JANUARY 1990 

COMMISSION DECISIONS/ORDERS 

01-08-90 Kathleen I. Tarmann v. International Salt Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-05-90 

01-05-90 

01-08-90 

01-08-90 

01-09-90 

01-10-90 

01-11-90 

01-12-90 

01-12-90 

01-12-90 

01-12-90 

01-12-90 

01-12-90 

01-12-90 

01-18-90 

01-22-90 

01-22-90 

01-23-90 

01-23-90 

01-23-90 

01-23-90 

01-30-90 

01-30-90 

01-31-90 

01-31-90 

01-31-90 

B & M Sand & Gravel Company 

Evansville Materials, Inc. 

Beaver Creek Coal Company 

A.H. Smith Stone Company 

Randy J. Collier v. Great Western Coal, Inc. 

Morgan Corporation 

Texas Utilities Mining, Co. 

Michael J. Grafton v. National Gypsum 

Denny Roger Thompson v. Amherst Coal Co. 

Mettiki Coal Company 

Mettiki Coal Company 

Mettiki Coal Company 

Mettiki Coal Company 

Wilbur Hartley v. Cargill, Inc. 

Mettiki Coal Company 

Central Concrete Products 

Peabody Coal Company 

Sec.Labor/Fred Bartley v. Adams Stone 

(Correction) 

Sec. Labor on behalf of Charles Scott Howard 

v. Harlan Cumberland Coal Co. 

Pennsylvania Electric Company 

Kent Coal Mining Company 

Harlan Cumberland Coal Company 

Rochester & Pittsburgh Coal Company 

Moltan Company 

Beaver Creek Coal Company 

Target Construction, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

01-24-90 Consolidation Coal Company 

LAKE 89-56-DM 

CENT 89-159-M 

LAKE 89-61-M 

WEST 88-207-R 

YORK 89-46-M 

KENT 89-198-D 

SE 89-50-M 

CENT 89-121 

LAKE 89-72-DM 

WEVA 86-196-D 

YORK 89-5 

YORK 89-6 

YORK 89-10-R 

YORK 89-12-R 

YORK 89-41-DM 

YORK 89-17 

CENT 88-100-M 

WEST 89-96 

KENT 89-102-DM 

KENT 90-31-D 

PENN 

PENN 

KENT 

PENN 

SE 

WEST 

WEST 

88-227 

89-99-R 

88-191 

89-85-R 

89-51-M 

88-165 

89-72-M 

WEVA 89-234-R 

Pg. 1 

Pg. 5 

Pg. 6 

Pg. 20 

Pg. 32 

Pg. 35 

Pg. 40 

Pg. 60 

Pg. 63 

Pg. 69 

Pg. 71 

Pg. 80 

Pg. 92 

Pg. 98 

Pg. 100 

Pg. 101 

Pg. 102 

Pg. 109 

Pg. 120 

Pg. 122 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

123 

126 

134 

146 

149 

153 

159 

Pg. 167 
JANUARY 1990 

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

Kathleen Tarmann v. International Salt Company, Docket No. LAKE 89-56-DM. 

(Judge Weisberger, November 30, 1989) 

Secretary of Labor, MSHA v. Medusa Cement Company, Docket No. SE 89-109-M. 

(Judge Maurer, December 14, 1989) 

No cases were filed in which review was denied. 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

KATHLEEN I. TARMANN 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 2ooo6 

January 8, 1990 

Docket No. LAKE 89-56-DM 

INTERNATIONAL SALT COMPANY 

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

Conunissioners 

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

This discrimination proceeding arises under the Federal Mine 

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

Act"). On November 30, 1989, Commission Administrative Law Judge Avram 

Weisberger issued an Order of Dismissal based on the failure of the 

complainant, Kathleen I. Tarmann, to respond to the judge's Order to 

Show Cause why the case should not be dismissed in view of its reported 

settlement. On December 18, 1989, following issuance of the dismissal 

order, Tarmann's counsel filed with Judge Weisberger a Brief in 

Opposition to Dismissal, requesting that the case be reinstated on the 

grounds that settlement had not, in fact, been reached and that counsel 

had "never ••• communicated that it had been reached." On December 20, 

1989, respondent International Salt Company ("International Salt") filed 

with Judge Weisberger a Memorandwn in Response supported by an 

affidavit, asserting that a settlement had been reached and opposing 

reinstatement of the case. Under the circumstances presented, we deem 

complainant's Brief in Opposition to Dismissal to constitute a timely 

petition for discretionary review, which we grant. We vacate the 

judge's dismissal order, and remand for further proceedings. 

On February 27, 1988, Tarmann filed with the Conunission a 

discrimination complaint, pursuant to section 105(c)(3) of the Mine Act, 

30 U.S.C. § 815(c)(3), alleging that she had been discriminatorily 

discharged by International Salt in violation of 30 U.S.C. § 815(c)(l). 

In an Order to Show Cause issued on November 15, 1989, the judge 

indicated that complainant's attorney had advised his secretary on 

November 6, 1989, that "the matters in dispute in this case had been 

settled by the Parties." Accordingly, the judge directed complainant 

1 
to show cause, within 10 days of the order, why the case should not be 

dismissed. Oil November 30, 1989, the judge issued the Order of 

Dismissal, stating that complainant had failed to respond to the show 

cause order and, accordingly, dismissing the proceeding. 

The judge's jurisdiction in this matter terminated when his 

dismissal order was issued on November 30, 1989. 29 C.F.R. 

§ 2700.65(c). Under the Mine Act and the Commission's procedural rules, 

relief from a judge's decision may be sought by filing with the 

Commission a petition for discretionary review within 30 days of the 

decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70. Here, 

complainant's brief in opposition to dismissal constitutes a request for 

relief from the judge's decision, and we will treat it as a timely 

petition for discretionary review. See, ~, Secretary on behalf of 

Joseph DeLisio v. Mathies Coal Co., 9 FMSHRC 193, 194 (February 1987). 

Similarly, we deem International Salt's memorandum to constitute a 

statement in opposition to complainant's petition. See 29 C.F.R. 

§ 2700.70(e). 

"Settlement of contested issues is an integral part of dispute 

resolution under the Mine Act." Pontiki Coal Corp., 8 FMSHRC 668, 674 

(May 1986). In this respect, the Commission has observed that "the 

record must reflect and the Commission must be assured that a motion for 

settlement [approval], in fact, represents a genuine agreement between 

the parties, a true meeting of the minds as to its provisions." Peabody 

Coal Co., 8 FMSHRC 1265, 1266 (September 1986). 

Here, Tarmann's brief in opposition to dismissal and International 

Salt's opposition to that brief reveal a disagreement between the 

parties as to whether, in fact, a settlement agreement had been 

reached. lf Under these circumstances, further proceedings are 

necessary and we conclude that the issues raised by the parties should 

be considered by the judge in the first instance. 

lf Tarmann's brief alleges that counsel did not state to the judge's 

secretary during their telephone conversation of November 6, 1989, that 

the parties had actually settled the case (as recited by the judge in 

his show cause order), but only that "settlement negotiations were 

being pursued, .•. that [counsel] was agreeable to settlement, but he 

had to first obtain the approval of his client." The official file in 

this case does not contain any contemporaneous note or memorandum from 

the judge's office detailing the contents of the conversation between 

counsel and the judge's secretary. The conversation appears to have 

been in the nature of a procedural status discussion rather than an ex 

parte communication (see 29 C.F.R. § 2700.82; 5 U.S.C. § 551(14) 

(definition of "ex parte communication" for purposes of the Administrative Procedure Act)), and the judge referenced the conversation 

generally in his show cause order. Nevertheless the risks of possible 

misunderstandings arising from telephone conversations with a party 

outside of the formal record suggest that the better general practice is 

to include in the official file a contemporaneous note detailing the 

contents of any such significant procedural status discussion. Cf. 

Inverness Mining Co., 5 FMSHRC 1384, 1388 n. 3 (August 1983). 

2 
Accordingly, the judge's dismissal order is vacated, this case is 

reopened, and the matter is remanded to the judge for appropriate 

proceedings. 

~· FOrdi. ~d' ChaiTilla!l 

!<ii?,AAA4~.!~f' 

Distribution 

A. Richard Valore, Esq. 

Valore, Moss and Kalk 

75 Public Square, Suite 300 

Cleveland, Ohio 44113 

Keith A. Ashmus, Esq. 

Thompson, Hine & Flory 

llOO National City Bank Bldg. 

629 Euclid Avenue 

Cleveland, Ohio 44114 

Richard V. Backley, Commissioner 

~tc'Y t( LLe.. 

oyc;e A. Doyle, Commissio~r 

Lastowka, 

iJe.4~uilkQ~, L. Clair Nelson, Commissioner 

Administrative Law ~udge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

3 
4 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 JAN 5 1990 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

Petitioner 

v. 

: 

Docket No. CENT 89-159-M 

A.C. No. 41-03455-05504 

: Ennis Plant 

B & M SAND & GRAVEL COMPANY,: 

Respondent 

DECISION 

Appearances: Mary E. Witherow, Esq., Office of the Solicitor, 

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

Petitioner~ 

w. A. Keith, Dallas, Texas for Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). At hearings Petitioner 

filed a motion to approve a settlement agreement and to 

dismiss the case. The Secretary moved to vacate Citation 

No. 3281506 and proposed a reduction in penalty Erom $1,075 

to $806.25 for the remaining citations. I have considered 

the representations and documentation submitted in this case, 

and I conclude that the proffered settlement is appropriate 

under the criteria set forth in Section llOCi) of the Act. 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that Respondent pay a penalty of 

$806. 25 within 30 days of this or ..der. (

1 

~ j ' r ·Wl· ,__,.\ / \..,i :., \/. v· '--

Ga~y Me~ick f 

Adminis\rative ; aw Judge 

Distribution: \ \ I ~ 

Mary E. Witherow, Esq., Office of ihe Solicitor, U.S. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, 

TX 75202 (Certified Mail) 

W. A. Keith, 10638 Sandpiper Lane, Dallas, TX 75230 

(Certified Mail) 

nt 

5 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 51990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATIO~ (MSHA), 

Petitioner 

Docket No. LAKE 89-61-M 

A.C. No. 12-01389-05503 

v. 

Rockport Plant 

EVANSVILLE MATERIALS, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Rafael Alvarez, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for 

the Petitioner; 

Gene Hurm, Safety Director, Evansville Materials, 

Inc., Evansville, Indiana, for the Respondent. 

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 $58, for an alleged 

violation of mandatory safety standard 30 C.F.R. § 56.11001. The 

respondent filed a timely answer denying the violation, and a 

hearing was held in Evansville, Indiana. The parties waived the 

filing of posthearing briefs, but I have considered their oral 

arguments made on the record during the hearing in my adjudication of this matter. 

Issues 

The issues presented in this proceeding are (1) whether the 

respondent has violated the standard as alleged in the proposal 

for assessment of civil penalty,·· (2) the appropriate civil 

penalty that should be assessed against the respondent for the 

alleged violation based upon the criteria set forth in section 

llO(a) of the Act, and (3) whether the violation was "significant 

and substantial." 

6 
Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 4-5): 

1. The Commission and presiding judge have jurisdiction in this matter. 

2. The respondent's sand and gravel business 

affects commerce. 

3. The respondent is a sand and gravel operator 

engaged in the business of dredging sand and gravel 

from the Ohio River. 

4. The respondent's operation is located in 

Tell City, Indiana, and its plant is known as the 

Rockport Plant No. 6. 

5. The respondent's Rockport Plant worked 

45,941 manhours during the period March 9, 1987 through 

March 9, 1988. 

6. The respondent worked 400,223 manhours at all 

of the mines which it operates during the period 

March 9, 1987 through March 9, 1988. 

7. In the event the violation is established, the 

proposed $58 civil penalty assessment will not 

adversely affect the respondent's ability to continue 

in business. 

8. The parties agree to the admissibility of 

copies of the citation, extension, and termination, and 

the computer print-out reflecting the respondent's 

history of prior violations (exhibits P-1, P-2). 

Discussion 

The contested section 104(a) S&S Citation No. 3260305, was 

issued by MSHA Inspector George Lalumomdiere on October 4, 1988, 

and he cited an alleged violation of mandatory safety standard 

30 C.F.R. § 56.11001. The cited condition or practice states as 

follows: 

7 
Safe access was not provided between the dredge 

work boat and the dredge. In order to enter or exit 

from the work boat to the dredge, a step up of about 

three feet was necessary with nothing available for a 

hand hold. This area is traveled on a daily basis. 

Petitioner's Testimony and Evidence 

MSHA Inspector George Lalumomdiere testified that he visited 

the respondent's dredging operation on the day in question and 

was taken to the. dredge located in the middle of the Ohio River 

on a small flat bottom "john boat" approximately 12 feet long 

powered by a small motor. Mr. Gene Hurm, the respondent's safety 

director, was with him in the boat along with another employee 

who was operating the boat. He described the dredge as approximately 100 feet long, and confirmed that it is used to pump sand 

and gravel from the bottom of the river. Upon arriving at the 

dredge, the boat operator tied the boat up to the dredge timberheads which he identified from photographs as "two yellow posts 

sticking up on the edge of the dredge." He estimated that the 

deck of the dredge was 3 feet above the boat (Tr. 9-12). 

The inspector stated that in order to get out of the boat he 

had to place his hand up on the deck of the dredge and pull 

himself out of the boat, and since it was a sunny day, the steel 

deck plate was "hot to the touch" as he grabbed the deck to pull 

himself up and onto the dredge. Although the photographs include 

some hand-holds or "D-rings" on the deck dredge, the inspector 

stated that they were not installed at the time of his inspection 

and he had to slide onto the slick deck in order to get out of 

the boat (Tr. 13-14). 

The inspector stated that in· the absence of any hand-holds, 

or some other means of getting out of the boat, one could slip 

and fall into the water while trying to get out of the boat and 

could possibly strike their head on the boat, particularly on a 

windy day. He stated that only the front end of the boat was 

tied to the post, and while this may prevent the boat from sliding out from under him, he still had to slide himself up onto the 

hot deck. Other than the hot deck, and the possibility of sliding off, since he is "agile and can get around," he had no 

problem getting out of the boat (Tr. 15). 

The inspector confirmed that he cited a violation of section 

56.11001, because he did not believe that there was a safe means 

of access for getting out of the boat onto the dredge. He 

believed that hand-holds would be "safer than having nothing at 

all" because someone would have something to hold onto without 

having to reach up to a hot deck and pull himself out of the 

boat. He did not consider the hand-holds to be tripping hazards, 

and he would probably consider the cavils to be adequate as a 

8 
safe means of access, but only if they were longer and closer to 

the boat shown in the photograph. He confirmed that another 

inspector abated the citation (Tr. 16-17). 

The inspector believed that the lack of safe access from the 

boat onto the dredge presented a hazard, and that it was reasonably likely that anyone leaving the boat by reaching up and 

grabbing the deck with nothing else to hold onto could slip and 

fall and receive lost day or work injuries. He believed that it 

was reasonably likely that someone would receive face or head 

injuries, or be knocked unconscious if he struck his head in a 

fall, and even though he would be wearing a life jacket "there's 

still no guarantee that he'd come out a hundred percent safe" 

(Tr. 18). He believed that the violation was significant and 

substantial, and that the negligence was moderate because the 

safety director travels the area at least once a month and should 

have been aware of the condition. The citation was abated by 

providing hand-holds for persons to hold onto while leaving the 

boat (Tr. 19) . 

On cross-examination, the inspector confirmed that when he 

issued the citation he suggested that the respondent install a 

chain ladder to provide a means of access from the boat to the 

dredge, and that when he returned to see if the abatement had 

been completed, he suggested the installation of "A-frame" 

handles which were something different from the D-rings. He also 

confirmed that during his inspection visit, the boat was tied off 

to the timberhead with a rope, but he did not believe that the 

people in the boat could get out by using the rope because the 

boat operator was standing at the front end where the boat was 

tied off steadying the boat (Tr. 23-27). The inspector further 

confirmed that no one got out of the boat at the front by using 

the rope, and that everyone got out by putting their hands on the 

deck and sliding on to it. The person holding the boat steady by 

the rope also got out the same way (Tr. 32). The inspector 

confirmed that the use of a rope was better than nothing, but he 

did not consider the rope to be a safe means of access from the 

boat to the dredge because he believed there was a better way to 

provide a safe means of access (Tr. 33}. 

In response to further questions, the inspector confirmed 

that he had never worked on a boat or a dredge, but that he has 

inspected many similar dredging operations. These operations 

provide a chain ladder with a hand-hold which is dropped over the 

side of the dredge so that anyone getting out of the boat can 

step up the ladder and have something to hold onto and step off 

of (Tr. 36). The inspector confirmed that only the front end of 

the boat was tied up, and that given the fact that the deck was 

hot, and the back of the boat was not tied off, in the event of 

any drifting, the person attempting to get out of the boat would 

have no means of holding on, and there would be no safe means of 

access from the boat onto the dredge (Tr. 41). He also confirmed 

9 
that there were three persons in the boat on the day of the 

inspection, and that when there is a crew change, more than one 

person is in the boat. Normally, when there are no crew changes, 

only one man is in the boat (Tr. 41). 

Referring to the photographs which were submitted by the 

respondent as part of its answer in this case, the inspector 

confirmed that the hand-holds shown in the photographs were 

welded to the dredge by the respondent to abate the citation, and 

if they were in place when he conducted his inspection, he would 

not have issued a citation because "they'd had something to hold 

onto besides the rope" (Tr. 42). It was his understanding that 

the boat would normally be tied up at the yellow posts shown in 

the photographs, and that the posts are also used to tie up any 

barges that are loaded from the dredge (Tr. 43-44). The inspector confirmed that he did not measure the distance between the 

top of the boat and the deck of the dredge, but estimated it to 

be 3 feet or "waist high" (Tr. 44). 

Respondent's Testimony and Evidence 

Neil Mulzer, respondent's president, testified that he 

believed that the timberheads and cavils which were installed on 

the dredge, as shown in the photographs, may be used as 

hand-holds. He stated that when there is a current in the river, 

only the front end of the boat is tied up because the current 

keeps the back of the boat against the dredge. In the event of a 

lack of any current, the back of the boat is also tied up to the 

dredge to keep it from colliding with any barges which may be 

loading (Tr. 47). He did not believe that the hand-holds which 

were welded on for abatement were as good as the timberheads or 

cavils because the timberheads are 18 inches high, and the cavils 

are 10 inches high, and provide better hand-holds (Tr. 48). He 

conceded that the boat shown in the photographs is some distance 

from the cavil, but that the boat could be tied up there, and in 

order for the cavil to function as a hand-hold, the boat would 

have to be docked close to it (Tr. 49, exhibit R-10). Mr. Mulzer 

confirmed that the cavil is an integral part of the dredge, and 

it is used to tie up the boat (Tr. 50). 

Mr. Mulzer believed that the timberhead and rope used to tie 

up the boat are sufficient to provide a means of access from the 

boat to the dredge because the timberhead is high enough to allow 

anyone to pull themselves out of the boat using the rope. He 

demonstrated the difficulty one would have in grabbing the 

hand-holds and placing their feet up onto the dredge deck (Tr. 

53). He believed it was easier for someone to hold onto the 

timberhead while stepping up and out of the boat (Tr. 54). He 

confirmed that the hand-holds shown in the photographs were not 

installed on the dredge at the time the citation was issued (Tr. 

57). He also confirmed that photographic exhibit R-10 is not the 

same dredge cited by the inspector, but that exhibits R-2 through 

10 
R-9 are photographs of the cited dredge (Tr. 60). He stated that 

he has been in the dredging business since 1963, and has visited 

many dredges, but has never seen anything other than a cavil or 

timberhead and a rope used to get in and out of boats (Tr. 61). 

On cross-examination, Mr. Mulzer stated that the boat in 

question is usually tied up at a "notch" in the dredge in order 

to keep it from swinging out and being struck by any barges being 

loaded. He conceded that the boat shown in photographic exhibits 

R-8 and R-9, is not tied on both ends, and he guessed that the 

prevailing current could not hold the untied rear end of the boat 

against the dredge. He conceded that the back end of the boat 

might come out, and that someone could lose their balance even if 

they were to use the hand-holds (Tr. 64). 

Mr. Mulzer stated that the metal dredge deck could get hot 

in the summer, but that it would not be "searing hot" and would 

not "blister your hands." He believed that the hand-holds would 

be equally as hot to the touch (Tr. 67). Mr. Mulzer confirmed 

that there is no standard company procedure or safety rule in 

effect instructing employees as to how to get in and out of the 

boat while it is at the dredge. He stated that the rope and 

timberhead "is there for them to use," and "we didn't sit and 

watch everybody as they got out of the boat" (Tr. 67). He confirmed that the use of the rope and timberhead was discretionary 

with each employee, and that "you can't watch everybody" (Tr. 

68). He confirmed that he was not with the inspector during the 

inspection and did not discussed the citation with him prior to 

the hearing (Tr. 68). Mr. Mulzer stated that prior to the issuance of the contested citation, other MSHA inspectors have 

inspected the dredge and never required any D-rings. He 

"guessed" that these inspectors used the rope tied around the 

timberhead to get out of the boat (Tr. 72). 

Gene Hurm, respondent's safety director, was of the opinion 

that the hand-holds presented a tripping hazard, and MSHA's 

counsel alluded to a telephone conference during which Mr. Hurm 

raised this question (Tr. 22). Mr. Hurm took the position that 

the cavils, timberheads, . and the rope could all be used for 

access from the boat to the dredge, and that the inspector could 

have gone to the front of the boat and used the rope to get out 

of the boat. He believed that anyone leaving the boat had an 

option to use the rope or "crawl up the sides," and that the 

hand-holds are not needed (Tr. 26). 

Mr. Hurm testified that the cavils and timberheads have been 

in place on the dredge since it was new. He confirmed that he 

was under the impression from the inspector that the cavils and 

timberheads were insufficient to abate the citation, and that a 

ladder would have to be installed over the side of the dredge to 

abate the citation. He stated that had he known that hand-holds 

welded to the dredge deck would have been adequate to abate the 

11 
citation, this case "would never have gotten this far" and that 

he "would have said something right away" to the inspector (Tr. 

69). He confirmed that MSHA Inspector Gene Upton suggested the 

hand-holds, and that Mr. Upton terminated the citation. Mr. Hurm 

could not recall anyone suggesting the use of a ''roll-up chain 

ladder" (Tr. 70). He recalled discussing the use of the rope 

with the inspector, but could not recall exactly what was said 

(Tr. 73). He confirmed that there are no written instructions 

for the employees to follow, and that they normally leave the 

boat from the front end after tying it up by holding on to the 

timberhead, grabbing the rope, and just jumping off the boat (Tr. 

74). He explained that "it's just one of those things -that's 

overlooked ... and you can't make a policy on getting out of a 

boat" (Tr. 75). 

Inspector Lalumomdiere was recalled by the court, and in 

response to further questions, stated as follows (Tr. 75-77): 

BY THE COURT: I want to ask you this, you saw that 

little demonstration Mr. Mulzer gave us about putting 

the hand-hold there and if you grab it and you put your 

foot up, you're kind of in an awkward position there, 

do you lend any credence to that. 

A. I didn't really figure on getting off the boat that 

way. I figured if there was a hand-hold there or 

you've got something to hold onto so you can swing your 

leg up over the side of the boat and then come up 

partially in a kneeling position and then straighten on 

up after you get up on the deck. 

BY THE COURT: So I take it, your concern was that an 

employee that got off in the middle of the boat or the 

back of the boat with it not being tied off or nothing 

to hold onto to, there was a possibility of reasonable 

likelihood that if you try to get off there he'll 

probably fall and knock his head or fall in the water. 

A. I felt there was a chance of it. 

BY THE COURT: Now, what if the boat was secured at the 

both ends on the day you were there, the back end was 

tied snugly to the dredge and the front end was tied 

snugly to the dredge and you saw the first guy get off, 

grab that yellow telephone pole contraption there, used 

the rope to get off, and then the second guy did it and 

then the third guy did it . . . 

A. If this was the customary way of getting off . . . 

BY THE COURT: Right. 

12 
A. and I directed you here, this is the way we 

get off . 

BY THE COURT: Right. 

A. . •• and you've got something to hold onto, I 

would have probably accepted it as a safe way to get 

off because you'd also be stepping up on the bow of the 

board which would put you up another foot closer to the 

dredge. And with no way of the boat slipping out from 

under you or anything, got something to hold onto to to 

steady yourself, I would say, you know, probably I 

would have accepted it as safe and would probably never 

issued a citation. 

BY THE COURT: But on the day that you were there at 

the time that this happened, it's just that the circumstances of what happened, the back end wasn't tied 

and you had to get off at the middle and the deck was 

hot and it was slippery, you had to kind of shinney 

your way up, you came to the conclusion that this was 

the way they normally do it, right. 

A. Right, because the guy that was operating the boat 

went off the same way we did. 

BY THE COURT: Well, I mean, the operator's been very 

candid with me, he more or less admitted that he lets 

the employee decide how to get off the boat. 

A. Right. 

The inspector denied that he had required the respondent to 

install a ladder, but confirmed that he "suggested" that a chain 

ladder could be installed "where you could stand up on the edge 

of the deck and then drop it down when you get ready to get off 

the boat and you would at least have something to step off onto" 

(Tr. 78). Referring to photographic exhibits R-8 and R-9, the 

inspector confirmed that if the boat had been tied up at both 

ends, and the individual shown in the photographs had stepped out 

of the boat and onto the dredge in the manner depicted in the 

photographs, he would not have issued the citation and "probably 

would not have given it that much thought" (Tr. 78-79). 

Mr. Mulzer pointed out that anyone leaving the boat from the 

bow or the middle would be approximately a foot higher in the 

boat because they could stand on the seats or the bow structure 

which is elevated above the bottom of the boat (Tr. 79). He 

further stated that his employee do not like the hand-holds 

because of the difficulty in using them (Tr. 80). 

13 
Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.11001, for failing to provide a 

safe means of access for employees to get out of the work boat 

which is used as a means of access to the dredge. Section 

56.11001, provides as follows: "Safe means of access shall be 

provided and maintained to all working places." 

The evidence establishes that the dredge is a working place 

where employees are required to be in order to perform certain · 

duties in connection with the respondent's dredging operations. 

The inspector issued the citation when he and the two other 

individuals who were in the boat at the time of his inspection 

visit to the dredge got out of the boat by simply placing their 

hands on the deck of dredge and "sliding" out of the boat and 

onto the deck. The dredge deck was approximately 3 feet above 

the boat, and there were no hand-holds available for anyone to 

hold onto. Only the front end of the boat was tied to a post 

located on the dredge deck, and the steel deck plating was "hot 

to the touch" as the inspector placed his hands on the deck. 

Although there was a rope tied to the post, and the inspector 

understood that the boat is normally tied up at that post, and 

believed that the rope "was better than nothing," he did not 

consider the use of the rope to be a safe means of access to the 

dredge deck because he believed that there was "a better way" to 

provide such an access. His subsequent suggestion that a ladder 

be installed as a means of access from the boat to the dredge was 

not adopted because it was impractical, and another MSHA inspector abated the citation after the respondent welded hand-holds to 

the deck of the dredge. 

The respondent does not dispute the lack of any hand-holds 

of the type which were installed to abate the citation. It takes 

the position that the cavils and/or the timberhead or post which 

was provided with a rope, provided an adequate means for safe 

access from the boat to the deck of the dredge, and that the 

hand-holds which were installed were impractical in that one had 

to contort his body after grabbing the hand-holds in order to get 

out of the boat, and that the use of the hand-holds would place 

the person in a rather precarious position while attempting to 

get out of the boat while holding on to the hand-holds. The 

respondent further asserted that the use of the rope tied to the 

post provided an adequate means of access from the boat onto the 

deck dredge. 

Having observed the courtroom demonstration of the use of 

the hand-holds by Mr. Mulzer, I find some merit in his assertion 

that it would be difficult for anyone holding on to these 

hand-holds to climb up and on the deck of the dredge from the 

14 
boat. However, after viewing the photographic exhibits which 

show the hand-holds welded into position in close proximity to 

the timberhead where the boat would be tied up, I cannot conclude 

that one would have as much difficulty using the hand-hold in 

conjunction with the timberhead as a safe means of access from 

the boat. 

With regard to the use of the timberhead and rope as a safe 

means of access from the boat, the facts in this case establish 

that the inspector and the other two individuals in the boat at 

the time of the inspection did not use the timberhead and rope 

while leaving the boat. They simply placed their hands on the 

deck and slid their bodies up and onto the deck. The inspector 

obviously believed that this procedure was the normal method used 

by employees to get out of the boat, and in the absence of anything to the contrary, I cannot conclude that the inspector's 

belief that a safe means of access was not provided was unreasonable, and I agree with it. With regard to the use of the cavils 

as a means of access from the boat, the facts here show that the 

boat was not tied up to any cavil, and that a cavil would only 

present a possible means of access if the boat were docked in 

close proximity to the cavil, and it was within reach of the 

person on the boat. 

Further support for the inspector's belief that the normal 

method of leaving the boat was the method used by the inspector 

and the other two individuals in the boat at the time of the 

inspection may be found in the admissions by Mr. Mulzer and 

Mr. Hurm that the respondent had no established procedure or 

safety rule for the employees to follow when getting out of the 

boat. Although Mr. Hurm suggested that an employee leaving the 

boat would normally hold onto the timberhead and rope and simply 

"jump off the boat," he did not use the rope or timberhead when 

he was with the inspector, and I find no credible evidence to 

support any conclusion that the use of the rope and timberhead 

was an established procedure to be followed by all employees 

while getting out of the boat. 

Although Mr. Mulzer suggested that the boat is normally tied 

up at a "notch" in the dredge, I find no credible evidence to 

support any conclusion that the respondent had any established 

fixed location for the boat to be tied up to the dredge, or that 

it had any safety procedures in place for the employees to follow 

while getting out of the boat at only one location alongside the 

dredge. Although the use of the existing cavils and timberheads, 

in conjunction with ropes may have provided a safe means of 

access, I am not convinced that the respondent had any clearly 

defined procedures instructing its employees to use these devices 

as a safe means of access. If it had, the respondent may not 

have been cited. Indeed, the inspector agreed that if there were 

an established and customary method of getting out of the boat 

while it was securely tied to the dredge, and the employees were 

15 
so instructed, he would have accepted the use of the timberheads 

and ropes as a safe means of access. On tne facts of this case, 

it would appear to me that the tying up of the boat at the dredge 

and the use of any of the available devices as a means of access 

from the boat did not follow any established procedure or practice, and that each employee was left on his own. Under all of 

these circumstances, I conclude and find that the evidence establishes that no safe means of access was provided as charged by 

the inspector, and that a violation of section 56.11001, has been 

established. The citation is therefore AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

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

30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

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

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that is, 

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

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

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

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

is the contribution of a violation to the cause and 

16 
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

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

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

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

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

(December 1987) ~ 

The inspector's unrebutted credible testimony establishes 

that the failure by the respondent to provide a safe means of 

access for persons leaving the boat presented a potential slip 

and fall hazard and that in the absence of a readily available 

hand-hold for one to hold onto or steady himself while he is 

leaving the boat presented a reasonable likelihood of an accident, particularly in a situation where the boat may not be 

secured to the dredge at both ends, or on a rainy or hot day when 

the deck may be hot or slippery. Although one would expect that 

anyone in the boat would be wearing a life jacket, if he were to 

fall or slip while attempting to get out of the boat, he could 

strike his head on the boat or the side of the dredge, and if he 

were knocked unconscious, and landed face down into the water, 

the life jacket may not prevent him from drowning. I conclude 

and find that in the normal course of business, if a person 

working alone in the boat were to slip or fall while attempting 

to get out of the boat with no readily available safe means of 

access onto the dredge, and were to strike his head, he would 

likely sustain injuries of a reasonably serious nature. Accordingly, the inspector's "S&S" finding IS AFFIRMED. 

History of Prior Violations 

A computer print-out of the respondent's history of prior 

violations reflects that the respondent paid civil penalty 

assessments in the amount of $90, for two section 104(a) "S&S" 

citations issued during the period March 9, 1987, through 

March 8, 1989. I conclude and find that the respondent has a 

good compliance record, and I have taken this into consideration 

in the assessment of the civil penalty in this case. 

Good Faith Compliance 

The record establishes that the abatement time was extended 

to allow the respondent more time to install suitable hand-holds 

to abate the violation. It also establishes that the violation 

was ultimately abated by the respondent in good faith within the 

time allowed by the inspector. 

17 
Negligence 

The inspector's finding of "moderate negligence" is 

affirmed, and I conclude and find that the violation resulted 

from the respondent's failure to exercise reasonable care. 

Gravity 

For the reasons stated in my "S&S" findings, I conclude and 

find that the violation was serious. 

Size of Business and Effect of Civil Penalty on the Respondent's 

Ability to Continue in Business 

I conclude and find that the respondent is a medium-size 

sand and gravel operator, and that its dredging operations at the 

Rockport Plant where the violation occurred was a small operation. I further conclude and find that the civil penalty assessment which I have made for the violation in question will not 

adversely affect the respondent's ability to continue in 

business. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, and 

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

Act, I conclude and find that the petitioner's proposed civil 

penalty assessment of $58 is reasonable and appropriate for the 

violation which has been affirmed. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $58, for a violation of mandatory safety 

standard 30 C.F.R. § 56.11001, as stated in the section 104(a) 

"S&S" Citation No. 3260305, issued on October 4, 1988. Payment 

of the penalty is to be made to MSHA within thirty (30) days of 

the date of this decision and order, and upon receipt of the 

payment, this matter is dismissed. 

0/ 

~ /;J~. -- /_-. ~ ·· ff/[~ 0". I :i_-(.-~ ,Ye'O~gpA. KO tras 

Administrative Law Judge 

18 
Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Mr. Gene Hurm, Safety Director, Evansville Materials, Inc., 

900 N.W. Riverside, Evansville, IN 47701 (Certified Mail) 

/fb 

19 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 81990 

BEAVER CREEK COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

BEAVER CREEK COAL COMPANY, 

Respondent 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEST 88-207-R 

Order No. 3225158; 4/26/88 

Gordon Creek No. 7 Mine 

Mine ID 42-01814 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-339 

A.C. No. 42-01814-03518 

Gordon Creek No. 7 Mine 

DECISION 

Appearances: Thomas F. Linn, Esq., Beaver Creek Coal Company, 

Denver, Colorado, 

for Contestant/Respondent; 

Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Respondent/Petitioner. 

Before: Judge Morris 

These consolidated cases are before me pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 C.F. R. § 801 et seq., ("the Act") to challenge the 

issuance by the Secretary of Labor of two citations issued to 

respondent Beaver Creek Coal Company C "BCCC"). 

After notice to the parties a hearing on the merits was 

held in Salt Lake City, Utah. 

The parties filed post-trial briefs. 

Issues 

The issues are whether any violations occurred. If so, 

what penalties are appropriate. 

20 
Citation No. 3225145 

This citation charges BCCC with violating 30 C.F.R. 

§ 75.1704. 1/ 

The citation reads as follows: 

The alternate escapeway belt entry located in 

the 3rd south section active was not being maintained in a condition to allow all persons, including disabled persons, to escape quickly to 

the surface, in the event of an emergency. The 

following condition did not comply with 75.1704 

(l)(a) located approximately 40 feet inby survey 

station No. 2440, a belt check stopping undercast 

had been installed across the belt entry with a 

35 inch by 35 inch man door in the wall, and there 

were two cinder blocks step platforms installed 

on each side of the stopping. These platforms 

measured 1st: leading into section 30! inches 

wide and a 46 inch step down (high). 2nd: 31! 

inches wide by 34! inches high step down. 

!/ The cited regulation reads as follows: 

§ 75.1704 Escapeways 

[Statutory Provisions) 

Except as provided in §§ 75.1705 and 75.1706, 

at least two separate and distinct travelable 

passageways which are maintained to insure 

passage at all times of any person, including 

disabled persons, and which are to be designated as escapeways, at least one of which is 

ventilated with intake air, shall be provided 

from each working section continuous to the surf ace escape drift opening, or continuous to the 

escape shaft or slope facilities to the surface, 

as appropriate, and shall be maintained in safe 

condition and properly marked. Mine openings 

shall be adequately protected to prevent thP 

entrance into the underground area of the·min:e 

of surface fires, fumes, smoke, and floodwater. 

Escape facilities approved by the Secretary or 

his authorized representative, properly maintained and frequestly tested, shall be present 

at or in each escape shaft or slope to allow 

all persons, including disabled persons, to 

escape quickly to the surface in the event of 

an em erg ency. 

21 
THE EVIDENCE 

During an MSHA inspection LARRY RAMEY, an authorized 

representative of the Secretary, reviewed the Gorden Creek 

Mine map. One of the alternate escapeways was identified as 

a belt line coming out of the 3rd south section (Tr. 16-18). 

When walking the belt line with John Perla, the operator's 

foreman, the inspector encountered an air course undercast 

located approximately forty feet inby survey station No. 2440. 

BCCC had installed a belt-check stopping over the undercast for 

ventilation purposes (Tr. 19). The inspector measured and 

sketched the installation (Tr. 14-24, 75, Ex. P-2). 

The belt-check stopping had been constructed with 8 inch by 

16 inch cinder blocks. As a person moves outby he first reaches 

four steps which give him access to a higher level. He then 

proceeds an additional 20 feet to the man door. The man door 

opens in the outby direction. After stepping over the door sill 

the person immediately encounters six steps which return him to 

a lower level. 

