provision not 

suitable to the No. 7 mine in that its implementation would result in 

added hazards. 8 FMSHRC at 593. The judge also found that the 

Secretary did not present credible evidence to establish. reasons why the 

provision was required, that it was inconsistent with other mandatory 

safety standards, and that it was discriminatory. Id. at 588, 593-594. 

Finally, the judge criticized the manner in which MSHA attempted to 

impose the requirement through the use of a "proviso" inserted in 

successive letters approving Jim Walter's plans. Id. at 592-593. The 

judge vacated the withdrawal order and dismissed the civil penalty proceedings. . at 594, 

Because we conclude that the Secretary did not prove a violation 

of section 75.316, we agree with the result reached by the judge. Our 

conclusion, however, is premised upon a different and more limited 

basis, We find that the disputed language of the plan provision is 

ambiguous. We further find that the Secretary 1 s evidence does not 

dispel the ambiguity and does not establish that the cited condition 

violated the prov1sion at issue. 

Ventilation plans are approved by the Secretary and adopted by 

Commission Procedural Rule 70(d) bar, except for good cause shown, an 

assignment of legal error upon which the judge had no opportunity to 

pass. 30 U.S.C. § 823(d)(2)(iii); 29 C.F.R. § 2700.70(d). Wilmot 

Mining Co., Docket No. LAKE 85-47, 9 FMSHRC ~(April 30, 1987), slip 

op. at 3. 

21 The parties stipulated that this part of the consolidated 

proceeding would be determined on the basis of the facts in Docket No. 

SE 85-109. 

906 
mine operators pursuant to section 75.316 and section 303(0) of the Mine 

Act. The approval and adoption process is bilateral and results in the 

Secretary and the operator, through consultation, discussion, and 

negotiation, mutually agreeing to ventilation plans suitable to the 

specific conditions at particular mines. Zeigler v. Kleppe, 536 F.2d 

398, 406-407 (D.C. Cir. 1976); Carbon County Coal Co., 6 FMSHRC 1123 

(May 1984). The process is flexible, contemplates negotiation toward 

complete agreement, and is aimed at compliance with mine safety and 

health requirements. Under the approval and adoption process, the 

operator submits a plan to the Secretary who may approve it or suggest 

changes. The operator is not bound to acquiesce in the Secretary's 

suggested changes. The operator and the Secretary are bound, however, 

to negotiate in good faith over disputes as to the plan's provisions and 

if they remain at odds they may seek resolution of their disputes in 

enforcement proceedings before the Commission. Carbon County Coal 

Company, 7 FMSHRC 1367, 1370-71 (September 1985); Penn Allegh Coal Co., 

3 FMSHRC 2767, 2771 (December 1981). The ultimate goal of the approval 

and adoption process is a mine-specific plan with provisions understood 

by both the Secretary and the operator and with which they are in full 

accord. Once the plan is approved and adopted, these provisions are 

enforceable at the mine as mandatory safety standards. Zeigler, supra 

at 409; Carbon County, 7 FMSHRC at 1370; Penn Allegh. 

In an enforcement action before the Gommission, the Secretary 

bears the burden of proving any alleged violation. In plan violation 

cases the Secretary must establish that the provision allegedly violated 

is part of the approved and adopted plan and that the cited condition or 

practice violates the provision. Here, Jim Walter argues in part that 

the all faces provision was not a part of the approved and adopted plan 

at the No. 7 mine. We do not reach this question, however, because, 

even assuming the provision is considered a part of the approved and 

adopted plan, in the instant case the Secretary did not prove that the 

failure to provide line brattice to within 10 feet of the cited location 

(location Y) violated the all faces provision. 

In Penn Allegh, the Commission held: 

The statute and the standard require the parties 

to agree on a dust control plan in the interest of 

miner safety. Therefore, after a plan has been 

implemented (having gone through the adoption/ 

approval process) it should not be presumed lightly 

that terms ir, the plan do not have an agreed upon 

meaning. 

3 FMSHRC at 2770. The provision in that case was ambiguous on its face 

but the Secretary established the meaning intended by the parties by 

presenting credible evidence as to the history and purpose of the 

provision and evidence of consistent enforcement. The Secretary's 

evidence in the instant case falls far short in these respects. 

First, the record contains no detailed and consistent testimony 

from the Secretary's witnesses illuminating the meaning of the all faces 

provision. Indeed, the testimony of two of the Secretary's witnesses is 

907 
at odds regarding the meaning of the term "all faces. 11 Inspector 

McCormick conceded that there is no definition of the term 11 face 11 in the 

Mine Act or in the Secretary's regulations and could only "guess" that 

the term "face" would be "the area from which coal is to be extracted or 

is being extracted. 11 Tr. 102. MSHA's supervisory mining engineer, 

William H. Meadows, disagreed with the inspector's view and stated that 

the term "f ace 11 "has not been interpreted11 to include areas where future 

mining is planned and that he "would not enforce it that way." Tr. 182. 

This conflicting testimony in general evidences the difficulty in 

ascertaining from the record an agreed.definition of the term. Tr. 156-

160. Since the Secretary's own witnesses were uncertain and in disagreement as to the meaning of the all faces provision, it cannot be 

presumed that Jim Walter was aware that the provision meant what the 

Secretary now urges it means. Compare U.S. Steel Mining Co., 8 FMSHRC 

314, 320 (March 1986)(detailed and consistent testimony of MSHA 

inspector supports Secretary 1 s interpretation of plan). 

Second, the Secretary presented no evidence of any prior 

consistent enforcement of the "all faces" provision that might have 

established that Jim Walter was on notice regarding the Secretary's 

interpretation of the meaning of the provision. Compare Penn Allegh, 

supra, 3 FMSHRC at 2769-70 (consistent enforcement is strong evidence of 

interpretation of plan). 

Third, the Secretary asserts that on April 8, 1985, there were two 

faces, location X and location Y, in the No. 13 section. Yet the 

Secretary admitted that the 1972 ignition incident that led to the 

Secretary's inclusion of the disputed p.rovision involved only one face. 

Tr. Oral Arg. 16-17. The 1972 ignition involved a failure to maintain 

line brattice to within 10 feet of the most recently mined face. On 

April 8, 1985, location X was the face most recently mined and all 

parties agree that Jim Walter maintained line brattice within 10 feet of 

location X. 

For these reasons, we conclude that the Secretary did not prove a 

violation of section 75.316. We therefore affirm the judge 1 s decision 

insofar as it it is consistent with our discussion. 

III. Docket No. 86-83 

On March 13, 1986~ MSHA Inspector Gerald N. Tuggle issued a withdrawal order to Jim Walter alleging a violation of section 75.316 at Jim 

Walter 1 s No. 7 mine: ZI 

[T]he continuous mining machine had mined the 

crosscut in [the No. 2 entry of the No. 8 section] 

to the left on the curtain (brattice line) side and 

the end of the curtain terminated in excess of 10 

feet from the deepest point of penetration of the 

face to the straight of the .entry. 

ZI Originally the order charged a violation of 30 C.F.R. § 75.200 but 

was modified subsequently to allege a violation of section 75.316. 

908 
The parties agree that the conditions described in the order occurred. 

The Secretary alleged that in failing to maintain the line brattice to 

within 10 feet "of the face to the straight of the entry," Jim Walter 

violated the all faces provision. 

In the subsequent civil penalty proceeding Jim Walter asserted 

that it did not violate section 75.316. The essence of Jim Walter's 

argument was that the end point to the straight of the No. 2 entry had 

not been recently mined and that under the approved ventilation plan, it 

was not required to maintain line brattice to within 10 feet of that 

point. The parties stipulated that the issue of whether Jim Walter 

violated the standard was identical to the issue pending before the 

Commission in Docket Nos. SE 85-36-R, etc., and that the Commission's 

decision in those cases would be controlling. Stipulation 1 and 4. See 

also Tr. 4-5. Accordingly, because the judge's decision in this docket 

was based on a rationale at odds with our disposition set forth above, 

we reverse his decision and v~cate the withdrawal order. 

IV. 

In deciding these cases, we decline to attempt on the present 

records to determine an all-encompassing definition of the term "face. 11 

We also do not address whether the ventilation plans at the subject 

mines should include the additional measur~ urged by the Secretary. The 

Act and the mandatory standard require the Secretary and the operator to 

agree upon a ventilation plan. It is of paramount importance under the 

statute that both the Secretary and the operator proceed diligently and 

in good faith to develop a conclusive and suitable plan containing 

provisions clearly understood by both. Thus, if MSHA continues to 

believe that the all faces provision is necessary to miner safety and 

suitable to Jim Walter's mines, it should seek to reach agreement with 

Jim Walter on the provision through proper implementation of the 

ventilation plan approval and adoption process. In this regard, we note 

the parties strongly disagree as to whether the all faces provision was 

ever conclusively incorporated into the ventilation plan. The record 

indicates that for thirteen years Jim Walter submitted plans for 

approval without the all faces provision and that MESA, and then MSHA, 

approved the plans by letters that included the all faces provision. It 

serves neither the safety of the miners nor the policy of the Mine Act 

when the Secretary and an operator are unable to reach firm agreement on 

the meaning of a mine plan provision even after several years of dealing 

with that provision. Given the importance Congress attached to mine 

specific plan3, we emphasize that it is incumbent upon the parties to 

adopt a more effective mechanism to ensure that mine plans are 

expeditiously, unambiguously and conclusively approved and adopted. 

Accordingly, the judge 1 s decision in Docket Nos. SE 85-36-R, etc., 

vacating the Secretary 1 s citations, dismissing MSHA's civil penalty 

909 
proposals, and granting :::n Walter's contest is affirmed. The decision 

in Docket No. SE 86-83, =~~ding a violation of the all faces 

provision, is reversed, :::::d the subject order of withdrawal and civil 

penalty are vacated. 

Joyce A. Doyle, Commissioner 

am~s A .. , Lasto~a, Commissioner ddl • l ' 

~ ~/y ; e_(.«i.A}--p\../ 

L: Clair Nelson, Commissioner 

910 
Distribution 

H. Thomas Wells, Jr., Esq. 

David M. Smith, Esq. 

Maynard, Cooper, Frierson & Gale, P.C. 

Twelfth Floor Watts Building 

Birmingham, Alabama 35203 

Stanley Morrow, Esq. 

Harold Rice, Esq. 

Jim Walter Resources, Inc. 

P.O. Box C-79. 

Birmingham, Alabama 35283 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wils.on Blvd. 

Arlington, VA 22203 

Administrative Law Judge George Koutras 

Administrative Law Judge James Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

911 
912 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 1, 1987 

SECRETARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v • 

OHIO RIVER COLLIERIES, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 86-68 

A. C. No. 33-00942-03515 

Lafferty Strip & Tipples 

AMENDED DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The Decision Approving Settlement previously issued for the 

above-captioned case is hereby reopened due to a clerical error 

pursuant to Commission rule 65(c). 29 C.F.R. § 2700.65(c). 

The originally assessed amounts were $1,000 and the proposed 

settlements are for $690. The Solicitor's motion discusses each 

violation in detail and justifies the proposed settlements in 

accordance with the six statutory criteria set forth in section 

llO(i) of the Act. 

Accordingly, the recommended settlements are Approved and 

the operator is ORDERED TO PAY $690 within 30 days of the date of 

this decisiona 

Paul Merlin 

Chief Administrative Law Judge 

Distr·ibution: 

Patrick M. Zohn, Esq., Office of the Solicitor, U. S. Department 

of Labor, 881 Federal Building, 1240 East ~inth Street, Cleveland, OH 44199 (Certified Mail) 

Robert H. Gentile, Chief Executive Officer, Box 128, Bannock, OH 

43972 (Certified Mail) 

Mr. Gene Angelo, The Ohio River Collieries Company, Director of 

Personnel and Safety, Box 128, Bannock, OH 43972 (Certified 

Mai l ) 

I g l 

913 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE 'OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 5 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

GRATESIDE COALS, INC., 

Respondent 

1987 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 87-52 

A.C. No. 15-09926-03507 

Docket No. KENT 87-53 

A.C. No. 15-09926-03508 

Grateside No. 3 Surface 

ORDER OF DEFAULT 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of 

civil penalties filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 820(a). Docket No. KENT 87-52, 

concerns the petitioner's proposals for assessment of civil 

penalties in the amount of $1,972, for 20 section 104(a) citations alleging violations of various mandatory ety standards 

found in Parts 48 and 77r Title 30, Code of Federal Regulations. 

Docket No. KENT 87-53, concerns proposals of assessment of civil 

penalties in the amount of $472, for five section 104(a) citations alleging violations of certain mandatory safety standards 

found in Part 77, Title 30, Code of Federal Regulations. 

The petitioner has certified that its civil penalty proposals were mai to respondent's counsel of record on 

February 27, 1987, and a copy of a letter to counsel from the 

petitioner's Nashvil~e, Tennessee Solicitor's Office reflects 

that counsel was advised that she had 30 days to file answers 

pursuant to Commission Rule 28, 29 C.F.R. § 2700.28. Counsel 

was also advised that the failure to file answers within the 

30-day period could result in the proposed assessments being 

entered as the final orders of the Commission as provided by 

procedural Rule 63, 29,C.F.R. § 2700.63. As of ·this date, no 

answers have been filed. 

914 
In view of the respondent's failure to fi answers to the 

petitioner's civil penalty proposals, I is an Order to Show 

Cause on il 10, 1987, ordering the respondent to state within 

10 days why it should not be held in ault its failure to 

file answers in these proceedings. The certified mail postal 

rece received from the Post Off ice Department reflects that 

counsel for the respondent received my Order on April 16, 1987. 

However, counsel has not responded. 

Discussion 

29 C.F.R. § 2700.39, provides as lows: 

A party against whom a pena is sought shall 

serve an.answer within 30 after 

of a copy of the proposal on the party. An 

answer shall include a short and plain statement of 

the reasons why each of the violations cited in the 

is contested, including a statement as to 

a violation occurred and whether a hearing 

29 C.F.R. § 2700.63, provides as fol 

(a) Generally. When a party f ls to comply 

with an order of a judge or these rules, an order 

to show cause shall be directed to the party before 

the of any order of default or smissal. 

order 

and 

Penalty proceedings. When the Judge 

respondent in default a c il penalty 

, the Judge shall also enter a summary 

asses the proposed s as final, 

ting that such penalties be 

The respondent in these proceedings has led to file 

default 

why the 

to the petitioneres civil penalty sals, and it has 

led to respond to my Order to Show Cause. Under the 

s, I conclude and find that the respondent is in 

waived its right to a hear I see no reason 1 s proposed civ assessments should 

not be made the final order of the Commiss 

915 
ORDER 

Judgement by default is herewith entered in favor of the 

petitioner, and the respondent IS ORDERED TO IMMEDIATELY PAY to 

the petitioner the sum of $2,444, as the final civil penalty 

assessments for the citations in question. 