The man door which permits access through the undercast 

measures 35 inches by 35 inches. ~/ 

In the inspector's opinion this alternate escapeway was not 

maintained to insure passage at all times, including passage for 

disabled persons (Tr. 24). 

BCCC's witnesses, JOHN PERLA and LEVON L. TURPIN conducted 

a travelability test using two persons to carry an occupied 

stretcher through an identical man door and down the steps. 

The passage was virtually identical to the one cited by the 

inspector (Tr. 92, 93, Ex. B-7). The tests and photographs 

demonstrated the area was passable. The steps could be negotiated and according to BCCC the area in question was travelable 

thereby meeting the requirements of section 75.1704. In short, 

there was more than ample room to move a man on a stretcher 

through the man door (See photo Exhibits B-4, B-5, B-6, B-7 and 

B-9). 

In view of his test results witness Turpin concluded the 

alternative escapeway was "well travelable" (Tr. 101). 

2/ The drawing on the citation and Exhibits B-1, B-2 and B-3 

(drawn to scale from the citation detail) shows the steps and 

their measurements, as well as the man door at the undercast 

(Tr. 23). 

22 
THRESHOLD ISSUE 

As a threshold matter BCCC asserts that the Secretary was 

attempting to enforce the non-mandatory regulations contained in 

section 75.1704-1 3/. 

,In support of its view BCCC notes the inspector did not 

conduct a travelability test, also the operator relies on the 

wording of Citation No. 3225145, supra., where the citation 

recites, in part, that "the following condition did not comply 

with 75.1704-l(a) located, etc ••••• " 

BCCC also cites portions of the transcript, including a 

conversation between witness JOHN PERLA and the inspector. The 

conversation: 

Q. Can you tell us what happened on the 14th 

of March the circumstances surrounding the 

issuance of this citation? 

A. Mr. Ramey and I went into the mine and I 

always ask the inspectors where they would 

like to go. And he wanted to go into the 

active section, so we went into the third 

south section, and we walked around in the 

section for awhile and looked at different 

things. And then he wanted to walk out the 

belt line, and so, him and I -- Mr. Ramey 

and I started out the belt line and we got 

down to the overcast and we stood there for 

a minute on the in-by Cph.) side of the overcast -- or, undercast, went through the 35 by 

35 inch man-door, went down the other side. 

And we looked back at the undercast, and he 

told me he was going to give me a citation 

because of it [sic] wasn't five by six. 

Q. Okay. And tell us what happened next? 

A. We were sitting there talking and we looked 

back at the undercast. And Mr. Ramey told 

me that he would have to give us a Citation 

because we didn't have our five by six opening 

on our escapeway. (Emphasis supplied) (Tr. 69, 78) 

3/ On October 27, 1989, in Utah Power & Light Company, 

WEST 87-211-R, discussed infra, the Commission ruled that 

section 75.1704-lCa) was not enforceable. (Slip opinion at 6). 

23 
Later, in the mine office an additional conversation took 

place: 

Q. Did you talk to Mr. Ramey about the citation? 

A. We talked about it at the mine, and when 

we were looking at the undercast. And then 

we talked about it when we got outside and 

down at the off ice. 

Q. What happened at the office? 

A. I asked him why it was any different us 

getting a citation on this one here when 

these are just like this or something 

similar with the stoppings off of the 

undercast was accepted through the life 

of the mine. Since we opened the mine, 

we had done this. 

Q. Go ahead. 

A. He • 

Q. What was his response? 

A. Just that we didn't have our five by six 

opening and we had to take care of it. 

(Emphasis added) (Tr. 82). 

Finally, Bccc contends the manner of abatement suggests 

the inspector was attempting to enforce the dimension standard 

in§ 75.1704-l(a). The termination of the citation reads as 

follows: 

The operator has installed a six-foot 

walkway on each side of the undercast 

and hand rails on each side of the walkways. The operator has placed a [sic] 

order with Triune, Inc., located in 

Colorado, PO No. Bl0-9778 date 3/15/88 

for a 6 4 x 80 W walk thru man door. 

The delivery date is 4/14/88. 

On the other hand, by way of explanation, Inspector Ramey 

stated that his reference to§ 75.1704-l{a) in the body of the 

citation was only to demonstrate BCCC's nonconformance and lack 

of District Manager approval. He stated: 

24 
This is a guideline that is set out for 

the district managers to approve escapeways with less than what they can do. I 

cited this citation under § 75.1704, only 

referring to 1704-1, in that the operator 

did not maintain that. The reason that 

I used 1704 was that I felt like that it 

was·unsafe. 

And if you will look, it says at least 

two separate and distinct travel passageways which are maintained to insure passage 

at all time of any person, including disabled 

persons, and which are to be designated. And 

then it goes down and it says including disabled disabled persons to escape quickly to 

the surface in the event of an emergency. 

In the beginning of my citation, I put 

that it was not being maintained in condition to allow all persons, including 

disabled persons, to escape quickly to the 

surface in the event of an emergency. 

(Tr. 3 5, 3 6) 

Discussion 

On the threshold issue I conclude BCCC was properly cited. 

The text of the citation initially incorporates the specific 

language of the regulation. Further, the citation on its face 

clearly alleges that BCCC violated 30 C.F.R. § 75.1704, not 

subpart§ 1704-lCa). If the inspector intended to cite BCCC 

for violating § 1704-l(a) he could have recorded this regulation 

on the face of the citation. 

It is true the inspector did not conduct a travelability 

test. But there is no requirement that such a test be made. 

A cursory glance should satisfy an inspector that an opening of 

less than three foot square would not insure passage of miners 

or disabled miners within the mandate of the regulation. 

The abatement of the citation also does not establish 

the operator was cited under.section 75.1704-l(a). The method 

of abatement is generally a matter left to the operator's discretion. 

25 
Was the Escapeway Passable Within the Meaning of the Regulation 

This escapeway opening, i.e., the man door, measured 

35 inches by 35 inches. In short, the passageway was less than 

a yardstick in height and width. Query: In passing through 

such a man door is a miner to proceed headfirst or feetfirst? 

Since there is no dispute as to these measurements I conclude as a matter of law that such an opening could not insure 

passage of miners, including disabled miners. 

BCCC's evidence and photographs show that a person on 

a stretcher could literally be passed through the 35 inch by 

35 inch opening. But the ability to pass a stretcher through 

such an area does not "insure passage" as contemplated by 

section 75.1704. Passage is not insured because a miner in 

a smoke filled environment would have to reach the area, go up 

the cinder block steps, proceed an additional 20 feet and then 

locate, open and crawl through the man door. He would then 

immediately descend another flight of stairs of six steps on 

the other side. The passage of a disabled miner on a stretcher 

would be even more difficult. 

All of the foregoing factors cause me to conclude that the 

described conditions would hinder rather than insure passage. 

For these reasons I reject the contrary opinion of BCCC's 

witness Turpin. 

BCCC, in support of its position, relies on Utah Power & 

Light Company, 10 FMSHRC 71 (1988), affirmed October 27, 1989. 

The facts in Utah Power & Light (UP&L) support the Secretary 

and not BCCC. Specifically, in WEST 87-211-R, it was held that 

the escapeway regulation was violated because there were tripping 

hazards and the escapeway had been reduced to four feet in width. 

10 FMSHRC at 83. 

In the instant case the steps constituted a tripping hazard. 

Further, BCCC's escapeway was less than three feet in width, 

considerably less than the four foot width in UP&L. 

For the foregoing reasons, I conclude that respondent violated 30 C.F.R. § 75.1704. 

26 
Civil Penalty 

Section llOCi) of the Act mandates consideration of six 

criteria in assessing civil penalties. 

The parties stipulated the operator was of moderate size. 

The mine produced 400,000 tons last year. 

The operator failed to offer any evidence that a penalty 

would adversely affect its ability to continue in business. 

Exhibit J-1, a computer printout, indicated BCCC within 

the last two years was assessed 19 violations. This is a 

favorable prior history. 

I consider the operator's negligence to be high. The 

company should have known this 35 inch by 35 inch door had 

been installed in an escapeway. 

The gravity was likewise high. A miner, or a disabled 

miner attempting to escape, could have been seriously impeded. 

The company demonstrated good faith in rapidly abating 

this violative condition. 

On balance, I deem that a civil penalty of $200 is appropriate. 

Citation No. 3225158 

The citation charges BCCC with violating 30 C.F.R. 

§ 75.402. 4/ 

!/ The cited regulation reads as follows: 

§ 75.402 Rock dusting. 

[Statutory Provision] 

All underground areas of a coal mine, except 

those areas in which the dust is too wet or 

too high in incombustible content to propagate 

an explosion, shall be rock dusted to within 

40 feet of all working faces unless such areas 

are inaccessible or unsafe to enter or unless 

the Secretary or his authorized representative 

permits an exception upon his finding that such 

exception will not pose a hazard to the miners. 

All crosscuts that are less than 40 feet from 

a working face shall also be rock dusted. 

27 
The citation reads as follows: 

The following underground areas of the 1st south 

working section had not been rock dusted. The two 

connecting crosscuts located between 1st right, 2nd 

right and 3rd right entries had not been rock dusted. 

No rock dust had been applied to the mine floor, coal 

ribs nor mine roof. These two crosscuts were more than 

40 feet from the working faces the distances involved 

was approximately 80 feet in length and the height in 

these crosscuts were approximately 8 feet high. The 

miner had taken approximately SO to SS feet cuts a.it 

of the 2nd and 3rd right faces and was in the process 

of cutting and loading a.it of the 1st right face. 

Inspector LARRY RAMEY has inspected BCCC's mine many times 

(Tr. 116). 

The inspection party went to the 1st south working section 

and into the 3rd right area. The continuous miner was cutting 

and loading in the 1st right section. (See Exhibit P-S, a 

drawing attached to the citation.) 

No rock dust had been applied to the two open crosscuts. 

These crosscuts were from 3rd to 2nd right and 2nd right to 

1st right. The crosscuts were on 60 foot centers (Tr. 118, 120, 

Ex. P-S). 

When he arrived in the section the roof-bolting machine was 

headed into the 3rd right. After the roof bolts were installed 

the inspector used a dust kit to take samples from the right 

lower rib, the upper left rib and the mine floor. The sample was 

taken from the crosscut to the left of 3rd right (Tr. 120-122). 

The sampled material was then filtered through a mesh screen 

into a catching pan. It is then bagged and sent to the lab for 

analysis. The lab is located in Mt. Hope, West Virginia S/ 

(Tr. 123, Exhibit P-6). -

S/ The judge excluded Exhibit P-6 because of inconsistencies. 

The exhibit on its face states it was taken on the 27th but the 

inspector testified he took the sample on the 26th. Further, the 

witness indicated he took the sample from 3rd right (Tr. 121-

126). The critical weakness in the Secretary's evidence is that 

the record fails to disclose the precise point where the dust 

sample was taken. Based on the approximate distances shown in 

Exh. P-S the sample could have been taken approximately SO to 

SS feet from the nearest crosscut (The XC between 3rd right and 

2nd right). In the alternative, the sample could have been taken 

as far as 200 feet from where the crosscut broke through into 1st 

right. 

28 
In the inspector's op1n1on the crosscuts were not safe to 

manually rock dust but a rock dusting machine could have been 

used. A rock dusting machine applies rock dust in a more even 

fashion than by a manual application. CTr. 127, 128). 

In the inspector's opinion the two crosscuts were not inaccessible if the rock dusting was done by machine (Tr. 129). 

Rock dusting improves underground visibility (Tr. 130-

132). 

Turpin stated it was BCCC's practice to roof bolt the crosscuts and then apply rock dust. The inspector gave the company 

adequate time to hook up the electrical rock duster (Tr. 135, 

158). 

The inspector tested a coal dust sample and placed it in a 

baggie. The sample was dry (Tr. 139 - 140). 

The crosscuts were on 6 0 foot centers. It was 12 0 feet 

from the center line of 1st right to the center line of 3rd right 

(Tr. 144, 145, 164). 

The 3rd right and 2nd right didn't have any rock dust in 

them from the outby corner to the inby face (Tr. 145). The entry 

openings were 20 feet wide (Tr. 147). 

The area lacking r·ock dust measured 184 square feet 

(Tr. 147, 148). However, Exhibit P-5 does not show this figure. 

Exhibit P-5 shows the two crosscuts were not rock dusted 

(Tr. 148). 

When the citation was issued the roof bolter had installed 

one row of permanent support fran the lower third right rib to 

the upper third right rib. The inspector had the roof bolter 

back the machine o.it and he then collected a sample of dust 

(Tr. 152). [Inspector Ramey also stated the bolter was in the 

process of entering the crosscut to bolt the area when the 

citation was issued CTr. 152)]. 

The inspector had no complaints about the company's mining 

sequence. The inspector told the company's representatives that 

it was unsafe to manually rock dust the crosscuts. He also indicated he would give them enough time to either support the area 

and rock dust it manually or by machine. It is not unlawful to 

use hand dusting (Tr. 155 - 156). 

29 
Dusting people o.it, i.e., mechanically liberating dust, 

creates some health hazards. Except for the two crosscuts and 

the immediate face areas in the entries, all other portions of 

the section were rock dusted (Tr. 157). 

BCCC's cleanup plan states that "rock dusting shall be done 

during the bolting cycle by the bolters. As the bolter bolts in 

the entry, they catch up the rock dust. When they pull o.it, it 

is rock dusted." (Tr. 161, 162). 

An operator's d:>ligation to apply rock dust arises when the 

continuous miner breaks through into the next entry. At that 

point the newly mined area becomes a crosscut (Tr. 165, 167). 

In the inspector's view the Beaver Creek clean-up plan 

should include a statement that all crosscuts should be immediately rock dusted after they are cut through and before roof 

bolting (Tr. 174). BCCC needs a system where they machine dust 

those areas (Tr. 175). 

There were several ignition sources in the vicinity 

(Tr. 177). 

LEVON L. TURPIN identified Exhibit B-11 as the BCCC cleanup 

and rock dust plan. Parts 3 and 4 for the plan have been in 

effect since 1984. 

Discussion 

The writer is bound by Commission precedent including 

cases decided by the Interior Board of Mine Q;>erations Appeals. 

The controlling precedent here is The Valley Camp Coal Company, 

1 MSHC 1051, 1 IBMA 243. (1972). See also Hall Coal Co., Inc., 

1 IBMA 72-16; 1 MSHC 1037 (1972). 

In the above cases it was held the Secretary Im.J.st prove the 

dust was Combustible Cl MSHC at 1051). Further, the Secretary 

must prove the area to be rock dusted was safe to enter. 

Concerning the initial issue: There was no proof as to the 

combustibility of the dust. No doubt this proof failed since the 

judge excluded the Secretary's exhibit (see footnote 5, supra_.) 

Concerning the second issue: the evidence is unclear 

whether the double-headed roof bolter was entering or withdrawing from the crosscut when the dust sample was taken. But 

it is quite clear it was not safe for miners to manually rock 

dust the crosscuts. The inspector contends the rock dusting 

could have been done by machine. However, the regulation does 

not mandate machine rock dusting. 

30 
For the foregoing reasons I conclude the Secretary's proof 

failed in two essential aspects. In view of this, Citation 

No. 3225158 should be vacated. 

Briefs 

The parties have filed detailed briefs which have been most 

helpful in defining the issues herein. I have reviewed and considered these excellent briefs. However, to the extent they are 

inconsistent with this decision, they are rejected. 

ORDER 

Based on the foregoing findings of fact and conclusions of 

law I enter the following order: 

1. In WEST 88-207-R: Contestant's contest is sustained. 

2. In WEST 88-339: Citation No. 3225158 is .vacated. 

Citation No. 3225145 is affirmed and a penalty of $200 

is assessed. 

Law Judge 

Distribution: 

Thomas F. Linn, Esq., Beaver Creek Coal Company, 555 Seventeentr. 

Street, 18th Floor, Denver, CO 80202 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 

/ot 

31 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 8, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

A. H. SMITH STONE COMPANY, 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 89-46-M 

A. C. No. 18-00275-05521 

Branchville Mine 

DECISION OF DEFAULT 

Before: Judge Merlin 

This case is before me pursuant to the Commission's order 

dated November 20, 1989. 

on October 24, 1989, I entered an Order of Default because 

the operator failed to answer or otherwise comply with a show 

cause order issued on August 10, 1989. The operator appealed and 

the Commission returned the case to me for evaluation of the 

operator's explanations. On November 29, 1989, I directe'd the 

operator to explain what circumstances justified its failure to 

comply and I directed the Solicitor to state her position. 

The Solicitor has taken the position that there are insufficient reasons to excuse the operator's failure to timely respond 

to the show cause order. In particular, the Solicitor argues 

that the operator's contention that the order to show cause was 

misfiled and overlooked is not an adequate reason to reopen the 

case. The Solicitor notes that the operator's representative, 

while not attorney, has routinely participated in MSHA cases and 

her failure to meet filing deadlines has been excused in the 

past. 

For its part, the operator first asserts that an answer was 

not timely filed because the research necessary to complete the 

answer would be time-consuming and possibly impossible. Its 

representative alleges that the persons who were the plant 

supervisor and the safety director at the time of the alleged 

violations are no longer employed by the company and are either 

not cooperative or not accessible. However, she does not 

elaborate on the reasons or circumstances surrounding these 

32 
individuals, merely stating that the only other person who "may" 

have knowledge is one of the company owners who has numerous 

responsibilities and other demands on his time. 

These statements are not sufficient to justify the failure 

to answer. 29 C.F.R. § 2700.28 provides that the operator's 

answer shall contain a short and plain statement of the reasons 

why the violations are contested. In Docket Nos., VA 89-3, 

VA 89-4, VA 89-28, VA 89-44 and YORK 89-24, YORK 89-35, 

YORK 89-36, YORK 89-40, YORK 89-43, and YORK 89-44, the 

operator's representative failed to answer timely and received 

show cause orders which specifically advised her that an answer 

is nothing more than a short and plain statement of the reasons 

why the operator disagrees with the alleged violations. In 

response to the show cause orders in the York dockets supra, 

the operator's representative filed a one line answer for all of 

them, which I accepted. Accordingly, detailed research is not 

necessary for an answer, and the operator has been told this 

repeatedly. Although some employees may have left the company's 

employment, no explanation is offered why they were not accessible or cooperative or whether they were diligently pursued. 

Furthermore, there is no showing that the operator's president 

did not have the time to furnish the minimal information 

necessary to answer. 

In addition, if the operator did in fact, believe it could 

not file an answer on time, it could have requested an extension. 

29 C.F.R. § 2700.9. This operator has had many cases before the 

Commission and its representative has requested extensions to 

answer in other cases, which requests I granted. See, e.g., 

VA 89-3-M and VA 89-4-M. There is no reason why in this case the 

operator could not have requested an extension of time as 

provided for by Commission rules. 

The operator~s second assertion that it did not answer the 

show cause order because it was misfiled and therefore, 

overlooked is inadequate. As stated in my November 29 order, 

since the operator's representative is well versed in the 

practices and procedures of this Commission, a bare allegation of 

misfiling standing alone would not be sufficient and therefore, 

she was directed to explain in full the circumstances. She has, 

however, not done so. Her letter dated December 18, 1989, merely 

states the show cause order was misfiled. 

In Docket No. VA 88-44-M the Commission remanded the case to 

me, where a default had been entered because this operator failed 

to answer although two show cause orders had been issued. In 

that case, however, there was some confusion over the identity of 

th_e proper individual to receive the operator's mail. 11 FMSHRC 

796 (May 1989). In response to my order to submit information, 

the operator's representative advised that the case "fell through 

the cracks" and was not handled properly. But she asserted this 

33 
was not usual and that the operator's legal identity reports had 

been updated. Acknowledging the Commission's admonition that 

default is a harsh remedy, I vacated the default in that case. 

In the instant case there was no confusion over mailing and there 

is no reason to yet again excuse the operator's failure to timely 

file her responses. 

It must be borne in mind that as the November 29 order 

points out, and as the Solicitor now argues, this operator and 

its representative have appeared in many Commission cases. As 

noted, several of these cases have been before me. A review of 

the files discloses that in all my cases the operator was late in 

filing its answer. 

As previously stated, I bear in mind the Commission's oft 

stated view that default is a harsh remedy. Accordingly, upon 

remand to me for reconsideration of default orders I have heretofore, after reviewing the files and additional information submitted by the parties, vacated defaults in every such case. But 

there comes a point where the conclusion is inescapable that 

Commission process and leniency are being so abused that relief 

from default is not warranted. Regrettably, this is a case where 

that point has been reached. 

Accordingly, it is ORDERED that the operator be held in 

Default and that this case be DISMISSED. 

:....--...\ .....,.) Q \ o~ ~ --~-· 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Susan M. Jordan, Esq., Office of the Solicitor, u. s. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Lisa M. Wolff, Director of Personnel, Safety Government Affairs, 

A. H. Smith Associates, 9101 Railroad Avenue, Branchville, MD 

20740 (Certified Mail) 

/gl 

34 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 91990 

RANDY J. COLLIER, 

Complainant 

v. 

GREAT WESTERN COAL, INC., 

Respondent 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 89-198-D 

DECISION 

Appearances: Charlie R. Jessee, Esq., Abingdon, Virginia, 

for Complainant; Joshua Santana, Esq., Brown, 

Bucalos, Santana & Bratt, Lexington, Kentucky, 

for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discharged from his 

position as heavy equipment operator with Respondent Great 

Western Coal, Inc. (Great Western) because of complaints of 

unsafe working conditions, in violation of section lOS<c> of the 

Federal Mine Safety and Health Act of 1977 (the Mine Act). Great 

Western contends that he was discharged because of physical 

inability to perform the duties of his job. Pursuant to _notice, 

the case was heard in Abingdon, Virginia, on October 5, 1989. 

Randy J. Collier, Tim Moore, and Henry Frank Doan testified on 

behalf of Complainant and Jerry Wayne Brown and Ben Scearse were 

called by Complainant as adverse witnesses; Linda .Downs testified 

on behalf of Great Western. Both parties have filed posthearing 

briefs. I have considered the entire record and the contentions 

of the parties, and make the following decision. 

FINDINGS OF FACT 

1. Complainant Randy Collier, 35 years of age, worked for 

Great Western for 12 years until he was terminated on March 30, 

1989. During eleven of the twelve years, he worked as a heavy 

equipment operator. 

35 
2. Great Western was the operator of a coal mine in or near 

Coalgood, Kentucky, apparently having both surface and 

underground facilities. The operation of the mine affected 

interstate commerce. 

3. At some time in 1979, Complainant was employed driving a 

Caterpillar rock truck. He attempted to move by hand a rock 

which had fallen in front of his truck, and injured his back. He 

had surgery for a ruptured spinal disc. 

4. At some time in 1983, the two lower steps of 

Complainant's rock truck were missing, having been torn off by 

contract drivers. Complainant and his immediate supervisor, Ben 

Scearse complained about the broken steps for about a month but 

they were not repaired. (Scearse testified that he did not 

recall any such complaints and denied that the steps were broken. 

I am accepting Complainant's testimony on this matter.) 

5. One evening in 1983, Complainant jumped to the ground (4 

or 5 feet) from the bumper of the rock truck resulting in another 

back injury. Complainant underwent surgery for a second ruptured 

disc. 

6. On several occasions Complainant complained to 

construction superintendent Jerry Brown, of extreme heat inside 

the cab of his truck or dozer. An operating air conditioner was 

not provided, although some of Great Western's equipment had air 

conditioners. Complainant also complained of excessive dust 

which affected a skin condition he had called hyperhydrosis. 

7. At some unknown times in the past Complainant complained 

of a defective steering clutch on a John Deere dozer and 

defective windshield wipers on equipment which he operated. 

8. In early 1987, Complainant was assigned to drive a truck 

carrying a crew of workmen from the mine offices to the job site, 

a distance of 3 or 4 miles. The truck had defective doors, both 

on the driver's side and the passenger's side. 

9. Complainant and his immediate foreman Ben Scearse 

complained to the Superintendent Jerry Brown about the condition 

of the doors, but Brown declined to have them repaired. The last 

time Complainant discussed the condition with Brown was about 

March 1, 1987. Both Brown and Scearse denied that Complainant 

made such complaints, and Complainant's testimony is not 

supported by his coworkers Tim Moore and Henry Frank Doan. 

Nevertheless, I find as a fact that Complainant did in fact make 

such complaints to Brown and related them to safety. 

36 
10. On April 7, 1987, Complainant struck thJ door twice to 

open it and again injured his back and neck. He was taken to the 

hospital. He was x-rayed and treated with medication and 

remained off work 4 or 5 days. 

11. He returned to work but continued to have pains in his 

neck, chest and arm. In September 1988, Great Western told him 

that he could not continue to work unless he promised he would 

run the equipment without taking pain pills and muscle relaxers. 

12. He continued working until December 1988. A myelogram 

was performed on December 29, 1988, and showed nerve root 

compression in the cervical spine. A spinal fusion was performed 

in February 1989. He has not worked for Great Western since that 

time. 

13. Complainant's physician was of the opinion that 

Complainant was disabled for the work of heavy equipment operator 

or truck driver. 

14. On March 30, 1989, Great Western terminated 

Complainant's employment "because of [his] unavailability for 

work." CR. Ex. 2.) 

15. At the time his employment was terminated, Complainant 

was paid at the rate of $13.45 an hour.' He also had company-paid 

health insurance, retirement benefits, vacation pay and "coal 

bonuses," amounting to from $1.50 to $1.75 an hour. 

16. In April 1989, Complainant filed a workers' 

compensation claim in which he stated he was totally disabled 

from performing his work. At the time of the hearing in the 

instant case, a decision had not been rendered in the workers' 

compensation case. 

ISSUES 

1. Was Complainant discharged from his employment for 

activities protected under the Mine Act? 

2. If so, to what remedies is he entitled? 

CONCLUSIONS OF LAW 

1. Complainant Collier and Respondent Great Western are 

subject to and protected by the provisions of the Mine Act, 

Complainant as a miner and Respondent as a mine operator. I have 

jurisdiction over the parties and the subject matter of this 

proceeding. 

37 
2. Under the Act, a miner establishes a prima facie case of 

discrimination if he proves that he was engaged in protected 

activity and was subjected to adverse action which was motivated 

in any part by the protected activity. Secretary/Fasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other 

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

1211 (3rd Cir. 1981); Secretary/Robinette v. United Castle Coal 

Co., 3 FMSHRC 803 (1981). The mine operator may rebut the prima 

facie case by showing either that no protected activity occurred 

or that the adverse action was not motivated in any part by the 

protected activity. If the operator cannot rebut the prima facie 

case in this manner, it may defend affirmatively by proving that 

it was also motivated by the miner's unprotected activity, and 

would have taken the adverse action for that activity in any 

event. 

3. Complainant's complaints in 1983 of the absence of steps 

on the rock truck which he was operating (Finding of Fact No. 4); 

his complaints of extreme heat and excessive dust inside the cab 

of the truck and dozer he was operating (Finding of Fact No. 6); 

his complaints of a defective steering clutch and defective 

windshield wipers on equipment he was operating (Finding of Fact 

No. 7); and his complaints of defective doors on the truck used 

to convey miners to the worksite (Finding of Fact No. 9) were all 

activities related to safety and protected under the Mine Act. 

4. Complainant's discharge on March 30, 1989, constituted 

adverse action. 

5. There is no evidence that Complainant's discharge was 

motivated in any part by the safety complaints referred to in 

conclusion of law No. 3, nor is there evidence from which I could 

infer that his discharge was motivated by such complaints. I 

conclude that his discharge was motivated by his inability to 

perform the duties of his job. Complainant worked for many years 

after the 1983 complaints and for almost 2 years following the 

1987 complaints. The evidence is clear that none of these 

complaints were factors in his discharge. 

6. Complainant's injuries were due in part to defective 

equipment at work (broken steps on the rock truck in 1983; 

defective door on the miner carrying truck in 1987). These facts 

do not establish a discrimination case under section 105(c) of 

the Mine Act. 

7. Complainant has filed for state workers' compensation 

benefits, and Great Western has contested his claim. The 

discharge of an employee with a pending workers' compensation 

case does not state a case of discrimination under section 105(c) 

of the Mine Act. 

38 
8. I conclude that Complainant has failed to establish a 

prima facie case of discrimination since he has not shown that 

the adverse action was motivated in any part by protected 

activity. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED that this proceeding is DISMISSED. 

/7 I / 

"1u1 I-LL-5 /4---tfnv tf24-z._ £/IL_ 

~·James A. Broderick 

i.J Administrative Law Judge 

Distribution: 

Joshua E. Santana, Esq., 600 Lexington Building, 201 West Short 

Street, Lexington, KY 40507 CCe.rtified Mail) 

Charlie R. Jessee, Esq., C.R. Jessee & Associates, P.C., 180 East 

Main Street, Abingdon, VA 24210-2839 (Certified Mail) 

slk 

39 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 10 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. SE 89-50-M 

A.C. No. 38-00626-05502 AIR 

v. 

Ridgeway Mine 

MORGAN CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Kens. Welsch, Esq., Office of the Solicitor, U.S. 

Department of Labor, Atlanta, Georgia, for the 

Petitioner; 

Carl B. Carruth, Esq., McNair Law Firm, Columbia, 

south Carolina, for the Respondent. 

Judge Koutras 

Statement of the Case 

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

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), 

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

an alleged violation of mandatory safety standard 30 C.F.R. 

§ 56.9005. The respondent filed a timely answer denying the 

alleged violation, and a hearing was held in Columbia, South 

Carolina. The parties filed posthearing briefs, and I have 

considered their arguments in the course of my adjudication of 

this matter. 

Issues 

The issues presented in this proceeding are (1) whether the 

respondent has violated the standard as alleged in the proposal 

for assessment of civil penalty, (2) the appropriate civil 

penalty that should be assessed against the respondent for the 

alleged violation based upon the criteria set forth in section 

llO(a) of the Act, and (3) whether the violation was "significant 

and substantial." 

40 
Appl.icable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seg. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 4-5): 

1. At the time of the issuance of the violation, 

the respondent was an independent contractor performing 

certain construction work at a gold mine. The respondent is subject to the jurisdiction of the Act. 

2. The respondent presently employs 25 employees. 

At the time of the issuance of the violation the 

respondent had 56 employees, and its annual production 

manhours was 53,912. 

3. The respondent's history of prior violations 

is reflected in an MSHA computer print-out, exhibit 

P-1. 

Discussion 

The respondent is an independent contractor who was in the 

process of constructing waste settlement ponds at an open pit 

gold mine on August 18, 1988. Two or three pan scrapers were 

being used to construct or build up a strip or barge ramp approximately 200 feet long and 45 feet wide, and three employees of 

the respondent were involved in this work. Mr. Roosevelt 

Williams and Mr. Boykin Durham were operating pan scrapers bringing soil to and dumping it on the ramp under construction. 

Mr. James Wise was assigned as a spotter to direct the pan 

scrapers where to dump their loads of soil and to serve as a 

flagger to assist them in backing up because the ramp was too 

narrow to permit the scrapers to turn around on the ramp and 

drive out in a forward direction. At approximately 11:00 a.m., 

after unloading his load of soil, Mr. Williams put his scraper in 

reverse and began backing up, and the audible backup alarm on the 

machine was operating and sounding. After backing up for a 

distance of approximately 100 feet, Mr. Williams looked around 

and saw Mr. Wise laying approximately 98 feet in front of his 

machine. Mr. Wise had been run over by the machine, and died at 

the scene. 

MSHA conducted an investigation of the accident (exhibit 

P-2), and on August 20, 1989, MSHA Inspector Robert M. Friend 

41 
issued a section 104(a) "S&S'' Citation No. 3254881, citing an 

alleged violation of mandatory safety standard 30 C.F.R. 

§ 56.9005. The condition or practice cited by the inspector 

states as follows: "An accident resulting in a fatality occurred 

on 8-18-88 when a spotter was backed over by a pan scraper. A 

signal from the spotter, sight of the spotter, or other means was 

not used to insure that the person was in the clear-before moving 

backwards." 

Petitioner's Testimony and Evidence 

Roosevelt Williams testified that he last worked for the 

respondent in August, 1988, as a pan scraper operator. He confirmed that he knew the accident victim James Wise, and stated 

that his job was to act "something like a flagman" to instruct 

the drivers where to dump their· loads of dirt. Mr. Williams 

stated that on the day of the accident there were two or three 

pan scrapers operating at the site, and he explained the work 

that was being performed. He stated that after dumping his load 

he had to back his scraper up for a distance of approximately 

100 feet along the strip that was being constructed in order to 

turn around and leave for another load. After backing up, and 

before leaving to get another load, he observed Mr. Wise going to 

the water cooler. Upon his return with a load of dirt he 

observed Mr. Wise walking toward the strip area where the load 

was to be dumped, and Mr. Wise waved him to go ahead. 

Mr. Williams then proceeded to drive approximately 100 feet along 

the strip, dumped his load, and backed out for approximately 

100 feet when he observed Mr. Wise laying in front of him (Tr. 

5-11) . 

Mr. Williams stated that while he was backing up after 

dumping his load he did not see Mr. Wise. He stated that from 

the driver's seat, the visibility to the left of the pan scraper 

is no problem. With regard to the visibility to the right side 

of the scraper, he stated that the scraper he was operating on 

the day in question did not have a right rear view mirror, and as 

he looked back from his operator's position he could not see any 

objects that are within 30 feet of the scraper (Tr. 12-14). 

Mr. Williams stated that he has operated backhoes, pan 

scrapers, and small dozers for approximately 4 years, and he 

confirmed that a pan scraper is normally operated in a forward 

direction, and that under normal operating conditions he does not 

generally back it up for 100 feet (Tr. 14). He confirmed that he 

was instructed at safety meetings "to look out for each other." 

He also confirmed that he could not see Mr. Wise while backing up 

on the day in question, and that he had not been instructed not 

to operate the scraper in reverse without seeing Mr. Wise (Tr. 

15). Mr. Williams also stated that part of Mr. Wise's duties 

were to station himself in a position where he could be seen so 

42 
that he could help him back out. Mr. Williams explained further 

as follows {Tr. 16): 

Q. Well, what happened on this particular day? 

A. Just like I said, he was walking up beside me when 

I was coming in. He was on the left-hand side. I 

looked back on my left side to back out. I did not see 

him. 

Q. You didn't see him on the left side? 

A. When I looked back on the right-hand side, I did 

not see him, and the right-hand wheel ran over him. 

Q. was it the instruction of the spotter ... to the 

instructions to the spotters, were they told to ... 

was it their job just to show you where to dump the 

dirt and then just stay out of your way? 

A. Ask me that one more time? 

Q. As far as you know, was it the instructions to the 

spotters to show the pan scraper operators where to 

dump the dirt and then just stay out of the way? 

A. Yes, sir, as far as I know it was his instructions . 

. on cross-examination, Mr. Williams stated that he was not 

certain that Mr. Wise was in the clear before he started backing 

up, and that he had no idea that he was behind the scraper. He 

also stated that he would not have backed up if he thought that 

Mr. Wise was behind him {Tr. 17). Mr. Williams confirmed that 

the scraper was equipped with a back-up alarm which starts sounding as soon as it is put in reverse, that it was operating on the 

day in question, and that he heard it sounding while the machine 

was in reverse {Tr. 18). 

Robert M. Friend, MSHA supervisory inspector, testified as 

to his background and experience, and he confirmed that during 

his prior employment at a quarry he operated a 631 Caterpillar 

pan scraper similar in size to the one operated by Mr. Williams, 

and also operated dozers and front-end loaders. He confirmed 

that he conducted the accident investigation on August 19 and 20, 

1988, and that the accident occurred on August 18, 1988. He 

described the accident scene, and he explained that it was a 

"barge ramp" approximately 45 to 46 feet wide and 200 feet long, 

and that it was used as "some kind of pumping facility, perhaps 

covering a pipeline'' (Tr. 21-22). He explained that the respondent was a subcontractor engaged in the construction of pond 

settling basins used to collect water used in the milling and 

extraction of gold (Tr. 22). 

43 
Mr. Fri.end stated that his investigation confirmed that 

Mr. Wise had received hazard recognition and task training (Tr. 

25). He identified the scraper operated by Mr. Williams as a 

model 623 manufactured in the 1970's, and stated that it was 

similar in size and dimensions as the Caterpillar 623-E scraper 

depicted in exhibit P-3 (Tr. 27). Referring to a photograph of 

the machine found on page 5 of the exhibit, Mr. Friend stated 

that from the operator's seat, visibility to the left of the 

machine is good, but very poor to the right side. In view of the 

size of the tires and the structure itself, visibility to the 

right rear corner of the machine would be extremely poor (Tr. 

28) . 

Mr. Friend confirmed that he issued the citation citing a 

violation of section 56.9005, because scraper operator Williams 

failed to make certain by signal or any other means that Mr. Wise 

was in the clear before moving the scraper. Mr. Friend interpreted "signal or other means" to mean any hand or verbal signal, 

or knowing by visual observation that Mr. Wise was in the clear 

(Tr. 29). He confirmed that the reverse signal alarm was working. He stated that mandatory standard section 56.9087 covers 

back-up alarms, and that section 56.9058 covers the use of spotters while trucks are backing up and dumping. He explained that 

a scraper is not a truck, and that he cited section 56.9005 

because "it covers all equipment and all people" (Tr. 30). He 

did not believe that the use of a back-up alarm in compliance 

with section 56.9087 was sufficient to comply with section 

56.9005 because Mr. Wise had been assigned to a confined area for 

several days and Mr. Williams was never instructed to insure that 

he had Mr. Wise in view before backing up, or to use any kind of 

signals to make sure that he was in the clear (Tr. 30). 

Mr. Friend stated that he based his moderate negligence 

finding on the fact that the back-up alarm was operating quite 

well and that Mr. Wise had been instructed that after he signaled 

the scraper operator where to dump he was to get out of the way 

(Tr. 31). He also confirmed that he considered the violation to 

be significant and substantial because the criteria for an "S&S" 

violation "was met in this case in that an accident did-occur and 

it was a fatality" (Tr. 31). 

On cross-examination, Mr. Friend could not recall whether or 

not he observed a right rear-view mirror on the pan scraper in 

question during his investigation, but that he did recall that a 

left rear view mirror was on the machine (Tr. 34). He confirmed 

that he measured the noise level of the back-up alarm and found 

it to be quite loud at 120 decibels measured 6 inches from the 

alarm, and 97 decibels as measured 10 feet from the alarm. He 

also confirmed that the alarm was located at the very rear of the 

scraper, and if anyone were standing behind the machine as it 

backed up the alarm would sound louder and louder as the machine 

44 
approached the individual. Mr. Friend agreed that the-pan 

scraper is a heavy piece of equipment with an obstructed view to 

the rear (Tr. 36). 

Mr. Friend believed that he reviewed the coroner's autopsy 

report in the course of his investigation, and that it indicated 

that Mr. Wise had a serious heart condition. However, the heart 

condition was not the cause of death. Respondent's counsel read 

from the report which quoted the coroner as stating that Mr. Wise 

may have suffered a heart attack, thereby preventing him from 

moving out of the path of the machine as it backed up. However, 

Mr. Friend could not recall receiving a copy of the report, but 

did confirm that he received a copy of the death certificate (Tr. 

39) • 

Mr. Friend confirmed that Mr. Wise was found approximately 

45 feet behind the point where Mr. Williams began backing up his 

scraper. Mr. Friend stated that even if Mr. Williams had been 

told not to back up or move the scraper unless he had Mr. Wise in 

sight, it would not have made any difference insofar as the 

violation is concerned, but it would have resulted in a low 

negligence finding as opposed to a finding of moderate negligence 

(Tr. 46-47). 

In response to further questions, Mr. Friend was of the 

opinion that section 56.9005 was the proper standard to cite in 

this case, and that it required Mr. Williams to have "line of 

sight vision" of Mr. Wise before he backed up. He confirmed that 

this standard is commonly used for all kinds of equipment, 

including conveyors, regardless of when they are initially 

started up, and that anytime the equipment is moved, operators 

must make certain that everyone is in the clear, particularly on 

the facts in this case where Mr. Williams knew that Mr. Wise was 

in the immediate area all of the time. Mr. Friend stated further 

that it is common industry practice that a loader operator does 

not load a truck if the truck driver gets out of the truck and 

the loader operator cannot see him (Tr. 48). 

Mr. Friend confirmed that pan scrapers do not normally back 

up, and are usually operated in a forward cycle while loading and 

dumping. The instant case is unique in that the scrapers were 

operating in a constricted ramp area, and the scraper operator 

had to back out after dumping a load. Since the respondent knew 

that Mr. Wise had 100 percent exposure, Mr. Williams was required 

by section 56.9005, to insure that Mr. Wise was in the clear 

before moving the machine (Tr. 51). 

Respondent's Testimony and Evidence 

Boykin Durham testified that he has been employed by the 

respondent for approximately 18 months and was hired the same day 

as Mr. Williams. He testified that they both received safety 

45 
training when they were hired, and he explained the training 

received. With regard to any training concerning keeping spotters in view while operating a piece of equipment such as a pan 

scraper, Mr. Durham stated as follows (Tr. 57): 

Q. What were you told about that? 

A. We was told to . • • if you got a spotter out there 

to keep him in your eyesight. If you don't see him 

anywhere, stop and blow your horn and look around for 

him, you know. If you still don't see him, just get 

off the machine until you locate him. 

Q. Were you told anything about whether or not it 

would be permissible to move your equipment before you 

located the spotter? 

A. No, you wasn't supposed to move until you located 

him. 

Q. Was Roosevelt there when that was said? 

A. Yes, yes, sir. 

Mr. Durham stated that he also received additional training 

during weekly safety meetings, and that the instruction for 

keeping the spotter in view was discussed or mentioned two or 

three times a month during these meetings, continuously through 

the time of the accident (Tr. 58). 

On cross-examination, Mr. Durham stated that the training 

was given by a supervisor, and he confirmed that he has operated 

a pan scraper for 10 to 13 years, and was operating one on the 

day of the accident at the same site (Tr. 59). He stated that 

after dumping a load of dirt on the ramp in question, he would 

not have backed up without having the spotter in view. If he 

could not see him, he would have stopped before backing up to 

look around for him. If he did not see him, he would "just look 

all around good before I'd back up." He confirmed that this was 

his understanding of the instructions given him by the respondent, and that he would not have backed up without having 

Mr. Wise in view (Tr. 60-61). 

Mr. Durham confirmed that he is still employed by the 

respondent as a scraper operator. He further confirmed that 

spotters are not always used, that it would depend on the work 

being performed, and stated that "sometimes we don't have them 

because we don't have to, you know, be in these areas where you 

can't, you know, see too good" (Tr. 61). He confirmed that 

Mr. Wise's job at the time of the accident was to show him where 

to dump the dirt, and that he did not see Mr. Wise go to use the 

water cooler (Tr. 61). 

46 
In response to further questions, Mr. Durham stated that the 

scraper would not operate too fast in reverse, and although he 

did not know how fast it would operate in reverse, he estimated 

that it would not go faster than 2 miles an hour (Tr. 63). He 

confirmed that he and Mr. Williams would take turns going in and 

out of the ramp area while dumping their loads, and -that Mr. Wise 

was serving as a spotter for both of them. He estimated that he 

would make seven trips in and out of the ramp during his shift, 

and that Mr. Wise would show him where to dump the loads. He 

confirmed that he always had Mr. Wise in sight while going and 

coming from the area, and that he had no occasion to ever look 

for him or to blow his horn and get out of his equipment to look 

for him (Tr. 64). He confirmed that the person who trained him, 

and who conducted the safety meetings, would read the instructions from a "safety sheet" and discuss them. He also confirmed 

that he went to school a few times and was given books and 

instructional materials (Tr. 65). 

Respondent's Arguments 

The arguments made by the respondent in its posthearing 

brief are essentially the same as those made by its counsel 

during the course of the hearing. Respondent takes the position 

that section 56.9005, did not require a scraper operator such as 

Mr. Williams to dismount from his machine to determine Mr. Wise's 

position to the rear of the machine before he started to back-up 

the machine. Respondent argues that section 56.9005, has to be 

interpreted with some common sense, and that it must be read in 

conjunction with section 56.9087, which requires a back-up alarm 

on machinery which has an obstructed view to the rear. Counsel 

argues that a piece of equipment which does not have an 

obstructed view to the rear need not be equipped with a back-up 

alarm because the operator can visually determine that everyone 

has cleared before he moves the machine. However, if the machine 

operator's view to the rear is obstructed, counsel concedes that 

section 56.9087, requires a back-up alarm, but he takes the 

position that by inference, the machine operator must be allowed 

to rely on the use of the back-up alarm, and he should not be 

required to dismount from the machine to search about for anyone 

who may be to the rear of the machine (Tr. 40). Counsel further 

explained the respondent's position as follows at (Tr. 41): 

THE COURT: But he was also assuming that . carrying your argument further, then, that's all the equipment operator has to do because he then will assume 

that once he puts that backup alarm on, number one, the 

fellow to the rear is going to hear it, and is going to 

get out of the way and number two, that fellow would 

follow company policy that you get out of the way of 

heavy equipment. Is that true? That's your theory of 

the case, isn't it? 

47 
MR. CAR~UTH: Yes, Your Honor, the MSHA standards do 

not require an equipment operator, operating a piece of 

equipment, which has an obstructed view to dismount his 

equipment and go around and look behind him before he 

moves it. That's the purpose of the back up alarm. 

The standard which says that the operator shall assure 

that everybody is clear before he moves his equipment 

is assuming that the operator can see in his position. 

The fact that he has an obstructed view, which would 

prevent him from being able to see to ascertain that 

everything was clear, is the reason for the back up 

alarm standard. These two, I think, have to be read 

together. Now, clearly, Your Honor, an operator could 

not rely on a horn or an alarm and intentionally run 

somebody down . . . . 

Respondent's counsel argued further that the respondent is 

not required to have both a spotter and a back-up alarm because 

the language found in section 56.9087, with respect to an 

obstructed view to the rear of the equipment states that a 

back-up alarm or a spotter may be used, and it deep not state 

that a back-up alarm and a spotter must be used. Counsel concludes that the operator is entitled to rely on his back-up alarm 

while backing up his machine, and requiring both a spotter and a 

back-up alarm would require the operator to always know the 

whereabouts of the spotter (Tr. 42-43). Counsel's position is 

further states as follows at (Tr. 52-53): 

THE COURT: The issue on this standard is, as I see it, 

and you may correct me if I'm wrong, is that MSHA's 

theory is that the equipment operator, which is a pan 

scraper operator here, Mr. Williams, shall be certain 

... in other words they said that Mr. Williams had a 

responsibility by signal or other means. Obviously 

there wasn't a signal and the other means, I suppose is 

that Mr. Williams should not have backed up this piece 

of equipment until he knew precisely where this guy was 

because he had passed him on the road going in, the man 

waved him on, they were in a restricted area; they were 

in a narrow zone; they were on the ramp, they had been 

doing that for a couple of days and they're holding 

Mr. Williams accountable for knowing or at least presuming that he should have known that this man was back 

there someplace and he shouldn't have backed up that 

equipment without making sure of where he was. 

MR. CARRUTH: That's their position. 

THE COURT: That's their position. Your position is, 

well that standard really is not appropriate here 

because we were complying with the other standard which 

48 
says that, you know, you have the audible back up alarm 

and we had one. According to the testimony in this 

case it was clearly loud and clear that this machine 

was backing up, this man should have seen it. It 

backed up for "X" number of feet before it ran over 

him. We did everything reasonably possible to prevent 

the accident, not only that, we were in compliance 

because we had a back up alarm. 

MR. CARRUTH: Hopefully, Your Honor, we would take the 

position that the back up alarm is a signal. In this 

case, there is a signal to anybody that may be in the 

area that when I'm backing up, get out of the way. 

THE COURT: But I'm sure that Mr. Welsch and the 

inspector would argue then, that the operator shall be 

certain by signal or other means that all persons are 

clear, meaning that the signal there means a personal 

signal of some kind, either a wink or a nod or the 

normal signals that they use because certainly if the 

operator simply puts his reverse signal on and backs 

up, that he really doesn't know where the guy is. 

MR. CARRUTH: Your Honor, you cannot read that standard 

without also reading it in conjunction with the other 

standard and the other standard says you have either/or 

the back alarm or a signal person, a spotter. 

THE COURT: Spotter, right. 

MR. CARRUTH: Somebody to signal. 

THE COURT: Right. 

MR. CARRUTH: Either/or, not both. 

THE COURT: Right. 

MR. CARRUTH: We had the backup alarm. What they're 

saying is, we should have had both. 

MSHA's Arguments 

In its posthearing brief, MSHA takes the position that it is 

undisputed that equipment operator Williams had an obstructed 

view to the rear of the pan scraper, particularly on the right 

side, and that he estimated that this obstruction would be up to 

30 feet behind the scraper on the right side. MSHA asserts 

further that Mr. Williams never made certain that Mr. Wise was 

clear from behind the scraper, and that it was his understanding 

that the respondent's instructions required him to make certain 

that Mr. Wise was in the clear before placing the equipment in 

49 
reverse. MSHA's assertion in this regard is incorrect. 

Mr. Williams testified that he never received any such instructions from the respondent (Tr. 15). 

MSHA argues that the cited standard clearly requires certainty before the movement of any equipment, and that this certainty is the equipment operator's responsibility. - -on the facts 

of this case, where it is clear that the scraper operator 

Williams knew that Mr. Wise was behind him, but was not certain 

that the area was clear while the scraper was operated in 

reverse, and where there was no signal or other means between 

Mr. Williams and Mr. Wise to assure this clearance, MSHA concludes that a violation of section 56.9005, had been established. 

In support of its position, MSHA cites a decision by the U.S. 

Court of appeals for the Fifth Circuit, affirming a decision by 

Commission Judge John J. Morris in Texas Industries, Inc., 

4 FMSHRC 352 (1982); 2 MSHC 1687 (1982). 

In the Texas Industries, Inc., case, a miner was killed when 

he became entangled in a log washer machine while beating on the 

machine screen to unclog it while standing on a catwalk. The 

miner had been observed by the supervisor who was at the scene, 

and the supervisor left the area after telling the miner that he 

was going to engage the washer. The supervisor started the 

washer without any signal to the miner, and after returning to 

the scene, he found that the miner had become entangled and 

killed by the machine. Judge Morris found that the evidence 

established that the supervisor was unsure whether the miner knew 

that he would turn on the machine immediately, whether he thought 

there would be a warning signal, or whether he heard the supervisor at all. Judge Morris concluded that the supervisor could 

not have been sure that the miner would be clear of the machine 

when it was started, and that certainty was an exactitude 

demanded by the standard. 

In affirming Judge Morris' decision, the Fifth Circuit 

rejected the mine operator's assertion that in large industrial 

plants operators could never assure that everyone was a safe 

distance away from machinery before start-up, and that the standard must therefore be interpreted to require only some signal 

before the equipment is started. The court concluded that the 

difficulty of assuring that no one was dangerously near the open 

tub of the machine was minimal because the supervisor had only to 

look before starting the machine, and that the only person in the 

vicinity was the miner. The court stated as follows at 2 MSHC 

1915, 1916 (1983): 

The regulation must be given a rational and reasonable 

interpretation. The certainty referred to must be 

viewed in light of the danger the machinery poses. As 

the danger increases, the operator's duty to assure 

clearance of persons also increases. But in any 

so 
instance, the operator must be certain that no one will 

be endangered by the equipment start-up. 

MSHA rejects the respondent's assertion that because the 

scraper operated by Mr. Williams had an operable back-up alarm as 

required by section 56.9087, Mr. Williams had no other duty or 

responsibility to Mr. Wise. MSHA concludes that such a narrow 

construction of section 56.9005, would negate its application. 

MSHA agrees that section 56.9005, must be read in conjunction 

with the back-up alarm requirements of section 56.9087, where 

there is an obstructed view to the rear, and it concedes that the 

scraper complied with this requirement. MSHA argues that 

Mr. Williams knew that Mr. Wise was on the ramp behind his 

scraper, and that he should have observed the greater duty of 

certainty to assure himself that Mr. Wise was in the clear before 

backing up the scraper. Without this certainty, MSHA concludes 

that Mr. Wise was put in jeopardy in that he may have been 

incapacitated because of a severe heart condition, and that a 

back-up alarm would have provided him with no protection. MSHA 

finds support for the duty owed Mr. Wise by Mr. Williams pursuant 

to section 56.9005, in the testimony of respondent's own witness, 

pan scraper operator Boykin Durham, who testified that he had 

received training and instructions from the respondent that he 

should not move his equipment before locating the spotter, and 

that if he could not see the spotter, he was to get off the 

machine until he located him (Tr. 57). Mr. Durham confirmed that 

his·understanding of the respondent's instruction required him 

not to back-up his machine without having the spotter in view, 

and if the spotter were not in view he had to "look all around. 

good before I'd back up" (Tr. 60-61). 

Finally, MSHA argues that regardless of who was at fault 

with respect to the accident, the Commission has consistently 

held a mine operator liable for a violation without regard to 

fault. Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 

1982); Allied Products Co. v. FMSHRC, 666 F.2d 896, 893 (5th Cir. 

1982); Miller Mining Co. v. FMSHRC, 713 F.2d 487, 491 (9th Cir. 

1983); Asares, Inc.-Northwestern Mining Dept., 8 FMSHRC 1632 

(1986). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with an alleged violation of 

mandatory safety standard 30 C.F.R. § 56.9005, because the pan 

scraper operator Roosevelt Williams did not make certain that 

Mr. Wise, who was acting as a spotter, was clear of the machine 

before backing the scraper out of the ramp area in question. 

Although section 56.9005, was subsequently revised and promulgated as section 56.14200, effective October 24, 1988, 

53 Fed. Reg. 32525, August 25, 1988, it was in effect at the time 

51 
of the accident and the issuance of the citation on August 20, 

1988, and it provided as follows: "Operators shall be certain, 

by signal or other means, that all persons are clear before 

starting or moving equipment." 

The revised standard, section 56.14200, provides as follows: 

"Before starting crushers or moving self-propelled mobile equipment, equipment operators shall sound a warning that is audible 

above the surrounding noise level or use other effective means to 

warn all persons who could be exposed to a hazard from the 

equipment." 

I take particular note of the fact that the newly revised 

section 56.9005, now promulgated as section 56.14200, does not 

contain language requiring an equipment operator to be certain 

that all persons are in the clear before starting or moving his 

equipment. The current standard only requires an equipment 

operator to sound a warning that is audible above the surrounding 

noise level, or to use other effective means to warn all persons 

exposed to an equipment hazard. Consequently, although section 

56.9005, which was in effect at the time of the accident, 

required an equipment operator to determine with some degree of 

certainty that all persons are in the clear before moving the 

equipment, this requirement was deleted from the revised standard, and it now only requires that warnings be given. In short, 

instead of requiring the operator to be certain of the whereabouts of persons who may be exposed to a hazard of being run 

over by the machine, the standard now only requires that warnings 

be given. However, since section 56.9005, was in effect at the 

time the citation was issued, I conclude and find that it is 

applicable in this case. 

With regard to the safety of spotters, section 56.9058, 

which was in effect at the time of the accident, provides that if 

a truck spotter is used, he is required to be well in the clear 

while trucks are backing into dumping positions. This standard 

only applies to truck spotters, and since MSHA concedes that a 

pan scraper is not a truck, I can only conclude that this standard does not apply in this case. Although the newly revised 

truck spotter standard, now section 56.9305, does contain a 

provision that requires a truck operator to stop his truck if he 

cannot clearly recognize the spotter's signal, which comes close 

to MSHA's belief that section 56.9005 requires a scraper operator 

to stop the scraper if he not certain that the spotter is in the 

clear, the spotter standard clearly applies only to truck 

drivers, and not to mobile equipment operators in general. I 

have difficulty understanding why MSHA chose to limit vehicle 

stopping requirements found in this particular standard to trucks 

and not to mobile equipment in general, particularly in a surface 

mining operation where heavy equipment such as pan scrapers, 

loaders, and bulldozers, which often present problems for an 

operator in terms of clearly seeing to the rear of the machine 

52 
from his cab because of the physical configuration of the 

machine. 

Although it appears from the comments of the rule makers 

considering the promulgation of section 56.14200 (53 Fed. Reg. 

32514), that the sounding of an audible warning with respect to 

self-propelled mobile equipment means back-up alarms or other 

appropriate mechanical devices which are an integral part of the 

machine, there is absolutely no guidance or clarification as to 

the meaning of the language other effective means. I would 

venture a guess, however, that in any future cases litigated 

under this standard as now written, MSHA will probably advance 

the argument that the "other effective means" language in a 

situation where a piece of equipment is not equipped with a backup alarm, requires the equipment operator to stop his machine and 

then look around for spotters or other persons who could be 

exposed to a hazard in order to warn them to stay in the clear. 

The evidence in this case establishes that the pan scraper 

operated by Mr. Williams was in compliance with the back-up alarm 

requirements of section 56.9087. The scraper was equipped with 

an operational back-up alarm which gave a loud and clear signal 

while the scraper was operated in reverse, and it was sounding 

when Mr. Williams backed the scraper up and ran over Mr. Wise. 

However, the respondent here is charged with a violation of 

section 56.9005, and not section 56.9087. Section 56.9005, as 

applied to the facts of this case, required pan scraper operator 

Williams to be certain, by signal or other means, that Mr. Wise 

was in the clear before he proceeded to back-up the scraper. 

Although I find some merit in the respondent's observation 

with respect to the term "warning" found in the caption to section 56.9005, the language of the standard, and not the caption, 

is controlling. Although the revised standard, section 56.14200, 

clearly contemplates that warnings be given by equipment operators before moving the equipment, no such language is found in 

cited section 56.9005, and I reject the respondent's suggestion 

that the standard contemplated and required only a warning by the 

equipment operator, rather than actual first hand knowledge by 

the operator that all persons are in the clear. 

The evidence in this case further establishes that 

Mr. Williams was operating the scraper along a rather confined 

and restricted strip or ramp area approximately 200 feet long and 

45 feet wide. In addition to Mr. Williams, scraper operator 

Durham was also operating along the strip hauling in dirt, and 

due to the restricted area, once the scraper dropped its load 

after being driven in to the dumping location in a forward position, it could not be turned around and driven out in a forward 

position, and it had to be backed out and operated in reverse. 

Mr. Wise was continuously exposed to a potential hazard when the 

scrapers were backing out along the strip area in question. 

53 
Mr. Williams testified that before returning to the strip 

area with another load he observed Mr. Wise walking towards a 

water cooler, and that another employee remarked to him that 

Mr. Wise was "acting funny" and appeared to be over-heated. Upon 

his return with another load, Mr. Williams passed by Mr. Wise as 

he was walking toward the unloading area, and Mr. Wise waved at 

him to proceed along to the unloading area (Tr. 9-11). Under 

these circumstances, and given the fact that Mr. Wise may had a 

serious heart condition, and indeed may have suffered a heart 

attack shortly before he was run over, I believe that scraper 

operator Williams had a duty to ascertain the whereabouts of 

Mr. Wise before backing up his machine. Given the fact that 

Mr. Wise was the only person on foot, and was clearly observed by 

Mr. Williams when he passed him on his way in to dump his load, I 

do not believe it would have been difficult for Mr. Williams to 

stop his machine to make certain that Mr. Wise was in the clear, 

nor do I find it unreasonable to expect him to do so, particularly where the evidence establishes that the respondent had 

trained and instructed the scraper operators to stop their 

machines and ascertain the whereabouts of a spotter such as 

Mr. Wise before moving the machine any further. 

The respondent's assertion that the use of a back-up alarm 

on the scraper satisfied the requirements of section 56.9005, 

that a signal be given before the machine was backed up is 

rejected. While it may be true that the rationale requiring the 

use of a back-up alarm pursuant to section 56.9087, when the 

equipment operator has an obstructed view to the rear, is based 

on the fact that the operator may be prevented from ascertaining 

that persons are clear from the rear of the machine from his 

position in the operator's cab because of the configuration of 

the equipment which may obstruct his view to the rear, I cannot 

conclude that the same rationale applies with respect to section 

56.9005. 

In my view, section 56.9087, places a burden oh the mine 

operator to insure that all equipment which has an obstructed 

view to the rear is equipped with a back-up alarm which can be 

activated automatically or by the operator of the equipment by 

simply sounding the alarm. In these circumstances, the equipment 

operator is not obliged by the standard to be certain that all 

persons are clear before he moves the machine. All he need to is 

to sound the alarm. Section 56.9005, however, imposes a higher 

personal duty on the equipment operator to make certain that all 

persons are clear before moving the equipment. On the facts of 

this case, where it is clear from the evidence that Mr. Williams 

had an obstructed view to the rear and to the right of the 

machine and could not see any objects to the rear for a distance 

of some 30 feet from his position in the machine, where there was 

no right view mirror on the machine, and where he could not see 

Mr. Wise anywhere, there was clearly no way that Mr. Williams 

54 
could be certain that Mr. Wise was clear of the machine from his 

position at the controls at the time he moved it into reverse and 

began to back out of the strip area. Under these circumstances, 

while the use of the back-up alarm as a "signal" to Mr. Wise may 

have complied with section 56.9087, I cannot conclude that it 

complied with section 56.9005. 

The respondent's suggestion that no violation of section 

56.9005, occurred because the scraper had been started for some 

time before the accident occurred and that Mr. Wise was obviously 

in the clear when it first started backing up because it backed 

up approximately 49 feet before striking Mr. Wise is rejected. 

On the facts of this case, it seems clear that Mr. Williams had 

no idea where Mr. Wise was positioned after he dumped his load 

and placed his scraper in reverse and began moving it to back out 

of the dumping area. At that point in time, and before moving 

his machine any further in reverse, Mr. Williams had a duty to 

ascertain the whereabouts of Mr. Wise, and to personally have him 

in view before backing up for any distance. 

The respondent's argument that when read together, compliance with section 56.9087, satisfies the "other means" language 

found in section 56.9005, and that it is entitled to rely on 

either a back-up alarm or a flagman to be certain that all persons are in the clear before any equipment is backed up in a 

situation where the operator's view to the rear is obstructed, is 

rejected. Without stopping the scraper and looking around for 

Mr. Wise, there was no way that Mr. Williams could have been 

certain with any degree of exactitude that Mr. Wise was in the 

clear by relying solely on the back-up alarm. Given the court's 

decision in Texas Industries, Inc., and the obvious intent of the 

cited standard, I conclude and find that the degree of _certainty 

mandated by section 56.9005, is one of exactness and something 

that is free of any doubt. The use of a back-up alarm as a means 

of ascertaining whether anyone is free or clear from equipment 

which is being backed up with an obstructed view to the rear of 

travel falls short of compliance. 

In view of the foregoing findings and conclusions, I conclude and find that a violation of section 56.9005, has been 

established and the citation is therefore AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

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

30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

55 
that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

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

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that is, 

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

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

1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d) (1), it is the 

contribution of a violation to the cause and effect of 

a hazard that must be significant and substantial. 

U.S. Steel Mining Company, Inc., 6 FMSHRC 1866, 1868 

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

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

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

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

(December 1987). 

It seems clear to me that the failure of an equipment operator to comply with the requirements of section 56.9005, and in 

particular the operator of a pan scraper which has an inherent 

obstruction of the view to the right rear of the machine from the 

operator's compartment, to make sure that anyone who may be 

behind the machine is in the clear, presents a reasonable likelihood of an accident which one may conclude would result in 

injuries of a reasonably serious nature. on the facts of this 

case, the failure by the scraper operator to ascertain the whereabouts of the spotter resulted in a fatality when the scraper ran 

56 
over him after the scraper operator placed his machine.in reverse 

and began backing up without first ascertaining that the spotter 

was free of the hazard. Under the circumstances, I conclude and 

find that the inspector's "S&S" finding was correct, and IT IS 

AFFIRMED. 

size of Business and Effect of Civil Penalty on the ·Respondent's 

Ability to Continue in Business 

I conclude and find that the respondent is a small independent construction contractor and that the civil penalty assessment 

which I have made for the violation in question will not 

adversely affect its ability to continue in business. 

History of Prior Violations 

A computer print-out of the respondent's history or prior 

violations (exhibit P-1) reflects that the respondent paid civil 

penalty assessments in the amount of $227, for eight violations 

which occurred during the period December 29, 1986, through 

December 28, 1988. Two of the violations were section 104(a) 

"S&S" citations issued on July 14, 1988, and six were section 

104(a) "single penalty" non-"S&S" citations issued on July 14, 

and August 23, 1988. Although four of the violations were for 

violations of the back-up alarm requirements of section 56.9087, 

none of the violations concerned section 56.9005. I cannot 

conclude that the respondent's history of prior violations is 

such as to warrant any additional increases in the civil penalty 

assessment which I have made for the violation which has been 

affirmed in this proceeding. 

Good Faith Compliance 

The record reflects that abatement of the violation was 

timely achieved by the respondent in good faith after a meeting 

was held by the MSHA inspector with all equipment operators and 

spotters during which the operators were instructed to sound 

their back-up alarms before moving their equipment, and the 

spotters were instructed to be aware of the equipment working in 

the area, and that when back-up alarms are used, they were to 

observe the direction in which the equipment is moving. The 

operators were also instructed that if they lose sight of the 

spotter, they were to stop their equipment and remain stopped 

until the spotter was located. 

Gravity 

For the reasons stated in my "S&S" findings, I conclude and 

find that the violation was serious. 

57 
Negligence 

The in~pector's "moderate" negligence finding was based on 

the fact that the back-up alarm on the scraper which ran over 

Mr. Wise was activated and sounding loud and clear while the 

scraper was operating in reverse, and that the accident victim 

Mr. Wise had been instructed that after he signaled-the scraper 

operator where to dump, he was to get out of the way. Although 

Mr. Williams testified that he was not specifically instructed to 

keep Mr. Wise in view in backing up his scraper, the credible 

testimony of scraper operator Durham, who was hired at the same 

time as Mr. Williams, reflects that they received training from 

the respondent and were specifically instructed not to move their 

scrapers unless they had the spotter in view, and if the spotter 

was not in sight, they were to blow their horn. If the spotter 

still did not appear, they were instructed to stop their equipment until they could locate the spotter and have him move to an 

area where he could be seen. Mr. Durham confirmed that this 

company rule was discussed two or three times a month during 

regular safety meetings held continuously up to the time of the 

accident. 

In addition to Mr. Durham's testimony, I take note of the 

fact that the inspector believed that pan scrapers usually are 

operated in a forward cycle while loading and unloading, and that 

the circumstances under which the scraper in question was operating in a constricted ramp area where it was required to back-up 

for some distance were unique. I also take note of the inspector's accident investigation findings that the respondent had an 

MSHA approved training plan in effect at the time of the accident; that it was in compliance with the training requirements of 

Part 48, Title 30, Code of Federal Regulations, and that the 

accident victim had received hazard training and the dangers of 

the job had been explained to him. Although the cause of the 

accident may have been the failure of Mr. Williams to determine 

that Mr. Wise was clear of the scraper before he backed it up, 

and his negligence may be imputed to the respondent who is liable 

for the violation without regard to fault, I take further note of 

the inspector's finding that a contributing factor to the accident may have been the victim's lack of alertness. Under all of 

these circumstances, the inspector's moderate negligence finding 

IS AFFIRMED, and I conclude and find that the violation resulted 

from the respondent's failure to exercise reasonable care and 

that this constitutes ordinary negligence. 

On the facts of this case, where the evidence establishes 

that the respondent had trained and instructed its equipment 

operators and spotters to avoid the kind of hazard which led to 

the unfortunate accident in question, I believe it is appropriate 

to take these factors into consideration in mitigating any civil 

penalty which should be assessed against the respondent for the 

58 
violation in question. See: Allied Products Company v. FMSHRC, 

666 F.2d 890, 896 (5th Cir. 1982); Nacco Mining Co., 3 FMSHRC 

848, 850 (April 1981); Marshfield Sand & Gravel, Inc., 2 FMSHRC 

1391 (June 1980); Old Dominion Power Co., 6 FMSHRC 1886 (August 

1981); Secretary of Labor v. Marion County Limestone Company, 

LTD., 10 FMSHRC 1683 (December 1982). 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, and 

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

Act, I conclude and find that a civil penalty assessment in the 

amount of $1,000 is reasonable and appropriate for the violation 

which has been affirmed in this case. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $1,000, for a violation of mandatory safety 

standard 30 C.F.R. § 56.9005, as stated in section 104(a) "S&S" 

Citation No. 3254881, August 20, 1989. Payment of the penalty is 

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

decision and order, and upon receipt of the payment, this matter 

is dismissed. · 

Distribution: 

Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 339, 1371 Peachtree Street, N.E., Atlanta, GA 30367 

(Certified Mail) 

Carl B. Carruth, Esq., 1301 Gervais street, P.O. Box 11390, 

Columbia, SC 29211 (Certified Mail) 

/fb 

59 
FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 JAN 111990 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION ( MSHA) , Petitioner 

v. 

TEXAS UTILITIES MINING, CO., 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-121 

A.C. No. 41-01900-03526 

Monticello Mine 

DECISION 

Appea~ances: Daniel Curran, Esq., Office of the Solicitor, 

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

Petitioner; 

Chris R. Miltenberger, Esq., Worsham, Forsythe, 

Sampels & Wooldridge, Dallas, Texas for 

Respondent 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to Section 

105Cd> of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. 801 et, seq., the "Act", charging the Texas 

Utilities Mining Company (Texas Utilities) with one violation 

of the regulatory standard at 30 C.F.R. § 77.404Ca) and 

proposing a civil penalty of $850 for the violation. The 

general issue before me is whether Texas Utilities violated 

the cited regulatory standard and, if so, the appropriate 

civil penalty to be assessed in accordance with section 

llOCi> of the Act. 

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

Respondent filed a Motion £or Directed Vardict which was 

granted at hearing in a bench decision. Tnat decision is sat 

forth below with only non-substantiv~ corrections: 

All right. I'm prepared to rule. I'm going 

to gcant the Motion for a Directed Verdict as to 

Citation No. 2932036 insofar as it was issued 

oursuant to Section 104Cd)(l) of the Federal Mine ~afety and Health Act oE 1977. The citation 

charges as Eollows: "The Delta 24BE2570 dragline 

CG area) was not maintained in a safe operating 

60 
condition and the walkway inside the revolving 

frame and tool room was cluttered with extraneous 

material, paper, hoses, metal, rope, and a 

five-gallon container, also, a rope was tied 

p~it?sci;:oss across the access ladder rendering it 

unsafe f6r travel." 

Now, the mine operator does admit that the 

violation did occur and that it was a "significant 

and substantialnviolation. It argues only that it 

was not the.result of an "unwarrantable failure" 

and that, accordingly, the citation should be one 

under Section 104(a) of the Mine Safety Act, rather 

than under Section 104(d)(l). 

Now, the Commission two years ago redefined 

the term "unwarrantable failure" and apparently 

this definition has not been disseminated to all 

MSHA personnel. In the Emery Mining Corporation 

decision, 9 FMSHRC 1997, issued in December 1987 

the Commission held that "unwarrantable failure" 

means aggravated conduct constituting more than 

ordinary negligence by the mine operator in 

relation to a violation of the Act. The Commission 

further stated that while negligence is conduct 

that is inadvertent, thoughtless or inattentive, 

conduct constituting unwarrantable failure is 

conduct that is aggravated or inexcusable. The 

Commission went on to say that only by ine~cusable, 

aggravated conduct constituting more than ordinary 

negligence can unwarrantable failure be found. 

Now, in the case today, I do not find 

evidentiary support for such a finding of 

aggravated conduct. The testimony by Inspector 

Coleman - and, of course, I accept his testimony at 

this point as being completely credible - on the 

unwarrantable failure issue was, essentially, that 

he overheard the mine operator's area supervisor, a 

man named Alan Atkinson, say to somebody that he 

should have already had the area cleaned up. 

Mr. Coleman also testified that he was told by 

somebody else from management - he wasn't sure who, 

but it was someone from management - that the cited 

rope had been used to hold a pan to catch oil 

drippings but that, after the condition had been 

corrected,they had failed to take it down. 

Inspector Coleman also observed that the cited 

condition was within the area subject to inspection 

by the mine operator under the regulations. 

61 
The problem in this case is that there is no 

evidence to establish how long these conditions 

existed. Indeed, on the basis of the evidence 

before me, it could be concluded that the 

conditions had all occurred that very same morning 

before the citation had been issued at 10:15 a.m. 

There is insufficient evidence from which a person 

might even infer that the cited conditions had 

existed long enough to have been subject to the 

required examination under the regulations. So, 

the statement attributed to Alan Atkinson that he 

should have already had the area cleaned up is not 

sufficient to meet the aggravated conduct test 

required by the Commission in its Emery decision. 

Nor is there sufficient evidence outside of that 

for a conclusion of aggravated conduct to be 

reached. 

Therefore, I modify the citation to a section 

104(a) citation with "significant and substantial" 

findings and modify the penalty to $250. This 

decision is not final and will not be final until 

issuance of a written decision. The operator will 

then have 30 days in which to make payment on the 

penalties. These proceedings are, therefore, 

concluded at this time. 

ORDER 

Texas Utilities Mining Company is hereby· 

a civil penalty of $250 with 30 d s of the d 

7 

ay 

decision. l~' 

/

/ , /'('\ \ 

J 

/V ,·1i ! ··. / 

l· 

'\.;\ / . ,W /,~ ·-- 1 -~'\ . ../ I . ._ ./ ,.._/' I Gary Melick / \ j Admi i;istrati~. 1

Law Judge 

Distribution: 

Daniel Curran, Esq., Office oE the Solicitor, U.S. Department 

of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 

75202 (Certified Mail) 

62 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 12 1990 

MICHAEL J. GRAFTON, 

Complainant 

. . 

. . DISCRIMINATION PROCEEDING 

v. 

NATIONAL GYPSUM, 

Respondent 

. 

. 

. . 

. . 

DECISION 

Docket No. LAKE 89-72-DM 

MD 89-34 

Shoals Mine 

Appearances: Ron G. Spann, Independent Workers of North ~merica, 

Paducah, Kentucky, for Complainant; 

Dennis c. Merriam, Esq., Gold Bond Building 

Products, a Division of National Gypsum, Charlotte, 

North Carolina, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this action Complainant alleges that Respondent discriminated against him in violation of section 105(c) of the Federal 

Mine Safety and Health Act of 1977 (the Act). Pursuant to 

notice, a hearing was held on this matter in Indianapolis, 

Indiana, on October 11, 1989. Michael J. Grafton, Charles Dant, 

Leon Joseph Brothers, Norman D. Mundy, and John Mathias testified 

for Complainant. James Allan Houston and Mark Allen testified 

for Respondent. Subsequent to the Hearing, time was reserved to 

allow the Parties to file Post Hearing Briefs and Proposed 

Findings of Fact. Complainant filed a Brief on November 21, 1989. 