~~cf;~ Administrative Law Judge 

Distribution: 

G. Elaine Smith, Esq., ice of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Vanessa Berge, Esq. , Wyatt, Tarrant & Combs, ~1cClure Building, 

P.O. Box 495, Frankfort, KY 40601 (Certified Mail) 

/fb 

916 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 5 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

COLUMBIA PORTLAND CEMENT 

COMPANY, 

Respondent 

Docket No. LAKE 86-38-M 

A.C. No. 33-03990-05507 

Jonathan Limestone Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section llO(a) of the Federal 

Mine Sa and Health Act of 1977, 30 U.S.C. § 820(a), seeking 

a civil penalty assessment in the amount of $2,000 for an alleged 

violation of mandatory safety standard 30 C.F.R. § 56.12-16, as 

stated in a section 104(a) Citation No. 2518303, issued at the 

mine on Ju 29, 1985. 

The respondent filed a timely answer and contest, and the 

case was scheduled for ing in Zanesville, Ohio, an May 6, 

1987. However, the petitioner has filed a motion pursuant to 

Commission Rule 30, 29 C.F.R. § 2700.30, seek approval of a 

settlement of the case. The proposed settlement agreement 

requires the re to pay a civil assessment in 

the amount of $1,000 for the vio ion in question. 0 

Discussion 

In support of the proposed settlement disposition of this 

case, the petitioner has submitted information pertaining to 

the six statu civil penalty criteria found in section llO(i) 

of the Act. In addition, the itioner has submitted a full 

discussion and disclosure as to the facts and circumstances 

surrounding the issuance of the citation in question, and a 

reasonable justification for the reduction of the original 

proposed civil penal assessment. 

917 
The citation in this case was issued after an MSHA 

investigation into an accident which occurred on July 27, 1985, 

which resulted in serious disabling injuries to an electrician 

when he entered a kiln precipitator hopper with the feed-out 

screw conveyor running and was caught in the screw. The electrician's right leg was severed below the knee. The electrical 

power switch for the screw conveyor had not been deenergized or 

locked out. The cited standard, 30 C.F.R. § 56.12-16, requires 

that electricially powered ipment be deenergized before 

mechanical work is done on such equipment. 

Petitioner states that the orig 1 civil penalty assessment 

amount was based on a "special assessment'' made in accordance 

with 30 C.F.R. § 100.5, due to the occurrence of the serious 

nonfatal accident. However, petitioner asserts that there are 

mitigating circumstances which justify a reduction in the original penalty amount. In this regard, petitioner states that the 

electr ian had not started the mechanical work when the accident 

occurred and that he was accidently knocked into the hopper and 

into the moving screw conveyor. electrician did not intend 

to enter the precipitator at the time of th~ accident as his belt, 

tools and radio had been left outside and he had only intended 

to check the dust to the hopper at the time of the accident. 

Petitioner asserts that employee in question was an 

experienced electrician who had received training from the 

respondent on lock out procedures, and that the respondent had 

a story of training employees on such procedures. Petitioner 

also points out that the electr ian's foreman had given him 

instructions and warned him to lock out the screw conveyor before 

entering the prec itator. Further 7 petitioner states that the 

mine is a small operation, and that during the 24~months preceding the issuance of the citation 7 the respondent had received 

two assessed v lations. 

Conclusion 

After careful rev and cons of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case. I conclude and find that 

the proposed settlement disposition is reasonable and in the 

publ interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRJ\NTED, and the settlement IS APPROVED. . 

ORDER 

Respondent IS ORDERED to 

of $1,000 in satisfaction of 

918 

a c 1 penalty the amount 

citation question within 
thirty (30) days of the date of this decision and order, and 

upon receipt of payment by the petitioner, this proceeding is 

dismissed. 

h.tf~ Administrative Law Judge 

Distribution: 

Marcella L. Thompson, Esq., Office the Solie , U.S. 

Department Labor, 881 Federal Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

John c. Ross, Esq., Ross·& Robertson, 200, Renaissance 

Centre, 4580 Stephen Circle N.W., Canton, OH 44718-3628 

(Cer fied Mail) 

/fb 

919 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 6, 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 87-2-M 

A. C. No. 29-00159-05516 

v • Tyrone Mine ~Mill 

PHELPS DODGE CORPORATIONTYRONE BRANCH, 

Respondent 

Before: 

DISAPPROVAL OF SETTLEMENT 

NOTICE OF HEARING 

Judge Merlin 

The parties have filed a motion to approve a settlement for 

the one violation in this case. The proposed settlement is for 

the original assessed amount of $192. One man was killed and 

another seriously injured as a result of the accident which was 

the subject of the citation. Based upon the present record, the 

proposed settlement cannot be approved. 

The Commission and its Judges bear a heavy responsibility in 

settlement cases pursuant to section llO(k) of the Act which provides~ 

(k) No proposed penalty which has been 

contested before the Commission under section 105(a) shall be compromised~ mitigated, 

or settled except with the approval of the 

Commission. * * * 

See S. Rep. ~o. 95-181, 95th Cong., 1st Sess. 41-5 (1977), 

re rinted in Senate Subcommittee on Labor, Committee on Human 

esources,-g5th Cong., 2d Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 632-633 (1978). 

Penalty proceedings before the Commission· are de nova. 

Neither the Commission nor its Judges are bound by The ecretary1s proposed penalties. Rather, they must determine the appropriate amount of penalty, if any, in accordance with the six 

920 
criteria set forth in section llO(i) of the Act. Sellersburg 

Stone v. Federal Mine Safety and Health Review Commission, 736 

F.2d 1147 (7th Cir. 1984). 

The Commission has recently reaffirmed the authority of its 

Judges to review and, where necessary, disapprove settlements, 

stating: 

* * * Settlement of contested issues and 

Commission oversight of that process are 

integral parts of dispute resolution under 

the Mine Act. 30 U.S.C. § 820(k); see 

Pontiki Coal Corp., 8 FMSHRC 668, 674(May 

1986). The Commission has held repeatedly 

that if a judge disagrees with a penalty 

proposed in a settlement he is free to reject the settlement and direct the matter 

for hearing. See,~., Knox County Stone 

Co., 3 FMSHRC 2478, 2480-81 (November 1981). 

X-judge 1 s oversight of the settlement process "is an adjudicative function that necessarily involves wide discretion." Knox 

County, 3 FMSHRC at 2479. 

* * * * * 

Secretary of Labor v. Wilmot Mining Company, Docket Number 

LAKE 85-47, slip op. at 3, 8 FMSHRC at 

(April 30, 1987). 

The Commission further explained: 

1

' '" * 9 we believe that [the] better prac- tice requires that if a judge rejects a written settlement proposal he issue an orde~ to 

that effect. Specifying the reasons for the 

rejection might sharpen the issues for trial 

and even possibly encourage an acceptable 

settlement proposal. 

Id. at Footn~te 1. 

The subject Citation 9 No. 2662005, dated January 6 9 1985 

describes the condition as follows: 

Two employees of an independent contractor 

were seriously injured on November 25, 1985, 

and one died on December 19, 1985, when a 

bundle of three, 12 inch by 45 feet long pipe 

that were banded together slid from a stack 

and pinned the victims between pipe on the 

ground they were attempting to put a choker 

921 
on, and the falling bundle, The pipe had 

been stacked about one week prior to the accident by an employee of the production-operator in a manner that contributed to a fall of 

material hazard in that the south stack of 

five bundles of pipe had three pipe in the 

bottom bundle, three pipe in the next bundle 

and four pipe in the top three bundles, resulting in a total height of approximately 

5-1/2 feet. The top bundle of four pipe in 

the south stack apparently slid to the north 

and pushed the three pipe off the north pile 

onto the victims, 

The mandatory standard is 30 C.F,R, § 56.16001 which 

requires that: 

Supplies shall not be stacked or 

stored in a manner which creates 

tripping or fall-of-material hazards. 

The file also contains the MSHA Accident Investigation Report which sets forth, inter alia, these facts: Phelps Dodge 

Corporation contracted with Hamilton Western Construction Company, Inc., to install a 6,000-foot.-long 12-inch dewatering pipeline. This arrangement required that Hamilton Western lay the 

pipeline in accordance with a provided design while Phelps Dodge 

was to provide, among other items, the plastic pipe specified. 

Phelps Dodge purchased the required pipe which was delivered to 

the mine-site by common carrier, As in previous deliveries, the 

pipe was received by Phelps Dodge warehousing personnel who un1 oaded the pipe with a Phelps Dodge forklift. The pipe was unloaded and stacked at a pre-determined location ahead of the 

approaching pipeline onstruction. he pipe in question was delivered and unloaded on November 12, 1985, thirteen days before 

the accident. A total of 49 pipes was delivered packaged in 

seven 3-pipe and seven 4-pipe bundles, The pile nearest the pipeline contained three 4-pipe bundles overlain by two 3-pipe 

bundles (north stack), Abutting this pile on the south was a 

22 pipe pile consisting of two 3-pipe bundles on top of which 

were stacked four 4-pipe bundles (south stack). This pile was 

inherently unstable since the base bundles were 12 3/4 inches 

narrower than the width of 16 pipe lengths it supported. During 

preceding pipe-laying activity, pipe bundles were reportedly 

stacked only 2 or 3 units high (approximately 43.5 inches). On 

this occasion, however, the bundles were stacked 6-high (87 inches)~ The crew therefore, was faced with a significantly 

different set of physical conditions. The pipeline construction 

crew consisted of a crane operator and two laborers. They had 

previously received their work assignment and proceeded to the 

jobsite without their supervisor's presence. The crane operator 

moved a cherry picker into hoisting position as the first laborer 

readied the fusion equipment. The crane operator began cutting 

922 
the steel-securing bands of the top 3-pipe bundle of the south 

stack nearest the crane. He cut 5 of the 6 bands and, positioning himself in the clear, cut the last band. This allowed the 

3-pipes to fall to the ground on the south side of the steel service pipeline. He then obtained hoisting slings while the second 

laborer positioned a dozer to drag fused lengths of pipe away 

from the fusion machine. As the crane operator was attaching the 

hoisting sling to the first pipe on the ground, the remaining 

3-pipe bundle of the north stack ~lid to the ground landing on 

top of him and pinning the second laborer's right leg against the 

steel service pipeline. Apparently at the same time the top 

4-pipe bundle of the south stack also slid off to the north and 

across the pipe bundle lying atop the crane operatnr. Twentyfour days later the crane operator died of his injuries. The 

second laborer suffered a broken leg. 

The Accident Investigation Report describes the cause of the 

accident in this manner:· 

The direct cause of this accident was the 

failure to recognize the instability of the 

irregularly stacked pipe bundles. 

Possibly contributing to this accident was 

the fact that the crew members were not 

accustomed to working with pipe piled higher 

than 2 or 3 bundles. In this accident the 

bundles were stacked 6-high. The light rainfall of the past night may have created even 

greater pile instability; wet pTastic pipe 

presents a very slippery surface. 

The settlement motion suomitted by the parties states that 

the pipes were stacked by the operator 1 s warehousing personnel 

and states that two employees of the independent contractor 

working for the operator were removing pipe when the accident 

occurred. The settlement motion recognizes that according to the 

citation the stacking of the pipes contributed to the hazard of 

falling material. t then sets fortn that the operator does not 

agree with all the facts set forth in the citation, including an 

attached drawing showing how the pipes were stacked and fell. 

Nor does it agree with the finding of a violation. Nevertheless, 

the parties propose that the inspector 1 s finding of low negligence be amended to no negligence for the following reasons: 

(i) The supplies had been stacked for approximately two weeks without any indication 

or incident of instability; 

923 
(ii) The employees had received adequate 

training, instruction and supervision in the 

conduct of their work involving the handling 

of pipe bundles and had completed approximately one-half of such work required of them 

at Respondent's workplace without incident; 

(iii) The evidence does not indicate to 

what extent the weight of the 4-pipe bundle 

on the south stack caused the remaining 

3-pipe bundle to fall, 'as compared to the 

extent the 3-pipe bundle fell perhaps .because 

of the movement generated by the removal of 

the initially removed 3-pipe bundle; and 

(iv) The em~loyees had experience in 

handling stacks of pipes of approximately the 

same height and weight. 

I cannot accept the proffered settlement. Both the citation 

and the investigation report identify as a cause of the accident, the manner in which the pipes were stacked. The fact that 

the pipes gave no indication of instability until they were 

touched, does not as the settlement motion suggests, warrant a 

finding of no negligence~ or even low negligence. The motion 

further asserts the employees were adequately, trained, instructed and supervised and were experienced, but does not indicate whether it is referring to the operator's employees who 

stacked the pipes or the independent contractor's employees who 

removed them. In any event, the investigation report states that 

these particular bundles were stacked differently than preceding 

ones had been and the victims were not accustomed to working with 

pipes stacked so high. The motion's assertion that the evidence 

does not show to what extent the stacking caused the fall as 

opposed to the manner in which the pipes were removed, does not 

justify this settlement. The accident could have had one cause 

or multiple causes and if the latter, it is not necessary to fix 

the degree of causation with mathematical certainty. Finally, no 

information has been furnished regarding the liability of the 

independent contractor. 

In summary, therefore, the settlement motion, far from presenting matters in a posture which would support a reasoned settlement, raises many questions which must be answered at a hearing on the re(ord. Only in this way can it properly be determined whether a civil penalty should be assessed and, if so, the 

proper amount. 

Accordingly, it is ORDERED that this matter be set for 

hearing at 9 a.m., July 1, 1987 at the United States Tax Court, 

924 
Federal Building, Room 235, 555 N. Central Avenue, Phoenix, 

Arizona 85004. 1 

It is further ORDERED that the Solicitor insure attendance ~t the hearing by the inspector who issued the subject citation 

and the authors of the Accident Investigation Report. The 

Solicitor should be prepared to elicit the circumstances of the 

accident from these individuals. 

The operator may call whatever witnesses it wishes. 

Documentary evidence may be offered. 

It is further ORDERED that on or before June 12. 1987, the 

parties submit a list of the witnesses they intend to call and 

copies of the documentary exhibits they propose to submit. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Rebecca A. Siegel, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Thomas A. Mascolino, Esq., Counsel, Trial Litigation, Office of 

the Solicitor, U. S. Department of Labor, Suite 400, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

Ronald Whiting, Esq., Deputy Solicitor, Regional Operations, 

U. S. Department of Labor, Room 2002, BCT 3, Ballston Center 

Tower 3, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) ' 

G. Starr Rounds, Esq., 2600 North Central Avenue, Phoenix, AZ 

8 5 0 0 4 - 3 O 9 9 ( C e r•t i f i e d M a i l ) 

M r. R i c h a r d E . R h o a d e s , M a n a g e r , P h e l p s, D o d g e C o r p o r a t i o n - Ty r o n e 

Branch, P. 0. Drawer B, Tyrone, NM 88065 (Certified Mail) 

I g 1 

1/ Any request for continuance will be viewed with extreme 

disfavor. The case has been pending for several months. 

The prehearing and hearing order was issued in January. 

After the Solicitor finally advised the case was settled, 

four phone calls were made to her during April in repeated 

attempts to elicit the motion. When she was told the case 

would be dismissed for want of prosecution, the motion 

finally was submitted. 