Respondent filed Proposed Findings of Facts, and a Memorandum of 

Law on December 11, 1989. 

Issues 

1. Whether the Complainant has established that he was 

engaged in an activity protected by the Act. 

2. If so, whether the Complainant suffered adverse action 

as the result of the protected activity. 

3. If so, to what relief is he entitled. 

63 
Findings of Fact and Discussion 

Michael J. Grafton was employed by Respondent as a roof 

bolter in December 1988 •. -On December 18, 1988, Grafton's super-

. visor, Rick Magstadt, ask~~ hi~ to hperate a Number 4 Loader. 

Before Grafton used the loader he let it run 5 minutes, and then 

checked the oil pressure and water temperature gauges and both 

"checked out all right" CTr. 26). He indicated that he started 

to drive and use the loader, and at about 7:30 a.m. it started to 

loose power. He got off and checked behind him and did not see 

any steam and did not smell anything. He also indicated that he 

checked the gauges, and " ••• they seemed to rest all right" 

(sic> CTr. 102). He informed Norman Mundy, another truck driver, 

that he was going to take the loader to the maintenance shop to · 

have it checked out. When he was approximately 200 to 500 feet 

away from the shop, he looked over his shoulder and saw flames 

"shooting out of the motor," and "shooting out the sides of that 

loader on the motor" (Tr. 75). He indicated that he did not 

attempt to put it out as he was afraid, and his main concern was 

to alert other miners to the danger. He indicated that when he 

saw the loader on fire, Walter Dages came by and he yelled that 

the loader was on fire. 

Grafton then went to the shop and yelled to the mechainic, 

Bryan Newland, that the loader was on fire, and Grafton turned on 

the fire alarm. Magstadt then came by and talked with Dages at 

the maintenance area. Grafton indicated that he asked Magstadt 

"don't you think we should go North to the main air shaft to get 

us some fresh air?" CTr. 31). Magstadt then went to the air 

shaft along with Grafton, but according to Grafton, he did not 

act like he knew where the air shaft was. 

Grafton testified, in essence, that he told Magstadt that he 

CMagstadt) did not know the safety procedures. In this connection, Grafton testified that he had been told by his co-workers 

that once an alarm has been sounded the procedures is to shut off 

the machinery, and wait to be picked up by the supervisor who is 

to take the workers to the air shaft. Grafton indicated that, to 

the contrary, Magstadt stopped at the shop, and stayed there for 

approximately 2 to 5 minutes, if not longer. 

Graf ton indicated that the following day he met with Mine 

Superintendent Mark Allen along with Charles Dant and Leon 

Brothers. At that time Grafton questioned whether Magstadt was 

properly train~d in evacuation procedures, and Allen indicated 

that he would try to train him in the proper procedures. On 

December 20, 1988, Grafton was served with a warning notice 

informing him of "defective work" which occurred on December 18, 

1988. It was alleged that on December 18, 1988, he did not check 

the appropriate gauges that would have indicated a high operating 

temperature on the loader, and "continued to operate it while it 

was running hot rather than shutting the machine down." (Joint 

Exhibit 1). It was also alleged that he failed to check the 

64 
loader before qperating it. His conduct was termed "negligence," 

and it was indicated that further problems of this nature would 

lead to disciplinary action. 

On February 7, 1989, Grafton was assigned to work on a roof 

bolter along with Gary Jones, who had been working on the bolter 

for only two days. Grafton was told by the foreman, Edgar Quinn, 

to put up roof hooks, and was further told that the electrician 

would tell him where to place the hooks. Ron McKibben, the 

electrician, told Grafton where to place the hooks. Grafton 

testified he then asked McKibben if he thought there was enough 

cable, and McKibben answered "I believe you will have more than 

enough" (Tr. :55). Grafton as!ced Jones to watch the cable while 

he moved the bolter. When moving the bolter from the third to 

the forth hooks, Grafton heard a bang and the lights went out. 

Grafton saw that the electrical box had been pulled off the wall. 

He indicated it had been attached with two bolts, and was not 

anchored. He described the method of attachment as a temporary 

attachment. 

On February 9, 1989, Grafton attended a meeting with Allen, 

Magstadt, and Plant Manager James Allan Houston, along with 

Brothers and Don Bowling. At that time, Grafton was given a 

3 day disciplinary suspension for the incident the day before, 

and was reduced to plant trainee. He indicated that on the same 

day, two other bolters, Mundy and Dant, had broken a cable while 

operating a bolter, and were not disciplined. He also indicated 

that Houston told him that he was disqualified for mine work due 

to his "anticipatory refusal" to fight fires (Tr. 62). 

The case law that applies to the instant proceeding is well 

established. The Commission, in Goff v. Youghiogheny & Ohio Coal 

Company, 8 FMSHRC 1860 (December 1996), reiterated the legal 

standards to be applied in a case where a miner has alleged acts 

of discrimination. The Commission, Goff, supra, at 1863, stated 

as follows: ~~ 

A complaining miner establishes a prima facie case 

of prohibited discrimination under the Mine Act by 

proving that ha engaged in protected activity and that 

the adverse action complained of was mcH:ivated in any 

part by that activity. Pasula, 2 FMSHRC at 2797-2800: 

Secretarv on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 317-18 (April 1981). The operator 

may rebut the prima facie case by showing either that 

no protected activity occurred or that the adverse 

action was not motivated in any part by protected 

activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-96 

CD.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 

6th Cir. 1983) (specifically approving the Commission's 

Pasula-Robinette test). 

65 
I. 

Based on the testimony of Graf ton th~t has not been contradicted, and has been corroborated by the testimony of Dant and 

Norman Mundy, who were roof bolters on the same shift, I find 

that after the alarm had been sounded, Magstadt did not have a 

£lashing light on the pickup truck that he was driving.l/ 

I also find, based on the uncontradicted testimony of Grafton as 

corroborated by Mundy, that once the alarm had sounded Magstadt 

did not go immediately to pick up the men on the section, and 

take them to the source of fresh air. Both these actions of 

Magstadt contravened the evacuation policy procedures as 

undarstood by Grafton, Mundy, and Leon Joseph Brothers, a loader 

operator, who worked 34 years for Respondent. I thus find that 

when Grafton talked with Allen on December 19, 1988, to voice his 

concern over the adequacy of training that Magstadt had received 

in the area of fire evacuation, he (Graf ton) was clearly engaged 

in protected activities. 

II. 

The warning notice given to Grafton on December 20, 1988, 

accused him, inter alia, of negligence which resulted in the 

loader catching fire. Graf ton adduced testimony herein to contest a finding of negligence on his part. However, Complainant 

did not adduce sufficient evidence to predicate a finding that 

there was any bad faith on the part of Respondent in concluding 

that Grafton had been negligent. There is no evidence in the 

record with regard to any of Respondent's actions or words which 

would indicate that the warning notice issued to Grafton was 

motivated as a consequence of his protected activities, i.e., 

complaining to management about Magstadt's failure to properly 

evacuate miners the day before. I thus conclude, that the 

warning notice was issued based on management's evaluation of 

Grafton's conduct with regard to the loader on December 18, and 

was not motivated in any part by his protected activities. 

III. 

On February 7, 1989, shortly before Gr~1ton's loader had 

pulled the electrical box from its connection, Dant w~s operating 

a roof bolter along with Mundy when, in turning the bolter 

around, its electrical cable stretched and broke. The cable was 

attached to a permanent box that had an anchor. Dant reported 

this incident to his supervisor, but neither Dant nor Mundy were 

disciplined. 

1/ Mundy indicated that Magstadt did not turn it on until he was 

Ioo feet from the maintenance shop. 

66 
In essence, Complainant relies on this incident to establish 

that the 3 dayi suspension that he received for " ••• overextending the bolter beyond the cable limit. • • " (Joint 

Exhibit 3}, was in violation of section 105(c} of the Act. 

Allen indicated that Dant and Mundy were not disciplined, as 

he considered the damage that they caused to the cable to be an 

error in judgment, whereas Grafton's action was termed negligence. 

James Allan Houston, Respondent's plan manager, who made the 

decision to suspend Grafton, indicated that when he learned that 

the electrical box had been torn off the wall, he asked the supervisor to tell him what took place, and he tried to assess whether 

Grafton's conduct was negligence or an error in judgment. He 

indicated that he also consulted with the Human Relations 

Department. I find Houston's testimony credible. Thus, I find 

that the decision to suspend Graf ton was based upon a businass 

judgment, and Complainant has not established that it was 

motivated in any part by his protected activities. 

IV. 

Grafton indicated that, on December 18, 1988, he said that 

he would not fight a fire. He indicated that the reason for 

making such a statement was that he was not properly trained in 

that he had not received any training in fighting a fire, nor had 

he received any training in the use of a fire extinguisher. He 

also indicated that he did not know when he bid for an underground job at the mine, that putting out a fire was one of the 

conditions of employment. In this connection, Grafton indicated 

that he did not see any film at the 1988 training with regard to 

fighting a fire or using a fire extinguisher. Dant also indicated that he was not sure whether such instruction was given. 

However, I find based on the testimony of Allen, who I find to be 

a credible witness, that in the 1988 training a film was provided 

showing the use of a fire extinguisher. This also was corroborated by Brothers upon cross-examination. As such, it appears 

that Grafton was given some training in the use of a f i.ce extinguisher. 

On or about February 7, 1989, it was reported to Houston by 

Allen and MSHA Inspector Donald Bartlett that Grafton had told 

them that he would not Eight any fires in the mine. Grafton does 

not dispute this, but indicates that he may have told this to 

Bartlett and Allen sometime in February 1989, prior to Feb.cuary 7, 

1989. Houston indicated his response was to disqualify Grafton from 

working underground in the mine. Be was assigned a job above ground 

as a Trainee Bracket 1 at $8.93 an hour. I find that the only reason why Respondent t:"emoved Grafton from working underground was his 

stated refusal to right fires underground. As such, I find that 

Complainant has not established that his transfer from the mine was 

motivated in any part by any protected activities. 

67 
l3ased on all the above, it is concluded that the Complainant 

has failed to establish a prima facie case, that he was discriminated against in violation of section 105(c) of the Act. 

ORDER 

It is hereby ORDERED that the Complaint herein shall be 

DISMISSED. 

.Avram 

L~ Weisberger 

Administrative Law Judge 

Distribution: 

Mr. Lon Spann, Independent Workers of North America, 268 Debry 

Circle, Paducah, KY 42003 (Certified Mail) 

Dennis c. Merriam, Esq., Labor Relations Attorney, Gold Bond 

Bui:i..ding Products, Division of National Gypsum Company, 

2001 Rexford Road, Charlotte, ~C 28211 (Certified Mail) 

dcp 

68 
FEDE~L MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 12 1990 DENNY ROGER ·rHOMl?SON, 

Complainant 

v. 

.AMHERST COAL COMPANY, 

Respondent 

: DISCRIMINATION PROCEEDING . . Docket No. WEVA 86-196-D 

: HOPE CO 85-17 

. . 

DECISION 

AND 

ORDER OF DISMISSAL 

Before: Judge Melick 

On August 15, 1986, at the request of the parties the 

captioned proceedings were stayed pending resolution of a 

case before the Courts of West Virginia involving the same 

underlying facts. As part of that Stay Order the parties 

were directed "to file with the undersigned a written report 

concerning the status of proceedings in the West Virginia 

Courts on or before January 1, 1987, and on the first day of 

each quarter thereafter until those proceedings have been 

e}thausted". 

On Novembe·c 4, 1988, an Orde.c to Show Cause was directed 

to the Complainant for his failure to file the reports 

required by the Stay Order. In response to the Order to 

Show Cause the Complainant filed a status report and ::;tated 

that he would file quartarly status reports commencing 

January 5, 1989. Under the circumstances an Order Continuing 

Stay was issued. Thereafter however no status reports were 

filed and on Dece1nber 20, 1989, an Order to Show Cause was 

again issued to the Complainant directing him to show cause 

on or before January 2, 1990, why "these proceedings should 

not be dismissed for failure to comply wi tlr the Ot'de.rs of 

this .Judge issued August 15, 1986, and December 16, 1988." 

Copies of the Order to Show Cause were sent by certified 

mail to both the Complainant himself and to his last known 

attorney. The copy of the Order to Show Cause sent to the 

Complainant was retut'ned marked "forwarding time expired". 

The copy of the Order to Show Cause sent to the Complainant's 

last design.::ited attorney was returned marked "attempted -- not known." The failure of the Complainant and his attocney 

69 
to inform the Commission of their current addresses is in 

violation of Commission Rule 5(c), 29 C.F.R. § 2700.S(c), and 

the Commission is therefore unable to serve further notices 

in this proceeding. In addition the Order to Show Cause 

issued December 20, 1989 r:·,b<:ts~ ... not, aQd can not therefore 

be answered. Accordingl.Y~·t.he.~ cap'ti;-Gned proceeding is 

dismissed. 

Discrimination 

hereby DISMISSED. 

Distribution: 

ORDER \. 

Proceeding '~ocket No~ WllVA 86-1~-D is 

(V ;fJ''v ~JA\)~k'---- Garj Me'l ·ck \\ 

Administrp.tive ~a Judge 

l \ \ I \._ . ./ ,_) 

Paul K. Reese, Esq., Sterl F. Shinaberry, 1018 Kanahwa 

Boulevard, East, Charleston, WV 25311 (Certified Mail) 

Michael T. Heenan, Esq., Smith, Heenan & Althen, 1110 Vermont 

Avenue, NW, Washington, DC 20005 CCertif ied Mail) 

Mr. Danny Roger Thompson, P.O. Box 326, Man, WV 25635 

(Certified Mail) 

nt 

70 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 121990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SA.E'ETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

METTIKI COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

Docket No. YORK 89-5 

A. C. No. 18-00621-03649 

Docket No. YORK 89-18 

A. C. No. 18-00621-03654 

: Mettiki Mine 

DECISION 

Appearances: Nanci A. Hoover, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA, 

Before: 

for the Secretaryi 

Ann R. Klee, Esq., Crowell and Mooring, 

Washington, DC, for the Respondent. 

Judge Fauver 

In these consolidated cases the Secretary of Labor seeks 

civil penalties for alleged violations of Notice to Provide 

Safeguard No. 3115882, under § llOCa) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq. 

Having considered the hearing evidence and the record l/ as 

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

reliable, and probative evidence establishes the following 

Findings of Fact and the further findings in the Discussion 

below: 

FINDINGS OF FACT 

Notice to Provide Safeguard No. 3115882 

1. On July 27, 1989, MSHA Inspector J. W. Darios observed 

water and mud in the approaches to the Nos. 9 and 10 Seals at the 

Mettiki Mine. 

l/ The transcript and exhibits are consolidated in Docket Nos. 

YORK 89-10-R, YORK 89-12-R, YORK 89-5, YORK 89-6, YORK 89-16, 

YORK 89-17, YORK 89-18, YORK 89-26, and YORK 89-28. 

71 
2. Based upon his observations, Inspector Darios issued 

Notice to Provide Safeguard No. 3115882. 

3. The Notice stated that "water mixed with and/or mud over 

boot deep was present at the C-portal Nos. 9 and 10 seals which 

restricted access and approach to the seals," and provided for a 

"safeguard that all travel and walkways at this mine shall be 

maintained with a clear safe travelway free of debris and 

stumbling hazards." Gov't. Ex. 4. 

4. The approaches to the Nos. 9 and 10 Seals were in an 

remote area of the mine 150-200 feet from the nearest travelway 

along which miners would normally walk. 

5. The only individuals assigned to travel in the 

approaches to the Nos. 9 and 10 Seals were the fireboss and the 

pumper, who conducted weekly examinations of the seals as 

required under 30 C.F.R. § 75.305. 

6. There were no belt conveyors, track or mechanical 

equipment in the approaches to the Nos. 9 and 10 Seals. 

7. Inspector Darios advised the mine foreman, Mervin 

Smith, that wooden walkways constructed in the approaches to the 

seals would suffice to control the hazard presented by water and 

mud in the approaches. 

8. Water and mud are common conditions in underground coal 

mines. 

Citation No. 3109953 

9. On September 13, 1988, while conducting a routine 

quarterly AAA Inspection, Inspector Darios observed water and mud 

in the approaches to the 12 c Seals. 

10. Based upon his observations, he issued Citation No. 

3109953 alleging the presence of water and mud in the approaches 

to the Upper and Lower 12 C Seals in violation of Safeguard No. 

3115882. 

11. The approaches to the 12 C Seals were 70-80 feet from 

any entry, walkway or travelway through which miners would 

ordinarily travel during the course of their duties. 

12. The only individuals assigned to travel in the 

approaches to the 12 C Seals were the f ireboss and the pumper who 

conducted examinations of the seals required under 30 C.F.R. 

§ 75.305. 

13. There were no belt conveyers, tracks or mechanical 

equipment in the approaches to the 12 C Seals. 

72 
14. The.citation was terminated on September 19, 1988, 

after wooden walkways were constructed in the approaches to the 

12 C Seals. 

Order No. 3109957 

15. On September 14, 1988, Inspector Darios observed water 

and mud in the approaches to the Nos. 11, 12, 13 and 14 Seals C"C 

Portal Seals"). He also observed a wooden plank floating in the 

approach to the No. 13 Seal. 

16. Based upon his observations, Inspector Darios issued 

§ 104(d)(2) Order No. 3109957 alleging a violation of Safeguard 

No. 3115882. 

17. The approaches to the C Portal Seals were in a remote 

area of the mine 100-200 feet from any entry, travelway or 

walkway through which miners would ordinarily travel during the 

course of their duties. 

18. The only individuals assigned to travel in the 

approaches to the c Portal Seals were the f ireboss and the pumper 

who conducted weekly examinations of the seals required under 30 

C.F.R. § 75.305. 

19. There were no belt conveyors, tracks or mechanical 

equipment in the approaches to the C Portal Seals. 

20. The order was terminated on September 16, 1988, after 

the water was pumped out of the approaches and the wooden walkway 

was replaced in the approach to the No. 13 Seal. 

DISCUSSION WITH FURTHER FINDINGS 

An inspector's authority for issuing safeguard notices, 

which become mandatory safety standards for the mine, is found in 

30 C.F.R. § 75.1403, which is a reprint of § 314(b) of the Act. 

It provides: 

Other safeguards adequate, in the judgment of an 

authorized representative of the Secretary, to 

miniillize hazards with respect to transportation of men 

and materials shall be provided. 

Section 75.1403-1 provides: 

(a) Sections 75.1403-2 through 75.1403-11 set out 

the criteria by which an authorized representative of 

the Secretary will be guided in requiring other 

safeguards on a mine-by-mine basis under section 

75.1403. Other safeguards may be required. 

73 
Cb) The authorized representative of the 

Secretary shall in writing advise the operator of a 

specific safeguard which is required pursuant to 

section 75.1403 and shall fix a time in which the 

operator shall provide and thereafter maintain such 

safeguard. If the safeguard is not provided within the 

time fixed and if it is not maintained thereafter, a 

notice shall be issued to the operator pursuant to 

section 104 of the Act. 

(c) Nothing in the section 75.1403 series in this 

Subpart 0 precludes the issuance of a withdrawal order 

because of imminent danger. 

Respondent contends that Safeguard No. 3115882 is invalid 

because it is not based upon a mine-specific condition. 

In Southern Ohio Coal Co., 10 FMSHRC 963 (1988), the 

Commission discussed the issue of the general application of 

safeguards but did not rule on the specific issue of whether a 

notice to provide safeguard may be issued for a transportation 

hazard of a general rather than mine-specific nature. It 

discussed the subject as follows: 

The Com.mission has observed that while other 

mandatory safety and health standards are adopted 

through the notice and comment rulemaking procedures 

set forth in section 101 of the Act, section 314(b) 

extends to the Secretary an unusually broad grant of 

regulatory power--authority to issue standards on a 

mine-by-mine basis without regard to the normal 

statutory rulemaking procedures. Southern Ohio Coal 

Co., supra, 7 FMSHRC at 512. The Commission also has 

recognized that the exercise of this unique authority 

must be bounded by a rule of interpretation more 

restrained that that accorded promulgated standards. 

Therefore, the Commission has held that a narrow 

construction of the terms of a safeguard and its 

intended reach is required and that a safeguard notice 

must identify with specificity the nature of the hazard 

at which it is directed and the remedial conduct 

required by the operator to remedy such hazard. 

These underlying interpretive principles strike an 

appropriate balance between the Secretary's authority 

to require safeguards and the operator's right to 

notice of the conduct required of him. They do not, 

however, resolve the important issue raised here for 

the first time--whether a notice to provide safeguard 

can properly be issued to address a transportation 

hazard of a general rather than mine-specific nature. 

The United States Court oE Appeals for the District of 

Columbia Circuit, in the context of the Mine Act's 

74 
provision for mine-specific ventilation plans, has 

recogniz.ed that proof that ventilation requirements are 

generally applicable, rather than mine-specific, may 

provide the basis for a defense with respect to alleged 

violations of mandatory ventilation plans. In Zeigler 

Coal Co., supra, the court considered the relationship 

of a mine's ventilation plan required under section 

303(0) of the Act, 30 u.s.c. § 863(0), to mandatory 

health and safety standards promulgated by the 

Secretary. The court explained that the provisions of 

such a plan· cannot "be used to impose general 

requirements of a variety well-suited to all or nearly 

all coal mines" but that as long as the provisions "are 

limited to conditions and requirements made necessary 

by peculiar circumstances of individual mines, they 

will not infringe on subject matter which could have 

been readily dealt with in mandatory standards of 

universal application." 536 F.2d at 407; See also 

Carbon County Coal Co., 6 FMSHRC 1123, 1127 (May 1984) 

(Carbon County I); Carbon County Coal Co., 7 FMSHRC 

1367, 1370-72 (September 1985) (Carbon County II). 

Whether, as the judge believed, a similar type of 

challenge may be made to a safeguard notice is a 

question of significant import under the Mine Act. 

Given the manner in which this important question was 

raised and addressed in the present case, and the 

nature of the evidence in this record, it is a question 

that we do not resolve at this time. (10 FMSHRC at 

966-7.) 

Section 101 of the Act establishes rigorous procedures for 

the promulgation of mandatory safety or health standards. The 

Secretary must comply with the formal notice and comment 

rulemaking procedures of the Administrative Procedure Act. As 

part of the history of administrative law, Congress recognized 

that substantive standards are likely to be fairer and sounder if 

they are subject to c01mnent by an interested public, and if the 

enforcement agency is required to explain its regulatory choices. 

See generally 1 K. Davis, Administrative Law Treatise 

§§ 6.12-6.33 (1978). In short, standards established by formal 

rulemaking are pref erred because they are less likely to be 

arbitrary. See Ziegler Coal Co. v. Kleppe, 536 F.2d 398, 402-03 

(D.C. Cir. 1976) ("most important aspect [of agency authority to 

promulgate mandatory standards] is the requirement of 

consultation with knowlegeable respresentatives of ••• industry 

[among others]" which was intended to address concern that 

"freely exercised power of amendment [of mandatory standards) 

might result in an unpredictable and capricious administration of 

the st.1tute"). 

Congress recognized, however, that conditions vary 

substantially from mine to mine, and that neither it nor the 

75 
agency could anticipate every hazard that might arise in a mine. 

Accordingly, ·congress developed several mechanisms to establish 

individualized standards on a mine to mine basis without formal 

rulemaking: (1) It allowed petitions for modification so that 

application of mandatory standards could be modified to 

accommodate ~articular mine conditions. (2) It provided for 

individual mine plans that incorporate standards tailored to the 

conditions of each mine. (3) In one limited area (§ 314(b) of 

the Act reprinted as 30 C.F.R. § 75.1403) -- the transportation 

of men and materials in underground mines -- it authorized 

individual inspectors to fill regulatory gaps by issuing 

safeguards to address hazards not covered by promulgated 

standards. 

In Ziegler Coal, supra, the court observed, that a 

"significant restriction on the Secretary's power to use the 

ventilation plan as a vehicle for avoiding more stringent 

requirements [imposed by the rulemaking process] arises from the 

plan provisions' obvious purpose to deal with unique conditions 

peculiar to each mine." 536 F.2d at 407. Analyzing the 

relationship between a ventilation plan under Section 303(0) of 

the Mine Act, 30 u.s.c. § 863(0), and the mandatory.standards 

relating to ventilation, the court further noted that "the plan 

idea was conceived for a quite narrow purpose. It was not to be 

used to impose general requirements of a variety well-suited to 

all or nearly all coal mines • • " [Id. emphasis added.] 

[A]n operator might contest an action seeking to 

compel adoption of a plan, on the ground that it 

contained terms relating not to the particular 

circumstances of his mine, but rather imposed 

requirements of a general nature which should more 

properly have been formulated as a mandatory standard 

under the provision of § 101 • • • • For insofar as 

those plans are limited to conditions and requirements 

made necessary by peculiar circumstances of individual 

mines, they will not infringe on subject matter which 

could have been readily dealt ~ith in mandatory 

standards of universal application. [Id. emphasis 

added.] ~ 

Several Commission judges have applied the Ziegler 

rationale in holding a safeguard to be invalid because the 

safety condition was not mine-specific. 

However, in a later decision (United Mine Workers of 

America v. Dole, 870 F.2d 662, 672 (D.C. Cir. 1989)), the court 

clarified its previous Zielger holding by stating that: 

We read this caution in Zeigler to say only that 

the Secretary could abuse her discretion by utilizing 

plans rather than explicit mandatory standards to 

impose general requirements if by so doing she 

76 
circumvented procedural requirements for establishing 

mandatory standards laid down in the Mine Act. Zeigler 

did not purport to ignore the considerable authority of 

the Secretary to determine what "should more properly 

have been formulated as a mandatory standard under the 

provisions of§ 101," id., and to determine what is 

"subject matter which could have been readily dealt 

with in mandatory standards of universal application," 

id. 

As so clarified, the Zeigler decision is "a warning that the 

Secretary should utilize mandatory standards [by formal 

rulemaking] for requirements of universal application," but it 

does not preclude the Secretary from "requiring that 

generally-applicable plan approval criteria or their equivalents 

be incorporated into mine plans" (870 F.2d at 672). 

There is no litmus test for the validity of a notice of 

safeguard simply by deciding whether the safeguard could as well 

be applied to "all or nearly all mines" as a mandatory standard. 

The decision requires a balance between the purpose of a flexible 

authority C§ 314(b)) to correct unsafe conditions not covered by 

an existing standard and the purpose of formal rulemaking 

C§ lOl(a)) for safety standards of universal application. 

The basic purpose of § 314Cb) authority to require 

safeguards is to ensure the safety of miners in transportation of 

personnel and material by permitting the inspector to correct 

observed unsafe conditions that are not covered by existing 

safety standards. Congress did not state that the unsafe 

condition must be unique to the mine involved, nor did it 

preclude use of this authority for unsafe conditions experienced 

in a number of mines. 

The record in this case tips the balance on the side of an 

unwarranted circumvention of the formal rulemaking procedures 

{§ 10l{a) of the Act). 

Alan Smith, Safety Director for Mettiki, testified, based 

upon his personal eKperience at Mettiki and other mines, that 

water accumulation and mud are common conditions in underground 

coal mines, both in approaches to seals and on travel or walkways. 

Tr. 216-220. In addition, Mr. Smith testified that he had spoken 

with the safety directors at three other mines, each of whom had 

stated that they experienced similiar problems with water 

accumulation in seal areas. Tr. 219-220. Mervin Smith, the mine 

foreman, also testified that, based on his experience, mud and 

water are co1mnon conditions in underground coal mines. Tr. 211. 

MSHA's records of safeguards show that MSHA has issued safeguards 

for water and mud on roads in all but one of the mines in the 

subdistrict involved in the instant cases. Respondent's Supp. 

Exs. I-VI. See, ~, Safeguard No. 222091 {safeguard issued to 

Laurel Run Mining Company Portal No. 2 requiring that "all off 

77 
track haulage roadways • • • be maintained as free as practicable 

from bottom irregularities, debris, and wet and muddy 

conditions") (Respondent's Supp. Ex. I); Safeguard No. 630548 

(safeguard issued to Island Creek Coal Company Dobbin Mine 

requiring "all off track haulage roadways • • • [to be] 

maintained as free as practicable from bottom 

irregularities, debris, and wet and muddy conditions") 

(Respondent's Supp. Ex. II); Safeguard No. 626939 (safeguard 

issued to the Masteller Coal Company requiring "all haulage roads 

••• [to be] maintained as free as practicable from bottom 

irregularities, debris and water or muddy conditions") 

(Respondent's Supp. Ex. III). 

The Secretary's regulatory scheme is fully consistent with 

treating water and mud hazards in approaches and travelways as a 

subject for formal rulemaking rather than safeguards. For 

example, in Part 77 of the regulations -- "Mandatory Safety 

Standards, Surface Coal Mines and Surface Work Areas of 

Underground Coal Mines" -- the Secretary must use formal 

rulemaking, since there is no statutory authority for notices of 

safeguards in surface mining. Section 77.205 of the mandatory 

safety standards provides in part: 

§ 77.205 Travelways at surface installations. 

Ca) Safe means of access shall be provided and 

maintained to all working places. 

Cb) Travelways and platforms or other means of access 

to areas where persons are required to travel 

or work, shall be kept clear of all extraneous 

material and other stumbling or slipping 

hazards. 

These standards address the same kind of safety conditions 

as those involved in Safeguard No. 3115882. The Secretary has 

not shown that a bypass of § lOl(a) rulemaking is reasonably 

justified for "stumbling and slipping hazards" in underground 

mines. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over these proceedings. 

2. Notice of Safeguard No. 3115882 is invalid. 

3. Citation No. 3109953 and Order No. 3109957 are invalid 

because the underlying Notice of Safeguard is invalid. 

78 
ORDER 

1. Notice of Safeguard No. 3115882, Citation No. 3109953, 

and Order No. 3109957 are VACATED. 

2. These proceedings are DISMISSE:D. 

Distribution: 

-tt);J;t,,:.,.,_ ~ a..-v~ William Fa~l~r Administrative Law Judge 

Nanci A. Hoover, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Ann R. Klee, Esq., Crowell and Moring, 1001 Pennslyvania Avenue, 

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

iz 

79 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

METTIKI COAL COMPANY, 

Respondent 

JAN 121990 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 89-6 

A. C. No. 18-00621-03645 

Mettiki Mine 

Appearances: Judith Horowitz, Esq., Office of the Solicitor, 

U.S. Department of Labor·, Philadelphia, PA, 

Before: 

for the Secretary; 

Ann Klee, Esq., Crowell and Moring, Washington, DC, 

for the Respondent. 

Judge Fauver 

The Secretary of Labor seeks civil penalties for alleged 

safety violations under § llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et~-

Having considered the hearing evidence and the record !/ as 

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

reliable, and probative evidence establishes the following 

Findings of Fact and additional findings in the Discussion below: 

FINDINGS OF FACT 

Mine Ventilation 

1. At all relevant times, the Mettiki Mine was ventilated 

by an exhaust system. Mine fans on the surface pulled fresh 

intake air from the portals into the mine. 

2. From the portals, intake air was pulled through three 

main entries to the bottom of the hill, as shown on Exh. R-4, and 

directed to the left into the K-Mains so it could be used to 

ventilate the L-3 and L-4 longwall panels. 

1/ The transcript and exhibits are consolidated in 

Docket Nos. YORK 89-10-R, YORK 89-12-R, YORK 89-5, YORK 89-6, 

YORK 89-15, YORK 89-17, YORK 89-18, YORK 89-26, and YORK 89-28. 

80 
3. On July 19, 1988, when Order 3115856 was issued, Mettiki 

was in the process of retreat mining the L-3 longwall panel, 

although no mining was being done that day because the mine was 

idle for the miners' vacation. 

4. The L-3 longwall panel was ventilated by five intake 

entries, two on the headgate side and three on the tailgate side. 

5. The intake entry on the headgate side served as the main 

section intake; most of the air in that entry was used to 

ventilate the longwall face. Once the intake air ventilated the 

longwall face, it became return air which was carried out of the 

mine through the bleeder entries and the gob and into the main 

return. 

6. The three entries on the tailgate side of the L-3 

longwall panel were also intake entries, which carried more fresh 

air in an inby direction up the tailgate and into the bleeders. 

7. This method of ventilating the L-3 panel was approved in 

the mine ventilation and methane and dust control plan. 

8. The main entries immediately outby the L-3 longwall 

panel, which are the subject of this case, were ventilated 

entirely with intake air. 

9. The "teardown rooms," consisting of two entries and 

connecting crosscuts immediately inby these main entries, were 

also ventilated with intake air. The teardown rooms were to be 

used to disassemble the longwall equipment when the panel was 

mined out, so that the L-3 longwall equipment could be moved to 

the next panel. 

10. Because the L-3 panel was nearly mined out, Mettiki was 

using the vacation period to complete a substantial amount of 

work in the teardown rooms (including hauling supplies, 

rehabilitating a roadway and operating a diesel scoop). 

11. Management decided that the rehabilitation work in the 

teardown rooms required increased intake air, and to provide this 

two special ventilation measures were taken. First, a stopping 

was removed from the No. 12 crosscut between the Nos. 3 and 4 

entries of the K-Mains so that intake air could be maintained .in 

the L-3 teardown rooms. Second, although it was not required by 

the ventilation plan, a check curtain was erected in the No. 11 

crosscut of the No. 2 main track entry C"A" on Exh. R-4) to 

direct some of the fresh air headed for the longwall face into 

that area. 

12. Once the intake air in the K-Mains ventilated the 

teardown rooms, it was directed up the L-3 tailgate entries into 

the bleeders behind the L-3 panel and out of the mine through the 

main return. 

81 
13. Intake air from an isolated K-Mains entry was also used 

to ventilate the seals adjacent to a mined-out area. 

14. Once the fresh air swept the seals, it was directed 

into the bleeder entries adjacent to the mined-out L-2 longwall 

panel, into the main return, and out of the mine. The intake air 

that ventilated the seals was not used to ventilate any working 

areas. 

Order 3115856 

15. On July 19, 1988, MSHA Inspector William Darios 

inspected the K-Mains entries immediately outby the L-3 longwall 

panel. 

16. Inspector Da~ios had never been to the L-3 section 

before, but he believed that the L-3 longwall panel was 

ventilated in accordance with page 48b of Mettiki's ventilation 

plan. 

17. Acting Mine Foreman Joe Peck accompanied Inspector 

Darios on his inspection. 

18. Near the mouth of the tailgate entry, immediately 

adjacent to the L-3 longwall panel, Inspector Darios took an air 

measurement of 7,104 cubic feet per minute. 

19. He believed the air at that location was moving in an 

outby direction and concluded it was return air. 

20. In addition, Inspector Darios believed that the air 

used to ventilate the seals adjacent to the K-Mains entries was 

return air, because he thought the seals were examined only 

weekly, as required by § 75.305 for seals ventilated with return 

air. Because he thought there was return air in the tailgate 

entry and at the seals, he assumed that all K-Mains entries at 

the mouth of the L-3 longwall panel carried return air. 

21. All these assumptions led him to the conclusion that 

having a check curtain (instead of a permanent stopping> in a 

crosscut in the No. 2 entry of the K-Mains C"A" on Exh. R-4) 

allowed air from the headgate side of the L-3 panel to "mix" with 

the return air he believed to be present in the K-Mains entries. 

22. Believing this condition violated the mine's 

ventilation plan, Inspector Darios issued Order 3115856, alleging 

a violation of 30 C.F.R. § 75.316. 

Order 2493077 

23. On July 6, 1988, Inspector Darios issued Section 

104Cd)(2) Order 2943077 after observing a kink or bend in the 

82 
cable of the c Portal Nordberg Hoist. The kink was 13 inches 

long and kinked 3/8 of an inch when the cable was weighted and 

7/8 of an inch without weight. 

24. The kink in the cable was 10 feet 2 1/2 inches from the 

Nordberg Hoist Barney car. 

25. Grease and dirt imbedded in the cable at the point of 

the kink made it impossible to properly examine the damage 

without proper cleaning. 

26. When the inspector observed the kink in the cable, the 

equipment had not been removed from service. 

27. The condition was noted in the daily examination book 

by the hoist operator on July 1, 1988. 

28. The damage was not repaired nor was the hoist cable 

removed from service between July 1, 1988 and July 6, 1988. 

29. The kink was examined visually by the hoist operator 

but the cable was not cleaned before his examination nor was the 

kink measured during his examination. 

30. The equipment needed to repair the cable was present on 

the mine property. 

DISCUSSION WITH FURTHER FINDINGS 

Order 3115856 

The ventilation plan required that return entries be 

separated from intake entries by permanent stoppings within three 

crosscuts of any working face. Exh. J-3 at 48a. There was no 

requirement that intake entries be separated from other intake 

l~ntries or that returns be separated by stoppings from other 

returns. At the time Order 3115856 was issued, the K-Mains 

immediately outby the L-3 longwall panel were ventilated with 

intake air so that work could be performed in the teardown rooms. 