925 
FEDEiAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMKO CORPORATION, 

Respondent 

May 6, 1987 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-42-M 

A. C. No. 42-00149-05502 P9N 

Kennecott Mine 

DISAPPROVAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

Before: Judge Merlin 

The parties have submitted a joint motion to withdraw their 

pleadings in the above-captioned case which involves four 

violations. 

The Solicitor has moved to vacate one of the citations and 

the operator has agreed to pay the original assessments of $300 

each for two others. These matters appear to be in order. 

The difficulty is with the fourth order. Order No. 2644520A 

cites a violation of 30 C.F.R. § 56.9040(a) because two miners 

had been riding in the front bucket of a Case 5800 loader and 

back-hoe. This penalty was originally assessed at $300 and the 

proposed settlement is for $150. The parties represent that the 

50% reduction in the originally assessed amount is justified 

because "negligence is less than was originally assessed. 11 No 

reasons are given to support this representation. I have 

therefore, no basis upon which to determine whether the 

settlement recommendation is justified. 

The parties are reminded that the Commission and its Judges 

bear a heavy responsibility in sett 1 ement cases pursuant to section llO(k) of the Act. One of the principal reasons for the 

enactment of section llO(k) was the unwarranted lowering of 

penalties during the settlement process under the 1969 Act. 

S. Rep. No. 95-181, 95th Cong., 1st Sess. 41-5 (1977), reprfnted 

2-E_ Senate Subcommittee on Labor, Committee on Human Resources, 

95th Cong., 2d Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 632-633 (1978). 

926 
Penalty proceedings before the Commission are de nova. The 

appropriate amount of penalty must be determined in-accor ance 

with the six criteria set forth in section llO(i) of the Act. 

Sellersburg Stone v. Federal Mine Safety and Health Review 

Commission, 736 F.2d 1147 (7th Cir. 1984). 

The Commission most recently has reaffirmed the authority of 

the Judges to review and, where necessary, disapprove 

settlements, stating: 

* * * Settlement of contested issues and 

Commission oversight of that process are 

integral parts of disp~te resolution under 

the Mine Act. 30 U. S. C. § 820(k); see 

Pontiki Coal Corp., 8 FMSHRC 668, 674(M°ay 

1986. The Commission has hel~ repeatedly 

that i f a judge .di sag re es w i th a penal t y pro - posed in a settlement he is free to reject 

the settlement and direct the matter for hearing. See, e.g., Knox County Stone Co., 

3 FMSHRC24~2480-81 (November 1981). A 

judge's oversight of the settlement process 11 is an adjudicative function that necessarily 

involves wide discretion. 11 Knox County, 

3 FMSHRC at 2479. 

* * * * * 

Secretary of Labor v. Wilmot Mining Company, Docket Nu~ber 

LAKE 85-47, slip op, at 3, 8 FMSHRC at (April 30, 

1987), 

Most Solicitors routinely submit satisfactory settlement 

motions, while a few do not. 

In light of the foregoing 9 it is ORDERED that within 15 days 

from the date of this order the parties submit additional information to support their settlement recommendation. Otherwise the 

case will be set for hearing forthwitn. 

Paul Merlin 

Chief Administrative Law Judge 

927 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U. S. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, U. S. Department of Labor, Suite 400, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) and 

Lynn B. Larsen, Esq., Larsen & Wilkins, 500 Kennecott Building, 

10 East South Temple, Salt Lake City, UT 84133 (Certified Mail) 

Mr. Harry J. Lang, 1919 West North Temple, Salt Lake City, UT 

84122 (Certified Mail)' 

/gl 

928 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 121987 

RONALD TOLBERT, 

Complainant 

v. 

CHANEY CREEK COAL CORP., 

Respondent 

. 

. 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-123-D 

Dollar Branch Mine AKA 

White Oak Mine 

DECISION 

Appearances: Tony Oppegard, Esq., Appalachian Research and 

Defense Fund of Kentucky, Inc., Hazard, Kentucky, 

for Complainant; Thomas w. Miller, Esq., Miller, 

Griffin and Marx, Lexington, Kentucky, for 

Respondent. 

Before: Judge Melick 

By decision dated March 16, 1987, Chaney Creek Coal 

Corporation was found to have discriminated against 

Ronald Tolbert, in violation of section 105Cc)(l) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l}, the 

"Act". Based ·upon that decision, the parties subsequently 

stipulated damages, costs {except attorney's fees), and interest, 

through April 8v 19870 It is accordingly established that 

through that date Ronald Tolbert is entitled to $13,888 net back 

pay plus interest of $564.85. Subsequent to the submission of 

those stipulations, further delays ensued because of disputes 

concerning reinstatement and attorney's fees. Accordingly, 

Mr. Tolbert is also entitled to additional back pay corresponding 

to any work days missed for failure of Respondent to 

reinstatement himv plus interest computed in accordance with the 

rmula set forth in Secretary Vo Arkansas-Carbona Company and 

Walter, 5 FMSHRC 2042 (1983). 

The Complainant also seeks an award of'attorneys fees and 

expenses totalling $16,900.20 for work through April B,. 1987. 

Section 105(c)(3) of the Act provides that "[w]henever an order 

is issued sustaining the Complainants charges under this 

subsection, a sum equal to the aggregate amount of all costs and 

expenses {including attorneys fees) as determined by the 

Commission to have been reasonably incurred by the miner, 

applicant for employment, or representative of miners for, or in 

connection with, the institution and prosecution of such 

929 
proceedings shall be assessed against the person committing such 

violation." 

Respondent specifically objects to attorney's fees for 

certain services which it alleges could have been performed by a 

nonattorney, paralegal, or paraprofessional, at a lower hourly 

rate and, in particular, cites time spent interviewing witnesses 

as an inappropriate function of an attorney. It is well settled, 

however, that the time an attorney spends on investigating facts 

is clearly compensable. 1 Court Awarded Attorney's Fees, 

§ 16.02Cb). There is no evidence, moreover, concerning the 

availability of paralegals and/or investigators. Respondent's 

objection in this regard is accordingly rejected. 

Respondent also argues that the time spent in trial 

preparation and in preparing posthearing briefs was excessive. 

Complainant's counsel in this case did an exceptionally thorough 

and competent job in preparing and presenting the Complainant's 

case at trial and preparing his posthearing brief. While this 

case did not involve novel legal issues, I find that the time 

devoted by counsel in trial preparation and in the preparation of 

the brief was not unreasonable or excessive in light of the 

complex factual nature of the case. Accordingly, I also reject 

Respondent's contention that excessive time was devoted to these 

tasks. 

Finally, Respondent argues that a telephone call with an 

employee of the Respondent and with the Solicitor's Office of the 

Department of Labor were not appropriately charged to this case. 

In the absence of a specific showing, however, that those 

telephone calls were notQ in fact, related to the case hereinv I 

presume the truthfulness of the application. Under the 

circumstancesv I find the requested attorney's fees and expenses 

to be appropriate. 

FINAL ORDER 

Chaney Creek Coal Corporation is hereby ORDERED to 

immediately offer employment to Ronald Tolbert at its former 

White Oak Mine or at its Chaney No. 3 (Harlan County) Mine at no 

less than the current rate of pay in effect for the position of 

serviceman (I do not find reinstatement to the Oneida Mine to be 

appropriate in light of the unreasonable commutation time of 

4 hours). Chaney Creek Coal Corporation is further ORDERED to pay 

the Complainant within 30 days of the date of this decision, back 

pay and interest through April 8, 1987, in the amount of 

$14,452.85, as well as additional back pay and interest to the 

date of reinstatement and in accordance with the Commission's 

decision in Secretary v. Arkansas-Carbona Company and Walter, 

5 FMSHRC 2042 (1983}. Chaney Creek coal Corporation is further 

930 
ORDERED to pay Complainant ·attorney's fees and expenses of 

$16,900.20. It is further ORDERED tha~,_,,· the Decision and' Final 

Order in this case be posted at all min s now being operated by 

Chaney Creek Coal Corporation. This ca is also being referred 

to the Secretary of Labor for

1 

t~e purpos of instituting civil 

penalty proceedings. )L/ \ ' . .\ A, 0' 0 

Distribution: 

Ul-t....>J\ v' v J~{)-U(;\, ,\ 

r Melipk\ 

A "nistrt:Jve Law Judge 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc.,P.O. Box 360, Hazard, KY·41701 (Certified Mail) 

Thomas w. Miller, Esq., Miller, Griffin & Marks, 700 Security 

Trust Building, Lexington, KY 40507 (Certified Mail) 

Thomas Mascolino, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

slk 

931 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COlORADO 80204 MAY 121987 

SECRETARY QF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRIAN LACKEY CONCRETE, 

Respondent 

CIVIL PENALTY PROCEEDINGS. 

Docket No. WEST 85-175-M 

A.C. No. 04-04118-05501 

Docket No. WEST 86-39-M 

A.C. No 1 04-04118-05502 

Lackey Concrete Mine 

DECISION 

Appearances: Leroy Smith, Esq., Office of the Solicitor, U.S. 

Department of Labor, Los Angeles, California, 

for Petitioner; 

Mr. Brian Lackey, Brian Lackey Concrete, Needles, 

California, 

E£Q~ 

Before: Judge Lasher 

These proceedings were initiated by the filing of proposals 

for assessment of civil penalties by the Secretary of Labor 

pursuant to Section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. Section 820(a}(l977) (herein the "Act"). 

A hearing on the merits ~as held in Needles,. California, on April. 

13, 19870 

Respondent concedes that the 17 violations (issued on June 

26§ l985u by MSHA Inspector Ronald Barri} charged in the two 

dockets (16 in Docket 85-175-M and l in Docket 86-39-M) occurred. 

The sole issue was the amount of appropriate penalties. The 

parties waived filing of post-hearing briefs. 

The amount of a penalty should relate to the degree of a 

mine operator 9 s culpability in terms of willfulness or negligenceu the seriousness of a violation, the business size of the 

operator 9 and the number and nature of violations previously 

discovered at the mine involved. Mitigating factors include the 

operator's good faith in abating.violative conditions and the 

fact that a significantly adverse effect on the operator's 

ability to continue in business would result by assessmen~ of 

penalties at a particular monetary level. Factors other than the 

above-mentioned six criteria which are expressly provided in the 

Act are not precluded from consideration either to increase or 

reduce the amount of penalty otherwise warranted. 

932 
Based o~ stipulations reached by the parties at the outset 

of the hearing, it is found that this is a small mine operator 

with no history of violations during the 24-month period prior to 

the issuance of those involved in these two dockets. The 

Secretary agreed that Respondent proceeded in good faith to 

promptly abate the 17 violations upon notification thereof. The 

parties agreed that all violations were committed as a result of 

but a moderate degree of negligence on Respondent's part. As to 

the gravity of the violations, three (Citations numbered 2344842, 

2344843, and 2344876) were stipulated as being "non-serious" in 

nature; the remaining 14 violations were agreed to be serioμs 

which agreement includes the violation charged in Citation No. 

2344874 which is the only citation involved in Docket No. WEST 

86-39-M. 

With respect to the remaining mandatory penalty assessment 

criterion provided in the Act, the Respondent e~tablished the 

ultimate economic consideration, that is, Respondent, a sole 

proprietorship owned and operated by Brian Lackey, showed that he 

had gone out of business for economic reasons. Mr. Lackey, age 

46, had operated this very small Ctwo employees} placer (sand and 

gravel) mine located near Needles, California, for approximately 

20 years. Approximately two months prior to the hearing Mr. 

Lackey assigned his interest in the business to one Quinto 

Polidori in payment of his indebtedness (approximately 

$28,000.00) for such items as powder and cement. Mr. Lackey also 

testified that he owns no other businesses and has no other 

source of income at the present time. Respondent testified under 

oath that all his remaining assets have a total value of approximately $5,000.00 while his debts somewhat exceed that sum. In 

early March 1987, Mr. Lackey underwent surgery for removal of a 

lung and has been advised not to work for one year for medical 

reasonso Part of his indebtedness is for medical expenses. Mro 

Lackey stated his intention to leave California to return to 

Illinois to l with family for the immediate future" In view 

of this information revealed in sworn, unrebutted testimonyv it 

is determined that only very modest penalties ($5.00 for each 

violation) are warranted. 

ORDER 

The 17 citations hereinabove discussed in the above two 

dockets are affirmed in all respectso 

Respondent shall pay the Secretary of Labor within 30 days 

from the date hereof the 17 penalties hereinabove assessed in the 

total sum of $85.00. 

~~~l«p~/} 

Michael A. Lasher, Jr. 

Administrative Law Judge 

933 
Distribution: 

Leroy Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3247 Federal Building, 300 North Los Angeles Street, Los 

Angeles, C~ 90012 (Certified Mail) 

Mr. Brian Lackey, Brian Lackey Concrete, P.O. Box 983, Needles, 

CA 92363 {Certified Mail) 

Ms. Wilma Baldwin, Office Manager, Needles Ready-Mix, Inc., P.O. 

Box 983, Needles, CA 92363 (Certified Mail) 

/bls 

934 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 12 l987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRJ'l.TION (MSHA) I 

Petitioner 

v. 

BULL RUN MINING COMPANY, 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-272 

A.C. No. 46-04266-03529 

Meredith Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a}, seeking 

a civil penalty assessment in the amount of $500' for an alleged 

violation of mandatory standard 30 C.F.R. § 75.11Ul-8(b), 

as stated a section 104 (d) (1) Citation· No. 2710986, issued 

at the mine on February 12, 1986. 

The respondent filed a time answer and contest, and the 

case was scheduled for hearing in Morgantown, West Virginia, 

on May 4, 1987. However, the hearing was cancelled after 

petitioner 1 s counsel advised me that the case was settled. The 

petitioner has now filed a motion pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30, s approval o a settlement of the 

case, The proposed settlement agreement requires the respondent 

to pay a civil penalty assessment in the amount of $200 for the 

v lation in question. 

Discussion 

The record in this case lects that the petitioner's 

proposed civil penalty assessment was "specially assessed" at 

$500 in accordance with the six statutory criteria found in 

section llO(i) of the Act as set forth in MSHA's regulations 

935 
at 30 C.F.R. § 100.3(a). In support of the proposed settlement disposition, the petitioner has submitted a full discussion 

and disclosure as to the facts and circumstances surrounding the 

issuance of the citation in question, and a reasonable justification for the reduction of the original proposed civil penalty 

assessment. 

'Petitioner states that the citation was issued because of 

the failure of the respondent to provide two branch lines to 

supply water to several belt head drives in the event of a fire. 

The cited safety standard requires two branch lines for a 

uniform discharge of water to the surface of the belt. While 

the respondent concedes the existence of a violation and the 

validity of the section 104(d) (1) "S&S" citation, petitioner 

states that the respondent represents that the gravity of the 

violation is mitigated due to the fact that in 1975 it installed 

a multi-directional sprinkler head on each system to ensure a 

uniform discharge of water to the belt, and that it did so in 

response to a concern over the adequacy of fire protection for 

the subject belt. In view of the adequacy of this sprinkler 

system, petitioner believes that the respondent is more properly 

charged with a "moderate" degree of negligence and a reduced 

level of gravity. Petitioner also states that the respondent 

timely abated the violation by installing a second branch line 

for each of the belt head drives. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700 30, 

the :notion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

Re IS ORDERED to pay a civil ty in the amount 

o $200 in satisfaction of the citation in question within 

thi (30) days of the date of this decision and order, and 

upon rece of payrnent by the petitioner, this proceeding is 

dismissed. 

h!fc¥-

Administrative Law Judge 

936 
Distribution: 

William T. Salzer, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Mr. Kevin Mayor, General Superintendent, Bull Run Mining 

Company, P.O. Box 235, Reedsvi , WV 26547 (Certified Mail) 

/fb 

937 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 13, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 87-41 

A. C. No. 01-01247-03741 

No. 4 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties have submitted a joint motion to approve settlements of the three violations involved in this case. The total 

amount of the originally assessed penalties was $815 and the 

total of the proposed settlements i's $723. 

The motion discusses the violations in light of the six 

statutory criteria set forth in section llO(i) of the Federal 

Mine Safety and Health Act of 1977. Th~ operator has agreed to 

pay the original assessment of $294 for Citation No. 2811209 and 

$329 for Citation No. 2811213. 

The parties propose that the originally assessed amount of 

$192 for Citation No. 2810537 be reduced to $100, because negligence is less than was originally assessed. This citation cites 

a violation of 30 C.F.R. § 75.1714-2(a) because a ram car 

operator was observed inside the mine without a self rescuer 

device on his person or within twenty-five feet of his person. 

The parties represent that a reduction from the original assessment is warranted because once this condition was discovered, the 

employee was issued a written reprimand by the opFrator pursuant 

to the progressive disciplinary program employed at the mine. I 

accept these representations and approved recommended 

settlements. 

938 
In light of the foregoing, the settlement motion is Approved 

and the operator is ORDERED TO PAY $723 within 30 days of the 

date of this decision. 

Paul Merlin · Chief Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, U. S. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter 

Resources, Inc., Post Office Box C-79, Birmingham, AL 35283 

(Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation, P. 0. Box 

22601 9 Tampa, FL 33622 (Certified Mail) 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N. W., 

Washington, DC 20005 (Certified Mail) 

I g l 

939 -
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WILFRED BRYANT, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 131987 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. WEVA 85-43-D 

Dingess Mine No. 2 

DINGESS MINE SERVICE, 

WINCHESTER COALS, INC., 

MULLINS COAL COMPANY, 

JOE DINGESS AND JOHNNY 

DINGESS, 

Respondents 

SUPPLEMENTAL DECISION 

Before: Judge Broderick 

On February 24, 1987, I issued a decision on the merits of 

this case. I concluded that Complainant was laid off on 

April 27, 1984, for activity protected under the Act. I 

concluded that Dingess Mine Service and Joe and Johnny Dingess 

were liable for the discriminatory lay off and that Winchester 

coals, Inc. and Mullins Coal Company were not liable. I further 

concluded that the adverse action terminated when Complainant 

refused the off er to be called back to work, and that he formally 

resigned on May 9, 19840 I ordered Dingess Mine Service to pay 

Complainant back pay from April 27, 1984 to May 9 1 1984, with 

interest in accordance with the Arkansas-Carbona formula, and to 

reimburse him for reasonable attorney 1 s fees and costs of 

litigationo 

On April 28, 1987, counsel for Complainant filed a statement 

of back pay with interest and a statement of attorney's fees and 

expenseso Respondents have not replied to the statement. 1/ 

11 The copies of the Decision issued on February 24, 1987, and 

the order extending time issued March 24, 1987, sent by certified 

mail to Dingess Mine Service, Joe Dingess and Johnny Dingess were 

all returned to the Commission by the Postal Service as 11 unclaimed." 

940 
BACK PAY AND INTEREST 

The back pay claim is for nine regular work days at a daily 

wage of $111.00 or a total of $999.00. Interest calculated under 

the Arkansas Carbona formula from April 27, 1984 to April 24, 

1987, totals $298.48. Interest shall accumulate thereafter in 

the amount of .25 per day. The back pay and interest claim 

conform to my prior decision, and will be approved. 

COSTS OF LITIGATION 

Complainant's statement shows litigation costs, including 

travel for counsel and Complainant, in the total amount of 

$665.18. I accept this statement of expenses as reasonable and 

will approve i L 

ATTORNEY'S FEES 

Section 105(c)(3) of the Act provides: 

Whenever an order is issued sustaining the 

Complainant's charges . ., a sum equal to the 

aggregate amount of all costs and expenses (including 

attorney 1 s fees) as determined by the Commission to 

have been reasonably incurred by the miner ... for, 

or in connection with, the institution and prosecution 

of such proceedings shall be assessed against the 

person committing such violation. 

A reasonable attorney's fee for the institution and 

prosecution of a case such as this is determined by multiplying a 

reasonable hourly rate by the number of hours reasona0ly expended 

en the lawsuit. See Lindy Bros. v. American Radiator, 487 F.2d 

l6l (3rd Cir. 1973)~ Johnson Georgia Highway Express, 488 F.2d 

714 (5th Cir. 1974)t Copeland v. Marshall, 641 F.2d 880 (D.C. · 

C:~L 1980) ["Copeland III" [. 

HOURLY RATE 

The reasonable hourly rate is the rate prevailing for 

similar 1>1ork in thF community where the attorneys practice law. 

Johnsonr supra. It may vary depending upon such factors as the 

kind of work involved, the experience and. skill of the attorneys, 

the complexity of the case, the results obtained, the 

undesirability of the case, and whether the fee is contingent or 

fixed. The attorneys who represented Complainant here are 

seeking ap9roval of hourly rates of $75 (Ms. Fleischauer) and $65 

(Mr. Sheridan). There is no information in the record as to the 

prevailing rate in the communities where they practiced. There 

is no information in the record as to the experience of either 

941 
attorney. The case was of average complexity, the fee was 

contingent, the results obtained were very limited (9 days back 

pay; no reinstatement). I recognize that it is important that a 

fee award should reflect the policy of encouraging competent 

representation for miners claiming discrimination. Based on all 

the information before me, I conclude that $65 is a reasonable 

hourly rate for the hours reasonably expended by each of 

Complainant's attorneys. 

HOURS REASONABLY EXPENDED 

Attorney Fleischauer claims compensation for 196 hours; 

attorney Sheridan claims compensation for 121.3 hours. A 

substantial number of hours are claimed by each attorney for 

conversations and discussions with each other. Both claim full 

compensation for the time spent taking depositions and 

participating in the trial of the case. Nothing was submitted to 

show that the participation of both attorneys was required at the 

depositions or the entire hearing, and I am not aware that it was 

necessary. I conclude that 100 of the 196 hours claimed by 

Ms. Fleischauer are properly billable at the hourly rate of $65; 

the remaining 96 hours are properly billable at 50 percent of 

this rate or $32.50. This totals $9620. Because of the 

extremely limited recovery, I believe it proper to reduce this 

amount by 33-1/3 percent. This reflects my conclusion that a 

substantial part of the time for which fees are claimed was 

"spent litigating issues upon which plaintiff did not ultimately 

prevail", Copeland, supra, at page 902. In fact, much of the 

time was spent attempting to establish liability in Winchester 

and Mullins. Therefore, I will approve .a total fee for 

Ms. Fleischauer in the amount of $6415. Mr. Sheridan's statement 

shows 75 hours properly billable at $65 hour and 46 hours 

which are duplicative or involve discussions with co-counsel and 

are properly billable at $32.50 per hour" This totals $6370. 

Reducing it 33-1/3 percent, I will approve a total fee for • 

Mr. S idan n the amount of $4247. 

Based on the record in 

IT IS ORDERED~ 

ORDER 

s case and the above conclusionsv 

1. e decision issued February 24, 1987 is confirmed. 

2. Respondents Dingess Mine Service, Joe Dingess and Johnny 

Dingess shall within 30 days of the date of this decision pay to 

claimant the sum of $1297.48 representing back pay from April 27, 

1984 to May 9, 1984, and interest to April 24, 1987. Said 

Respondents shall pay further interest at the rate of 9 percent 

per annum from April 24, 1987, until the total amount is paid. 

942 
3. Respondents Dingess Mine Service, Joe Dingess and Johnny 

Dingess shall, within 30 days of the date of this decision 

reimburse Complainant Wilfred Bryant for his litigation expenses 

in the amount of $99. 

4. Respondents Dingess Mine Service, Joe Dingess and Johnny 

Dingess shall, within 30 days of the date of this decision, pay 

to Barbara Fleischauer, Esq., the sum of $6415 as attorney's fees 

and $566.18 as litigation expenses.' 

5. Respondents Dingess Mine Service, Joe Dingess and Johnny 

Dingess shall, within 30 days of the date of this decision, pay 

to Paul R. Sheridan, Esq., the sum of $4247 as attorney's fees. 

6. This decision is final. 

"f i1l/1HC S .. ·: 

·; James A. Broderick 

<../ Administrative Law Judge 

Distribution: 

Barbara Jo Fleischauer, Esq., 346 Watts Street, Morgantown, WV 

26505 (Certified Mail) 

Paul R. Sheridan, Esq., Appalachian Research and Defense Fund, 

Inc., 504 White and Browning Building, Logan, WV 25601 (Certified 

Mail) 

Robert Q" Sayre, Jr., Esg.u frey Hallu Esq.; Goodwin and 

Goodwin, 1500 One Valley Square 1 Charlestonu WV 25301 (Certified 

Mail) 

Mr. Joe Dingess, Box 1024, Chapmanville, WV 25508 (Certified 

Mail) 

Mr. Johnny Dingessu Box 1024u Chaprnanvil , WV 25508 (Certified 

Mail) 

Dingess Mine Serviceu Box 1024, Chapmanville, WV 25508 (Certified 

Mail) 

slk 

943 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 191987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) I 

ON BEHALF OF 

RONALD G. NELSON, 

Complainant 

v. 

VALLEY CAMP COAL COMPANY, 

(DONALDSON MINING COMPANY) , 

Respondertt 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 87-79-D 

HOPE CD 86-23 

VC No. 15-A Mine 

ORDER OF DISMISSAL 

Before: Judge Maurer 

The Complainant, Secretary of Labor, with the consent of 

the individual Complainant, Ronald G. Nelson, requests in 

effect to withdraw his complaint of discrimination in the 

captioned case on the grounds that the parties have reached 

a mutually agreeable settlement. Under the circumstances 

herein, permission to withdraw is granted. 29 C.F.R. § 2700.11. 

The case is therefore dismissed. 

~~~ Roy . aurer 

Adm strative Law Judge 

Mark R. Malecki, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Blvd., Arlington, vA 22203 (Certi-i=ied Mail) 

Laura E. Beverage, Esq., Jackson, Kel , Holt & O'Farrell, 

P. o. Box 553, Charleston, WV 25322 (Certi ed Mail) 

yh 

944 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

PEABODY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

MAY 2 0 1987 

. . 

: 

CONTEST PROCEEDINGS 

Docket No. KENT 86-94-R 

Citation No. 2214342; 

3/3/86 

Docket No. KENT 86-95-R 

Citation No. 2214343; 

3/5/86 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 87-154 

A.C. No. 15-08357 

Camp No. 11 Underground 

Mine 

DECISION 

Appearances: Michael 0. McKown, Esq., Henderson, Kentucky, 

for Peabody Coal Company; 

Thomas A. Grooms, Esq., Office of the 

Solicitorv U.S. Department of Laborv for the 

Secretary of Labor. 

Beforeg Judge Fauver 

Peabody Coal Company seeks to have two citations 

vacatedu and the Secretary seeks to have them affirmed and 

civil penalties assessed for violations charged in thernu 

under the Federal Mine Safety and Health Act of 77f 

30 u.s.c. § 801~ et~ 

The basic issue is whether the eqfii~ment cited 

is required to have a cab or canopy under 30 C.F.R. 

§ 75.1710-1. 

945 
Based on the hearing evidence and the record as a whole, 

I find that a preponderance of the reliable, probative, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. Peabody is a large operator of coal mines producing 

coal for use or sale in interstate commerce. 

2. Peabody's Camp No. 11 Mine is a large underground 

coal mine near Morganfield, Kentucky. 

3. From about 1978 to the present, two coal production 

sections at Camp No. 11 Mine have used what is called a 

"continuous haulage system," which is designed so that coal 

mined by a continuous miner is put directly onto a mobile 

haulage system that conveys it to the panel belt line. The 

continuous haulage system consists of three piggyback 

conveyors, two mobile bridge carriers (MBCs) and a special 

low structure or dolly that is connected to the tailpiece of 

the panel belt. The inby part of the system is connected to 

a Joy continuous miner. All these components are joined by 

slot devices hooked together by pins. The components may be 

disconnected, and this is done between mining cycles. The 

MBCs provide mobility to the system so that it can adjust to 

movement of the continuous miner ~ithout disrupting the 

constant movement of mined coal. The system is substantially 

more efficient than using shuttle cars to move coal from the 

continuous miner. 

4. The components described above are connected in the 

following order: the continuous minerf a piggyback conveyor, 

a mobile bridge conveyor (MBC), another piggyback conveyor, a 

second MBC, and a third piggyback conveyor that is connected 

to a special dol that "rides" up and down the panel belt 

onto which coal is dumped. 

5. Peabody uses a five entry system in its continuous 

haulage sections. At timesp it reduces the entries to three 

where gas or oil wells or other obstructions are encountered. 

6. The mining cycle using the continuous haulage system 

results in offset crosscuts at angles of approximately 60 

degrees. The last open crosscut resulting from such a 

configurationv and as defined by the flow of air across the 

section, includes not only the openings between the entries 

but across the intersections and that part of an entry inby 

an intersection to the point of the next intersection inby. 

That is, the last open crosscut follows the air flow across 

the entries of the working section. 

946 
7. The distance from the first (the inby) MBC 

operator's compartment to the cutting drums of the continuous 

miner is 105 feet plus or minus two feet. 

8. From their earliest use at this mine, the MBCs have 

not been equipped with a cab or canopy over the operator's 

compartment where the operator sits while operating the MBC. 

9. On March 3, 1986, and March 5, 1986, Peabody was 

issued Citations 2214342 and 2214343 for operating the MBCs 

without cabs or canopies. 

DISCUSSION WITH FURTHER FINDINGS 

The controlling issue is whether the first (the inby) 

MBC is subject to 30 C.F.R. § 75.1710-1, which provides in 

inent part: 

(a) *** [A]ll self-propelled electric 

face equipment, including shut tl.e cars, which 

is employed in the active workings of each 

underground coal mine ••• shall ••• be equipped 

with substantially constructed canopies or cabs, 

located and installed in such a manner that when 

the operator is at the operating controls of such 

equipment he shall be protected from falls of roof, 

face, or rib, or from rib and face rolls. 