The check curtain cited by the inspector was placed in the 

middle of an intake entry, and permitted a small amount of intake 

air to pass through the curtain to intake entries on the other 

side. Placement of the curtain did not violate Mettiki's 

ventilation plan. Rather, as Mr. Peck testified, at the time the 

order was issued, the ventilation of the K-Mains and the L-3 

longwall panel complied with the ventilation plan~ the air 

pressure against the check curtain was what he eKpected to see, 

indicating that the K-Mains were ventilated with intake air. 

There was no requirement for a stopping or even a check 

curtain at the No. 11 crosscut of the No. 2 entry cited by the 

inspector. Mr. Peck testified that the only reason a check 

83 
curtain had been installed at that location was to maintain the 

amount of fresh air going to the longwall face; it was not 

intended as a permanent separation because one was not required. 

Moreover, there was no requirement for a stopping at the No. 12 

crosscut between the Nos. 3 and 4 entries of the K-Mains. Mr. 

Peck testified that a stopping had been necessary at that 

location to maintain the separation between the primary and 

secondary escapeways from the L-2 longwall section during the 

retreat mining of that panel. However, once the L-2 panel was 

mined out and retreat mining switched to the L-3 longwall panel, 

the escapeways had to be rerouted, obviating the need for a 

stopping at the location cited by the inspector. Tr. 330-33. 

I find that the L-3 longwall panel was being ventilated in 

accordance with page 48a of the ventilation plan, as Mr. Peck 

explained. The inspector was mistaken in his conclusion that 

Respondent was following page 48b of the plan. 

Thus, contrary to the inspector's assumptions, there was no 

mixing of intake and return air in violation of the ventilation 

plan, because there was no return air in the places he believed 

it existed. Where the stopping had been removed and where the 

check curtain was located, intake air was mixing with intake air 

and that did not violate Mettiki's ventilation plan or any other 

mandatory standard. 

Order 23943077 

The Secretary has alleged a violation of 30 C.F.R. 

§ 75.1434(e), which provides in part: 

Unless damage or deterioration is removed by 

cutoff, wire copes shall be removed from 

service when any of the following conditions 

occurs: 

* * * 

Ce) Distortion of the rope structure * * * . 

On Friday, July 1, 1988, Hoistman Ellsworth Lambert noticed 

a kink, or bend, in the hoist cable and noted it in the hoist 

examination book at 4:20 p.m. On Tuesday, July 6, before 7:30 

a.m., Mine Superintendent Steve Polee called Maintenance Foreman 

Dave Blythe to inform hi1n that a bend in the hoist rope had been 

reported. He sent Maintenance Foreman Blythe to investigate the 

condition. Mr. Blythe examined the kink and considered it a 

distortion of the rope gtructure within the meaning of § 

75.1434Ce). He ordered parts to replace the damaged part of the 

cable, but did not remove the cable from service pending repairs. 

Later that day, around 9:45 a.rn., MSHA Inspector Joseph W. 

Darios inspected the hoist. After carefully inspecting the kink 

84 
in the cable, he issued Order 23943077 alleging a "substantial 

and significant" CS & S) violation of 30 C.F.R. § 1434Ce), and an 

unwarrantable failure to comply with the regulation. 

I find that the kink in the cable was a "distortion of the 

rope structure" within the meaning of § 75.1434Ce), as recognized 

in the testimony of both Inspector Davis and Maintenance Foreman 

Blythe. Respondent's argument that the kink was not a distortion 

of the cable structure is not persuasive, and is far afield of 

the facts in this case. 

Inspector Darios found the violation was S & S because of 

the risk of serious injuries in the event the cable broke. The 

hoist cable supported mantrips and heavy equipment up and down a 

steep slope (about a 15% grade). If the cable broke, there was a 

reasonable likelihood of serious injuries. 

The Secretary has proven a significant and substantial 

hazard under the criteria set forth in the Act and by the 

Commission. An S & S violation is one "that could significantly 

and substantially contribute to the cause and effect of a mine 

safety or health hazard" C§ 104(d)(l) of the Act). If, "based 

upon the particular facts surrounding [the] violation, there 

exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious 

nature" the violation meets the statutory definition. Cement 

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

In Mathies Coal Company, 6 FMSHRC 1 (1984), the Commission 

further discussed the element of an S & S violation. The 

Secretary must prove: Cl) there is a violation, (2) the violation 

contributed to a discrete safety hazard, (3) the hazard would be 

reasonably likely to lead to an injury and (4) the injury would 

be reasonably serious. 6 FMSHRC at 3-4. 

In this case, the violation contributed to a discrete safety 

hazard of the hoist's wire rope breaking. Inspector Darios 

noticed the kink in the cable. Seeing that dirt and grease were 

coating the cable, he asked to have the area cleaned so he could 

examine it. He then measured the distortion with weight on the 

cable and with weight removed from the cable. He observed that 

the spacing between the lays of the cable in the internal portion 

of the kink was wider than usual. He concluded, based upon his 

expert training, experience and caraful observations, that the 

cable was distorted, that there could be internal damage to the 

wire rope and that the total condition created an S & S hazard of 

the rope breaking. 

The evidence clearly supports the conclusion that the 

violation contributed to the cause and effect of a discrete 

safety hazard and that continued normal mining operations would 

endanger miners. There was sufficient visible evidence of a 

85 
distortion of the cable structure to justify the inspector's 

concerns about possible internal damage. 

The evidence further establishes that the hazard contributed 

to by the violation was reasonably likely to result in serious 

injuries. Breakage of the cable was reasonably likely to result 

in a number of different events that could cause serious injury. 

Derailment of the hoist could result in a collision between the 

hoist and equipment parked on side tracks. Such a derailment and 

the subsequent collision could result in miners becoming caught 

between equipment. Also, heavy equipment-. could travel down the 

track and strike people at the bottom of the slope. In the event 

the cable broke, even if emergency equipment operated 

successfully to prevent a collision or derailment (and this is 

not always a reasonable assumption), lurching of a mantrip could 

cause serious injuries to riders. 

The operator introduced the results of a destructive test 

in which the cable broke at 217,000 pounds. This evidence also 

showed that the cable broke at the point of the kink. Therefore, 

the weakest point, the point of failure, was the site of the 

distortion. The evidence demonstrates that the kink threatened 

the integrity of the cable. Furthermore, the test itself did not 

reflect the conditions under which the rope was used. In the 

test, constant pressure was increased until the cable broke; this 

was not intermittent pressure that would reflect the daily strain 

put on the cable. Nor did the test take into account the fact 

that, with continued use of the cable, strands in the distorted 

section would undergo greater friction, and more water would 

infiltrate the core of the cable with greater risk of corrosion. 

The Commission stated in National Gypsum that the 

inspector's independent judgment and expertise are an important 

elament in making significant and substantial findings. 

Inspector Darios carefully examined the distortion in the cable, 

including measurements with weight tests, and reasonably 

concluded there was an S & S hazard if the condition were allowed 

to continue unabated. 

The inspector also found an unwarrantable violation. A 

violation is unwarrantable if it results from "aggravated 

condLict" constituting more than ordinary negligence. Emery 

Mining Company, 9 FMSHRC 1997 (1987). I find that Respondent 

displayed indifference or a serious lack of reasonable care in 

failing to address the oroblern in the hoist cable that e~isted 

for six days. Such conduct met the Emery Mining definition of an 

unwarrantable violation. 

Both the lack of procedures that would assure prompt 

discovery and correction of the violation and management's 

conduct in failing to address and correct the condition once it 

was discovered support a finding of unwarrantable failure. The 

hoist operator, Elwood Lambert, first noticed that there was a 
kink in the cable around 4:20 p.m. on Friday, July 1, 1988, 

during his daily examination of the equipment. The condition was 

reported in the examination book on July 1 and was noted every 

day until July 6, 1988, when Inspector Darios came to the mine to 

conduct a regular inspection. Although the condition was noted 

for six days, management did not take any action to examine the 

cable until July 6, 1988, when Maintenance For~~an Dave Blythe 

examined the cable in response to a call from the Mine 

Superintendent. At that time, he looked at the cable and decided 

that the problem was not serious. He decided to perform the 

repairs when convenient. No other management official examined 

the cable before the order was issued by Inspector Darios. 

Respondent's decision to allow the cable to remain in 

service demonstrates a serious lack of reasonable care. Because 

he \ias the only member of management to examine the cable before 

the order was issued, Foreman Blythe's actions must be closely 

examined. First, he decided to allow the cable to remain in 

service in spite of his belief at the time that the kink 

constituted a distortion of the-Structure of the cable within the 

meaning of 30 C.F.R. § 75.1434(e). Tr. 602. He explained his 

decision to allow the violation to continue by saying that the 

cable had been allowed to remain in service in the past when 

broken wires had been found. Tr. 610. This explanation is 

unsatisfactory. It must be noted that he failed in this case to 

make measurements with a micrometer as he had been required to do 

when broken wires were found. Tr. 610-611. Furthermore, whereas 

distortions require retirement of a cable C§ 75.1434Ce)) broken 

wires may not (see§ 75.1434(a)). Moreover, although he felt the 

condition posed no hazard, he was aware that a visual examination 

of an unbroken cable does not reveal internal damage. Finally, 

he did not mention that he placed any reliance on previously 

issued citations. He only said that the mine has always repaired 

distortions when convenient. 

Management's failure to discover and correct the violation 

for almost a week further supports a finding that its conduct 

constitutes an unwarrantable violation. The daily examination 

books are countersigned by a management official. However, no 

management official was available to perform this duty from 

Friday, July 1, until the following Tuesday, July 5. Even at 

that time, no action was taken and the condition was allowed to 

exist another day without attention. When Foreman Blythe was 

finally notified of the condition, his examination was only 

cursocy. 

Respondent argues that its conduct was not unwarrantable 

because its personnel relied on citations issued by another 

inspector, Wayne Fetty, for distortions in wire ropes in which 

the rope was not required to be removed from service immediately. 

However, the actions taken by Mettiki's management at the time of 

the instant violation reveal that management was not even aware 

oE the condition for five days after it was first reported in the 

87 
examination books. Tr. 688-689. Further, the management 

official who.examined the cable did not indicate that he relied 

upon Mr. Fetty's citations. In fact, he testified that he never 

discussed with Mr. Fetty what constitutes sufficient damage for 

application of the retirement criteria. Tr. 601. 

An examination of the operator's conduct at the time the 

distortion was discovered reveals a failure of management to 

address safety problems identified by the miners. The duty of 

assessment of the severity of the distortion of the cable was 

left to the judgment of an hourly employee. Tr. 691. Under 

management's policy, it was the rank and file's responsibility to 

determine if a problem already identified in the examination 

books is serious enough to alert management to take immediate 

action. Tr. 690-691. If a problem happened to occur on a Friday 

as it did in this case, there was no management official 

responsible for locating and assessing violations that occurred 

to the hoist. Tr. 690-691. 

On balance, I find that Respondent's conduct rose to a level 

above ordinary negligence. 

Considering all the criteria for a civil penalty in § llOCi> 

of the Act, I assess a civil penalty of $1100 for this violation. 

Orders 3115846 and 3115848 

At the hearing, the parties stipulated that the only issue 

remaining on liability as to these orders is whether Mettiki's 

roof control plan required Mettiki to replace posts that were 

removed in order to install longwall equipment. Tr. 472. If 

this issue is answered in the affirmative, the parties stipulated 

that the above § 104(d) orders should be modified to § 104(a) 

citations with reduced findings of negligence and gravity. 

Order 3115846 alleges that roof support posts had been 

removed in a number of places in the L-4 entry and Nos. 5 and 6 

crosscuts allowing the width of the entry and crosscuts to exceed 

18 feet, in violation of Mettiki's roof control plan and 30 

C.F.R. § 75.220. Order 3115848 alleges a violation of 30 C.F.R. 

§ 75.303 for a failure to conduct an adequate preshift 

examination of the cited area. 

Mettiki's roof control plan provided that, "As the longwall 

pan, shields, and shearer are installed, posts will be removed as 

necessary." Jt. Ex. 4, p.31. 

The Secretary contends that this provision is only a 

conditional exception to the requirement for an 18 foot width in 

the longwall setup entry and crosscut. She contends that in 

context, the word "as" is synonymous with "while" or "when" so 

that the roof control provision means that after the longwall 

equipment is moved through the entry and crosscut, the cemoved 

88 
posts must be put back in place to keep a maximum width of 18 

feet. 

Respondent contends that the roof control plan does not 

expressly require posts to be reinstalled after they have been 

removed according to the plan, and such a requirement is not 

reasonably implied by the plan. 

The roof control plan requires the setup entry and crosscuts 

to be mined 18 feet wide initially and supported with roof bolts. 

The operator is then required to set a double row of posts on 

five foot centers along the length of the setup entry and 

crosscuts. The plan then and only then allows the operator to 

shear off an additional five feet in width along the rib opposite 

the posts to allow the entry or crosscut to be a maximum width of 

23 feet. The stated purpose of requiring the double row of posts 

to be set is to maintain an 18 foot width before the entry and 

crosscut is widened to 23 feet. At no time in the process is the 

setup entry and crosscut allowed to become more than 18 feet wide 

without additional support of the double row of posts. 

The plan then provides that, "As the longwall pan, shields, 

and shearer are installed, posts will be removed as necessary." 

{Emphasis added.) The word "as" is reasonably interpreted to 

mean "during the time that," or "while" in this context. Thus, 

the plan allows for removal of the posts only during installation 

of the panline, shields and shearer. The limitation that the 

posts be removed only as necessary further emphasizes that such 

removal be minimized. 

The roof support plan specifies the order in which the steps 

are to be performed so that the set-up entry and crosscuts may be 

sheared to a maximum width of 23 feet. The plan requires that 

the steps be taken in a specific order so that at each step the 

entry and crosscut are always narrowed by, and supported by posts. 

Further, the plan for supporting the roof of the longwall setup 

entry and crosscut specifically states that the "entry and 

crosscut will be sheared to 23 feet wide and supported to plan." 

(Emphasis added.) The plan requires the double row of posts to 

be set. That requirement read in conjunction with the provision 

allowing removal of such posts only when installation of the 

panline, s·nie_lds or shear is occurring, supports the conclusion 

that the posts must be reinstalled after removal. 

To interpret the roof plan to allow posts to remain absent 

would render the specific cutting and roof support procedures 

superfluous. The plan must not be interpreted to render its 

requirements illogical. tf the roof support plan for the 

longwall setup entry and crosscuts were interpreted as urged by 

the operator, the effect would be quite dangerous. If posts 

~ere not required to be replaced, one section of panline might be 

installed and posts could be removed. Then if work did not 

continue, under Respondent's interpretation the entry or crosscut 

89 
could remain unsupported with excessive widths indefinitely. The 

plan is written and must be interpreted to avoid this result. 

The parties' stipulation is granted to modify these orders 

to § 104Ca) citations with reduced findings of negligence and 

gravity. The original alle9ation of negligence in Order 3115846 

is changed to moderate negligence and gravity is changed by 

deleting S & s. In Order 3115848, the original allegation of 

negligence is changed to moderate negligence and gravity is 

changed by deleting S & S. 

Independent of the question whether the instant violation is 

"significant and substantial" within the meaning of§ 104Cd)(l) 

of the Act, I find that it is a serious violation within the 

meaning of "gravity" in § llO(i) of the Act. It is serious 

because the safety standard is an important protection for miners 

and Respondent's conduct created a reasonable possibility of 

serious injury that could result from excessive widths of entries 

and crosscuts. It is also a serious violation because of the 

need to deter future violations of this type. 

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

of the Act, I assess a civil penalty of $100 for each of the two 

violations cited in revised Citations 3115846 and 3115848. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. The Secretary failed to prove a violation of 30 C.F.R. 

§ 75.316 as alleged in Order 3115856. 

3. Respondent violated 30 C.F.R. § 75.1434(e) as alleged in 

Order 23943077. 

4. Respondent violated 30 C.F.R. § 75.220 as alleged in 

revised Citation 3115846. 

5. Respondent violated 30 C.F.R. § 75.303 as alleged in 

revised Citation 3115848. 

Order 

WHEREFORE IT IS ORDERED that: 

1. Order 3115856 is VACA'rED; Order 23943077 is AFFIRMED; 

revised Citations 3115846 and 3115848 are AFFIRMED. 

90 
2. Respondent shall pay the above civil penalties of $1,300 

within 30 days of this Decision. 

Distribution: 

{,()~ 7a..uvV\-

william Fauver 

Administrative Law Judge 

Judith L. Horowitz, Esq., Office of the Solicitor, U.S. 

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

Street, Philadelphia, PA 19104 (Certified Mail) 

Ann R. Klee, Esq., Crowell and Moring, 1001 Pennsylvania Avenue, 

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

iz 

91 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

METTIKI COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL COMPANY, 

Respondent 

JAN 12 1990 

. . 

: 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. YORK 89-10-R 

Citation No. 3110188; 11/1/88 

Mettiki Mine 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 89-26 

A. C. No. 18-00621-03659 

Mettiki Mine 

Appearances: Judith Horowitz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA 

Before: 

for the Secretary; 

Susan Chetlin, Esq., Crowell and Moring, 

Washington, DC, for the Respondent. 

Judge Fauver 

The Secretary of Labor seeks civil penalties for alleged 

violations of safety standards and Mettiki Coal Corporation seeks 

to vacate the citations under § 105(d) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq. 

Having considered the hearing evidence and the record ~/ as 

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

reliable, and probative evidence establishes the following 

Findings of Fact and further findings in the Discussion below: 

!I The transcript and exhibits are consolidated in Docket Nos. 

YORK 89-10-R, YORK 89-12-R, YORK 89-5, YORK 89-6, YORK 89-16, 

YORK 89-17, YORK 89-18, YORK 89-26, and YORK 89-28. 

92 
FINDINGS OF FACT 

Citation No. 3110188 

1. In November, 1988, when Citation No. 3110188 was issued, 

Eimco diesel powered self-propelled personnel carriers, here 

called "White Knights," ran on an underground track to carry 

Mettiki's miners to their working sections at the Mettiki Mine. 

2. The White Knight personnel carrier was about 22 feet 

long, 8 feet wide and 4 1/2 feet high, with a capacity of 16 

passengers. 

3. The White Knight personnel carrier was equipped with two 

separate braking systems. 

4. The regular, or "service," brakes were hydraulic disk 

brakes on the axles. They were activated simultaneously by 

pulling the service brake lever. 

5. The other braking system was a parking brake. Unlike 

the service brakes, the parking brake was a mechanical drum 

brake, designed to prevent the carrier from moving when parked. 

When the operator pulled the parking brake lever (located to the 

right of the foot throttle on the front of the engine cover), 

the brake would lock the motor shaft and remain engaged until the 

brake handle was physically released. 

6. Under Mettiki's safety rules, before the miners boarded 

the personnel carrier, the operator was required to check the 

sanders, headlights and other components. 

7. As the personnel carrier began to move, both braking 

systems were to be tested. First, the parking brake was tested 

by applying power while the brake was still set to be sure it 

held the vehicle in the parked position; then, the parking brake 

was slowly released. Once the parking brake was released, the 

hydraulic brakes were tested by applying them to hold the 

equipment. 

8. After a personnel carrier reached a working section, it 

was parked on a switch off to the side of the main track until it 

was needed. When the carrier was parked, the parking brake was 

set to secure the vehicle. 

9. On November 11, 1988, MSHA Inspector Charles Wotring 

inspected the E-2 section of the Mettiki Mine. 

10. An empty White Knight was parked in a crosscut off the 

main E-2 track, to make coom to move supplies into the E-3 

section. 

93 
11. The personnel carrier was parked almost on the level, 

about 20 feet from the base of a slight incline; the parking 

brake was engaged. 

12. The inspector briefly examined the personnel carrier, 

and observed that the parking brake was set. He made no findings 

that the White Knight was not functioning properly. 

13. The inspector issued Citation 3110188, alleging a 

violation of 30 C.F.R. § 75.1403, because he believed that 

parking the White Knight and securing it only with the mechanical 

parking brake was insufficient to satisfy Notice to Provide 

Safeguard 620279, which had been in effect at the Mine since 

June, 1980, and modified on May 11, 1988. 

14. The Safeguard required track-mounted haulage equipment 

to be secured with a stop block, equipped with derails or chained 

to the rail to prevent runaway movement. 

Citation No. 3110075 

15. On September 21, 1981, Notice to Provide Safeguard 

857887 was issued at Mettiki's Beaver Run Mine, now known as 

Mettiki Mine. The notice stated that a crossover was not 

provided at the tail of the B-2 section belt, "where persons are 

required to cross the belt for travel, and work," and required a 

safeguard to provide a crossover "where persons cross belts 

anywhere at this Mine." 

16. On December 5, 1988, Inspector Wotring observed that a 

belt crossing was not provided at the First Left belt drive near 

the F Mains belt. Footprints indicated that people had been 

crossing there. 

17. The juncture of the F Mains and First Left belts was 

about 100 feet from a crossunder. The First Left belt, being 

about 100 feet long, could be also crossed by walking to the end 

of the belt and around the tailpiece. However, Mettiki did not 

prohibit personnel from crossing belts unless the belts were 

moving. 

18. Although miners were not prohibited from crossing 

non-moving belt3, Mettiki policy prohibited miners from crossing 

moving belts except where crossings were provided. 

19. Mettiki policy required a warning system to warn miners 

that belts were about to be started. A verbal warning was to be 

broadcast three times over the mine phon·e pager system, which had 

speakers along the belt lines. In some places along a belt, a 

miner would be unable to hear such a warning. Also, the verbal 

warning system was subject to human error. 

94 
DISCUSSION WITH FURTHER FINDINGS 

Citation No. 3110188 

Notice of Safeguard 620279 was modified on May 11, 1988, to 

change the safeguard requirement to read: 

Positive acting stopblocks, derails or chain type car holds 

shall be used to secure or prevent runaway of track mounted 

haulage equipment. Other devices not specifically designed 

for such purpose are not acceptable * * * 

This is essentially the same language as the modification of 

a safeguard that was invalidated in Beth Energy Mines, Inc., 11 

FMSHRC 942 (1989) (Judge Mellick). In that case, the judge found 

that in the early part of 1988 "all of these safeguards regarding 

the use of positive acting stopblocks or derails in District 3 

were uniformly modified to include language prohibiting the use 

of certain types of stopblocks," and "this standarized language 

was applied to all track haulage mines in District 3, regardless 

of the conditions in any particular mine." Id. at 943. 

Inasmuch as this case involves the same MSHA District and 

the same standarized provision for a safeguard, I find that the 

Beth Energy Mines decision (which became a final Commission 

decision because it was not reviewed) creates a collateral 

estoppel against the Secretary. Having already litigated and 

lost that issue against a different defendant, the Secretary is 

estopped from relitigating it in this case. See Parkland Hosiery 

Co. v. Shore, 439 U.S. 322 (1979}; and Blonder-Tongue 

Laboratories, Inc. v. University of Illinois Foundations, 402 

U.S. 313 (1971). 

Apart from the doctrine of estoppel, I apply the precedent 

of the Beth Energy Mines decision and hold, on the merits, that 

the underlying Notice to Provide Safeguard is invalid. 

Accordingly, Notice to Provide Safeguard 62927 and Citation 

3110188 will be vacated. 

Citation 3110075 

An inspector's authority to issue a notice to provide a 

safeguard is provided in§ 314(b) of the Act and the Secretary's 

regulations at 30 C.F.R. § 75.1403. 

~ notice to provide safeguard must provide the operator with 

reasonable notice of the hazard it addresses and the conduct 

required to comply with the safeguard. Southern Ohio Coal Co., 7 

FMSHRC 509 (1985); Jim Walter Resources, Inc., 1 FMSHRC 1317 

95 
(1979). In this case, Notice to Provide Safeguard No. 857887 

stated that·"This safeguard is to require that a crossover be 

provided where persons cross belts anywhere at this Mine." It 

cited§ 75.1403 as its authority. That section, at 75.1403-l(a), 

states: 

(a) Sections 75.1403-2 through 75.1403-11 set out the 

criteria by which an authorized representative of the 

Secretary will be guided in requiring other safeguards 

on a mine-by-mine basis under § 75.1403. Other 

safeguards may be required. 

One of the criteria is§ 75.1403-5 (j), which provides: 

(j) Persons should not cross moving belt conveyors, except 

where suitable crossing facilities are provided. 

Notice to Provide Safeguard No. 857887 did not state that 

the safeguard applied to non-moving belts as well as moving 

belts, nor did it otherwise put the operator on notice that the 

criterion in § 75.1403-S(j) was being expanded by t~e notice to 

provide safeguard. Accordingly, Notice to Provide Safeguard No. 

877887 may not be applied to non-moving belts at Respondent's 

mine. 

The Secretary did not prove by a preponderance of the 

reliable evidence that the persons crossing under the cited belts 

did so while the belts were moving. It was at least as likely 

that the crossings had occurred while the belts were idle as it 

was that the miners crossed under moving belts. Since the 

Secretary has the burden of proving a violation, I conclude that 

she did not prove a violation of Notice to Provide Safeguard No. 

857887. 

The Secretary proved that crossing over or under a nonmoving 

belt is a hazardous practice, because the belt may suddenly move. 

However, that hazard is not sufficiently addressed by Notice of 

Safeguard No. 857887. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over these proceedings. 

2. Notice to Provide Safeguard No. 62927 and Citation No. 

3110188 are invalid. 

3. The Secrata~y failed to prove a violation of 30 C.F.R. 

§ 75.1403 as alleged in Citation No. 3110075. 

96 
ORDER 

WHEREFORE IT IS ORDERED that: 

1. Notice to Provide Safeguard No. 62927 and Citation No. 

3110188 are VAC~TED. 

2. Citation No. 3110075 is VACATED. 

Distribution: 

w~~ 

" J •Ai? • '} -;-/fu,#,,."£/\- wi11iam Fauver 

Administrative Law Judge 

Judith L. Horowitz, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Susan E. Chetlin, Esq., Crowell and Moring, 1001 Pennsylvania 

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

iz 

97 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 12 1990 

METTIKI COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL'.rH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

CON'rEs·r PROCEEDING 

Docket No. YORK 89-12-R 

Citation No. 3110113; 11/1/88 

Mettiki Mine 

Mine ID 18-00621 

CIVIL PENAL'rY PROCEEDING 

Docket No. YORK 89-16 

A. C. No. 18-00621-03655 

Mettiki Mine 

Appearances: Judith L Horowitz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA 

Before: 

for the Secretary; 

Susan Chetlin, Esq., Crowell and Moring, 

Washington, D.C., for the Respondent. 

Judge Fauver 

At the hearing of this case, the parties proposed a 

settlement of Order No. 2709745. That settlement was approved, 

and the penalty amount will be included in the Order below. With 

respect to Citation No. 3110113, the parties proposed as a 

settlement, modification of the citation to delete the allegation 

of a significant and substantial violation and to have the 

penalty set by the judge. Tr. 785-786. ~/ Having considered the 

represent~tions and documentation submitted, I approve the 

settlement and assess a civil penalty of $100 for this violation. 

1/ The transcriot and exhibits are consolidated in the following 

cases, which wer~ heard in May 1989: 

Docket Nos. YORK 89-10-R, YORK 89-12-R, YORK 89-5, YORK 89-6, 

YORK 89-16, YORK 89-17, YORK 89-18, YORK 89-26, and YORK 89-28. 

98 
ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay civil 

penalties of $250 within 30 days of this Decision. Docket No. 

89-12-R is DISMISSED. 

Distribution: 

~~~ti'~ William Fauver 

Administrative Law Judge 

Judith L. Horowitz, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Susan E. Chetlin, Esq., Crowell and Moring, 1001 Pennsylvania 

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

iz 

99 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 121990 

WILBUR HAR'rLEY, 

Complainant . 

. DISCRIMINATION PROCEEDING 

v. 

CARGILL, INC., 

Respondent 

. . 

. . 

Docket No. YORK 89-41-DM 

MD 89-19 

Cargill Salt Mine 

DEFAULT DECISION 

Before: Judge Fauver 

On November 16, 1989, because of Complainant's failure 

to file a prehearing statement required by an Order of 

Continuance dated September 26, 1989, a show cause order was 

issued allowing Complainant until December 4, 1989 to file a 

prehearing statement or show cause why his Complaint should 

not be dismissed. 

Complainant has failed to file a response to the show 

cause order, and is hereby held in default. 

ORDER 

WHEREFORE IT IS ORDERED that the Complaint is DISMISSED. 

tJJ I~ 7-MAVl/V ~iam Fauver 

Administrative Law Judge 

Distribution: 

Mr. Wilbur Hartley, P.O. Box 221, Jarvisburg, NC 27947 

(Certified Mail) 

Ms. Toni Adams, Cargill, Inc., Cargill Salt Mine, 191 

Portland Point Road, Lansing, NY 14882 (Certified Mail) 

iz 

100 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'r.RATION CMSHA), 

Petitioner 

v. 

METTIKI COAL COMPANY, 

Respondent 

JAN 18 1990 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 89-17 

A. C. No. 18-00621-03653 

Mettiki Mine 

Appearances: Nanci A. Hoover, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA, 

for the Secretary; 

Susan Chetlin, Esq., Crowell and Moring, 

Washington, DC, for the Respondent. 

Before: Judge Fauver 

At the hearing of this case, the Secretary moved to vacate 

Citation No. 3110387. FOR GOOD CAUSE SHOWN, the motion is 

GRANTED and this case is DISMISSED • 

Distribution: 

.u}_jt ~ '?r;..v f/'--

William Fauver 

Administrative Law Judge 

Nanci A. Hoover, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Susan E. Chetlin, Esq., Crowell and Moring, 1001 Pennsylvania 

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

iz 

101 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CENTRAL CONCRETE PRODUCTS, 

Respondent 

JAN 2 21990 

. . CIVIL PENALTY PROCEEDING 

Docket No. CENT 88-100-M 

A.C. No. 29-00822-05505 

Santa Fe River Pit 

DECISION 

Appearances: Terry K. Goltz, Esq., Office of the Solicitor, 

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

for the Petitioner; 

William Donnelly, President, Central Concrete 

Products Company, Santa Fe, New Mexico, J2.!:0 ~· 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration CMSHA), charges respondent with violating 

two safety regulations promulgated under the Federal Mine Safety 

and Health Act, 30 u.s.c. § 801 et seq., (the Act). 

After notice to the parties a hearing on the merits was held 

in Santa Fe, New Mexico. 

The parties initially waived ·their right to file post-trial 

briefs and requested a bench decision. While the judge was 

rendering his decision respondent's president took issue with 

some of the judge's findings (Tr. 41). 

In view of respondent's d:>jection it was considered appropriate to review the transcript. Accordingly, the bench decision 

was vacated. 

The parties did not file post-trial briefs. 

Jurisdiction 

As a threshold matter respondent contends its sand and 

gravel operation is not subject to the Act. 

The statutes, the legislative history and the court decisions are contrary to respondent's contentions. 

102 
When Congress adopted the Mine Act it enacted this def inition of a mine: 

"Coal or other mine" means (A) an area of land 

from which minerals are extracted * * * (B) private 

ways and roads appurtenant to such area, and (C) 

lands * * * facilities, equipment * * * or other 

property * * * used in, or to be used in, or resulting from the work of extracting such materials 

from their natural deposits * * *, or used in, or 

to be used in the milling of such minerals, or the 

work of preparing coal or other minerals, ••• " 

30 u.s.c. § 802(3). 

The Senate Committee, which was largely responsible for 

drafting the final mine safety legislation, elaborated as 

follows: 

The Committee notes that there may be a need to 

resolve jurisdictional conflicts, but it is the 

Committee's intention that what is considered to 

be a mine and to be regulated under this Act be 

given the broadest possible interpretation, and 

it is the intent of this Committee that doubts 

be resolved in favor of inclusion of a facility 

within the· coverage of the Act. 

See S. Rep. No. 181, 95th Congress., 1st Sess. 14 

(1977), reprinted in Senate Sub-Committee on Labor, 

Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 602 "Legis. Hist." 

Court and Commission decisions further support the view that 

sand and gravel operations are subject to the Act. Compare: Marshall v. Standt's Ferry Preparation Co.,.602 F.2d 589 (3rd Cir. 

1979)1 Marshall v. Sink, 614 F.2d 37 (6th Cir. 1980>1 Marshall 

v. Texoline Co., tl2 F.2d 935 (5th Cir. 1980)1 Marshall v. Nolichuckey Sand Co., Inc., 606 F.2d 693 (6th Cir. 1979), cert denied 

U.S. --~' 100 s. Ct. 18351 Arizona Crushing Co., 2 FMSHRC 

3736 (1980). 

It is clear that sand and gravel operations are subject to 

the Mine Act. Accordingly, respondent's threshold argument is 

denied. 

Citation No. 2867636 

This citation charges respondent with violating 30 C.F.R. 

§ 56.9087, which provides as follows: 

103 
§ 56.9087 Audible warning devices and 

back-up alarms. 

Heavy duty mobile equipment shall be 

provided with audible warning devices. 

When the operator of such equipment 

has an obstructed view to the rear, the 

equipment shall have either an automatic 

reverse signal alarm which is audible 

above the surrounding noise level or an 

observer to signal when it is safe to 

back up. 

Citation No. 2867636 reads as follows: 

The 988 CAT loader has an inoperative 

back-up alarm. 

THE EVIDENCE 

WILLIAM TANNER, JR., a federal MSHA inspector and person 

experienced in mining, has conducted about 1500 inspections 

(Tr. 6-8) • 

On February 4, 1988, he inspected Central Concrete at its 

Santa Fe River Pit. When he entered the site he conferred with 

Harold Martinez, the foreman and crusher operator (Tr. 8). 

The company was crushing and screening river gravel (Tr. 9, 

10, 26). 

The inspector issued a citation because a 988 CAT loader had 

a disconnected back-up alarm (Tr. 10, 12, 17). The loader was 

being used to load trucks in the river bed (Tr. 13). The loader 

has blind sports. If the operator turns. to his left and looks 

back he has a blind spot to his right. Conversely, if he turns 

right and looks back, he has a blind spot to his left. The blind 

spots are 25 to 30 feet and even further back (Tr. 14, Ex. P-5) 

In the inspector's opinion it was unlikely that an injury 

would occur due to this condition (Tr. 17, 18). Further, he did 

not consider the violation to be significant and substantial. 

Mr. Donnelly advised the inspector that he had personally 

disconnected the alarm. The inspector charged the company with 

moderate negligence because someone should have noticed the alarm 

was not working (Tr. 18>. Upon re-inspection he found the backup alarm had been re-hooked (Tr. 19). 

104 
Citation No. 2867637 

This citation charges respondent with violating 30 C.F.R. 

§ 56.11001, which provides as follows: 

§ 56.11001 Safe access. 

Safe means of access shall be provided 

and maintained to all working places. 

The citation reads as follows: 

A safe means of access was not provided 

to the primary screen work area. 

MSHA Inspector WILLIAM TANNER, JR. observed that two boards 

used for a walkway were broken at one end. This condition was 

caused by large rocks falling off the screen and breaking the 

boards. 

Exhibit P-6 shows the main screen from the hopper. At the 

time of the inspection the ladder (shown in Exhibit P-6) was 

broken in the middle on the right-hand side. Mr. Martinez said 

workers climb to the top of the screen to perform weekly maintenance (Tr. 21, 22, 27). The two broken boards were used for 

a walkway (Tr. 22). 

Foreman Martinez only shrugged his shoulders when the witness asked him about the handrails (Tr. 19, Ex. P-6, P-7, P-8). 

The inspector considered that an injury was unlikely. He 

further considered the violation was not significant and substantial. The negligence was moderate because the company could 

have gotten a better ladder, repaired the two boards and put up 

handrails (Tr. 23). · 

At a re-inspection on February 10, 1988, the inspector 

issued a 104(b) order because the condition had not been abated 

(Tr. 24). 

In cross-examination the inspector agreed the front-end 

loader was removing river gravel and loading it onto large trucks 

(Tr. 26). 

Mr. Tanner indicated the 988 loader had an obstructed view 

to the rear (Tr. 28). 

105 
WILLIAM L. DONNELLY, testifying for the company, agreed 

the back-up alarm was not working (Tr. 30). However, Mr. Donnelly's view is that after a time workers will disregard and 

"tune oot" an alarm. Also an alarm can disturb the equipment 

operator (Tr. 30). 

Mr. Donnelly also indicated, regarding the safe access 

issue, that some boards had been broken. However, Mr. Donnelly 

didn't think a guard rail was needed (Tr. 31). 

TOD AGENBROAD was present during the inspection. However, 

the inspector used his book (regulations>" as a "Bible" instead 

of as a guideline (Tr. 32). 

Mr. Agenbroad agrees there were some broken boards. But he 

didn't remember if the ladder was broken. Mr. Agenbroad didn't 

consider the access unsafe. But they corrected the problem by 

adding a guardrail to the ootside. He felt this caused maintenance to be a lot more difficult (Tr. 33, 34). 

The witness didn't feel anyone in the area could hear the 

back-up alarm unless he was real close to it. In addition, there 

would be no one on the ground in danger of being struck by the 

loader. 

The company did not keep a flagman to watch behind the 

loader (Tr. 34, 35). 

Discussion 

Concerning the failure to have a backup alarm: the inspector indicated the alarm was inoperative and the view to the 

rear was obstructed. Respondent's President, Mr. Donnelly, 

admits this condition existed. 

Citation No. 2867636 should be affirmed since it is clear 

that respondent violated the regulation. 

The failure to provide safe access to the primary screenwork area is established by the uncontroverted evidence. 

Specifically, everyone agrees that two boards and the side of 

the ladder used for access were broken. 

During the bench decision Mr. Donnelly stated the company 

did not admit the broken ladder was unsafe (Tr. 41). However, 

the contrary opinions of witnesses Donnelly and Agenbroad are 

rejected. Broken boards and broken side rails do not provide 

safe access as contemplated by the regulation. 

Both citations herein should be affirmed. 

106 
Civil Penalties 

Section llO(i) of the Act sets forth the criteria to be 

followed in assessing civil penalties. 

The operator should be considered small. The proposed 

assessment form indicates respondent produces 7,160 tons per 

year. 

There was no evidence indicating how a penalty might affect 

this operator's ability to continue in business. 

The operator's prior history is favorable since the company 

was only assessed three violations in the two previous years. 

The operator was moderately negligent since the conditions 

as to both violative conditions were open and obvious. These 

conditions should have been observed and remedied. 

The gravity of each violative condition was moderate. It 

appears there was minimal exposure to the company's workers. 

The company is entitled to the statutory credit for abating 

the violative conditions alleged in Citation No. 2867636. 

On balance, I deem the penalties hereafter set forth in the 

order of this decision are appropriate. 

ORDER 

Based on the foregoing conclusions of law I enter the 

following order: 

1. Citation No. 2867636 is affirmetl and a penalty of $20 

is assessed. 

2. Citation No. 2867637 is affirmed and a penalty of $50 

is assessed. 

Law Judge 

107 
Distribution: 

Terry K. Goltz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

William Donnelly, President, Central Concrete Products Company, 

P. o. Box 4115, Santa Fe, NM 87502 (Certified Mail) 

/ot 

108 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 

JAN 221990 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

. . 

. . Docket No. WEST 89-96 A.C. No. 24-00108-03520 

v. . . . . Big Sky Mine 

PEABODY COAL COMPANY, 

Respondent 

. . 

DECISION 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Peti tioneq 

Eugene P. Schmittgens, Jr., Esq., Peabody Holding 

Company, Incorporated, St. Louis, Missouri, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a Proposal 

for Penalty by Petitioner on March 2, 1989, pursuant to Sections 

105 and 110 of the Federal Mine safety and Health Amendments Act 

of 1977, 30 u.s.c. Section 801 et seq. 

Petitioner seeks assessment of a $119 penalty for Respondent's alleged infraction of 30 C.F.R. § 77.1605(k) as described 

in the subject Section 104(a) Citation (No. 2929942) which was 

issued by MSHA Inspector James Beam on June 22, 1988, as follows: 

"The elevated roadway in the 002 pit 

that the 120 ton coal trucks are using 

to be loaded is not provided with an 

adequate berm or guard rail on the outer 

bank. The road is approximately 15 to 

20 feet above the floor of the pit and 

300 - 400 long. The berm that is provided goes from nothing in places to 

approximately 2i feet in others." 

30 C.F.R. § 77.1605(k), relating to the subject of "Loading and 

haulage equipment; installations", provides: 

"Berms or guards shall be provided 

on the outer bank of elevated roadways." 

109 
Respondent contends that no violation occurred since the 

area cited by Inspector Beam was not an "elevated roadway" within 

the meaning of the cited standard, and that in any event there 

was an adequate berm present (T. 12-13). Whether any violation 

was "significant and substantial" is also in dispute should an 

infraction of the regulation be determined to have occurred. 

FINDINGS 

General. The area cited by Inspector Beam, approximately 300 -

400 feet in length CT. 41, 47-48, 68, 86-87), was located on top 

of Respondent's "coal bench" CT. 67). The drop-off on the pit 

side of the bench was "approximately" 15 - 20 feet high CT. 67, 

76, 78, 84), and coal trucks, a utility truck and a foreman's 

vehicle were traveling on it. The Inspector desc~ibed the inadequacy of berms on June 2 2 as follows: 

"And when we traveled the road, I noticed 

the berm on this road. In places there 

wasn't any berm at all. Most of the berm 

that was there was coal that had rolled off 

of the bucket as the shovel was loading 

trucks." 

(T. 67) 

"The berm that I observed along the edge 

of the roadway was some places approximately 

two and a half feet high and other places 

there wasn't any berm at all where the coal 

had just rolled off into the pit." 

(T. 75) 

Inspector Beam was of the opinion that there was no berm present 

along this elevated roadway that was capable of restraining the 

vehicles he observed operating on it (T. 75-76). He saw no 

evidence that the mine operator had attempted to install a berm 

in this area CT. a9> and he observed it in the same condition 

the day before (T. 88). 

The roadway was approximately 20 feet wide CT. 68) and the 

widest vehicles observed using it were coal (haul) trucks which 

were themselves approximately 14 - 15 feet wide (T. 69, 86). 

The Inspector estimated the speed of the foreman's truck and 

service (utility) truck at 15 or 20 miles per hour CT. 68-69) 

and the coal trucks at 5 - 10 m.p.h. CT. 86). 1/ 

l/ Respondent's mine superintendent, Tracy Hendricks, estimated 

the speed of the coal trucks as not exceeding 5 m.p.h. and the 

speed of pickup trucks at "maybe 10 miles an hour." CT. 102). 

110 
As previously noted, the drop from the bench traveled by the 

loading trucks was approximately 15 - 20 feet and was vertical 

(See Ex. R-4 and T. 46-48, 67, 74, 75, 76). Each of five coal 

trucks would make approximately 30 - 34 trips per day on this 

roadway CT. 99-100). 

Prior to issuance of the Citation on the morning of June 22, 

1988, the Inspector observed three of these coal trucks to enter 

the roadway from the southeast while empty and to exit filled 

with 100 tons of coal going in a northwesterly direction CT. 69, 

70-73, 74, 75, 76, 77, 104, 114). Inspector Beam described the 

hazard and the effect this placement of the driver on the side of 

the vehicle opposite the vertical drop would have in this manner: 

"Q. And what hazard if any is presented 

by the fact that this roadway either 

did not have a berm at all or the berm 

only rose to two and a half feet? 

A. The hazard would be somebody going over 

the edge of the coal into the open pit. 

And the edge of the coal was just a 

vertical drop to the bottom of the pit. 

Q. And again, would you refresh my recollection? What was the length of the 

vertical drop on this roadway, or the 

depth if you would? 

A. Approximately 20 feet. 

Q. Now, the fact that the drivers would have 

been using the road on the spoils side 

driving on the spoils side of the road 

with the cuter bank to the right of the 

driver, what effect, if any, does that 

have on the hazard? 

A. The driver would have to judge the distance of how close he was to the edge of 

the coal. In some cases this coal was 

sloped off maybe two or three feet back 

into the roadway. It wasn't 20 feet all 

the way along the length of this road. 

Q. Was it less than 20 feet in some spots? 

A. In places it was less than 20 feet. 

111 
Q. Did you observe that day how close the 

edge of the outer bank that vehicles came? 

A. A few places, I seen places where they 

come within two or two and a half feet 

C>f the outer edge. n 

(T. 76-77) 

The Inspector was of the opinion that the judgment of the 

driver of a vehicle as to the distance from the edge would be 

adversely affected by h.is being on the side of the vehicle 

opposite the edge (T. 85). 

The roadway in question was used primarily to transport 

coal, but it was also used to carry equipment and personnel 

(T. 67-69, 71, 73, 77, 102, 106). According to Inspector Beam 

it was a roadway that was being used for "all purposes" (T. 77) 

and he estimated its lifetime as being "not more than a couple 

of weeks probably" ( T. 8 8-8 9) • 

Inspector Beam defined the word "adequate" -- as used in 

the Ci tat ion with respect to" berms -- as "enough to stop a 

vehicle if it were to go out of control" CT. 81). An adequate 

berm thus would had to have been "mid-axle to the biggest 

vehicle" to travel on the roadway, in this case coal (haul) 

trucks. Mid-axle to such trucks would be 44 inches (T. 91) 

in height and about 4 - 5 feet wide. ~/ 

Abatement was accomplished in 2 hours (T. 79) by preventing 

traffic from traveling on the roadway altogether rather than 

by installing berms along the "vertical drop" side of the bench 

(T. 89) although such would have been possible (T. 91). 

Over the past 5 years, 61 percent of the fatalities in 

surface mines were to mobile equipment operators, 46% of which 

fatalities occurred where the operators either jumped or were 

thrown from vehicles (T. 77). 

2/ "Berm" is defined in 30 C.F.R. § 57.2 as a "pile or mound of 

material capable of restraining a vehicle." 

112 
Respondent's Evidence. The Superintendent of Respondent's Big 

Sky Mine, Tracy Hendricks, was of the opinion that the bench in 

question was not a roadway within the meaning of the regulation, 

based on the following rationale: 

"Well, I believe that a roadway has 

to have berms, has to designed and has to 

have drainages and all of this sort of 

thing. 

And a working area in the pit, working 

off the bench is not a permanent roadway. 

It's there for short periods of time. It 

changes from day to day. 

And so, consequently, I do not believe 

it's a roadway." CT. 97) (emphasis added). 

Respondent's evidence placed emphasis on the fact that the 

bench/roadway in question was not permanent in nature to support 

the opinion of its witnesses that the berm requirement was not 

applicable to the cited area CT. 138). Part of this rationale 

was that the cited area was "a working area in the pit" and 

not a "roadway" CT. 97, 122, 135-137). 3/ The size of the pit 

ranges from 100 feet wide to several hundred to 1000 feet long 

CT. 130-132). 

Respondent had not been cited for failing to have a berm 

on a bench prior to issuance of the subject Citation, nor had 

it been previously advised or told that a berm was required or 

needed by any MSHA inspector CT. 98). Mr. Hendricks, a 19-year 

employee at the Big Sky Mine, indicated that he was not aware of 

any prior accidents at the mine involving trucks going off the 

bench CT. 99, 103, 146, 147) and that in its 20-year hi~tory, 

the Big Sky Mine's mining cycle had never utilized the practice 

of installing berms on the edge of the bench. Mr. Hendricks 

conceded that when coal is being removed from the pit, the roadway (bench) is normally elevated 10 or 15 feet CT. 100). Prior 

to the mining of coal, the bench is not elevated CT. 101), and 

thus is not elevated until some coal is removed CT. 102). 

ll Respondent offered no basis, however, for the implication 

that a "roadway" could not exist in or be a part of a "working 

area." Respondent's argument simply appears to be that since 

the cited area was in the working area it could not be a roadway. 

113 
Mr. Hendricks expressed the opinion tnat it would not be 

possible for a coal (haul) truck to roll over the bench because 

"at that speed if a wheel were to leave the edge of the bench, 

••• it would center out first." (T. 102-103). The theory 

supporting this opinion would not apply to pickup trucks or 

service trucks, however (T. 106). 

Respondent's evidence that there had not been prior incidents of trucks going over the edge at the mine, based on 

Mr. Hendrick's testimony and that of other witnesses (T. 146-

147), was not challenged or rebutted and is found as a fact. 

Respondent also established that its additional costs for compliance with the subject for 1990 would come to an estimated 

$72,300 (T. 141-143). 

DISCUSSION AND ULTIMATE FINDINGS AND CONCLUSIONS 

The facts pertinent to resolution of this matter are not 

in significant dispute. 

There is no question that if the regulation i~ found applicable to the cited bench area a violation occurred because the 

provision requiring berms (or guards) was not complied with 

since the loose coal and material that was present in places 

along the 300 - 400 foot area cited clearly was not sufficient 

to constitute compliance with the standard. Respondent made 

no substantial contention or showing in this regard. Not 

only was there no substantial evidence that the coal or other 

material which was present was sufficient to restrain a vehicle 

or provide reasonable "control and guidance" of a vehicle, but 

Respondent's witnesses did not deny or overcome the Inspector's 

credible testimony that in places there were no berms whatsoever 

(T. 75). 4/ There of course is no indication in this record - or 

contention - that "guards" were in place along the cited area. 

4/ Although in its Brief, pp. 25-26, Respondent makes the 

argument that "the berm which results from the blade running 

down the bench" is adequate to help "control and guide the 

vehicles," I find no probative or substantial basis in the 

evidentiary record, Commission precedent, or regulations (see 

fn. 2) to make such a finding, i.e., that the material present 

along the side of the bench constituted an adequate berm since 

it provided "reasonable control and guidance of a vehicle." I 

thus find the precedent cited by Respondent in support of this 

argument, Secretary v. U.S. Steel, 5 FMSHRC 1604 (ALJ Koutras, 

1983), inapplicable to the factual situation presented. 

114 
The primary question raised by Respondent is whether the 

"bench" which was cited by Inspector Beam was an "elevated 

roadway" within the meaning of the subject regulation, 30 C.F.R. 

§ 77.1605(k). 5/ In connection with a similar standard, 30 

C.F.R. § 56.9-22, the Commission has answered the question in 

the affirmative. See Secretary v. El Paso Rock Quarries, Inc., 

3 FMSHRC 35 (January 1981) involving a quarry bench elevated 

40 feet above a lower bench. In Secretary v. Burgess Mining 

and Construction Corporation, 3 FMSHRC 296 (February 1981) 

the Commission also noted that "the same purpose and the same 

principles" underlying 30 C.F.R. § 56.9-22 underlie 30 C.F.R. 

§ 77.1605Ck> and applied the berm requirements thereof to a 

bridge since it was deemed to be part of a roadway. 

Here, the physical hazard was a 15 - 20 foot vertical drop 

along the side of a roadway approximately 20 feet wide traveled 

by vehicles - some of which are themselves 14! feet wide --

within 2 - 2i feet of the edge CT. 75). The dangers posed by 

the absence of adequate berms here are no different than those 

posed in other situations, whether they involve bridges or more 

permanent roadways. The record being clear that the height of 

the drop is sufficient to create a danger of serious injury 

should a vehicle go over the side of the bench, it is found that 

the bench area cited is "elevated" within the meaning of the 

standard. There is also considerable probative evidence establishing that the bench was used with frequency by various types 

of trucks and that the bench was in existence a significant 

period of time - which the Inspector estimated as up to two 

weeks CT. 88-89) -- both during coal removal and after the coal 

was removed. It is thus concluded that this was a "roadway" 

and that that the regulation is applicable to the cited area. 

It is finally observed that Respondent's heavy reliance 

on the decision in Secretary v. Peabody Coal Company, 6 Ff.SHRC 

2530 CALJ Morris, 1984) is not well founded. In that matter 

Judge Morris determined that the El Paso Rock Quarries, Inc., 

supra, was not controlling in view of the great width (120-140) 

feet) of the bench at the mine involved in his proceeding. 

~/ As noted earlier, this standard appears in a group of 

regulations under the heading "Loading and haulage equipment; 

installations." Because hauling was a major activity involved, 

the question of whether the provisions of 30 C.F.R. § 77.1605(k) 

are applicable only to loading and hauling activities is not 

passed on. 

115 
Specifically, Judge Morris held: 

"I do not find on this record that any vehicles 

transported coal, equipment or personnel closer 

than within 60 feet of the edge of the Peabody 

bench. The difference between operating not 

closer than 60 feet of the edge and operating 

within 10 to 12 feet of the edge is crucial. 

A distance of 60 feet is not insubstantial. 

An interstate highway lane measures 12 feet. 

If no vehicle is ever shown to have been operated within 5 such lanes of an edge, I cannot 

hold that the unused 60 foot portion can nevertheless be somehow denominated as a 'roadway.' 11 

(emphasis supplied) 

In the case at hand the roadway was but 20 feet wide and trucks 

operated within 2 or 2i feet of the edge. 

It having been determined that the standard is applicable to 

the 300 - 400 foot bench area described by the Inspector in the 

Citation and that the berms there were inadequate, an infraction 

of 30 C.F.R. § 77.1605Ck) is found to have occurred. 

SIGNIFICANT AND SUBSTANTIAL 

Respondent's remaining contention concerns the propriety 

of the "significant and substantial" CS&S) designation to the 

violation. 

A violation is properly designated as being of a signif icant and substantial CS&S) nature if, based on the particular 

facts surrounding the violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. Cement Division, 

National GYPSUm, 3 FMSHRC 822, 825 (April 1981); Mathies Coal 

co., 6 FMSHRC 1, 3-4 (January 1984). In Mathies the Commission 

enumerated the elements necessary to support a significant and 

substantial finding: 

Cl) The underlying violation of a mandatory 

standard; (2) a discrete health hazard -- a 

measure of danger to safety contributed to by 

the violation; (3) a reasonable likelihood that 

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

injury in question will be of question will be 

of a reasonably serious nature. 

116 
It has previously been found that a violation occurred. 

The absence of adequate berms or guards on an elevated roadway 

where vehicles travel close to a 15 - 20 foot vertical drop 

constitutes a safety hazard and patently constitutes the violation' s contribution of a measure of danger to the drivers of 

the vehicles. Petitioner's evidence established that serious 

injuries could result if the hazard Ca vehicle's going over 

the edge) should come to fruition. The remaining and critical 

question posed by the 4-part, so-called, Mathies formula is 

whether a reasonable likelihood existed that the hazard would 

occur should normal mining proceed. 

The Inspector's judgmental basis on this issue is subject 

to some question in view of his belief that any "likelihood," 

however remote, would constitute an S&S violation. The Inspector 

gave the following testimony in this connection: 

"Q. Would your opinion as to the seriousness 

of this violation change any if we were 

to assume that similar circumstances had 

not occurred in over 20 years at this 

particular mine? 

A. No, it wouldn't. It wouldn't change at all. 

Q. So, as far as you're concerned an S & S is 

any likelihood, no matter how remote, of 

an occurrence happening, that would still 

be the S and s, is that correct. 

A. I believe you could say that." 

(T. 82) 

Mine Superintendent Hendricks testified that it would 

not be possible to roll a haul truck over the side because at 

the speed they travel "if a wheel were to leave the edge of 

the bench, 11 because of the weight of the coal "it would center 

out first. 11 CT. 10 3 > • He conceded that this rationale would 

not apply to pickup, service or welding trucks CT 106) and I 

would inf er it would not apply to unloaded coal haulage trucks. 

Respondent's strongest evidence unrebutted appears to be 

that in 20 years there has been no occurrence of trucks going 

117 
over the side of the bench. I agree with the assertion of 

Respondent (Brief, p. 28) that: 

"If one were to consider the total trips through 

the pit by haul trucks, together with service and 

foremen's vehicles, it is likely over one million 

trips on the bench have occurred. These trips have 

been incident free. As such, two explanations are 

likely. Either there is no discrete hazard, or, 

there is· no reasonable likelihood that the hazard 

will lead to an injury." 

In the final analysis, there is no evidence upon which to 

find or infer that there was a reasonable likelihood that the 

hazard contributed to by the violation would result in an injury. 

Accordingly, the designation of this violation as "significant 

and substantial" is found unwarranted. 

PENALTY ASSESSMENT 

The parties have stipulated that Respondent is a large coal 

mine operator and that a penalty of the amount proposed by MSHA 

($119) will not affect its ability to continue in business. 6/ 

Documentary evidence (Ex. P-1) indicates that Respondent had a 

history of 8 prior violations prior to the occurrence of the instant violation. Respondent demonstrated good faith in abating 

the violation after notification thereof CT. 79). Although it 

has been determined that the violation was not "significant and 

substantial", it nevertheless is concluded that such was a 

serious violation since serious injuries could have resulted to 

miners had a vehicle gone over the side of the bench/roadway. 

In mitigation of penalty, it appears that no prior Citations 

had been issued Respondent, or MSHA enforcement action taken, 

for the practice (failure to provide adequate berms or guards) 

charged here. Also, it appears that Respondent's management 

personnel who testified were of the opinion that other Western 

surface mines had not been subject to the requirements of the 

standard involved here. Thus, the lack of compliance with the 

~/ This type of stipulation, commonly seen, is in the nature 

of a negative pregnant which leaves open what, if any, level of 

penalty assessment might jeopardize a mine operator's ability to 

remain in business. Such a stipulation is not binding as to the 

maximum amount of penalty which can be assessed in appropriate 

circumstances since under Commission precedent the burden is on 

the Respondent coal mine operator to establish that it is unable 

to pay a penalty at some level or amount. 

118 
standard appears to have stemmed from the genuine belief that 

the bench area cited was not a "roadway" within the intended 

coverage of the regulation rather than from an oversight, 

negligence, or wilful conduct. 

In the premises, a penalty of $100 appears appropriate and 

is assessed. 

ORDER 

Citation No. 2929942 is MODIFIED to delete the "significant 

and substantial" designation thereon and is otherwise affirmed. 

Respondent, if it has not previously done so, shall pay the 

Secretary of Labor within 30 days of the date of issuance of this 

decision a civil penalty in the sum of $100.00. 

/7f!.e~~ &I' / ~ ~ - Michael 

Administrative 

A. sher, 

Law Judge 

~ 

Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Eugene P. Schmittgens, Jr., Esq., Peabody Holding Company, Inc., 

301 North Memorial Drive, P.O. Box 373, St. Louis, MO 63166 

(Certified Mail) 

/ot 

119 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 2 3 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSBA} , 

ON BEHALF OF FRED BARTLEY, 

Complainant 

v. 

ADAMS STONE CORPORATION, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 89-102-DM 

Jenkins Quarry 

CORRECTED SUPPLEMENTAL DECISION 

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

U.S. Department of Labor, Nashville, Tennessee, 

for Complainant; David Adams, Vice-President, 

Adams Stone Corporation, Pikeville, Kentucky, for 

Respondent. 

Before: Judge Broderick 

Pursuant to my order of December 5, 1989, the Secretary 

filed a statement of the total back wages due Fred Bartley 

under the decision issued October 18, 1989. Respondent on 

January 9, 1990, replied to the Secretary's statement. 

The total back wages and other benefits to which Bartley 

is entitled under the decision amount to $9,438. This 

amount was paid to Bartley on December 8, 1988, pursuant to 

an arbitration award. Respondent is therefore given credit 

for the payment of this amount in accordance with Order No. 3 

in the decision issued October 18, 1989. In addition to this 

amount, Bartley is entitled to interest under the formula 

set out in UMWA v. Clinchfield Coal Company, 10--PMSHRC 1493 

(1988). Interest through December 7, 1988, totals $316.75. 

Therefore, IT IS ORDERED: 

1. The findings, conclusions and orders of the decision 

issued October 18, 1989, are REAFFIRMED. 

120 
2. Respondent shall, within 30 days of the date of this 

Corrected Supplemental Decision, pay to Complainant the sum 

of $316.75 representing the interest on the amount of back pay 

and other benefits to Complainant Bartley on December 8, 1988. 

3. Respondent shall, within 30 days of the date of this 

Corrected Supplemental Decision, pay to the Secretary a 

civil penalty in the amount of $1000 for the violation of 

section 105(c) of the Mine Act. 

4. This decision is FINAL. 

.., 

i-ftit:tLs ,/f/it:'J~t,ieL:_ 

;/ ~ames A. Broderick · Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

David H. Adams, Vice President, Adams Stone Corporation, 

P.O. Box 2320, Pikeville, KY 41501 (Certified Mail) 

slk 

121 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative· Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 2 3 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, CMSHA), 

ON BEHALF OF 

CHARLES SCOT'r HOWARD, 

Complainant 

v. 

HARLAN CUMBERLAND COAL 

COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 90-31-D 

C-2 Mine 

ORDER OF DISMISSAL 

On January 16, 1990, Petitioner filed a Motion to Dismiss. 

The Motion alleges that that it is made in accordance with section 

105Cc)(3) of the Federal Mine Safety and Health Act of 1977 (the 

Act), in that " ••• factual information no~ available to th~ 

Secretary causes her to conclude that she cannot successfully 

prosecute this Litigation." On January 18, 1990, Respondent 

filed a statement indicating that it does not oppose this 

Motion. 

Accordingly the Motion is GRANTED. 

It is ORDERED that Miner Charles S. Howard shall have 

30 days, after entry of this Order, to file an action in his 

own behalf under section 105Cc> of the Act. It is further 

ORDERED that this case be DISMISSED. 

Distribution: 

W. F. Taylor, Esq., Office of the Solicitor u s. Department 

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

37215 CCertif ied Mail) ' 

Charles E. Allen, III, Esq;··; James Cockrum, Esq., Brown, 

Todd, & Heyburn, 16th Floor, Citizens Plaza, Louisville, KY 

40202-2873 (Certified Mail) 

dcp 122 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges · 2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 JAN 2 J 1990 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEAL~H 

ADMINISTRATION, ( MSHA) , Petitioner 

v. 

. . 

. . 

. . 

. . 

PENNSYLVANIA ELECTRIC COMPANY,: 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-227 

A.C. No. 36-06475-03501 YIV 

Iselin Preparation Plant 

Appearances: James B. Crawford, Esq., Office of the Solicitor, 

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

for Petitioner; 

John P. Proctor, Esq., Bishop, Cook, Purcell, & 

Reynolds, Washington, DC, and Timothy N. Atherton, Esq., 

Pennsylvania Electric Company, Johnstown, 

Pennsylvania for Respondent. 

Before: Judge Melick 

In these civil penalty proceedings under the Federal 

Mine Safety and Health Act of 1977, .30 u.s.c. § 801 et seq., 

the "Act," the Secretary of Labor has alleged two violations 

in Citations No. 2884282 and 2884283 of the mandatory 

standard at 30 C.F.R. § 77.400(c). In particular she has 

charged that employees of the Pennsylvania Electric Company 

CPenelec) removed protective guards at the No. 5A and No. SB 

head drives for the belt conveyor at the top of Bin 2 at the 

001 'Preparation Plant. In its Answer and at initial hea.rings 

below Penelec asserted that the Secretary of Labor through 

her Mine Safety and Health Administration CMSHA) did not have 

jurisdiction under the Act, to conduct inspections at the 

cited 5A and SB head drives. Assuming jurisdiction did exist 

Penelec did not dispute the existence of ths cited violations 

or that there was a reasonable likelihood that the hazard 

contributed to by the violations would result in an injury of 

a reasonably serious nature. 

On re·..riew a majority of the Commission held that 

jurisdiction over the cited SA and SB head driv~s existed 

under the Act but remanded the case for further proceedings 

on the question of "whether the Secretary of Laboe, through 

the Mine Safety and Health Administration CMSHA) has properly 

123 
exercised her authority to regulate the cited working 

condition at Penelec's generating station." 

. On remand the Secretary objects to the scope of the 

remand order and maintains that Commission review of her 

internal decision-making processes and intrusion by the 

Commission into her reasons and motives for such decisions is 

impermissible and privileged. She argues that the Commission 

is without jurisdiction to make such inquiry in these civil 

penalty proceedings and notes that the Federal District 

Courts have been granted exclusive jurisdiction under the 

Administrative Procedure Act, CS U.S.C § 702 and 704) to 

review the Secretary's actions when properly challenged. The 

Secretary maintains that she has been given sole discretion 

under Section 3Ch>Cl> of the Act to decide whether OSHA or 

MSHA should inspect the subject area of the mine based on 

administrative convenience. She further argues that the 

Commission has no lawful authority in any event to order 

sanctions against her even should she be found to have acted 

"improperly". 

These important arguments should, of course, have been 

presented by the Secretary when this case was on review 

before the full Commission so that the matter could have been 

fully briefed, argued and considered by that body. In any 

event, in light of my findings herein, there is no need to 

reach these issues. 

Following additional hearings on remand I find that 

although the Secretary never clearly established, prior to 

the issuance of the citations at bar, that MSHA would assert 

exclusive inspection authority over the subject SA and SB 

head drives, I do not find in these civil penalty proceedings 

any legally cognizable Secretarial impropriety in exercising 

her authority to regulate the area of the cited SA and SB 

head drives identified or sanctioned within the framework of 

the ~ct.l/ This does not mean that the Secretary's practices 

disclosed at hearings should be condoned or be found to be 

acceptable. Indeed the Secretary's past practice of 

determining MSHA inspection authority over t_he subject area 

based upon whether the workers present at tnat time were 

members of the United Mine Workers of America Cin which case 

MSHA inspected the area) or members of the International 

Brotherhood of Electrical Workers Cin which case MSHA did not 

inspect the area) is quite bizarre and clearly unacceptable • 

. ~:/The Secretary's inconsistent enforcement practices 

have al.ready been considered in mitigation of the operator's 

negligence under Section llOCi) of the Act. 10 FMSHRC at 

124 
It is also apparent from the newly developed record that 

the MSHA-OSHA Interagency Agreement, "Agreement", was not 

initially involved in this case because the OSHA/MSHA issue 

first arose before that agreement was implemented in 1979. 

Thereafter until a potential conflict was identified upon the 

issuance of the citations at bar and upon the subsequent 

complaints by Penelec, questions of whether MSHA or OSHA 

should inspect the SA and SB head drives apparently did not 

arise. The Agreement, by its own terms, does not come into 

play until someone raises the question. It is also noted 

that once the question was raised by Penelec the Agreement 

was invoked by MSHA and apparently the matte\was resolved at 

the local level {Remand Ex. G-3). ';\ 

\ A, o~ I 

I \v·~-··L£.)(4/· f . f ) 

arY! Metlick 

Distribution: 

Adm~ni~trative L 

~l 

Judge 

James B. Crawford, Esq., Office of the Solicitor, U.S. 

Department of Labor, 401S Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail> 

John P. Proctor, Esq., Bishop, Cook, Purcell, & Reynolds, 

1400 L. Street, N.W. Washington, DC 20005 (Certified Mail} 

Timothy N. Atherton, Esq., 1001 Broad St., Johnstown, PA 

15907 (Certified Mail) 

cont'd fn.l 

pps. 1782-1783. In light of the newly developed undisputed 

evidence that MSHA had indead previously inspected, and 

issued citations for violations at, the subject SA and SB 

head drives and that Penelec was aware of those inspections 

and citations it is now clear that no reduction in negligence 

should have been permitted. The absence of any evidence that 

OSHA ever inspected the cited area and the representations 

that the cited conditions were violations under either OSHA 

or MSHA regulations are also significant in this regard. 

Stipulation Number 4, previously entered by the parties, is 

therefore misleading, if not totally inaccurate. 

nt 

125 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION · 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 2 3 1990 

KENT COAL MINING. COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRE'rARY OF LABOR, 

MINE SAFE·ry AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

KENT COAL MINING COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. PENN 89-99-R 

Order No. 2894113; 2/7/89 

Docket No. PENN 89-100-R 

Citation No. 2894114; 2/7/89 

Docket No. PENN 89-101-R 

Order No. 2894115; 2/7/89 

Docket No. PENN 89-102-R 

: Order No. 289(116; 2/7/89 

Docket No. PENN 89-103-R 

Order No. 2894117; 2/7/89 

: Docket No. PENN 89-104-R 

: Citation No. 2894118; 2/7/89 

Docket No. PENN 89-105-R 

: Order No. 2894119; 2/7/89 

Docket No. PENN 89-106-R 

: Citation No. 2894120; 2/7/89 

126 

KENT No. 55 Mine 

Mine ID 36-07756 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-183 

A.C. No. 36-07756-03507 

Kent No. 55 
DECISION 

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania, for the Contestant/ 

Respondent; 

Paul D. Inglesby, Esq., U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, 

Pennsylvania, for the Respondent/Petitioner. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

In these consolidated proceedings, Kent Coal Mining Company 

{KENT) is challenging the legality of four orders issued pursuant 

to section 104(g)(l) of the Federal Mine Safety and Health Act of 

1977 (the Act) and the four section 104(a) citations issued in 

conjunction with those orders. The four order/citation sets 

apply to, in turn, Roger A. Young, Kimball Rearick, John A. 

Radomsky and Gary Lancashire. They were all issued by MSHA 

Inspector John Kopsic on February 7, 1989, because of the alleged 

failure of the contestant mine operator to provide hazard 

training pursuant to 30 C.F.R. § 48.3l(a) for the four abovenamed employees of the independent drilling and blasting services 

contractor. 

A representative order (Order No. 2894113) reads as follows: 

Roger A. Young, driller, SS No. 197-42-6883, an 

employee of an independent contract driller at the 001 

pit is hereby declared a hazard to himself and others 

and is to be immediately withdrawn from mine property 

until he receives the training required under 

Part 48.3l(a) 30 C.F.R. The driller was observed 

working at the 001 pit and was not given hazafd 

training before commencing work activities. The 

driller did have his training required under 

Part 48.28(a) 30 C.F.R. 

A 104(a) Citation (No. 2894114) has been issued in 

conjunction with this order. 

Its related citation (Citation No. 2894114) reads as 

follows: 

An employee of an independent contract driller was 

observed working at the 001 pit without first being 

given hazard training under Part 48.3l(a) 30 C.F.R. for 