The MBC is self-propelled and is electrically oper~ted, 

but is it "electric ce equipment"? That term is not · 

ined by the cab/canopy regulation, but 30 C.F.R. § 75.2(i) 

provides a practical line of demarcation (emphasis added): 

(i) "Permissible" as applied to ic 

face equipment means all electrically operated 

equipment taken into or used inby the last open 

crosscut of an entry or a room of any coal mine 

the electri parts of which, including, but not 

limited tov associated electrical equipment 1 

components, and accessories, are designed, 

constructed, and installed, in accordance with 

the specifications of the Secretary, to assure 

that such equipment will not cause a mine 

explosion or mine fire, and the other features 

of which are designed and constructed, in 

accordance with the specifications of the 

Secretary, to prevent, to the greatest extent 

possible, other accidents in the use of such 

equipment. *** 

94 7 
The issue thus leads to the meaning of the "last open 

crosscut" as used in§ 75.2(i). This term is not defined in 

the Act or regulations. 

Peabody's witness, Mr. Charles Jernigan, testified and 

illustrated his testimony by marking Exhibits G-10 and G-11 

in yellow pencil to show that the last open crosscut is only 

the'area between, but not including, the mine entries. 

However, he testified in response to questions from counsel 

for the Secretary that the definition of "last open 

crosscut" is "where your air tr~vels across your face," 

meaning where the "air travels through on the intake and 

exhaust system" (Tr. p. 163). 

The Bureau of Mines Dictionary of Mining, Minerals and 

Related Terms (1968) does not define last open crosscut but 

does define "crosscut" in part as follows: 

In room and pillar mining the piercing 

of the pillars at more or less regular 

intervals for the purpose of haulage 

and ventilation. 

The Secretary's witness, Mr. David Whitcomb, defined 

"last open crosscut" as "the last continuous line the air 

passes through across the [run] l; from one side of the entry 

to the other side" (Tr. p. 258).- I find that this definition 

is consistent with the pattern of ventilation and electrical 

standards under the Act. The operative concept of the last 

open crosscut is used in many of the regulations found in 

Title 30, Part 75 of C.F.R. For example, § 75.500(a) 

requires all multiple power connections "inby the last open 

crosscut" to be permissible. See also: §§ 75.507-1, 

75.522-1, 75.1002-1, and 75.1107-5. If Peabody's 

characterization of last open crosscut as only the areas 

between the entries were applied literally this would make 

inby the last open crosscut the middle of a solid block of 

coal. 

l/ Although the court reporter transcribed the word "drum" at 

this pointr I find that Mr. Whitcomb actually said "run" and 

the reporter made an error in transcription. "Run" as used 

by Mr. Whitcomb refers to the distance from the Number 1 to 

the Number 5 entries, that is, the full expanse of the coal 

faces being developed. See Bureau of Mines Dictionary of 

Mining, Mineral and Related Terms (1968) giving a definition 

of "run" as "The horizontal distance to which a mine drift is 

or may be carried." 

948 
I credit Mr. Whitcomb's definition of last open crosscut 

as being reliable and accurate. Peabody's narrow definition 

would lead to arbitrary results, inconsistent with the broad, 

remedial purposes of the statute. 

I also credit Mr. Whitcomb's testimony analyzing the 

mining cycle and movements of the first {inby) MBC based upon 

the other hearing evidence. The evidence shows that, 

applying the definition of last open crosscut used by Mr. 

Whitcomb, the first MBC operator's compartment enters the 

st open crosscut in the mining cycle. Mr. Whitcomb's 

careful analysis of the mining cycle and distances involved 

also shows that, even if Peabody's narrow definition of last 

open crosscut were applied, the operator's compartment of the 

first MBC still enters the last open crosscut. 

Since the first MBC operator's compartment enters the 

last open crosscut, it is required to have a cab or canopy 

under § 75.1710-1. Since the MBCs are mobile and 

interchangeable, all of the MBCs that are subject to being 

used in the first MBC position are required to have a cab or 

canopy under § 75.1710-1. 

The Secretary also contends that the continuous haulage 

system is a "unitary or integrated system" that must be 

viewed as a single unit for purposes of applying the 

cab/canopy regulation. The Secretary argues that, since the 

Joy miner and at least part of the first MBC move into or 

inby the last open crosscut, every part of the system should 

held td be subject to § 75.170-1. 

I do not find this argument persuasive. The MBCs and 

s function both as a belt conveyor and a substitute for 

cars. The components are interchangeable and 

separable. The test of applying the cab/canopy regulation is 

whether the equipment operator's compartment is subject to 

being used in or,inby the last open crosscut. It would 

stretch the standard too far to hold that the second MBCu 

which is r removed from the last open crosscutv should be 

considered 00 face equipment" solely because the front part of 

the continuous haulage system is in or inby the last open 

crosscut. 

These cases involve a novel haulage system that raises a 

question of first impression. The operator used this system 

for a number of years without being cited by the Secretary 

until March of 1986. The operator has held a sincere, good 

faith beli that the cab/canopy standard does not apply to 

its continuous haulage system. The violations are serious 

because of the gravity of injuries that could occur if an MBC 

operator were struck in a fall of roof or rib. However, the 

company is making a good faith test of its interpretative 

position, which differs from the Secretary's. I therefore 

assess a penalty of $1.00 for each violation. 

949 
ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citations 2214342 and 2214343 are AFFIRMED. 

2. Peabody Coal Company shall pay the above-assessed 

civil penalties of $2.00 within 30 days of this Decision. 

Distribution: 

UJ~f~v~ William Fauver 

Administrative Law Judge 

Michael o. McKown, Esq., P.O. Box 1990, Henderson, KY 42420 

(Certified Mail) 

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

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

kg 

950 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 2 0 \981 

SECRETARY OF LABOR, DISCRIMI~ATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , ON BEHALF OF 

Docket No. WEVA 86-376-D 

DAVID WARD, 

Complainant 

v. 

PEABODY COAL COMPANY, 

Respondent 

HOPE CD 86-6 

Montcoal No. 7 Mine 

ORDER OF DISMISSAL 

DECISION APPROVING SETTLEMENT 

Judge Maurer 

.The Secretary has filed a motion explaining that pursuant 

to agreement between the parties, the complainant now reor will receive all the relief sought in this case. 

Furthermore, the assessed penalty of $1,000 has been 

Based upon my review of the Secretary's motion, I am 

s sfied that the proposed settlement is consistent with the 

purposes and spi of the statute. .. 

In light of foregoing, the proposed settlement is 

APPROVED and this matter is hereby DISMISSED. 

. 

·s~rative 

W:i.urer t~ Law Judge 

stribution: 

S la K. Cronan, Esq., Office of Solicitor, u. S. Department of Labor, 4015 lson Blvd., Arlington, VA 22203 (Certified Mail) 

Mi 1 A. Kafoury, 

Dr., St. Louis, MO 

yh 

., Peabody Coal Co., 301 North Memorial 

63166 (Certified Mail) 

951 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 201987 

SECRETARY OF LABOR, 

MINN SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KELSO COAL COMPANY, INC., 

Respondent 

Before:. Judge Fauver 

. . 

. . 

CIVIL PENALTY PROCEEDlNG 

Docket No. WEVA 87-15 

A.C. No. 46-07103-03501 

Williams Mountain No. 1 

DECISION 

On April 29, 1987, because of Respondent's failure to 

comply with a prehearing order, a show cause order was issued 

allowing Respondent until May 11, 1987, to show cause in 

writing why it should not be held in default and ordered to 

pay the civil penalties proposed by the Secretary of Labor. 

Respondent has failed to file a response to the show 

cause order, and is hereby deemed to be in default and to 

have waived its right to a hearing. The proposed civil 

penalties shall therefore be made the final order of the 

Commission. 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

secretaryus proposed civil penalties in the amount of $340.00 

thin 30 days of this Decisiono 

~~"'~ William Fauver 

Administrative Law Judge 

Distribution~ 

Page Jacksonu Esq.v Office of the Solicitoru U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 

22203 (Certified Mail) 

Mr. Randall W. Knight, President, Kelson Coal Company, Inc., 

P.O. Box F, Seth, T/N 25181 (Certified Mail) 

kg 

952 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 201987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 87-67 

A.C. No. 46-01452-03621 

Arkwright Mine 

Docket No. WEVA 87-42(A) 

A.C. No. 46-01453-03735 

Docket No. WEVA 87-419 

A.C. No. 46-01453-03711 

Docket No. WEVA 87-68 

A.C. No. 46-01453-03737 

Humphrey No. 7 Mine 

Docket No. WEVA 87-70 

A.C. No. 46-01455-03650 

Osage No. 3 Mine 

Docket No. WEVA 86-384 

A.C. No. 46-01454-03667 

Pursglove No. 15 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On May 15; 1987, the parties filed a joint motion for 

approval of a settlement reached between them. The above 

dockets contain a total of 10 all violations of 30 C.F.R. 

Part 50 and•were or ly assessed in the total amount of 

$400. The motion ses a settlement for the of 

a total of $5000, or $500 for each,all violation. 

On the all violations, f were lly assessed 

at $20 each 1 four were assessed at $50 each, and one was 

953 
assessed at $100. The motion states that the parties disagreed as to the proper interpretation of the requirements 

of Part 50, but that Consol agrees to comply with the broad 

intent of Part 50 and MSHA's interpretation thereof in the 

informational bulletin issued in December 1986. The 

settlement does not constitute an admission by Consol to 

any violation of the Act or the regulations or standards 

promulgated thereunder, but for the purposes of the settlement, 

Consol consents to a finding of the existence of the alleged 

violations. Consol is a large operator; the violations were 

serious and the result of negligence. They were abated in 

good faith. Consol has an average history of violations for 

an operator of its size. 

I have considered the motion in the light of the criteria 

in section llO(i) of the Act, and conclude that it should be 

approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $5000 within 30 days of the 

date of this order. 

Distribution: 

A

. ~J/-1/~ ,;Vb~'(/&,v~ ames A. Broderick 

Administrative Law Judge 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Michael Ro Peelish1 Esqo; Consolidation Coal Company, 1800. 

Washington Road 9 Pittsburgh: PA 15241 (Certified Mail) 

slk 

954 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Hay 20, 1987 

SECRETARY OF LABOR, ~IVIL PENALTY PROCEEDING 

Docket No. WEVA 87-90 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner A. C. No. 46-01453-03745 

v. Humphrey No. 7 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Before: 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Judge Merlin 

This case is a petition for the assessment of civil 

penalties filed by the Secretary against Consolidation Coal 

Company. Involved are five violations of 30 C.F.R. § 50.20(a) 

for failure to report occupational injuries as required by the 

regulations. Each violation was originally assessed at $150 and 

the proposed settlements are for $500 apiece. 

I have previously set forth my views regarding Part 50. 

Consolidation Coal Company, FMSHRC (April 9, 1987). 

In the subject action the settlement motion recites in 

pertinent part: 

The Secretary submits that Consol is a 

large operator. The Secretary further submits that each of the violations involved an 

appreciable degree of negligence and seriousness., The files include information related 

to the fact that the violations were abated 

after issuance in good faith and that payment 

of the agreed-to penalties will not adversely 

affect Consol's ability to remain in business, 

Consol has an average history of prior 

violations for a mine operator of its size, 

I accept the foregoing representations and further note that 

so many violations of the same type demonstrate a disturbing 

pattern. The increases in the ori~inal assessments are warranted 

and appropriate. 

955 
In light of these circumstances, the settlements are 

Approved and the operator is ORDERED TO PAY $2,500 within 30 days from the date of this order. 

:: \='cJ__ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William T. Salzer, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mai l ) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

I g l 

956 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 22, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

957 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 87-38 

A. C. No. 01-00328-03613 

Bessie Mine 

Docket No. SE 87-39 

A. C. No. 01-00758-03684 

No. 3 Mine 

Docket No. SE 87-53 

A. C. No. 01-01322-03654 

Docket No. SE 87-59 

A. C. No. 01-01322-03657 

No. 5 Mine 

Docket No. SE 87-60 

A. C. No. 01-01401-03657 

No. 7 Mine 

Docket No. SE 87-62 

A. C. No. 01-00758-03685 

No. 3 Mine 

Docket No. SE 87-63 

A. C. No. 01-00328-03616 

Bessie Mine 

Docket No. SE 87-66 

A. C. No. 01-01247-03756 

No. 4 Mine 

Docket No. SE 87-70 

A. C. No. 01-01322-03664 

No. 5 Mine 

Docket No. SE 87-71 

A. C. No. 01-00328-03618 

Bessie Mine 
Before: Judge Merlin 

SUMMARY DECISION 

ORDER TO PAY 

The above-captioned cases are petitions for the assessment 

of civil penalties filed by the Secretary against Jim Walter 

Resources, Inc. Each case involves a violation for excessive 

respirable dust. 

Docket No. SE 87-38, Citation No. 9984247, cites a violation 

of 30 C.F.R. § 70.lOO(a) because the average concentration of 

respirable dust in the worki.ng environment of the mechanized rnini~g unit was 3.3 mg/m3 of air. The permissible limit is 2.0 

mg/mj. 

Docket No. SE 87-39, Citation No. 2806429, cites a violation 

of 30 C.F.R. § 70.lOO(a) because the average concentration of 

respirable dust in the working environment of a designated occupation tailgate shearer operator on a longwall mechanized mining 

unit was 3.6 mg/m3. The permissible limit is 2.0 mg/m3. 

Docket No. SE 87-53, Citation.No. 9984269, cites a violation 

of 30 C.F.R. § 70.101 because the average concentration of 

respirable dust in the working environment of the mechanized 

mining unit was 1.8 mg/m3 of air. The permissible limit is 

1.7 mg/m3. 

Docket No. SE 87-59, Citation No. 9984270, cites a violation 

;o C.F.R. § 70.lOO(a) because the average concentration of j espirable dust in a designated area was 2.5 mg/m3 of air. The 

permissible limit is 2.0 mg/m3. 

All violations were designated as significant and 

substantial on the citations. 

On May 4, 1987 the parties submitted the foregoing four 

cases for summary decision based upon a Joint Stipulation of 

Facts which reads as follows: 

1. Jim Walter Resources, Inc., is the owner 

and operator of the subject mines; 

2. The operator and the mines are subject 

to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977; 

3. The Administrative Law Judge has 

jurisdiction of these cases; 

958 
4. The inspectors who issued the subject 

citations were duly authorized 

representatives of the Secretary of 

Labor; 

5. Copies of the subject citations were 

properly served upon the operator; 

6. With respect to Citation Nos. 9984247, 

9984269, 9984270, and 2806429, the facts 

and conditions described on the face of 

the respective citations are true and 

accurate and constitute violations of 

the cited sections of the Code of 

Federal Regulations; 

7. Citation No. 9984247 was terminated on 

December 12, 1986; Citation No. 9984269 

was terminated on December 30, 1986; 

Citation No. 9984270 was terminated on 

January 26, 1987; and Citation No. 

2806429 was terminated on December 8, 

1986; 

8. The operator makes respirators available 

to its employees; 

9. The operator submits that by providing 

respirators to its employees, the 

operator satisfies its burden of proof 

in rebutting the presumption that the 

cited violations are significant and 

substantial. The operator 9 therefore 9 

offers no evidence as to whether 

respirators are actually worn; 

10. The size of the operator is medium; 

11. Imposition of penalties will not affect 

the operator 1 s ability to continue in 

business; 

12. The violations were abated in good 

faith; 

13. The operator's history of prior 

violations is average for its size; 

14. The negligence of the operator is 

moderate; 

15. The gravity of the violations is 

serious. 