this particular mine site by the foreman or person 

designated to give hazard training. 

127 
A 104(~)(1) Order (No. 2894113) has been issued in 

conjunction with this citation. 

The other orders and citations are substantially the same 

for the other three employees involved. 

STIPULATIONS 

The parties stipulated as follows: 

1. Kent Mine No. 55 is owned and operated by the Kent Coal 

Mining Company and is subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977 (Tr. 6-7). 

2. The Administrative Law Judge has jurisdiction over these 

proceedings (Tr. 7). 

3. The subject citations and orders were properly served by 

a duly authorized representative of the Secretary of Labor on an 

agent at the Kent Coal Company on the dates and places stated 

therein and may be admitted into evidence for the purpose of 

establishing due issuance but not for the truth of the matters 

asserted therein (Tr. 7). 

4. Kent demonstrated good faith in the abatement of the 

citations and orders (Tr. 7). 

5. The assessment of a civil penalty in the proceedings will 

not affect the Kent Coal Company's ability to continue business 

(Tr. 7) • 

6. The appropriateness of the penalty, if any, to the size 

of the coal operator's business should be based on the fact that, 

(A) the annual production tonnage of Kent's parent and all its 

subsidiaries is 9 ,386,168; and CB) Kent Coal Company Mine , ·· 

Number SS's annual production tonnage is 30,440 (Tr. 7). 

Applicable Regulations 

§ 48.22 Definitions. 

For the purposes of this Subpart B-

(a)(l) "Miner" means, for purposes of§§ 48.23 through 

48.30 of this Subpart B, any person working in a 

surf ace mine or surf ace areas of an underground mine 

and who is engaged in the extraction and production 

process, or who is regularly exposed to mine hazards, 

or who is a maintenance or service worker employed by 

the operator or a maintenance or service worker 

128 
contracted by the operator to work at the mine for 

frequent or extended periods. This definition shall 

include the operator if the operator works at the mine 

on a continuing, even if irregular, basis. Short-term, 

specialized contract workers, such as drillers and 

blasters, who are engaged in the extraction and 

production process and who have received training under 

§ 48.26 (Training of newly employed experienced miners) 

of this Subpart B, may in lieu of subsequent training 

under that section for each new employment, receive 

training under § 48.31 (Hazard training) of this 

Subpart B. This definition does not include: 

Ci) Construction workers and shaft and slope 

workers under Subpart C of this part 48; 

(ii) Supervisory personnel subject to MSHA 

approved state certification requirements; 

and 

(iii) Any person covered under paragraph 

(a)(2) of this section. 

(2) Miner means, for purposes of section 48.31 (Hazard 

training) of this Subpart B, any person working in a 

surface mine or surface areas of an underground mine 

excluding persons covered under paragraph (a)(l) of 

this section and Subpart C of this part and supervisory 

personnel subject to MSHA approved state certification 

requirements. This definition includes any delivery, 

office, or scientific worker, or occasional, short-term 

maintenance or service worker contracted by the 

operator, and any student engaged in academic projects 

involving his or her extended presence at the mine. 

§ 48.31 Hazard Training. 

(a) Operators shall provide to those miners, as defined 

in section 48.22(a)(2) (Definition of miner) of this 

Subpart B, a training program before such miners 

commence their work duties. This training program 

shall include the following instruction, which is 

applicable to the duties of such miners: 

Cl) Hazard recognition and avoidance; 

(2) Emergency and evacuation procedures; 

(3) Health and safety standards, safety rules 

and safe working procedures 

129 
(4) Self-rescue and respiratory devices; and, 

(5) Such other instruction as may be required 

by the District Manager based on circumstances and conditions at the mine. 

Cb) Miners shall receive the instruction required 

by this section at least once every 12 months. 

DISCUSSION AND FINDINGS 

On February 7, 1989, Inspector Kopsic performed a regular 

AAA inspection at the Kent No. 55 Mine, a surface coal mine. 

During this inspection, he observed four contractor's employees 

working on a drill bench at the site. Claron Explosives, Inc., 

had four employees working on the site that day, two drillers and 

two driller helpers. 

The inspector talked to all four employees and learned that 

they had not specifically received "hazard training" for the 

Kent No. 55 mine site prior to commencing their duties at that 

site, although he was satisfied that they had their comprehensive 

annual refresher training from their employer. 

The particular hazard that he had in mind at the time was 

that there was no berm along the elevated roadway which was 

approximately 40-50 feet high. In the inspector's opinion, this 

lack of a berm along with Kent's failure to notify the drillers 

of this missing berm, posed a hazard to them as they operated 

their drilling equipment back and forth across the bench. 

However, to the extent that it is relevant here, the fact that 

there was no berm along the elevated roadway was just as obvious 

to these four experienced miners as it was to the inspector. 

Subsequent to the issuance of the orders/citations herein, 

abatement was accomplished when Kent's shift foreman, Mr. Marafka, 

told them where other equipment was working on the site, where 

they were going to be working, the location of communications, 

the need to wear their hard hats and safety-toed shoes and to 

stay away from the edge of the drill bench until the bulldozer 

got the berm up. This training took· approximately 15 minutes to 

accomplish and Inspector Kopsic was satisfied that the training 

required by 30 C.P.R. § 48.3l(a) had now been accomplished. 

Hazard training under 30 C.F.R. § 48.3l(a) is an absolute 

require1nent for those miners defined in 30 C.F.R. § 48.22(a)(2) 

and is an optional method of compliance with the training 

regulations for each new employment for those short-term, 

specialized contract workers, such as drillers and blasters, who 

130 
are engaged in the extraction and production process and who have 

initially received training under Section 48.26 (Training of 

newly employed experienced miners). For miners otherwise defined 

in Section 48.22Ca)(l), the hazard training is not required. 

Section 48.22(a) is an extremely subjective standard with 

which to measure who is required to have hazard training, but the 

idea is to distinguish between those miners who are more or less 

permanent employees who would be likely to be aware of any 

hazardous conditions at a particular mine and those employees who 

only infrequently come into contact with a particular mine, and 

thus, presumably, could be caught unaware of its latent dangers. 

The four individuals involved in this case have differing 

levels of experience at the Kent No. 55 mine site. Roger Young 

and Kimball Rearick have done most of the drilling that has been 

done at the Kent No. 55 site in the last five years. For the 

year prior to the alleged violations, they averaged 3 or 4 days a 

week drilling at the Kent No. 55 mine. For all intents and 

purposes, they were permanent ~nployees, as described by 

Mr. Marafka. Messrs. Lancashire and Radomsky, on the other hand, 

only drilled at the No. 55 site once prior to this incident, 

although they had worked for Kent on an occasional basis at other 

surface mines over the previous three year period. With regard 

to the instant occurrence, these two employees first arrived on 

the site the day prior to the MSHA inspection and continued to 

drill on the site for the following 3-4 weeks. Arguably, 

therefore, they could and should be characterized as 

"short-term, specialized contract workers, such as drillers 

and blasters". 

Using the above dichotomy only the latter two drillers, 

Lancashire and Radomsky, would need the "hazard training" 

specifically referred to in 30 C.F.R. § 48.3l(a); while the other 

two drillers working right beside them, Young and Rearick, would 

only require the annual refresher training. I note here 

parenthetically that the annual refresher training for all four 

of these drillers, given under 30 C.F.R. § 48.28(a) by their own 

employer was the same training for each of them. 

It seems logical to me that all four should have the same 

type and quantum of safety training since they were working 

together, exposed to the same extent to the same hazards of 

mining. I don't believe the Secretary disagrees with this, since 

she believes they all four require the "hazard training" 

specifically given under section 48.3l{a). However, the 

Secretary arrives at this all-encompassing requirement by 

defining the drillers as either "short-term service workers who 

were contracted by the operator" or "short-term specialized 

contract workers who were engaged in the extraction process." 

131 
CThe emphasis on the short-term is my own). While this 

definition could most likely be made to stick to Lancashire and 

Radomsky, it is clearly inapplicable to Young and Rearick. They 

are more akin to "service workers contracted by the operator to 

work at the mine for frequent or extended periods", and thus are 

not required to be given "hazard training" under 30 C.F.R. 

§ 48.31Ca). 

By strict adherence to the language of section 48.22, we 

have the anomalous situation where four men performing similar 

job functions in the same setting, within several feet of each 

other, require training under different sections of the training 

regulations. The saving feature from a logical standpoint seems 

to be that the same information is required to be imparted to 

everyone, albeit under different guises. 

As I indicated on the record at the conclusion of the 

hearing in this matter, I do not believe that the particular 

training that was ultimately given to abate the citations and 

orders in this case imparted any significant, new information to 

the four drillers. The training Mr. Marafka gave that morning, 

had in fact, already been given in the form of annual refresher 

training from their employer under section 48.28Ca). This annual 

training covered the same types of hazards and procedures 

addressed by the "hazard" training that the drillers received 

from Mr. Marafka to abate the alleged violations. 

In Mr. Marafka's own words (Tr. 80-81): 

I basically just gave them a verbal talk on job 

training. I discussed the high wall and how to get in 

and get out, communications •. They have their own 

communications in their vehicle, and basically be safe 

and be aware of other equipment. 

He went on to state that there was nothing unique about this 

site and that what he had to say about the high wall, the other 

equipment operating in the vicinity of the bench and the 

condition of the bench itself either wasn't any different than 

what he would have said about any other high wall operation or 

was obvious to all expecienced observers, including the four 

employees we are concerned with herein. 

Mr. Petrunyak, the Vice President and General Manager of 

Claron Explosives, Inc. also testified. If his testimony is to 

be believed, and I see no reason not to credit it fully, he 

personally had previously given each of the four drillers all the 

tcaining that was subsequently given them again by Mr. Marafka to 

abate the orders/citations, only he had given it in much more 

depth. 

132 
Accordingly, I find that, unbeknownst to Inspector Kopsic, 

the four miners at issue herein, had already received the 

required training from their employer under section 48.28(a). 

They are not then required to repeat this generalized training 

under the heading of "hazard training" pursuant to 

section 48.3l(a), even if they are the type of miners 

required to be trained under that section. For additional 

"hazard training" over and above the required comprehensive 

annual refresher training for experienced miners to have any 

meaning, there must be something new and meaningful to tell them. 

A search of the record in this case demonstrates that there was 

not. Mr. Marafka it seems was just going through the motions of 

abatement here to satisfy the inspector, abate the orders and get 

the men back to work. He gave no new information to these men 

who had been performing these drilling services at this site and 

others substantially like it on a daily basis for at least 

several years. 

In view of the foregoing findings and conclusions, I 

conclude and find that the preponderance of the evidence adduced 

in this case establishes that whether or not the four named 

employees were subject to the hazard training requirements of the 

cited section 48.3l(a), and clearly, Young and Rearick, at least, 

were not, they had in fact previously received such training as 

part and parcel of their annual refresher training under Section 

48.28(a). Therefore, I conclude that the violations charged in 

the orders/citations did not occur and they must be vacated. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

Order Nos. 2894113, 2894115, 2894117, and 2894119 and 

Citation Nos. 2894114, 2894116, 2894118, and 2894120 ARE VACATED, 

and no penalty may be assessed. 

I 

M,hurer 

s~rative Law Judge 

Distribution: 

R. Henry Moore, Esq., Buchanan Ingersoll, USX Tower, 57th Floor, 

600 Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

Paul D. Inglesby, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480-Ga.teway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

/ml 

133 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 3 0 1990 

SECRE'rARY OF LABO.R, . 

. CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

. . 

. . Docket No. KENT 88-191 

A.C. No. 15-11964-03541 

v. 

H-2 Mine 

HARLAN CUMBERLAND COAL 

COMPANY, 

. 

. Docket No. KENT 88-192 

Respondent A.C. No. 15-07201-03559 . . 

. . 

: C-2 Mine 

DECISION 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, 

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

Before: 

for the Secretary~ 

Mr. Wallace Harris, Safety Director, and 

Mr. Clyde V. Bennett, President, Harlan Cumberland 

Coal Company, Grays Knob, KY, for the Respondent. 

Judge Fauver 

The Secretary of Labor seeks civil penalties for alledged 

safety violations under§ llO(a) of the Federal Mine Safety and 

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

Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following Findings of Fact 

and additional findings in the Discussion below: 

FINDINGS OF FACT 

Citation No. 3163046 

1. On May 11, 1988, MSHA Inspector Jimmy A. Tankersley 

issued Citation No. 3163046 because he found that the Jeffrey 

1028 continuous miner in the 001 working section was not 

maintained in a permissible condition. Specifically, there was 

134 
an opening in excess of .005 inch in the main breaker box cover 

on the continuous miner. 

2. The inspector considered Harlan Cumberland's H-2 Mine, 

an underground coal mine, to be a gassy mine, i.e., a mine which 

released methane. Because the mine is below the water table, he 

was particularly attentive to its gassy nature. He took a number 

of methane readings during his inspection, and found methane in 

all five entries Respondent was driving. 

3. To substantiate his methane-detector readings, the 

inspector also took bottle samples of air, including one in the 

area of the cited continuous miner. Although the area was well 

ventilated, analysis of an air sample showed .4% methane. The 

inspector believed that this level of methane in a wellventilated area indicated a risk of a substantial increase in the 

methane level. He also considered the fact that the continuous 

miner was being used to advance, i.e., it was cutting coal and 

proceeding into virgin territory and that there was no way to 

predict how much methane would be in the virgin territory. He 

considered the possibility that, when removing a cut of coal, the 

miner could hit a methane gas pocket. The inspector was aware of 

a mine, like H-2 Mine, in which there generally was a low methane 

content most of the time but a continuous miner had cut into a 

pocket of methane. The inspector testified that, "there's no way 

to determine that there's not an air pocket of methane ••• 

somewhere in the coal bed" (Tr. 2 7) • 

4. The inspector expected that, if the air quantity were 

reduced, e.g., through a failure of the ventilation system 

components, the methane level would probably increase. 

5. The inspector determined that there had been a recent, 

significant rise in methane accumulation at the H-2 Mine and he 

recognized this as an indication that change was ocurring 

someplace in the coal bed of the mine. On February 18, 1988, air 

samples showed a reading of 8,700 cubic feet of methane found in 

24 hours when the air quantity was 60,000 cubic feet per minute. 

Just three months later, in May, 1988, the methane reading was 

22,000 cubic feet of methane in 24 hours when the air quantity 

was even greater, i.e., 76,000 cubic feet per minute. 

6. The inspector's experience was that methane usually 

accumulates between one and twelve inches from the roof of the 

mine. It is most violently explosive at 10%, but its explosive 

range is 5% - 15%. He testified that methane tends to accumulate 

where air movement is reduced, such as in the face area when coal 

is not being cut and when ventilation is not so strong as it is 

when coal is being cut. 

135 
7. An electrical arc is a normal part of the operation of a 

continuous miner. 

8. Morris Lewis, an electrical specialist with MSHA, also 

testified at the hearing. Mr. Lewis distinguished a methane 

ignition from an explosion. An ignition, he said, occurs when 

methane alone catches fire; ignitions are confined to the 

particular area where methane has accumulated. An explosion, on 

the other hand, would occur when a methane accumulation ignited 

and propagated an explosion of float coal dust, coal dust, or 

other combustible material. The explosion could involve an 

entire mine. It was the electrical specialist's opinion that, in 

a wet, relatively dust-free mine such as H-2, with the level of 

methane present in this mine, and with the .005 inch gap in the 

breaker box lid, if a pocket of methane were hit in the course of 

mining there would be a reasonable likelihood of an ignition with 

serious injuries to several miners. 

Citation No. 3162239 

9. On March 23, 1988, miners at the Harlan Cumberland C-2 

mine were advance mining in the 002 section. The continuous 

miner had broken down after operating for about one hour that day. 

About 1:45 p.rn., MSHA Inspector Lawrence L. Rigney found .1% to 

.2% methane in the face area. Methane is usually found in areas 

below the water table; Inspector Rigney thought it unusual to 

find methane at the higher elevation at which the 002 Section was 

located. It was not only unusual to find a methane concentration 

at that elevation, but Inspector Rigney was surprised to be able 

to detect the methane with his spotter. Usually the 

concentration of methane in higher-altitude areas is discernible 

only through the more exacting laboratory analysis of air bottle 

samples. In at least 15 previous visits to this mine, Inspector 

Rigney had not found enough methane in the mine to detect it with 

his spotter. 

10. Mine foreman David Mitchell accompanied Inspector 

Rigney as he tested for methane throughout the 002 Section. Mr. 

Mitchell made a methane check each time Inspector Rigney made 

one. 

11. Inspector Rigney made his first methane check (finding 

.1% to .2% methane> where the continuous miner was located, in 

the right break, number three entry. 

12. As he continued through the section, Inspector Rigney 

found that there was an abandoned area adjacent to the main 

intake air course. Curtains were hanging across all but one part 

of the entry to the abandoned area. 

136 
13. Inspector Rigney walked back up the cross entry to the 

timber line (root posts) adjacent to the abandoned area and made 

a second methane check with his spotter. There, when the 

auxiliary fan was not running, he found .3% to .6% methane. 

There was so little air movement that his anemometer blades would 

not turn. Inspector Rigney took another reading with his spotter 

at this place with the auxiliary fan running; the reading rose to 

.9% to 1.6% methane. An air bottle sample taken at this location 

showed .81% methane. 

14. Inspector Rigney took his second air bottle sample at 

the point marked 4169 on Joint Exhibit 1. His spotter showed .1% 

methane. The laboratory analysis of the air bottle sample taken 

there showed .14% methane. 

15. Inspector Rigney's third air bottle sample was taken at 

another point marked on Joint Exhibit 1. His spotter indicated 

.2% methane at that location; the laboratory analysis of the air 

bottle sample he took there also showed .2% methane. 

16. The Inspector's fourth air bottle sample was taken at 

another point marked 3797 on Joint Exhibit 1. With the fan was 

turned off, his spotter showed .2% methane. The laboratory 

analysis of the air bottle sample taken there was .22% methane. 

17. Finally, Inspector Rigney went back to the timber line 

area and took another reading. With the fan was turned on, his 

spotter indicated .9% to 1.6% methane. Mine Foreman David 

Mitchell's spotter showed 2% methane at a point to the left of 

the inspector's position and a little closer to the edge of the 

abandoned area. The laboratory analysis of the air bottle 

sample, taken at the position marked 3798 on.Joint Exhibit 1, 

showed 1.5% to 2% methane. 

18. The abandoned area was separated from the active part 

of the mine by double rows of timbers to block access. Danger 

signs and caution boards were posted as well. The abandoned area 

was not accessible for air testing because ot the hazard of roof 

falls. The pillars had been pulled out so the roof support was 

gone. Even when the pillars had been in place, roof conditions 

were adverse. The area had a history of roof failure. 

19. A six-inch bore hole had been drilled from the 

abandoned area to the surface of the mountain. Respondent 

expected that any methane that accumulated in the abandoned area 

would be ventilated to the surface through that bore hole bleeder 

system. The abandoned area had not been sealed before the bore 

hole was drilled; the bleeder system was not operating 

effectively. The fan blowing into the mine in the number one 

entry ·..vas supposed to maintain positive air pressure against the 

137 
curtains across the entry to the abandoned area, in order to 

prevent methane from seeping into the air course and across the 

face where miners were working. There was nothing in the bore 

hole to pull the air from the abandoned area to the surface. 

Methane is lighter than air. This fact, coupled with the 

positive pressure to be maintained by the fan in the number one 

entry, was expected by Respondent to cause the methane to rise to 

the mountain surface and dissipate into the atmosphere. 

20. However, Respondent operated an auxiliary fan while 

coal was being produced on this section. With the auxiliary fan 

operating, the methane was being pulled out of the abandoned area 

into the active section. 

21. Inspector Rigney considered the situation very 

dangerous. There was an abandoned area where the pillars had 

been pulled, and the roof conditions were so adverse that there 

were roof falls even when the pillars were in place. There was 

an accumulation of methane. There was the potential of another 

roof fall which could have pushed air from the abandoned area in 

one big rush of wind out into the intake air course and to the 

face. The incombustible content of the roadway was· less than the 

allowable 65% in the intake aircourse. There was an accumulation. 

of loose coal, coal dust, and some float coal dust. There was 

float coal dust in the electrical boxes for the belt conveyors. 

If there had been a methane ignition, there was enough dust that 

could have been thrown into suspension and it could have resulted 

in a coal dust explosion.The inspector thought it reasonably 

likely that this combination of factors would contribute to a 

major mine hazard involving fatal injuries. He therefore issued 

an imminent danger order. 

22. Power to the auxiliary fan was disconnected. It took 

less than a minute for the methane level to go below 1% once the 

auxiliary fan was turned off. When the methane level dropped 

below 1%, the equipment was backed out from the face area. 

Miners proceeded to build cinder block walls that would 

effectively seal the abandoned area from the active mining area. 

23. At the same time that he issued the imminent danger 

order, the inspector issued Citation No. 3162239, charging a 

violation of 30 C.F.R. § 75.312. 

DISCUSSION WITH FURTHER FINDINGS 

Citation No. 3163046 

In its answer, Respondent acknowledges the violation charged 

in this citation Can impermissible continuous miner), but 

138 
contends that the inspector erred in designating it as 

"significant and substantial." 

Gravity of a Violation 

The term a "significant and substantial violation" derives 

from§ 104(d)(l) and (2) of the Act, l/ and not its civil penalty 

provision (§ llO(i)). The civil penalty provision simply uses 

the term "gravity of the violation," as one of six statutory 

criteria to consider in assessing a penalty. 

l/ Sections 104Cd)(l) and (2) provide: 

"(d)(l) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and 

if he also finds that, while the conditions created by such 

violation do not cause imminent danger, such violation is of such 

nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard, 

and if he finds health hazard, and if he finds such violation to 

be caused by an unwarrantable failure of such operator to comply 

with such mandatory health or safety standards, he shall include 

such finding in any citation given to the operator under this Act. 

If, during the same inspection or any subsequent inspection of 

such mine within 90 days after the issuance of such citation, an 

authorized representative of the Secretary finds another 

giolation of any mandatory health or safety standard and finds 

such violation to be also caused by an unwarrantable failure of 

such operator to so comply, he shall forthwith issue an order 

requiring the operator to cause all persons in the area affected 

by such violation, except those person referred to in subsection 

Cc) to be withdrawn from, and to be prohibited from entering, 

such are until an authorized representative of the Secretary 

determines that such violation has been abated. 

"(2) If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant. to paragraph (i), a 

withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar to 

those that resulted in the issuance of the withdrawal order under 

paragraph (1) until such time as an inspection of such mine 

discloses no similar violation. Following an inspection of such 

mine which discloses no similar violations, the provisions of 

paragraph ( l) shall again be applicable to that mine." 

139 
Sections 104(d)(l) and (2) grant an administrative 

injunctive power to the Secretary of Labor quite different from 

the civil penalty authority in§ llO(i). Sections 104Cd)(l) and 

(2) authorize the Secretary to withdraw miners from a mine if a 

certain chain of violations occurs. The chain must begin with a 

finding of a violation which, though not an imminent danger, 2/ 

is "of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine safety 

and health hazard" and is also "caused by an unwarrantable 

failure • • • to comply with • • • mandatory health or safety 

standards •••• " If a mine inspector finds such a violation, 

§ 104(d)(l) requires that the inspector "include such finding in 

any citation given to the operator •••• " It is this finding 

that begins a§ 104(d)(l) chain that may lead to a§ 104(d)(2) 

order withdrawing miners from the mine or a part of it. 

This administrative injunctive power is strictly construed 

by the Commission, which has ruled that, to prove a "significant 

and substantial" violation, the Secretary must prove "a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature" (Cement 

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

The Commission has not stated how its definition of a 

"significant and substantial" violation differs from the Act's 

definition of an "imminent danger" (see n. 2, infra). However, 

inasmuch as§ 104(d)(l) excludes an "imminent danger" from its 

application, the Commission's definition of an S & S violation 

must mean a level of gravity below an imminent danger. 

"Gravity of the violation," as used in§ llOCi), i.e. for 

civil penalty purposes, is not tied to the question whether a 

violation is or is not "significant and substantial" within the 

meaning of§ 104(d)(l). "Gravity," for civil penalty purposes, 

is the seriousness of a violation. This includes the importance 

of the safety or health standard, and the importance of the 

operator's conduct, in relation to the Act's purpose of deterring 

violations and encouraging compliance with safety and health 

standards. Many types of safety or health violations are serious 

even though a single violation might not show a "reasonable 

likelihood" of causing injury or illness, or even fit into a 

'!;./ Section 3(j) of the Mine act defines "imminent danger" as 

"the existence of any condition or practice in a coal or other 

inine which could reasonabiy be expected to cause death or serious 

physical harm before such condition or practice can be abated." 

30 u.s.c. § 802(j}. 

140 
probability-of-injury-or-illness mold. For example, some 

violations are serious because they demonstrate recidivism or an 

attitude of defiance by the operator. Others are serious because 

the safety and health standard involved is an important 

protection for the miners. Important safety or health standards 

are such that, if they are routinely violated or trivialized 

substantial harm would be likely at some time, even if the 

likelihood that a single violation will cause harm may be remote 

or even slight. 3/ Other mine safety and health violations are 

serious because they may combine with other violations or 

conditions to set the stage for a mine accident or disaster, even 

though individually, or in isolation, they do not appear to 

forecast injury or illness. Still others are serious because 

they involve a substantial possibility of causing injury or 

illness, if not a probability. 

With this background, I turn to the question of whether the 

evidence sustains the inspector's finding that the violation was 

of a "significant and substantial" nature within the meaning of 

§ 104(d)(l). 

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

stated: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary • 

must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard 

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

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

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

injury in.question will be of a reasonably serious 

nature. 

The Commission has explained further that the third element of 

the Mathies formulation "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury." U.S. Steel Mining, 

Co., 6 FMSHRC 1834, 1836 (1984) {emphasis deleted). It has also 

ll For example, a stop-look-and-listen safety law for public 

service vehicles at railroad crossings may be considered an 

important safety standard even though a particular instance of 

violation may not show a "reasonable likelihood" of collision 

with a train. 

141 
stated that, .in accordance with§ 104Cd)(l), it is the 

contribution of a violation to the cause and effect of a hazard 

that must be significant and substantial. Id. In addition, the 

evaluation of reasonable likelihood should""""be made in terms of 

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

Inc., 6 FMSHRC 1573, 1574 {1984). Applying these principles to 

the instant case, I conclude the reliable evidence sustains the 

inspector's finding that the violation was of a significant and 

substantial nature. 

In United States Steel Mining Co., 8 FMSHRC 1125 (1985), the 

Commission reversed a judge's holding that a ventilation 

violation was not significant and substantial. The Commission 

observed that, although "methane measured in the section revealed 

a nonhazardous accumulation at the time the citation was issued, 

an evaluation of the reasonable likelihood of injury should be 

made 'in terms of continued normal mining operations' [citing 

U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574]," and if "normal 

mining operations were to continue, a rapid buildup of methane 

could reasonably be expected." 8 FMSHRC at 1130. These 

considerations also apply in the instant case. 

In Texasgulf, Inc., 10 FMSHRC 498 (1988), three continuous 

mining machines were used in a mine containing methane. They 

were not maintained in a permissible condition in that their 

flange joints had gaps exceeding .004 inch. The inspector 

detected no methane on his hand-held detector. Bottle samples 

indicated only .005% to .009% methane in the mine atmosphere. 

Jus~ as in the case at hand, the inspector determined that the 

violations could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard. 

Texasgulf, as Respondent does here, conceded the violations 

but disputed the inspector's finding that the violations were 

significant and substantial. The Commission, in affirming the 

judge's decision that the violations were not significant and 

substantial, stated: 

We recognize that permissibility violations have the 

potential for serious danger. Nonetheless, whether a 

permissibility violation is significant and substantial must 

be based on the particular facts surrounding the violation, 

including the nature of the mine involved. [Emphasis 

added.] 

The non-coal mine in Texasgulf Ca trona mine) was very 

different from the Harlan Cumberland H-2 Mine. Texasgulf 's mine 

showed methane levels of .005% and .009%. The methane levels in 

142 
the Harlan Cumberland Coal H-2 Mine were between 45 and 80 times 

greater. Th~ highest level of methane ever detected in 

Texasgulf's mine was .2%, far below the level detected in Harlan 

Cumberland's mine. The Texasgulf mine's geological features were 

not conducive to methane liberation. Thus, the Commission noted 

that the geological structure of the unmined portion of the 

Texasgulf mine bed was essentially the same as that which had 

been mined, showing no presence of methane-producing geological 

factors. Further, the Commission noted that the record 

established a substantial factual basis for explaining the 

Texasgulf mine's prior history of low methane liberation and for 

reasonably expecting low methane in the future. However, in the 

instant case the inspector found an approximately three-fold 

increase in the amount of methane dete9ted in the mine during the 

three months before the citation. This degree of buildup was a 

warning that something was changing in the coal seam. 

The Commission in Texasgulf stated that, "[I]n determining 

whether a violation is of a significant and substantial nature 

the appropriate question is whether there is a reasonable 

likelihood of ••• a sudden liberation of methane." Texasgulf 

at 503. Given the evidence of Texasgulf mine's history of low 

methane emissions as well as the evidence establishing a 

reasonable expectation of low methane emissions, the Commission 

concluded that there was substantial evidence to support the 

judge's holding that the violations were not significant and 

substantial. However, here it is evident that, given the sudden 

increase in methane liberation over the three months prior to the 

citation, changes were occurring in the coal bed at Harlan 

Cumberland's mine. Those changes showed a reasonable likelihood 

of a sudden liberation of methane if the continuous miner hit a 

methane pocket as mining advanced. 

No witness testified on behalf of Respondent about the 

circumstances leading to the issuance of Citation No. 3163046. 

The inspector was the only witness at the hearing with first-hand 

knowledge. He found the impermissible condition of the 

continuous miner to be a discrete safety hazard reasonably likely 

to cause serious injuries. The inspector's independent judgment 

is an important element in making significant and substantial 

findings, which should not be lightly set aside. National 

Gypsum, supra. 

I find that the reliable evidence sustains the inspector's 

finding of a significant and substantial violation. 

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

of the ~ct, I find that a civil penalty of $200 is appropriate 

for this violation. 

143 
Citation No. 3162239 

This citation, as amended, alleges a violation of 30 C.F.R. 

§ 75.312, which provides: 

§ 75.312 -- Air passing through abandoned, inaccessible, or 

robbed area. 

Air that has passed through an abandoned area or 

an area which is inaccessible or unsafe for inspection 

shall not be used to ventilate any working place in any 

mine. No air which has been used to ventilate an area 

from which the pillars have been removed shall be used 

to ventilate any working place in a mine, except that 

such air, if it does not contain 0.25 volume percentum 

or more of methane, may be used to ventilate enough 

advancing working places immediately adjacent to the 

line of retreat to maintain an orderly sequence of 

pillar recovery on a set of entries. 

In its answer, Respondent acknowledges the violation 

alledged in Citation No. 3162239, but contends that the inspector 

erred in designating it as a "significant and substantial" 

violation. 

The regulation requires that air from an abandoned area not 

be allowed to ventilate any working place in a mine. 

Miners at the Harlan Cumberland C-2 mine were in advance 

mining in the 002 Section. There was an abandoned area adjacent 

to the area where miners were working. Curtains had been put 

up but did not cover the entire span of the entry to the 

abandoned area. 

Pillars had been removed from the abandoned area. Roof 

conditions in the abandoned area were adverse; even when the 

pillars were in place, there had been several significant roof 

falls. The abandoned area was separated from the active part of 

the mine with double rows of road timbers to block entry. The 

abandoned area was not accessible for inspection or air testing 

because of the hazard of roof falls. 

An auxiliary fan was operated when the continuous miner was 

operating in order to provide sufficient air movement to the face 

of the coal. However, the auxiliary fan was powerful enough to 

override the positive pressure created by the fan in the number 

one entry, allowing air from the abandoned are to move into the 

working area of the 002 section and across the face. 

144 
Respondent did not prevent the abandoned area air fro1n going 

into the working area of the 002 Section. As a result, there was 

a buildup of methane in the working area, creating a dangerous 

situation. The evidence amply sustains the inspector's finding 

that the violation was of a "significant and substantial nature." 

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

of the Act, I find that a penalty of $275 is appropriate for this 

violation. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over these proceedings. 

2. Respondent violated the safety standards as alleged in 

Citations Nos. 3163046 and 3162239. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 3163046 and Citation No. 3162239 are 

AFFIRMED. 

2. Respondent shall pay the above civil penalties of $525 

within 30 days of this Decision. 

Distribution: 

tJ~~~M,fV~ William Fauver 

Adminstrative Law Judge 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

Mr. Wallace Harris, Jr., Safety Director, Harlan Cumberland Coal 

Company, General Delivery, Grays Knob, Kentucky 40829 (Certified 

Mail) 

iz 

145 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 3 0 1990 

ROCHESTER & PITTSBURGH COAL 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

. . 

. . 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. PENN 89-85-R 

Order No. 2889351, 2/2/89 

Greenwich Collieries No. 2 

Mine ID 36-02404 

Appearances: Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal 

Company, Ebensburg, Pennsylvania, for the Contestant; 

Joseph Crawford, Esq., Off ice of the .Solicitor, 

Department of Labor, Philadelphia, Pennsylvania, 

for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this Contest Proceeding, the Operator (Contestant) seeks 

a review of a withdrawal Order issued by the Mine Safety and 

Health Administration CMSHA) pursuant to section 104Cb) of the 

Mine Act, 30 u.s.c. § 814Cb). Pursuant to notice, the case was 

heard in Johnstown, Pennsylvania, on November 21, 1989. Leroy 

Niehenke testified for Contestant, and Robert Joseph testified 

for the Secretary (Respondent). Respondent filed a Post Hearing 

Brief on January 12, 1990. Propo.sed Findings and Memorandum of 

Law were filed by Petitioner on January 16, 1990. 

Stipulations 

At the Hearing the Parties entered into the following stipulations: 

1. The Administrative Law Judge has jurisdiction over this 

proceeding. 

2. Rochester & Pittsburgh Coal Company is subject to the 

jurisdiction of the Mine Act. 

146 
Findings of Fact and Discussion 

Leroy Niehenke, an MSHA Inspector and Electrical Specialist, 

testified that on February ~, .J.9.~9., .his supervisor informed him 

that there was an outstanding~ citatii:>n ' .. that had been issued for 

Contestant's Greenwich Collieries Mine. Niehenke indicated that 

his supervisor told him to go to the mine, and check on the 

status of the cited condition. 

The original citation had been issued on December 21, 1988, 

alleging a violation of 30 C.F.R. § 1719 in that "The illumination provided for both the front and rear of the Kersey scoop 

tractor serial number 7175, • • • located in MllX-1, 010 working 

section, was less than .006 foot lamberts ••• 11 The original 

citation had set January 16, 1989, as the date for the abatement 

of the cited violation. 

Niehenke indicated that he observed the scoop, on February 2, 

and the illumination system was not completely installed, inasmuch 

as the power cable for the illumination system was not installed, 

the unused openings for the light enclosures were plugged but not 

tack welded, and hose clamps on a flame resistant conduit were not 

provided. According to Niehenke, he had installed this type of 

system in the past, and indicated that it should take two 

individuals two shifts to install this system. He also indicated 

that dealers, who provide the necessary parts to properly illuminate the scoops, are located within 20 to 30 miles of the subject 

mine. 

In essence, Niehenke testified that he decided to issue a 

104(b) Order for failure to abate, rather than extend the citation, because the Operator did not show any "diligence" in 

abating the violative condition (Tr. 30). He also indicated that 

the hazard of operating the scoop without adequate illumination, 

was not eliminated by moving the scoop outby the last open 

crosscut. He thus indicated that the equipment, i.e., tne scoop, 

still could be used anywhere including the inby by the last open 

crosscut, and hence he issued the 104(b) Order rather than extend 

the time to abate the Citation. He also indicated that there 

were no signs preventing the scoop from being used inby the last 

open crosscut. 

The original citation issued December 21, 1988, alleges that 

the scoop in question did not have sufficient illumination as 

provided for in 30 C.F.R. § 75.1719(e)(6). It was subsequently 

amended to show a violation of 30 C.F.R. § 75.1719-l(d). 

147 
30 c.F.R § 75.1719(a), states that sections 75.1719 through 

75.1719-4 prescribe the requirements " ••• for illumination of 

working places in underground coal mines while persons are 

working in such places and while self-propelled mining equipment 

is operated in the working place." (emphasis added). 

Section 75.1719-l(d), supra, provides as follows: "The luminous 

intensity (surface brightness) of surfaces that are in a miner's 

normal field of vision of areas in working places that are 

required to be lighted should be not less than 0.06 footlamberts 

when measured in accordance with section 75.1719-3." (Emphasis 

added). Thus a plain reading of these regulatory sections 

reveals that the requirements for illumination are limited to 

"working places," and that specifically the requirement for luminaries of not less than .06 footlamberts, is required for 

machinery which is "operated in the working place." 30 C.F.R. 

§ 75.2(g)(2) defines working place as " ••• the area of the coal 

mine inby the last open crosscut." The scoop in question, when 

observed by Niehenke on February 2, was outby the last open 

crosscut (Government Exhibit 2). Niehenke indicated on crossexamination that as far as he could determine, the scoop in 

question was not used inby the last open crosscut, after the 

citation in question was issued. He further indicated on crossexamination, that the scoop in question was in complete 

compliance with all regulatory standards if used outby the last 

open crosscut. He agreed that on the date he issued the Citation 

the scoop was in a condition that permitted its use outby the 

last open crosscut. 

Accordingly, I find that inasmuch as section 75.1719, supra, 

mandates illumination standards at the working place, once the 

scoop in question had been removed from the working place, i.e., 

outby the last open crosscut, it was no longer in violation of 

section 75.1719, supra. When Niehenke observed the scoop on 

February 2, it was not at the working place. Hence, the original 

citation had been abated, as the scoop's condition no longer 

violated the terms of section 75.1719, supra, since it was not at 

the working place. Accordingly, since the citation had been 

abated, the section 104Cb) Order should not have been issued, and 

it should be vacated. 

ORDER 

It is ORDERED that the Notice of Contest herein is 

SUS·rAINED, and it is further ORDERED that Order No. 2889351 be 

VACA'rED. 

Avram ~~ Weisberger 

Administrative Law Judge 