959 
Subsequently, the parties requested that six additional 

cases, Docket Numbers SE 87-60, SE 87-62, SE 87-63, SE 87-66, SE 

87-70, and SE 87-71, all of which involved respirable dust violations, also be decided in this proceeding on the same basis as 

the first four. In a motion dated May 13, 1987, the parties 

stipulated as follows: 

Additional cases have since arisen which 

present this identical issue. Accordingly, 

the parties now move to-consolidate the 

following cases with those previously 

submitted to the Court [sic] on May 1. 

* * * * * 

The operator stipulates that these seven 

additional citations also constitute violations of the cited regulatory provisions. 

The parties further adopt and incorporate 

herein the Joint Stipulation of Facts submitted in Docket Nos. SE 87-38, 87-39, 87-53, 

and 87-59, and the respective briefs filed 

therein. 

Docket No. SE 87-60, Citation No. 2806388, cites a violation 

of 30 C.F.R. § 70.lOO(a) because the average concentration of 

respirable dust in the working environment on the longwall 

section was 3.3 mg/m3 of air. The permissible limit is 2.0 

mg/m3, 

Docket No. SE 87-62, Citation No. 9984275, cites a violation 

30 C.F,R, § 70.lOO(a) because the average concentration of 

ust in the working environment of the mechanized mining unit was 

2o2 mg/m3 of air. The permissib1e 1imit is 2.0 mg/m3. 

Docket No. SE 87-63, Citation No. 2811811, cites a violation 

of 30 C.F.R. § 70.lOO(a) because the average concentration of 

respirable dust in the working environment of the mechanized 

mining unit was 2.3 mg/m3o The permissible limit is 2.0 mg/m3. 

Docket No. SE 87-66, Citation No. 2811809, cites a violation 

of 30 C.F.R. § 70.lOO(a) because the average concentration of 

respirable dust in the working environment on the 1ongwall 

section was 3.5 mgfm3 of air. The permissible limit is 2.0 

mg/m3. 

Docket No. SE 87-70, Citation No. 9984296, cites a violation 

of 30 C.F.R. § 70.lOO(a) because the average concentration of 

respirable dust in the working environment of a mechanized mining 

unit was 2.6 mg/m3 of air. The permissible limit is 2.0 mg/m3. 

960 
Docket No. SE 87-71, involves two violations. 1/ Citation 

No. 9984297 cites a violation of 30 C.F.R. § 70.lOO(a) because 

the average concentration of respirable dust in the working 

environment of a mechanized unit was 2.7 mg/m3 of air. Citation 

No .. 9984298 cites a violation of 30 C.F.R. § 70.lOO(a) because 

the average concentration of respirable dust in the working environment of a mechanized mining unit was 2.2 mg/m3 of air. The 

permissible limit is 2.0 mg/m3. 

In these additional six cases the violations also were 

designated as significant and substantial on the citations. 

The existence of the violations and other matters set forth 

in the stipulations having been admitted, the sole issue presented is whether the violations are significant and substantial 

in accordance with governing Commission precedent. 

In Consolidation Coal Company, 8 FMSHRC 890 (1986), appeal 

docketed, No. 86-1403 (D. C. Cir. 1986) the Commission estab1 ished a rebuttable presumption that all respirable dust violations are significant and substantial, stating in pertinent 

part: 

* * *we hold that when the Secretary proves 

that a violation of 30 C.F.R. § 70.lOO(a), 

based upon excessive designated occupation 

samples, has occurred, a presumption that the 

violation is a significant and substantial 

violation is appropriate. We further hold 

th1s presumption that the violation is significant and substantial may be rebutted by the 

operator by establishing that miners in the 

designated occupation in fact were not exposed to the hazard posed by the excessive 

concentration of respirable dust, e.g., 

through the use of personal protective 

equipment. * * * 

8 FMSHRC at 899. 

As noted abov~. Docket Number SE 87-53 involves respirable 

dust with quartz. 30 C.F.R. § 70.l~l. In U. S. Steel Mining 

Co. Inc., 8 FMSHRC 1274 (1986) the Commiision applied the 

pr nc p es adopted in Consolidation Coal Company to respirable dust with quartz, explaining: 

In Consol the Commission further held that, 

because analysis of the four elements of the 

ll In Docket Nos. SE 87-66, SE 87-70, and SE 87-71, I accept 

the Joint Motion dated May 13, 1987, as the operator's 

answers to the penalty petitions pursuant to 29 C.F.R. 

§ 2700.28. 

961 
significant and substantial test would be 

essentially the same in each instance in 

which the Secretary proves a violation of 

30 C.F.R. § 70.lOO(a), proof of a violation 

gives rise to a presumption that the violation is significant and substantial. 

8 FMSHRC at 899. We conclude that a similar 

presumption is appropriate when the Secretary 

proves a violation of 30 C.F.R. § 70.101. We 

further hold that, as with a violation of 

section 70.lOO(a), the presumption can be 

rebutted by the operator by establishing that 

miners in the designated occupation in fact 

were not exposed to the excessive concentration of respirable dust,~., through the 

use of personal protective equipment. See 8 

FMSHRC at 899. In the instant proceedi~ 

there is no evidence that the miners placed 

at risk by the subject violations were not 

exposed to excessive levels of silica-bearing 

respirable dust. 

8 FMSHRC at 12810 

The operator asserts that it rebuts the presumption of 

significant and substantial by making respirators available to 

the mine.rs. "Available" means "suitable or ready for use; 

usable; at hand * * * readily, obtainabl.e; accessible * * *" The 

Random House College Dictionary, Revised Edition (1980). The 

foregoing Commission precedent is not couched in terms of availability. Rather, the Commission- holds that the presumption may 

be rebutted only when the operator establishes that the miners in 

fact were not exposed to excessive concentrations of respirabledust through the use of personal protective equipment, The 

distinction is clearo The Commission requires a showing that 

miners were not exposed because they used respirators. Merely 

making respirators available without any concern or interest in 

their actual use falls short of the evidentiary requirement 

established in Consolidation Coal 0 The standard of proof 

required to rebut the presumption of significant and substantial 

must Le viewed in light of the dire consequences resulting from 

over-exposure to respirable dust. As the Commission noted: 

* * * Indeed, prevention of pneumoconiosis 

and other occupational illnesses is a 

fundamental purpose underlying the Mine 

Act,*** (emphasis in original). 

Consolidation Coal Company, supra at 895. 

The operator's reference to section 202(h) of the Act, 

30 U.S.C. § 842(h)i which directs that approved respiratory 

962 
equipment shall be made available to miners exposed to excessive 

respirable dust concentrations, is misplaced. That requirement 

is separate and distinct from the issue of what evidence is 

sufficient to rebut the presumption that a respirable dust violation is significant and substantial. As the Solicitor's brief 

points out, if this argument were accepted, the presumption would 

always be rebutted by an operator's mere compliance with section 

202(h). 

In light of the foregoing, I conclude that the subject 

violations were significant and substantial. 

As set forth above, the parties have stipulated to the six 

elements required to be considered by section llO(i) of the Act 

for assessment of a civil penalty. I accept the stipulations. 

In addition, the penalty amounts levied herein reflect the degree 

of gravity as evidenced in each instance by the amount of 

deviation from the required standard. 

In accordance with the stipulations, the following civil 

penalties are assessed. 

Docket No. Citation No. Penalty 

SE 87-38 9984247 $200.00 

SE 87-39 2806429 $250.00 

SE 87-53 9984269 $100.00 

SE 87-59 9984270 $150.00 

SE 87-60 2806388 $200.00 

SE 87-62 9984275 $100.00 

SE 87-63 2811811 $100.00 

SE 87-66 2811809 $250.00 

SE 87-70 9984296 $150.00 

SE 87-71 9984297 $150.00 

SE 87 -71 9984298 $100.00 

It i s ORDERED that operator pay $1,750.00 within 30 days from the date of th i s decision. 

Law Judge 

963 
Distribution: 

William Lawson, Esq., Office of the Solicitor, U. S. Department of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter 

Resources, Inc., Post Office Box C-79, Birmingham, AL 35283 

(Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation,,P. O. Box 

22601, Tampa, FL 33622 (Certified Mail} 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

I g l 

964 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COtFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY A~D HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

S.A.NGER ROCK & SAND, 

Respondent 

MAY 2 2 \987 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-61-M 

A.C. No. 04-01937-05501 

Sanger Pit & Mill 

DBCISION 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California 

for Petitioner; 

Mr. W. A. Baun, President, Sanger Rock & Sand, 

Clovis, California, 

se. 

Before: Judge Cetti 

This civil penalty proceeding arises under the Federal Mine 

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

Act"). The Secretary of Labor, on behalf of Mine Safety and 

Health Administration, charges the operator of an open pit mine 

with violating a safety regulation, 30 C.F.R. § 56.14001, which 

requires the guarding of moving machine parts. 

T s proceeding was initiated the Secretary with the 

filing of a proposal for assessment of a civil penalty. The 

operator filed a timely appeal contesting the existence of the 

alleged violationo The Secretary then moved to amend the 

citation to change the safety standard allegedly violated from 30 

CoF.Ro § 560140°06 to 30 C.FoRo § 56.140010 

A hearing on the merits was held'before me at Fresnov 

Californiao and documentary evidence was introduced by the 

parties and case was held open 15 days for the filing of proposed 

findings of fact and conclusion of law which were timely filed by 

the Secretaryo Both parties waived their right to file posttri briefs. 

965 
Issues 

The issue as stated by the Secretary in his response to a 

Prehearing Order is whether or not the V-belt drive was "guarded 

by location". Stated more broadly the issues are the existence 

of the alleged violation of 30 C.F.R. § 56.14001 and the appropriate penalty. 

Stipulations 

The parties stipulated as follows: 

1. Respondent is the operator an open pit mine with 

screening and processing equipment to process rock & sand. 

2. Respondent is a small operator. 

3. Respondent has a good history. 

4. Respondent demonstrated good faith. 

5. The penalty would not feet the ability of the 

respondent to continue in business. 

THE REGULATION 

30 C.F.R. § 56.14001 provides as follows: 

Gears: sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; sawblades: fan 

inlets; and similar exposed moving machine parts which may 

be contacted by persons, and which may cause injury to 

persons, shall be guarded. 

Summary of the Evidence 

The inspector admitted made s inspection at a time when 

the rock and sand processi plant was not in operation. By 

bending or stooping under some water hoses which were located 39 

inches above the floor of a dead end catwalk the inspector was 

able to gain access to the area where he observed an unguarded 

V-belt dr on t No. l screen. The inspector testified that 

the V-belt drive had in the t been isolated and guarded by 

location. He ined that it had been guarded by location by 

virtue of a metal bar or railing ( also referred to it as a 

guard) which had been ded in such a way as to protrude across 

the dead catwalk that was located along the side of the 

V-belt drive. The short bar had been ded across the catwalk 

in the area where the large lt-high water hoses partially 

blocked the catwalk. The inspector saw the metal bar lying on 

the deck below the area where it "had broken loose." The 

inspector stated that the alleged violation was abated when the 

metal bar or railing was welded back in the same place where it 

had broken loose. 

966 
Mr. Baun, president of the Rock & Sand testified that 

he is a graduate engineer. He recei a BS degree in Engineering from University of Pacific in 19~4 and for the past 20 years 

he has been the safety engineer for the company. He has read the 

manuals and attended MSHA and OSHA's seminars for different types 

of safe training. 

Mr. Baun testified that even without the railing welded 

across the dead end catwalk the V-be drive was guarded by 

location. It is located out of the way behind some equipment. 

The dead end catwalk is not a working area and not a travelway. 

There are three large water hoses t come down and block the 

access to the V-belt drive" These water hoses are located in 

such a way that you have to "make an fort" and "ilmost get down 

on your hands and knees" to get under them. When the plant is in 

operation no one would go to the area where the V-belt drive is 

located because they would be drenched by a high pressure spray 

of water that is used to wash the f the bottom of a 

conveyor belt that is located just above the area in question. 

If the plant had been operating the inspector would not have been 

in the area of the V-belt drive because of the noise and high 

pressure water spray coming down in area. In addition, the 

inspector had to stoop down under the water hoses to gain access 

to the dead end catwalk. 

On cross examination Mr. Baun stated that if there was a 

need to make a repair in the area of the V-belt drive, he would 

put a man in the area but only ter the equipment was deenergized and locked out. The men are ovided locks which they 

use to lock out equipment. The man mak ng the repairs "holds" 

the to the lock he is using so no other person can unlock 

the and start the equipmen 

Findings and Reasons for Decision 

The Mine Safety and Health Review Commission in 

Secretary of Laborv v. Thompson Brothers Coal Company, Inc., 3 

MSHC 1571 construed the guarding requirements of§ 77.400(a), a 

surf ace ning standard containing language entical to 

§ 560140010 The Review Commission t in order to establish a prima f acie case of a violation this identically 

worded s d, "the Secretary of Labor must ove: (1) that the 

ci machine part is one specifically listed n the standard or 

is "similar" to those listed~ (2) that the part was not guarded; 

and (3) that the unguarded part "may be contacted by persons" and 

"may cause injury to persons." 

With respect to this later (third) requirement the Review 

Commission stated: 

T standard requires the guarding machine parts 

only when they "may be contacted" and "may cause in967 
jury." Use of the word "may" in these key phrases introduces considerations of the likelihood of the contact 

and injury, and requires us to give meaning to the 

nature of the possibility intended. We find that the 

most logical construction of the standard is that it 

import? the concepts reasonable possibility of contact stemming from inadvertent stumbling or falling, 

momentary inattention, or ordinary human carelessness ••• 

Applying this test requires taking into consideration 

all relevant exposure and injury variables, ~' 

accessibility of the machine parts, work areas, ingress 

and egress, work duties, and as noted the vagaries of 

human conduct. Under th±s approach, citations for inadequate guarding will be resolved on a,case-by-basis. 

In the present case, I accept and credit the testimony of 

Mr. Baun with regard to the inaccessibility of the V-belt drive 

while the plant is in op~ration. I find the Secretary failed to 

carry its burden of establishing a reasonable possibility 6f 

contact with the moving machinery in question. Although the 

Secretary produced some speculation on this point no persuasive 

evidence was produced to establish that anyone would ever be near 

the V-belt drive while it was in operation. 

My finding that a violation of the safety standard was not 

established is also supported by the fact that no evidence was 

produced to establish that the metal bar or railing was not in 

place at the time the equipment was last in operation. Without 

such evidence no violation can be established in view of the 

inspector's testimony that as long as this guard or railing was 

in place the V-belt drive was protected by location. The 

inspector also found t violation abated when this piece of 

metal rail was again welded back in the same place where it had 

broken looseo 

On questioning the mine inspector in an attempt to determine 

when the metal bar may have broken loose it became obvious that 

the inspector made no attempt during his inspection to determine 

the answer to this issueo Thus a finding that the railing was 

not in place at the time plant was last operated would be 

bas on mere speculation rather than evidenceo 

Mr. Baun offered into evidence the facilities last periodic 

inspection report covering the area where the V-belt drive was 

located" This report did not note anything unusual about the 

guard railing in question" 

Further Findings and 

Conclusions of Law 

1. Respondent is subject to provisions of the Federal Mine 

Safety and Health Act in the operation of its Sanger Pit and Mill 

facility. 

968 
2. The undersigned ~dministrative Law Judge has jurisdiction over the parties and the subject matter of thi& 

proceeding. 

3. On September 10, 1985 a federal mine inspector conducted 

an inspection of respondent's rock and sand processing facilities 

located at Sanger, Fresno County, California. 

4. Respondent is a small operator. 

5. Respondent has a good history. 

6. Respondent demonstrated good faith. 

7. The Secretary failed to establish a reasonable 

possibility of contact with the moving machine part. 

8. The violation of 30 C.F.R. § 56.14001 was not 

established. 

Accordingly, based on the findings of fact and conclusions 

of law herein I enter the following: 

ORDER 

Citation 2361739 and all penalties therefor are vacated. 

Distribution~ 

~ Cdtz· 

Aug t F. Cetti 

Administrative Law Judge 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. 

Department Labor, 11071 Federal Buildingu 450 Golden Gate 

Avenue, San Franciscou CA 94102 (Certified Mail) 

Sanger Rock & Sand 1 Mr. W. A. Baun, President, P.O. Box 626, 

Clovis, CA 93612 (Certified Mail) 

/bls 

969 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80104 

MAY 261987 

SRCRETARY OF LABOR, CIVIL PENALTY PROCFEDI~G 

MINF SAFFTY AND HEALTH 

ADMINISTRATION (MSH~), 

Petitioner 

K~LLEY TRUCKING COMPANY, 

Respondent 

Docket No. CE~T 85-109 

A.C. No. 34-01087-03501 J3~ 

C F & I 

DECISIO~ AFTER REMAND APPROVING SFTTLEMENT 

Before: Judge Morris 

This is a civil penalty proc ing initiated by the 

petitioner against respondent in accordance with the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seo. The civil 

'penalty sought here· is for the violation oi a mand~y standard 

promulgated pursuant to the Act. 

Prior to a hearing the parties filed a motion s ing 

approval of proposed settlement. 

Citation 2218839 alleges a violation of 30 C.F.R. § 48.25{a). 

An original assessment of $400 was proposed. 

The parties now seek a decision affirmin~ the citation and 

assessing a penalty of $1000 

In support of their motion to approve the settlement the 

parties have submitted information relating to the statutory 

criteria required for assessing civil penalties as contained in 

30 u.s.c. § 820(i). 

I find the proposed settlement is reasonable and in the 

public interesto It should approved~ 

Accordinglyv I enter the following: 

ORDER 

1. The settlement is approved. 

2. Citation 2218839 is affirmed. 

3. A civil penalty of $100 is assessed. 

Law Judge 

970 
Distribution: 

Allen Reid Tilson, ., Office of the Solicitor, U.S. Department 

Labor, 525 G~iffin Street, Suite SOl, Dallas, TX 75202 

(Cert.Lf ied Mail) 

K 

H 

l 2y ;1·ruck i n3' 

e-n, OK 74939 

/bls 

ny, Mr. Curtis Kelley, Owner, H C 63, Box 10, 

(Certified Mail) 

971 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

.May 27, 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 87-104 

A. C. No. 36-00926-03671 

v. 

Homer City Mine 

HELEN MINING COMPANY, 

Respondent 

Before: 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Judge Merlin 

The Solicitor has filed a motion to approve settlement of 

the violation involved in this cas·e. ·The originally assessed 

amount was $1,000 and the proposed settlement is for $500. 

The subject order was issued for a violation of 30 C.F.R. ~ 75.400 because combustible materials, float coal dust and loose 

coal, were permitted to accumulate along the Number 4 belt conveyor. The loose coal had accumulated under the belt and belt 

roller for a distance of approximately 600 feet and was 4 to 18 

inches deep. Float coal dust in the belt entry extended a distance of approximately 1,700 feet. The Solicitor represents that 

a reduction from the original assessment is warranted for the 

following reasons: 

The special assessment of this violation indicated that this violation could have contributed to the propagation of a fire or an 

explosion" Float coal dust in the belt entry 

extended a distance of approximately 1,700 

feet. The bottom belt rollers could have 

become overheated and provided an ignition 

source for the accumulations. Further investigation into the matter revealed that the 

Assessment Office did not take into account 

the modification MSHA Inspector William 

McClure made with reference to the description of the condition. Further conversations 

with this inspector have revealed that the 

condition was not as grave as it has been 

assessed. The modification and the inspector 

have revealed that approximately 600 feet of 

972 
the 1,750 feet of the loose coal accumulations between Number 20 to Number 22 marker 

and from the Number 1 marker to Number 18 mark~r was [sic] damp to wet. Additionally, 

70 feet of the 150 feet of float coal dust 

outby the Number 18 marker was [sic] damp to 

wet. Inspector McClure has stated that the 

remainder of the accumulations was not completely dry but in a damp to dry condition. 

He also checked for hot rollers and found not 

[sic] hot rollers. He checked for electrical 

violations and found no electrical violations 

in the area. He believed that the conditions 

in the belt entry were generally of a damp 

nature. Accordingly, the propagation of a 

f i re or an exp,, o s i on was not prob ab 1 e • 

The Solicitor is to be commended for her comprehensive 

explanation. 

In light of the foregoing, I accept the Solicitor's repre- sentations and approve recommended settlement. I further note 

that the settlement amount remains~substantial. 

Accordingly, the motion to approve settlement is GRANTED and 

the operator is ORDERED TO PAY $500 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution 

Covette Rooney 9 Esqo 0 Office of the Solicitor? U. S. Department of Labor? Room 14480-Gateway Building; 3535 Market Street, 

Philadeiphia 9 PA 19104 (Certified Mail) 

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

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

(Certified Mail) 

Lynn A. Harding, Safety Director, Helen Mining Company, RD #2, 

Box 2110, Homer City, PA 15748 (Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

I g l 

973 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 281987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. KENT 87-44 

A.C. No. 15-13508-03515 

v. 

TRIPLE ELKHORN MINING 

Docket No. KENT 87-45 

A.C. No. 15-13508-03516 

COMPANY, 

Appearances: 

Before: 

Respondent No. 2 Surface Mine 

DECISION APPROVING SETTLEMENT 

Carl W. Gerig, Jr., Esq., Office of the 

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

Tennessee, for the Petitioner; 

Mr. Travis E. Miller, President, Triple Elkhorn 

Mining Company, Harold, Kentucky, for the 

Respondent. 

Judge Melick 

These cases are before me upon petitions for assessment 

of 1 penalty under Section 105(d) of the Federal Mine 

Safety and Health Act of 1977 (the Act). At hearing, Petitioner 

filed motions to approve settlement agreements and to dismiss 

these cases. A reduction in penalties from $1,866 to $1,500. 

was proposed. I have considered the representations and documentation submitted, and I conclude that the proffered settlements are appropriate under the criteria set forth in Section 

llO(i) of the Act. I 

WHEREFORE, the motion for a oroval of sJttlement is 

GRANTED, and is ORDERED that spondent p1y penalties of 

$1,500 within 30 days of th1 orf r. 

I ' .··"'-.I ' 

I \_/'v' "'' \_ • 

Garv MG'lick \, J s-1_.,/~--- Admlnistrati ve ~ Judge 

\ 

' ! 

i ! i ' I. 

\ I 

' \) \! J 

974 I 
Distribution: 

Carl w. Ger , Jr., Esq., of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashvil , TN 37203 (Certif Mail) 

Mr. Travis E. Miller, President, Triple Elkhorn Mining 

Company, P.O. Box 520, Harold, KY 41635 (Certified Mail) 

/fb 

975 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE O,F ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 281987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WILMON MOORE d/b/a BIG BLUE 

TRUCKING, 

Respondent 

Docket No. KENT 87-58 

A. C. No. 15-07295-03502 

Martiki Surf ace 

DECISION APPROVING SETTLEMENT 

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

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Wilmon Moore, Lovely, Kentucky, pro se. 

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 and 

to dismiss the case. A reduction in penalty from $450 to 

$150 was proposed. I have considered the representations 

and documentation submitted in this case, and I conclude 

that the proffered settlement is appropriate under the 

a set forth in section llO(i) of the Act. 

WHEREFORE, the motion for approval of sett ement is 

GRANTED, and it is ORDERED that Respondent pay : penalty of 

$150 within 30 days of this order. I \ 

~) ((lv '.\ J~ I ./ . ' ' / Gary , . el1ck / " 

Admin strati e Law Judge . I 

I 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203 

(Certi ed Mail) 

Wilmon Moore, Owner, Big Blue Trucking, HC 67, Box 60, Lovely, 

KY 41231 (Certified Mail) 

yh 976 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 291987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) / 

ON BEHALF OF 

JOSEPH G. DELISIO, JR., 

Complaina·nt 

v. 

MATHIES COAL COMPANY, 

Respondent 

~ DISCRIMINATION PROCEEDING 

Docket No. PENN 86-83-D 

MSHA Case No. CD 85-9 

Mathies Mine 

SUPPLEMENTAL DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

On November 21, 1986, I rendered a decision in which I 

concluded that the respondent violated section 105(c} (1) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 815(c) (l} by unlawfully interferring with the complainant's 

right as a representative of miners to accompany federal 

inspectors during inspections of the mine. To remedy the vio-

_ation; I ordered the respondent to permit the contestant to 

dr his private automobile to the mine portal where inspecs normally beg or; the alternative, provide him with 

company transportation underground to that location, 8 FMSHRC 

1772, 1837 (November 1986). 

Subsequent to the issuance of my decision, MSHA filed a 

"Request for Clarification" of remedial order. Since my 

jurisdiction terminated upon the release of my decision, I 

declined to rule on the request, and ref it to the 

Commissiono In an order issued on December 30, 1986, the 

Commission stayed the running of the 40-day iod within 

which my decision would have become final, and directed the 

respondent to respond to MSHA's request for cl fication. 

977 
On January 2, 1987, MSHA filed a supplement to its request 

for clarification, and on January 7, 1987, the respondent filed 

its response. Thereafter, on February 3, 1987, the Commission 

issu~d another order remanding this matter to me for the purpose of ruling on MSHA's request, 9 FMSHRC 193 (February 1987). 

In its remand, the Commission stated as follows at 9 FMSHRC 195: 

This matter is remanded to the judge to rule 

upon the request for clarification. The judge may 

conduct such expedited proceedings as may be 

necessary for purposes of his ruling. Any party 

dissatisfied with the judge's further ruling may 

timely petition the Commission for review of the 

decision as clarified or amended. 

In compliance with the Commission's remand, I scheduled 

a hearing in Pittsburgh, Pennsylvania, on March 12, 1987, to 

afford the parties an opportunity to be heard on MSHA's 

clarification request. However, on March 9, 1987, MSHA's 

counsel advised me that the parties reached a settlement on 

the remedial dispute in question, and the hearing was cancelled 

to afford the parties an opportunity to file their settlement 

proposal with me for my review and appropriate disposition. 

On March 16, 1987, the parties confirmed their proposed 

settlement, and they filed a Memorandum of Understanding 

executed on February 25, 1987, by Mr. Edmund Baker, General 

Manager the Mathies Mine, Mr. DeLisio, and Mr. Ronald 

Stipanovich, President, UMWA Local 2244. The pertinent terms 

of the settlement are as follows: 

Mr" DeLisio 1 s daylight shift starting and 

ending times at the Thomas Portal will be changed 

to 7:30 aomo and 3:30 porn. The change in the 

daylight shift times will apply only to Mr. DeLisio 

his capacity as the designated miner for walkaround inspections. The change would not be applicable should the mine examiner 1 s job at the Thomas 

Portal be filled by some other miner who is not the 

designated miner. 

Mro DeLisio will make a good faith effort to 

promptly begin and proceed with his underground 

travel. The Company will make a good faith effort 

to minimize traffic on the haulage line during the 

7:30 to 8:00 a.m. period. It is anticipated that 

such efforts by both partie~ will enable Mr. DeLisio, 

under normal conditions, to reach the Linden Portal 

in time to begin the walkaround with the federal 

inspector. 

978 
The t adjustment for Mr. DeLis will be 

subject to a 90 calendar day trial At 

any time during the tr period either party may 

terminate the shift adjustment and this understanding. Following the tr 1 period if both parties 

are in agreement with this agreement then it will 

become binding. The tr period will in with 

Mr. DeLi 's first ight shift after confirmation of s understanding. 

In view the fact that the settlement agreement was 

conditioned on the completion of a 90-day tr period, 

which time either party could terminate Mr. Delisio 1 s adj 

work schedule and request a further hearing the matter, I 

issued a Stay Order on March 27, 1987, staying further disposition of this case in to allow the 90-day trial period 

to run its course. 

scussion 

The 9 trial period has now been completed, and I 

have heard nothing further from the parties. After careful 

consideration of the terms the settlement between the 

parties with respect to the remedial aspects of my orig 

decision and order of November 21, 1986, I conclude and find 

that it ref ts a reasonable resolution of the dispute, and 

I see no reason why it s not be approved. In view of the 

Clar if 

The 

this matter 

fully comp 

view of the 

request 

GRANTED~ 

tion, MSHA's previous filed Motion for 

CONCLUSION AND ORDER 

agreement entered into by the parties 

APPROVEDc The parties are JOINTLY ORDERED to 

the terms of the settlement agreement. In 

l of the settlement, the March 12, 1987, 

ies to lose the record this case IS 

979 
Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Carl H. Hellerstedt, Jr., Esq., Volk, Robertson, Frankovitch, 

Anetakis & Hellerstedt, Three Gateway Center, Sixth Floor East, 

Pittsburgh, PA 15222 (Certified Mail) 

/fb 

980 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 291987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA) , 

Petitioner 

v. 

CHARLES J. MERLO, 

INCORPORATED, 

Respondent 

Docket No. PENN 86-226 

A.C. No. 36-00845-03503 

' 'Cambria Slope No. 33 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to section llO(a) the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 820(a) ~ seeking a civil penalty assessment in the amount of $30 for an leged violation 

of mandatory safety standard 30 C.F.R. § 77~1605(d), as stated 

in section 104(a) Citation No. 2688979, served on the respondent 

on May 16, 1986. 

The respondent filed a timely answer and notice of contest, 

and the case was scheduled for a hearing on the merits in 

Indiana, Pennsylvania, on May 28, 1987. However, by motion 

filed with me on May 15, 1987, pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30 1 the petitioner seeks approval of a settlement of the case. The petitioner also seeks my approval of a 

proposed modification the citation to substitute and name 

Beth Energy Mines, Inc., as the responsible party and respondent 

for the alleged violation in question. 

Discussion 

The petitioner proposes to settle this matter with no 

civil penalty assessment payment by the respondent Charles J. 

Merlo, Inc. In support of the motion, petitioner's counsel 

states that during the inspection the inspector observed that 

981 
respondent's Caterpillar Dozer Model D-9H, Serial Number 9014013, 

did not emit an audible warning and that the directional lights 

in the front and rear did not function. However, counsel submits that the responsibility for the alleged violation lies 

with the Beth Energy Mines, Inc. Counsel states that the 

Cambria Slope Preparation Plant, the site inspected, was owned 

and operated by' Beth Energy Mines, Inc., and while it leased the 

dozer from Charles J. Merlo, Inc., on a month-to-month basis, it 

had exclusive control of the dozer for over 4 years. Further, 

the lessor and ssee had an arrangement whereby Charles J. 

Merlo, Inc. would repair the dozer when a problem was reported 

by Beth Energy. Beth Energy had not advised Charles J. Merlo, 

Inc. of the defective warning device and lights nor had it 

requested repairs be performed. Charles J. Merlo, Inc., therefore, had no duty to correct the defects. Moreover, at the 

time of the inspection, the equipment was being operated by 

Tom Cochran, an employee of Beth Energy. No Charles J. Merlo, 

Inc. employees were exposed to the hazard. 

Conclusion 

On the facts of this case, it seems clear to me that the 

respondent is not the party responsible for the alleged violation. Under the circumstances, I find no basis for approving 

the proposed settlement which provides for no civil penalty 

assessment payment by the respondent. To the contrary, I conclude and find that the respondent should be dismissed as the 

responsible party in this proceeding, and I will treat the 

petitioner's motion as a motion to withdraw its civil penalty 

proposal against Charles J. Merlo, Inc. The respondent is free 

to institute a new civil penalty proceeding against Beth Energy 

Mines, Inc., for the alleged viol2tion in question. 

ORDER 

The petitioner's proposed civil penalty assessment filed 

against the respondent Charles J. Merlo, Inc., is deemed to be 

withdrawn, and this proceeding is dismissed. 

Distribution: 

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

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

Philadelphia, PA 19104 (Certified Mail) 

Charles J. Merlo, Incorporated, R.D. 1, Box 88A, Mineral Point, 

PA 15942 (Certified Mail} 

/fb 

982 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 2 9 '987 

JIM WALTER RESOURCES, INC., 

Contestant 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INCo, 

Respondent 

. . 

DECISION 

CONTEST PROCEEDINGS 

Docket No. SE 86-105-R 

Order No. 2811664; 7/1/86 

Docket No. SE 86-106-R 

Order No. 2811667~ 7/8/86 

No. 5 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. SE 87-8 

A. C. No. 01-01322-03648 

No. 5 Mine 

Appearances: R. Stanley Morrow, Esq. and Harold D. Rice, Esq..,., 

Birminghamv Alabamav for Jim Walter Resources, Inc.; 

William Lawsonr Esq.v Office of the Solicitoru 

u. s. Department of Labor, Birminghamu Alabama for 

Secretary of Labaro 

Before~ Judge Weisberger 

STATEMENT OF THE CASE 

The Secretary 1 s Petition for Civil Penalties for alleged 

violations, by the Mine Operator (hereinafter called Respondent) 

of 30 CoF.R. § 75.500(d}v has been consolidated with the companion Notices of Contest filed by the Respondent. Pursuant to 

noticev the case was heard on March 3, 1987, in Birmingham, 

Alabama. Carl Earlyu William Vann, and William Meadows testified 

for the Secretary (hereinafter called the Petitioner). Charles 

Stewart testified for Respondent. At the hearing, Petitioner 

made a motion that the Notice of Contest, SE 86-106, be dismissed 

on the ground that the Order contested, Number 2811667, was 

vacated by the Mine Safety and Health Administration. This 

motion was not objected to by the Respondent. 

983 
Petitioner filed its Post Hearing Brief on April 23, 1987, 

and Respondent filed its Brief on May 4, 1987. Respondent filed 

its Reply Brief on May 11, 1987. Petitioner did not file any 

Reply Brief. 

ISSUES 

1. Whether Respondent violated 30 C.F.R § 75.500(~). 

2. Whether the crosscuts, in which nonpermissible electrical 

equipment were located, were "the last crosscut" as that term is 

used in section 75.SOO(d}, supra. 

3. If Respondent violated 30 C.F.R. § 75.SOO(d), was the 

violation caused by its "unwarrantable failure." 

REGULATORY PROVISIONS 

30 c.F.R. § 75.SOO(d} as pertinent, provides as follows: 

"All other electric face equipment which is taken into or used 

inby the last crosscut of any coal mine •••• , shall be permissible." 

STIPULATIONS 

1. The operator is the owner and operator of the subject 

mine. 

2. The operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977 (Act). 

3o The Administrative Law Judge has jurisdiction of this 

caseo 

4 o The MSHA Inspector Q who issued the subject citation, ·was 

a duly authorized representative of the Secretary. 

So A true and correct copy of the subject citation was 

proper served upon the operatoro 

60 Imposition of a penaltyF in this case, will not affect 

the operator's ability to do business. 

7o The operator 1 s size is medium. 

8. If it be found that a violation of 30 C.F.R § 75.SOO(d} 

occurred as alleged, Order 2811664, then the violation is to be 

considered to be "significant and substantial.~ 

9. The equipment identified in Order Citation Number 2811664 

were nonpermissible. 

984 
FINDINGS OF FACT AND CONCLUSIONS OF LAW 

On July 1, 1986, a nonpermissible distribution box, at 

Respondent's Number 5 Mine, was located in the last crosscut 

connecting number 2 and number 3 entries in the number 8 section. 

(See F, Exhibit G-2.) Although there were two open crosscuts 

further inby, they were between entries 1 and 2, and 3 and 4, 

respectively. (See A and H, Exhibit G-2.) There was no crosscut 

connecting entries 2 and 3 which was further inby the crosscut in 

which the distribution box was located. 

Respondent cites 30 C.F.R. § 75.200-7(iii)v 30 C.F.R. 

§ 75.31-3(a), and 30 C.F.R. § 75.302(a), as the only regulations, 

aside from the one at issue, that contain the term "last open 

crosscut." Respondent, in essence, argues that these sections 

delineate the parameters of that term. In this connection, it is 

noted that pursuant to 30 C.F.R. § 75.301 and 302, air is tested 

in number l and number 4 entries respectively, outby crosscuts A 

and Hv (labeled on Exhibit G-2), as these crosscuts are considered 

to be last open crosscuts within the meaning of section 75.301, 

supra, and section 75.302, supra, as they separate intake and 

return air entries. 

It appears to be Respondent's position, based upon these 

sections, that the last crosscuts inby the face, which separate 

intake and outtake entries, labeled A and H, on Exhibit G-2, are 

the only crosscuts to be considered to be "the last crosscut" for 

purposes of section 75.SOO(d), supra. 

I have considered Respondent's argumentu but find it lacking 

_ merit. I find that the regulatory sections cited by Respondent 

de not define the phrase "last crosscut." These sections merely 

i cate a reference to "the last open crosscut" where certain 

actions are to be performedv or certain devices are to·be used. It 

is unduly restrictive to hold that the identification of "the last 

open crosscut" for the purposes set forth in the sections cited by 

Respondentp mandates' identification of the same crosscut for the 

purposes enumerated in section 75o500(d)u supra. 

Insteadr I haves been guided by the Congressional intent in 

promulgating section 318(i)u of the 1977 Mine Actu 30 U.S.C" 

§ 801 et seq.r whose language is repeated i~ section 75.500(d), 

supra" Congressional intent is expressly stated in section 

318(i) p supraf which provides, in essence, that only permissible 

electrical equi~ment are to be used in the last open crosscut "to 

assure that such equipment will not cause a mine explosion or 

mine fire •..• " Respondent, in essence, argues that because 

the intent of section 75.SOO(d), is to minimize the hazard of a 

methane ignition, nonpermissible equipment is precluded only in 

985 
crosscuts A and H, connecting fresh air intake to the return, 

(see Exhibit G-2) as only these crosscuts are exposed to methane 

laden airo In support of its position~ Respondent cites testimony to the effect that most methane is liberated at the face in 

the cutting operation, and then travels through crosscuts A and H 

and down return entries 1 and 4 outby the face (see Exhibit G-2}. 

Thus Respondent argues that methane laden air does not enter 

crosscut F in which the nonpermissible equipment was located (see 

Exhibit G-2)o 

Howeverv according to the uncontradicted testimony of William 

Vannv a Federal Mine Safety Health Administration Ventilation 

Speci istr methane gas is common in the crosscut in which the 

distribution box was located. It was also the uncontradicted testimony of the Federal Mine Inspectorv Car~Early, that 30 percent of 

the timer that he has tested for methane in that crosscut, there 

has been more than 1 percent of methane which is in excess of the 

allowed amounto (Tr" 31, 74.) The testimony of Vann and Early 

tends to establish that interruption of a mine curtain placed in 

the number 3 entry outby the crosscut in which the nonpermissible 

equipment was located, would result in neutral air in that crosscut 

allowing methane to accumulateo Accordingly, to hold that the 

crosscut in which the distribution box was located, is other than 

the last crosscut, would clearly lessen the assurance against a 

ne explosion or fireu and would accordingly be violative, of the 

expressed purpose of section 318Ci)v supra. Furthermore, Early, 

Vann, and William Meadows, Supervisory Mine Engineer, employed by 

Mine Safety and Health Administration, all testified, in essence, 

that to their knowledge the only way that the crosscut in which the 

distribution box is located is referred tov as the last crosscut. 

therefore f section 75.500(d), was violated by having a 

sible distribution box the crosscut labeled F, 

~n s the J.ast crosscut between entries 2 and 3 and 

the las~ rosscut to in sect 75a500(d), supra. 

The ties have stipulated thatu on July lu 1986, there was 

a nonpermiss scoop charger being used. Its location 

icted ~n Exhibit G-2 as ng in a crosscut between entries 3 

2nd 4. Van~ testified that the scoop charger was the "last 

crosscut as that crosscut extends from the brattice in crosscut 

Cr entries 1 and 2 up to the brattice in the crosscut J, 

between entries 3 4 (see the yellow areas in Exhibit G-2). 

However, Ear has indicated was in the the 

n fected area" last crosscutr but that the crosscut in 

which it was located was not the last open crosscut. (Tr. 53.) 

Meadows, in essence, indicated that a crosscut is a connection 

between two entries. (Tr. 129.) Essentially the same definition 

is found in A Dictionary of Mining, Mineral, and Related Terms 

(U.S. Department of the Interior, Bureau of Mines (1968)), which 

defines crosscut as "a small passageway driven at right angles to 

986 
the main entry to connect it with a parallel entry or air course." 

Accordingly, I conclude that the scoop charger was not in the 

same crosscut where the distribution box was located, which has 

been found to be the last crosscut. Rather, the scoop charger, 

as depicted in Exhibit G-2, was in a crosscut between entries 3 

and 4. Inasmuch as there were two other crosscuts between entries 

3 and 4 inby the face, I conclude that scoop charger was not in 

the "last crosscut." 

Having found that section 75.SOOCd) was violated, I conclude, 

on the basis of the Parties' stipulation, that such violation was 

"significant and substantial." Petitioner maintains that the 

violation of section 75.500(d), resulted from a "unwarrantable 

failure" on the part of the Respondent. Respondent has stipulated 

that the equipment in question was nonpermissible, and there does 

not appear to be any dispute that the Respondent knew of the 

actual location of the equipment in question. The only question 

is whether or not the Respondent knew, or should reasonably have 

known, that the nonpermissible equipment was located in the "last 

crosscut." Charles C. Stewart, the Deputy Mine Manager at the No. 

5 Mine, Respondent's only witness, testified that crosscuts A and 

H, depicted on Exhibit G-2, which are the most inby crosscuts 

between entries 2 and 3, and 3 and 4 respectively, each have air 

from the face going through them. In contrast, "the crosscut, in 

which the distribution box was located, has only intake air. 

Stewart further testified that until July 1, 1986, the date the 

instant citation was issued, the Respondent had never received any 

other citation for nonpermissible equipment in crosscut F (Exhibit 

G-2). Stewart testified that he did not know the last crosscut 

for permissible equipment. However, he stated specifically that 

the last crosscut between entries 2 and 3 was labeled F (Exhibit 

G-2), which is the crosscut in which the distribution box was 

In addition, I find most persuasive the uncontradicted 

testimony of Ear , Vann, and Meadows that to their knowledge 

°'last crosscut," is the only term to be applied to the crosscut in 

which the distribution box was located, i.e., the last crosscut 

between entries 2 and 3 inby the face. I conclude that Respondent 

should have known that the location of the nonpermissible distribution box was in the "last crosscut." Accordingly, I find that the 

violation herein was caused by Respondent 0 s "unwarrantable 

failure." 

I conclude§ based on the rec~rd and the Parties stipulationv 

that t~e violation herein was "significant and substantial." 

I have considered all the crjteria set forth in section 110 

of the Act. Specifically, I have taken into the account of the 

high gravity of the violation, as indicated by the stipulation as 

987 
to its being "significant and substantial," and I have also taken 

into account the high degree of negligence as discussed above in 

my analysis of the issue of "unwarrantable failure." Petitioner 

had, in its petition for assessment of civil penalty, requested a 

penalty of $1000. However, inasmuch as I have found that the use 

of a scoop battery charger, in the crosscut between the 3rd and 

4th entry, did not constitute a violation of section 75.500Cd), I 

find that a penalty of $500 is appropriate. 

At the hearing, Petitioner indicated that Citation Number 

2811667 was vacated by the Mine Safety and Health Administration 

effective February 27, 1986. Petitioner made a motion that the 

Notice of Contest, contesting this order, SE 86-106-R be dismissed. Respondent indicated that it did not have any' objection. 

TherEfore, the Notice of Contest1 SE 86-106-R is DISMISSED. 

At the hearing, at the conclusion of the Petitioner's case, 

Respondent made motion to dismiss. In light of my decision this 

motion is DENIED~ 

ORDER 

Based on the above findings of fact and conclusions of law, 

Respondent is ORDERED to pay the sum of $500 within 30 days of 

the date of this decision as a civil penalty for the violation 

found wherein. 

It is further ORDERED that Respondent's motion to dismiss is 

DENIED. 

It is further ORDERED that the Notice of Contest, SE 86-106-R, 

be DISMISSEDo It is further ORDERED that the Notice of Contest 1 

SE 86-105-R be DISMISSEDo 

Distribution~ 

Avram Weisberger 

Administrative Law Judge 

R. Stanley Morrowv Esqov Harold D. Ricev Esq.u Jim Walter 

Resourcesu Inc. 1 Box C-79u Birmingham, AL 35283 (Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corp.; 1500 N. Dale Mabry 

Highway, Tampa, FL 33607 (Certified Mail> 

William Lawson, Esq., U. S. Department of Labarr Office of the 

Solicitor 1 Suite 201, 2015 Second Avenue, Northu Birmingham, AL 

35203 (Certified Mail) 

dcp 

988 

« Ll.S. GOVERNME;'1T PRINTING O:<FICE 19~7; 1~1-224/63005