148 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

·Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

JAN 311990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOLTAN COMPANY, 

Respondent 

. . 

. . 

. . 

DECISION 

Docket No. SE 89-51-M 

A. C. No. 40-02968-05502 

Moltan Company 

Appearances: William F. Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN 

for the Petitioner; 

Mr. Edward J. Lucas, Plant Superintendent, 

Moltan Company, Middleton, KY, for the Respondent. 

Before: Judge Fauver 

This civil penalty case was brought by the Secretary of 

Labor under § llOCa) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. 

Having considered the hearing evidence and the record as a 

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

and pcobative evidence establishes the following Findings of Fact 

and further findings in the Discussion below: 

FINDINGS OF FACT 

1. MSHA Inspector Craig holds an electrical certification 

issued by the Commonwealth of Kentucky and he has maintained such 

certification to the present. 

2. Inspector Craig inspected Respondent's Molton mine, in 

Hardeman County, Tennessee, on March 9 and 10, 1988. 

3. On March 10, 1988, Inspector Craig issued Citation No. 

3252473, alleging the following conditions: "The nurnber one 

cooler control electrical cabinet's three circuit breakers and 

six starter relays can only be operated and/or reset by opening 

149 
the cabinet· door and reaching inside the cabinet. Employee's 

[sic] thus eKpose themselves to the bare 480 volt terminals and 

conductor ends inside the cabinet. This area of the plant is 

monitored and ope.rated by the number one kiln operator employee." 

4. The inspector's attention was drawn to the electrical 

cabinet because he observed that someone had left the cabinet 

door open. 

5. The electrical cabinet door was not equipped with a 

standard safety latch or disconnecting mechanism that would 

automatically deenergize the electrical components within the 

cabinet when the cabinet door was opened. 

6. In the event of a motor shut down, the kiln operator 

would open and reach into the electrical cabinet to reset the 

motor starter operating controls (relays), thereby placing 

himself in danger of electric shock because of the close 

proximity to energized conductors and terminals carrying 480 

volts of electrical power. 

7. In the citation, Inspector Craig designated the alleged 

violation "S & S" ("significant and substantial">~ Later his 

supervisor ordered him to change it to a "non-S & S" violation, 

in an effort to avoid litigation. Inspector Craig did not agree, 

with this change, but modified the citation as directed. The 

supervisor later ordered the citation to be modified to restore 

the original allegation of an "S & S" violation. 

DISCUSSION WITH FURTHER FINDINGS 

The citation alleges a violation of 30 C.F.R. § 56.12040, 

which provides: 

Operating controls shall be installed so that they can be 

operated without danger of contact with energized 

conductors. 

This case raises two issues: Cl) were the motor starter. 

controls inside the cabinet "operating controls" within the 

meaning of § 56 .120 40? ( 2) If the.re was a 11iolation, was 

it "significant and substantial" as found by the inspector? 

I find that the motor starter controls were an essential 

part of the motor operating controls and therefore are covered by 

the safety standard. The motors could not be operated unless the 

reset buttons were in the on position, and if they were pushed 

out to the disconnect (or off) position by a motor overload, the 

kiln operator had the job of resetting them in order to restart 

the motor. 

150 
The inspector, an electrician with long mining and 

enforcement experience, testified that a motor overload in the 

systems controlled by the electrical cabinet could occur at any 

time and might occur as often as daily or several times a day. 

Respondent's only witness was a former kiln operator, a member of 

management at the time of the hearing, who had worked as a kiln 

operator about two years before the citation. He testified that 

at that time he had reset the lnotor starter controls about once 

or twice a year. He did not know the experience of other shifts. 

The kiln operated three shifts a day, seven days a week. This 

witness was not an electrician. 

I credit Inspector Craig's expert opinion testimony that the 

motors could overheat and require resetting inside the cabinet at 

any time, and perhaps even several times a day. I also credit 

his expert opinion of the danger involved in reaching inside the 

cabinet where live wires and conductora were exposed. 

It was a violation of the safety standard to have exposed 

live wires and terminals in the cabinet near the reset buttons 

fo.r the inotor circuits. 

The reliable evidence amply sustains the inspector's finding 

that the violation was of a "significant and substantial" nature. 

Respondent's practice was reasonably likely to result in a fatal 

or other serious injury if not abated. When a miner reached into 

the cabinet, even slight inattention or a slight tumble or fall· 

could result in death by electrocution. 

Considering all the criteria for a civil penalty in § llOCi> 

of the ~ct, I find that a penalty of $300 is appropriate for this 

violation. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. Respondent violated 30 C.F.R. § 56.12040 as alleged in 

Citation No. 3252473. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 3252473 is AFFIRMED. 

2. Respondent shall pay the above penalty of $300 within 30 

days of this Decision. 

151 
Distribution: 

l{);&.~ William ~~v~ Fauver 

Administrative Law Judge 

William F. Taylor, Esq., Office of the Solicitor, u. s. 

Department of Labor, 2002 Richard Jones Road, Sui~e B-201, 

Nashville, TN 37215 CCertif ied Mail) 

Mr. Edward J. Lucas, Plant Superintendent, Moltan Company, Post 

Office Box 9, Middleton, KY 38052 (Certified Mail) 

iz 

152 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 311990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

BEAVER CREEK COAL COMPANY, 

Respondent 

DECISION 

Docket No. WEST 88-165 

A.C. No. 42-01211-03541 

Trail Mt. No. 9 Mine 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado 

for the Petitioner; 

David M. Arnolds, Esq., Thomas F. Linn, Esq., 

Beaver Creek Coal Company, Denver, Colorado, 

for the Respondent. 

Before: Judge Cetti 

This case is before me upon the petition for civil penalty 

filed 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 801 

et seq., the "Act," charging Beaver Creek Coal Company (Beaver 

Creek) with a violation of three mandatory safety standards found 

in Title 30 of the Code of Federal Regulations. 

Beaver Creek filed a timely answer to the Secretary's 

proposal for penalty. After notice to the parties the matter 

came on for hearing before me at Salt Lake City, Utah. Oral 

and documentary evidence was introduced, post-hearing briefs 

filed, and the matter was submitted for decision. 

Citation No. 3227060 

Citation No. 3227060 alleges a Section 104Ca) S&S violation 

of 30 C.F.R. § 75.316. The cited safety standard provides as 

follows: 

§ 75.316 Ventilation system and methane 

and dust control plan. 

153 
[Statutory Provisions] 

A ventilation system and methane and dust 

control plan and revisions thereof suitable 

to the conditions and the mining system of 

the coal mine and approved by the Secretary 

shall be adopted by the operator and set 

out in printed form on or before June 28, 

1970. 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. 

Beaver Creek's ventilation plan does include requirements 

for stoppings. The plan provides: 

"All ventilating controls such as stoppings • • • shall be of substantial and 

incombustible construction, installed in 

a workman-like manner and maintained in 

the condition to serve the purpose for 

which they were intended. The intent 

being to direct the air to the sections 

and working faces, and to separate entries 

for escapeway purposes." (Joint Exhibit 2 4) 

The citation under the heading "Condition or Practice" 

charges a violation of 30 C.F.R. 75.316 as follows: 

The # 13 , 14 , 15 , 2 O , 21 , 3 3 , 3 9 , 41 , 4 3 

and 44 stoppings on the South mains belt 

entry were not maintained. The back of 

the stoppings have crushed and a half of 

the hollow blocks have fallen off. The 

stoppings are used to separate the belt 

entry from the intake entry. The intake 

entry is used as a designated intake 

escapeway. The above conditions do not 

comply with the approved ventilation 

system and methane and dust control plan. 

154 
Inspector Huggins testified that he inspected the stoppings 

which were used to separate the belt entry from the intake 

entry and to direct airflow. The stoppings were constructed 

with hollow cement cinder blocks that were 6 to 8 inches wide 

by 8 inches high by 15! to 16 inches long. Huggins observed 

that the back-half of some of the cinder blocks had broken off. 

On cross-examination, however, Inspector Huggins testified that 

there were no holes or breakthroughs in any of the stoppings. 

Beaver Creek at the hearing conceded a non-S&S violation 

of the cited regulation. It vigorously maintained, however, 

that the violation was not significant and substantial pointing 

out that none of the stoppings at issue had been broken through 

and the purpose for the stoppings was in no way compromised. 

The primary issue before me is whether the alleged violation 

of 30 C.F.R. § 75.316 is "significant and substantial" within the 

meaning of the Act. 

Beaver Creek's ventilation plan, quoted above, provides 

that stoppings "shall be ••• maintained in the condition to 

serve the purpose for which they were intended" and that this 

intent was "to direct air to the sections and working faces, and 

to separate entries for escapeway purposes" (Joint Exhibit 24, 

p. 19). Since the undisputed evidence established that none of 

the stoppings were broken through, the stoppings at the time of 

inspection were serving their intended purpose which was "to 

direct the air to the sections and working faces, and to separate 

entries for escapeway purposes." It is clear from Inspector 

Huggins' undisputed testimony that no hazards were presented by 

the stoppings unless they were in fact broken through in some 

sort of explosion (Tr. 474). 

Section 104(d)(l) of the Mine Act provides that a violation is significant and substantial if it is of "such nature 

as could significantly and substantially contribute to the cause 

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

30 U.S.C. § 814(d)(l). A violation is properly designated significant and substantial "if, based on the particular facts 

surrounding that violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

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

155 
6 FMSHRC 1, 3-4 (January 1984) the Commission explained: 

In order to establish that a violation 

of a mandatory safety standard is signif icant and substantial under National Gvpsum, 

the Secretary ••• must prove: Cl) the 

underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard 

that is, a measure of danger to safety --

contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

The Commission has explained further that the third element of 

the Mathies formulation "requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to will 

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

Mining Co., 6 FMSHRC 1834, 1836 (August 1984) (emphasis deleted). 

In accordance with the language of Section 104Cd>Cl), 30 u.s.c. 

§ 814Cd)Cl), it is the contribution of a violation to the cause 

and effect of a hazard that must be significant and substantial. 

Id. In addition, the evaluation of reasonable likelihood 

should be made in terms of "continued normal mining operations." 

U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). 

Applying these principles to the present case I find that 

the evidence presented at the hearing is insufficient to find 

that the cited violation was of a significant and substantial 

nature. 

It is recognized that a violation of 30 C.F.R. § 75.316 has 

the potential for serious danger. Nevertheless, whether such a 

violation is significant and substantial "must be based on the 

evidence in the record of the particular facts surrounding the 

violation, including the nature of the mine involved." Texas 

Gulf, Inc., 10 FMSHRC 498~ 501 (April 20, 1988). 

The discrete safety hazard contributed to by the violation 

at issue is that an explosion or major fire could blow out a 

stopping and this would contaminate the intake escape (Tr. 474). 

The key question is whether there was a reasonable likelihood of 

a major fire or explosion that would break through the stopping 

or stoppings in question had normal mining operations continued. 

156 
Such an occurrence would require a confluence of factors. Although there is a chance such a fire or explosion could occur 

there is insufficient evidence to conclude that there was a 

reasonable likelihood of such occurring had normal mining operations continued. 

Citation No. 3227060 is therefore modified from a 104(a) 

S&S violation to a 104(a) non-S&S violation. 

Citation No. 3227081 

This Section 104(a) citation alleges a significant and 

substantial violation of 30 C.F.R. § 77.502. At the hearing 

Beaver Creek agreed to withdraw its contest and pay the 

Secretary's initial proposed penalty of $91.00. This disposition and penalty is consistent with the Act. 

Citation No. 3227084 

This citation alleges a Section 104(a) significant and substantial violation of 30 C.F.R. § 75.400. At the hearing the 

Secretary moved to modify the citation by redesignating it a 

104(a) non-S&S violation. Beaver Creek agreed to withdraw its 

contest to the newly redesignated non-S&S violation and pay the 

Secretary's amended proposed penalty of $20.00. 

Upon review and evaluation I find the agreed 

disposition of Citation No. 3227084 is consistent 

criteria set forth in Section llO(i) of the Act. 

ment disposition of this citation is approved. 

Penalty Assessment for Citation 3227060 

settlement 

with the 

The settleIn assessing a civil penalty under Section llOCi) of the 

Act the Commission must consider the operator's history of previous violations, the appropriateness of the penalty to the size 

of the business of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation and the demonstrated good 

faith of the person charged in attempting to achieve rapid compliance after notification of a violation. A print-out of Beaver 

Creek's assessed violation history (Ex. H, J - 1) shows violations within the two-year period prior to the inspection leading 

to the issuance of Citation No. 3227060. The mine inspector 

evaluated the degree of Beaver Creek's negligence in violating 

30 C.F.R. § 75.316 as "moderate". Upon evaluation of the evidence I too find that the violation resulted from the operator's 

157 
ordinary negligence which is moderate. Beaver Creek demonstrated 

good faith in abating the violation. The Secretary's proposed 

penalty will have no affect on Beaver Creek's ability to continue in business. Beaver Creek produces 1,358,520 tons of 

coal annually. This includes 300,000 tons of coal produced at 

the Trail Mountain No. 9 Mine. Considering the size of Beaver 

Creek's business and the other statutory criteria set forth in 

Section llO(i) of the Act, the appropriate penalty for this 

violation is $100.00 

ORDER 

1. Citation No. 3227060 is modified to a 104(a) non-S&S 

violation and as modified is affirmed. A civil penalty of 

$100.00 is assessed. 

2. Citation No. 3227081 is affirmed and a civil penalty of 

$91.00 is assessed. 

3. Citation No. 3227084 as modified to a Section 104(a) 

non-S&S violation is affirmed and a civil penalty of $20.00 

is assessed. 

Beaver Creek is directed to pay the Secretary of Labor a 

civil penalty in the sum of $211.00 within 30 days of the date 

of this decision. 

nistrative Law Judge 

Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

David M. Arnolds, Esq., Thomas F. Linn. Esq., Beaver Creek 

Coal Company, 555 17th Street, 18th Floor, Denver, co 80202 

(Certified Mail) 

/ot 

158 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 JAN 311990 

SECRB'rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION { MSHA) , Petitioner 

v. 

TARGET CONSTRUCTION, INC., 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-72-M 

A.C. No. 04-04791-05510 F2M 

Morning Star Mine 

DECISION 

Appearances: Patricia Jeanne Howze, Esq., Office of the 

Solicitor, U.S. Departm.ent of Labor, San Francisc-o, 

California, for the Secretary of Labor (Secretary)~ 

Stephan 3. Saleson, Esq., Gresham, Varner, Savage, 

~olan and Tilden, San Bernardino, California, for 

Target Construction, Inc. (Target). 

Before: Judge Broderick 

STATEMENT OF THE C~SE 

Following an investigation of an accident resulting in a 

serious injury to a miner, MSHA issued two imminent danger 

withdrawal orders, each alleging a violation of a mandatory 

safety standard {30 C.F.R. § 56.9054 and§ 56.9055). In this 

proceeding, the Secretary seeks civil penalties for the 

violations. Target denies that the alleged violations occurred. 

fursuant to not~de, the case was called for hearing in Ontario, 

California, on October 11, 1989. Vaughan Duane Cowley and Rodric 

Breland testified on behalf of the Secretary. Daryl Rogers, 

Daniel Ruminski, and Jeffery Fegert testified on behalf of Target. 

Both parties have filed posthearing briefs. I have considered 

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

following decision. 

FINDINGS OF FACT 

At all times pertinent to this proceeding, Target was the 

contract operator of an open pit multiple bench gold and silver 

mine in San Bernardino County, California, known as the Morning 

Star Mine. Target operated the mine ~oder contract with Heavy 

Metals Develoj?ment Company, a wholly owned subsidiary of 

Vanderb~ilt Gold Corporation. In 1989, the mine employed an 

159 
average of 24 employees: approximately 120,000 man-hours per year 

were worked at the mine. Target operated other facilities, but 

the record does not disclose their size or extent. 

At about 8:00 a.m., April 12, 1988, MSHA was notified by 

Target of an accident at the mine which was thought to have 

resulted in a fatal injury to a miner. It was later reported 

that the injury, though serious, was not fatal. Federal Mine 

Inspector Vaughan Cowley and supervisory inspector Rodric Breland 

went to the mine and at about 11:00 a.m. inspected the dump area 

where the accident occurred, accompanied by Target officials. 

They discovered that a large, 65 to 70 ton truck had gone over 

the dump bank approximately 250 feet to the bottom of the dump. 

The berm and other ground material for a distance of 

approximately 84 feet in width had gone over the bank with the 

truck. The inspectors saw several cracks in the ground in the 

dump area, one of which extended about 200 feet, cros3ing almost 

the entire dULno area. Another crack was seen 30 feet from the 

perimeter. Th~ inspector measured one of the cracks and found it 

to be 1 inch wide and 2 inches deep. I find that these cracks in 

the ground ·;vere as described by the inspectors. The cracks were 

obvious to visual inspection. The ground of the bank sloped down 

toward the perimeter. The downslope was determined to be a 2.8% 

grade. Loads were being dumped at the edge of the bank. The 

evidence, and especially the photographs of the bank, do not 

establish that the ground subsided beneath Billingsley's truck to 

the extent that it caused the vehicle to go over the bank. 

The berm was measured and varied from 22 inches to 38 inches 

high. There was no support on the back aide of the berm. Target 

employed haulage trucks and dozers on the bank. The mid-axle 

height of Target's largest truck was approximately 48 inches. It 

was (and is) the common understanding in the industry that berms 

should be at least as high as the mid-axle height of the lacgest 

vehicle being qperated on a bank. 

The truck in question waa at the bottom of the bank, its 

front wheels and diesel fuel tank having been separated from the 

truck. The fuel tan~ was badly damaged and lay beside the truck. 

The front wheel assembly v1ith the wheel::; facing the ban~-c, was 

found b~low the truck (Ex. R-9 and 18). Diesel spills were seen 

at two areas on the slope CEx. R-5 and 6). Head phones were 

found on the slope about 15 to 25 feet from the crest to the left 

of the truck tire marks. The truck geac bo~ showed the 

transmission was between neutral and first gear. The truck 

driver, Bill Billingsley, was rescued from the slope, at ~ point 

about 200 feet from the crest of the dump. 

Billingsley sustained severe crushing injuries which 

resulted in the amputation of both legs. The inspector 

160 
interviewed him in the hospital. He stated that he backed up to 

the dump area, put the gear shift in neutral and "revved" the 

motor to dump his load when he heard and saw the ground subsiding 

behind him. He shifted to first gear before going over the slope 

backwards. Billingsley stated that the gear shift linkage on the 

truck was defective. Two other truck drivers told the inspector 

that the gear shift linkage was troublesome; that the truck would 

appear to be in neutral when it was actually in reverse. Neither 

Billingsley nor either of the other employees was called as a 

witness. Billingsley is no longer employed by Target. Cliff 

Morrison, the night shift scipervisor, had been at the scene when 

the accident occurred, but was not interviewed by the inspector 

and was not called as a witness. The bulldozer operator who was 

responsible for the berm told the inspector that there was an 

adequate berm when he was at the dump shortly before the accident. 

He was not called as a witness. A mechanic was working on a 

disabled truck in the area. He told a Heavy Metals engineer, 

Daniel Ruminski, that the he did not hear a back-u? alarm on 

Billingsley's truck, nor did he hear a revving noise such as 

occurs when a truck is dumping. However, neither did he hear 

Billingsley's truck go over the side, nor another truck which 

dumped after Billingsley. The mechanic was not called as a 

witness. 

In September 1987, Target was cited by MSHA for a berm 

violation which resulted in a fatal accident. At the close-out 

conference following that citation Target was told that a berm 

should as a minimum be as high as the mid-axle height of the 

largest piece of equipment on the mine property. Sometime in 

1985 a Target truck went over a dump. The driver jumi;>ed out and 

sustained broken bones. On another occasion, a truck was reported 

to have gone over with no injuries resulting. In Macch 1987, an 

imminent danger withdrawal order was issued to Target for lack of 

an adeq11ate berm in the dump. 

On April 12, 1988, at about 2:30 p.m., Inspector Cowley 

issued two section 107(a) ocders of withdrawal citing a 

violation of 30 C.F.R. § 56.9055 because of unstable ground at 

the dump site, insufficient to s1.1pport the weight of the 65 ton 

haulage trucks; and a violation of 30 C.F.R. § 56.9054 because 

adequate berms were not provided at the wa3te dump. The berm 

violation was abated when Target establighed 48 inch berms 

completely around the perimet~r of the dump with two to one 

slopes on the front and bac~ sides. The ground violation was 

abated by compacting the 9 round in the d1.1tnp n. cea and reversing 

the slope from a 2.8 percent downslope to a 2 percent up-slope. 

Both orders were terminated on April 14, 1988, at 4:45 p.m. 

There W"as considerable te:3tiinont addr'9.:;sed to the question 

of what caused the accident to Billingslef, and how the accident 

161 
occurred. This evidence does not bear necessarily or directly on 

the primary issues before me: did the alleged violations occur? 

It may be important, however, in determining the gravity or 

negligence if the violations or either of them are established. 

Respondent contends that Billingsley drove forward over the 

bank either intentionally or inadvertently. It suggests that he 

may have been listening to the radio (hence the reference to the 

headset), and that he was tired and inattentive after working a 

long shift. Target's production manager at the Moringstac Mine, 

Clarence Darrell Rogers, testified that Billingsley was an 

experienced truck driver and an excellent employee. 

Daniel Ruminski, a mining engineer for Heavy Metals, 

supervised the contract with Target. Ruminski testified that he 

initiated the first safety program at the mine. In his opinion, 

Target was very safety conscious following the September 1987, 

fatal accident. In Ruminski's opinion, the ground in the dump 

area was stable before the April 1938 accident and the berm was 

adequate. He admitted that he did not measure the berm, but 

criticized the way MSHA measured it. He agreed that the industry 

standard required a berm to be mid-axle height of the largest 

vehicle in use. He disagreed with MSHA's position that the 

industry standard required a berm to be twice as wide as it was 

high. 

Ruminski took a number of photographs after the accident 

(Ex:hibit3 R-5 through 15) in an attempt to determine how and why 

the accident happened. He concluded that Billingsley drove the 

truck forward through the berm and over the bank. He based his 

conclusion on an analy3is of the photographs and of the physical 

conditions at the dump after the accident. 

Clarence Darrell Rogers, Target's production managec, 

was of the opinion that the berm was adequate pcior to the 

accident, and that the ground was stable. Like Ruminski, he 

believed that Billingsley had gone over the slope forward. 

I am unpersuaded by Ruminski's analysis and find on the 

basis of the evidence before me that Billingsley's truck went 

over the bank backward. Although he did not testify, Billingsley 

told Inspector Cowley and his ultimate supervisor Rogers, that he 

backed over the edge of the dump. I find it significant that 

Billingsley was described by his superior as an experienced 

driver and an excellent employee. He told the in.:>pector that he 

was having trouble with the gear shift linkage, and this was 

corroborated by other drivers. Ruminski's opinion is based in 

oart on the statement of the mechanic that he did not hear a back 

~p alarm or the revving of the motor on Billingsley's truck. I 

discount this, because the mechanic also did not hear the truck 

162 
go over the dump, nor did he hear another truck unload 

subsequently. Ruminski is not an accident reconstruction expert, 

but a mining engineer. The eKtraordinary trauma involved in a 

loaded 65 to 70 ton truck going over an embankment and coming to 

rest 250 feet below can result in too many twists and turns and 

revolutions to put much reliance on Ruminski's over-simplified 

analysis. I place greater reliance on the statements of 

Billingsley. Obviously, it would be more statiafactory to have 

had his testimony, as well as that of the foreman, mechanic and 

other truck drivers, but for various reasons these men were not 

called as witnesses. Based on the statements of Billingsley and 

his co-workers to the inspector, I find that the gear shift 

linkage on the truck was defective. I find that the ground in 

the dllmp a.rea was unstable, as evidenced by the cracks in the 

surface. However, the evidence does not establish that the 

unstable ground by itself caused the truck to go over the bank. 

REGULATIONS 

30 C.F.R. 56.9054 provided, as of April 12, 1988, as 

follows: 

Berms, bumper blocks, safety hooks or similar· means 

shall be provided to prevent overtravel and overturning 

at dumping grounds. 

30 C.F.R. 56.9055 provided, as of April 12, 1988, as 

follows: 

Where there is evidence that the ground at a dumping 

place may fail to Sllpport the weight of a vehicle, 

loads shall be dumped back from the edge of the bank. 

ISSUES 

1. Whether the evidence establishes that Target failed to 

provide berms at the ~aste dump sufficient to prevent tcucks from 

overtravelling the dump edge? 

2. Whether the evidence establishes that the ground at the 

Morning Star Mine dumping place was such that it might Eail to 

support the weight oE a 65 to 75 ton truck? 

3. tf either or both of the above questions are answered 

affirmatively, what is the appror;>riate penaltt Eor the violation 

considering the statutory penalty criteria? 

163 
CONCLUSIONS OF LAW 

I 

Respondent Target was at all times pertinent to this 

proceeding subject to the provisions of the Mine Act in the 

operation of the subject mine. I have jurisdiction over the 

parties and the subject matter of this proceeding. 

II 

There is direct and convincing evidence in the record that 

the berm at Target's dump was not as high as the mid-axle height 

of Target's largest vehicle. Although the standard in effect on 

March 12, 1988, did not in terms require that it be at least of 

mid-axle height (the standard adopted effective in September 

1988, did specifically require that>, the evidence is very clear 

that such was a recognized industry standard, and that a berm of 

that height is necessary to prevent overtravel. I reject the 

conclusions of Target's witnesses that the berm was adequate when 

the citations were issued. I conclude that the berm provided at 

Target's dump, which was ·from 10 to 26 inches lower than mid-axle 

height, was not sufficient to prevent overtravel and overturning. 

I conclude that a violation of 30 C.F.R. § 56.9054 has been 

established. 

III 

There is a dispute as to the existence and significance of 

cracks in the ground in the dump area. t accept the testiinony of 

the federal inspectors as to the eKistence and extent of the 

cracks {see findings of fact, ~age 2). I also accept their 

conclusions that these extensive cracks constituted evidence of 

unstable ground, evidence that the ground might fail to support 

the weight of a vehicle. Therefore, I conclude that the e·.ridence 

establishes a violation of 30 C.F.R. § 56.9055. 

IV 

Tal'.'get is a 1'.'elatively small operator, employing 

approximately 24 persons. There is no ;~vi de nee in the l'.'ecord as 

to its general history of prior violations, but there is evidence 

of prior inadequate berm and unstable ground violations. This 

history is significant, and will result in increased penalties 

for the violation3 found herein. There is no evidence that the 

imposition of penalties in these proceedings will affect Target's 

ability to continue in business. The violations were abated 

promptly in good faith. 

164 
The inadequate berm violation was very serious. It 

contributed directly to the accident and to the serious injury 

suffered by Billingsley. The unstable ground condition in itself 

did not contribute to the injury, but, combined with the 

downslope, it constituted a very hazardous condition. It, too, 

was a very serious violation. 

Target was certainly on notice of the critical importance of 

providing adequate berms and stable ground in its dumping area. 

It had experienced a number of accidents including a recent fatal 

accident as an apparent result of violations of the two standards 

involved herein. On the other hand, there is evidence in the 

record that the berms were adequate some hours prior to the 

accident which occurred on April 12, 1988. The location of both 

the bank and the berm change of course as dumping continues. 

Nevertheless, I conclude that Target was negligent in permitting 

the inadequate berm here, and in permitting the unstable ground. 

Considering the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for the berm violation is 

$8000, and an appropriate penalty for the unstable ground 

violation is $5000. 

ORDER 

Based on the above findings of fact and conclusions of law, 

Orde:cs/Citations 3286977 and 3286978 are AFFIRMED. Respondent is 

ORDER8D to pay within 30 days of the date of this decision the 

following civil penalties for the violations found herein. 

ORDER/CITATION 

3286977 

3286978 

~,/1 .,.·, . 

;. ... ' 

PENALTY 

$ 5000 

8000 

$13000 

James A. Broderick 

Administrataive Law Judge 

165 
Distribution: 

Patricia Jean Howze, Esq., U.S. Department of Labor, Office of 

the Solicitor, 71 Stevenson Street, Suite 1020, P.O. Box 3495, 

San Francisco, CA 9411-3495 CCertif ied Mail) 

Stephan G. Saleson, Esq., Gresham, Varner, Savage, Nolan & 

Tilden, 600 N. Arrowhead Ave., Suite 300, San Bernardino, CA 

92401 ccertif ied Mail> 

slk 

166 
ADMINISTRATIVE LAW JUDGE ORDER 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, · 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 24, 1990 

CONSOLIDATION COAL COMPANY, · Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. : 

167 

CONTEST PROCEEDINGS 

Docket No. WEVA/89-234-R 

Citation No. 3114001; 5/31/89 

Docket No. WEVA 89-235-R 

Citation No. 3114002; 5/31/89 

Docket No. WEVA 89-236-R 

Citation No. 3114003; 5/31/89 

Docket No. WEVA 89-237-R 

Citation No. 3114004; 5/31/89 

Docket No. WEVA 89-238-R 

Citation No. 3103921; 6/1/89 

Docket No. WEVA 89-239-R 

Citation No. 3103922; 6/1/89 

Docket No. WEVA 89-240-R 

Citation No. 3103923; 6/1/89 

Docket No. WEVA 89-241-R 

Citation No. 3103924; 6/1/89 

Docket No. WEVA 89-242-R 

Citation No. 3103925: 6/1/89 

Docket No. WEVA 89-243-R 

citation No. 3103926; 6/1/89 

Docket No. WEVA 89-244-R 

Citation No. 3103927; 6/1/89 

Docket No. WEVA 89-245-R 

Citation No. 3103928; 6/1/89 

Blacksville No. 1 Mine 

Mine ID 46-01867 
SECRETARY OF .LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 90-3 

A. C. No. 46-01867-03815 

Blacksville No. 1 Mine 

Docket No. WEVA 90-8 

A. C. No. 46-01318-03901 

Robinson Run No. 95 

ORDER DENYING OPERATOR'S MOTION TO DISMISS 

ORDER OF DISCOVERY 

ORDER TO CONFER 

NOTICE OF HEARING 

In the above-captioned cases the operator challenges the 

validity of citations issued to it pursuant to 30 C.F.R. § 50.30. 

In a motion do dismiss, the operator seeks to have the charges 

against it dismissed on the ground that Part 50 was not properly 

promulgated and is unenforceable. The Solicitor opposes 

dismissal. 

At the outset, the Solicitor argues that the operator is 

precluded from challenging the validity of Part 50 because of 

res judicata and collateral estoppel, citing my decision in 

Consolidation Coal Company, 9 FMSHRC 727 (April 1987). (Solicitor's brief pp. 3-5). The Solicitor errs in this respect. In 

those cases the operator initially challenged Part 50, but 

abandoned that position when it joined the Solicitor in recommending settlements which I approved. Under the circumstances, I 

do not believe it can be said that the validity of Part 50 was 

litigated or that such a determination was necessary for 

disposition of those cases. Nothing in the settlement motions 

indicates otherwise. Accordingly, my observations regarding the 

validity of Part 50 were, as the operator states, in the nature 

of dicta. (Operator's reply brief pp. 3-9). Also, the validity 

of the adoption of Part 50 was not raised or decided in consolidation Coal Company, 10 FMSHRC 1633 (Nov. 1988), affirmed in 

part, reversed in part, 11 FMSHRC 1935 (October 1989). 

A determination of the validity of procedures pursuant to 

which Part 50 was adopted requires consideration of a most unique 

chronology. The Federal Mine Safety and Health Amendments of 

1977 replaced the Federal Coal Mine Health & Safety Act of 1969 

(hereinafter referred to as the "Coal Act" or the 11 1969 Act") 

with the Federal Mine Safety and Health Act of 1977 (hereinafter 

referred to as the "Mine Act" or the 11 1977 Act"). This legislation was enacted on November 9, 1977. Pub. L. No. 95-164, 95th 

168 
Cong., 1st Sess. Pursuant to section 307 of the Amendments, they 

became effective 120 days after enactment, i.e. March 9, 1978. 

Prior to enactment of the Mine Act, the Mining Enforcement 

and Safety Administration (MESA) of the Department of the 

Interior on October 17, 1977 issued a Notice of Proposed Rule 

Making replacing Part 58 of the regulations, the reporting 

requirements of the Federal Metal and Nonmetallic Act (hereinafter referred to as the "Metal and Non-Metal Act") and Part 80 

applicable to the Coal Act with a new Part 50 applying to both 

statutes. 42 Fed. Reg. 55568. Under the 1977 Section Amendments 

both these laws were subsumed into the new Mine Act. Pub. L. No. 

95-164, §§ 301, 306. On December 30, 1977, the Secretary of the 

Interior adopted Part 50 as a final rule. 42 Fed. Reg. 65534. 

Whether or not Part 50 may be applied under the Mine Act 

depends upon an interpretation of the transfer provisions of the 

1977 Amendments. Section 301(b)(l) of the Amendments provides: 

(b) (1) The mandatory standards relating 

to mines, issued by the Secretary of the 

Interior under the Federal Metal and Nonmetallic Mine Safety Act and standards and 

regulations under the Federal Coal Mine 

Health and Safety Act of 1969 which are in 

effect on the date of enactment of this Act 

shall remain in effect as mandatory health or 

safety standards applicable to metal and 

nonmetallic mines and to coal mines 

respectively under the Federal Mine Safety 

and Health Act of 1977 until such time as the 

Secretary of Labor shall issue new or revised 

mandatory health or safety standards 

applicable to metal and nonmetallic mines and 

new or revised mandatory health or safety ~tandards applicable to coal mines. 

Relying upon section 301(b) (1), the operator argues that 

Congress permitted transfer of only those standards and regulations in effect on November 7, 1977, the date of enactment. 

(Operator's brief pp. 9-12). As set forth above, Part 50 was not 

then in effect. Nevertheless, I cannot accept the operator's 

position. To be sure, section 30l(b) (1) refers to mandatory 

standards under the Metal and Non-Metal Act and to mandatory 

standards and regulations under the Coal Act. But it provides 

that they shall remain in effect "as mandatory health and safety 

standards". Accordingly, despite the reference to regulations, I 

conclude that, taken in its entirety, section 301(b) (1) means 

mandatory standards. 

169 
In addition, section 301(b) (1) must be read in conjunction 

with section 30l(c) (2) of the Amendments which provides: 

(2) All orders, decisions, determinations, rules, regulations, permits, contracts, certificates, licenses, and privileges (A) which have been issued, made, 

granted, or allowed to become effective in 

the exercise of functions which are transferred under this section by any department 

or agency, any functions of which are transferred by this section, and (B) which are in 

effect at the time this section takes effect, 

shall continue in effect according to their 

terms until modified, terminated, superseded, 

set aside, revoked, or repealed by the Secretary of Labor, the Federal Mine Safety and 

Health Review Commission or other authorized 

officials, by any court of competent 

jurisdiction, or by operation of law. 

The parties agree that Part 50 is a regulation rather than a 

mandatory standard. (Operator's brief pp. 14-16; Solicitor's 

brief pp. 11-12). I accept the Solicitor's representation that 

section 301(c) (2) is a broad savings provision pursuant to which 

the regulation denominated as Part 50 and adopted under the Coal 

Act was carried over to the Mine Act. (Solicitor's brief p. 7). 

In this manner both sub-paragraphs (b) (1) and (c) (2) may be read 

concomitantly, with each given its proper meaning and due effect, 

and thereby insuring an orderly transfer of power from one 

statute to the other and from one governmental department to 

another. 

The operator's initial brief makes no mention of section 

30l(c) (2). It only refers to section 301(c) (1) which has nothing 

to do with =the issue presented here. The initial brief 

criticizes the decision of Administrative Law Judge Koutras in 

Helca Mining Company, 1 FMSHRC 1872 (November 1979), which held 

that Part 50 was enforceable under the Mine Act. In particular, 

the operator takes the Judge to task for his supposed reliance 

upon (c) (1). The Helca decision is however, based upon (c) (2) 

and does not mention (c)'(l). The operator's description of the 

provisions of (c) (1) may well be correct, but that section is 

irrelevant. (Operator's brief, footnote 14, pp. 11-12) .• 

In its reply brief, the operator takes note of section 

30l(c) (2). (Operator's reply brief p. 10). But I do not find pe~s~asive any of the arguments advanced in either the operator's 

original or reply brief. First, there is nothing inconsistent 

between the prospective grant of regulatory authority to the 

Secretary of Labor effective with the Mine Act and a continuation 

170 
of such authority in the Secretary of the Interior up to that 

date. The operator's argument that MSHA can now cure the invalidity of Part 50 with swift regulatory action is disingenuous. 

(Operator's reply brief p. 12). This would mean Congress intended a four month hiatus in the power of enforcement. Adoption 

of this view also would result in a 12 year gap in enforcement. 

The operator's reliance upon section 307 of the Amendments 

for the proposition that the Secretary of the Interior had no 

authority to issue regulations except as necessary for the transfer of functions, is not credible. (Operator's initial brief pp. 

12-13; reply brief p. 10). In the first place, the operator does 

not recognize that section 307 refers to both the Secretary of 

Labor and the Secretary of the Interior. Clearly, this section 

is meant to deal with the transfer of power from one to the 

other, but tucked away as it is, in a section dealing with the 

effective dates of the new law, it is nothing more than another 

housekeeping provision that does not affect the proper interpretation of 30l(b) (1) and (c) (2), supra. If Congress wanted to 

divest the Secretary of the Interior of all regulatory authority 

upon enactment of the Amendments, it could have expressly said so 

which it did not. 

As the operator points out, the Mine Act followed the Coal 

Act in imposing a periodic reporting requirement with respect to 

accidents and investigations. (Operator's initial brief pp. 7-

8; reply brief p. 10). The operator is correct that the Conference Report states that in so doing Congress adopted the House 

rather than the Senate version. S.Rep. No. 95-461, 95th Cong., 

1st Sess., at 45 reprinted in, Legislative History of the Federal 

Mine Safety and Health Act of 1977, at 1323. (Operator's brief 

p. 8). But I do not see how this assists the operator. The 

statutory history merely indicates that Congress continued to 

require periodic reporting of these events by operators. It does 

not support the assertion that after enactment of the Mine Act 

the Secret~ry of the Interior lost all authority to issue 

regulations- regarding reporting. On the contrary, Congress' 

decision to maintain reporting requirements militates against 

such a conclusion. 

The operator's reliance upon the directive in the Mine Act 

that the Secretary of Labor adopt regulations to implement section 115 regarding training of miners, is misplaced. (Operator's 

brief pp. 8-9). As noted above, the operator acknowledged that 

the reporting provisions of the Mine Act closely follow those in 

the Coal Act. The opposite is true of section 115 of the Mine 

Act. That section was a wholly new innovation. Nothing 

comparable existed under the Coal Act where training requirements 

were limited to (1) a general directive for training of 

"certified" and "qualified" persons as defined, (2) training in 

the use of self-rescue devices, (3) and programs for operators 

and miners in avoidance and prevention of accidents and 

171 
unhealthful conditions and in the use of methane detection 

devices. Sections 317{i), 317(n) and 502. 30 u.s.c. §~ 377(i), 

377(n), 952 (repealed 1977). In requiring the Secretary of Labor 

to adopt regulations for training, Congress intended to insure 

the prompt implementation of section 115 which had no predecessor 

in the prior law. This is totally different from reporting 

requirements where the new law emulated the old. 

Moreover, adoption of new training requirements cast no 

doubt upon the Secretary of the Interior's authority to issue 

regulations on the matter in the interim period. On the contrary, in discussing the new provision regarding training and the 

need for regulations, the Senate Report expressly recognized the 

Secretary of the Interior's authority to issue regulations on 

that matter in the period between the enactment date and the 

effective date stating as follows: 

The Committee is aware that MESA has 

prepared mandatory training regulations for 

coal miners and that final rules are likely 

to be promulgated before the effective date 

of this Act. To the extent that the Secretary of the Interior's training regulations 

applicable to coal mines fulfill the requirements of this provision, they should continue 

in effect. If such standards need amendment 

to comply with the statutory requirements of 

this bill, only those deficient areas need be 

amended. 

s. Rep. No. 95-181, supra, pp. 50-51, Legislative History, supra, 

pp. 638-639. 

Thus it was recognized that the Secretary of the Interior 

had the power under the 1969 Act to issue training regulations 

during the _period before the 1977 Act became effective, although 

the 1969 Act had no general training provisions. It must be held 

therefore, that the Secretary g fortiori had such regulatory 

authority with respect to reporting regulation~ inasmuch as the 

1969 Act already contained reporting requirements. 

The operator's additional argument that a penalty cannot be 

assessed under Part 50 because it is a regulation and not a 

mandatory standard must be rejected. {Operator's initial brief 

pp. 16-21; reply brief pp. 13-15). The original House and Senate 

bills imposed penalties for violations of regulations. 

Legislative History, supra at pp. 157-158, 235-236. Admittedly, 

specific mention of penalty assessments for regulatory violations 

was deleted during the legislative process. Legislative History, 

supra. at pp. 402-403, 1123. However nothing in the legislative 

history supports the operator's contention that Congress expressly rejected civil penalties for regulatory violations. As the 

172 
operator acknowledges, Congress was not satisfied with the Department of the Interior's administration of mine safety under 

the 1969 Act. (Operator's brief pp. 5-6, 10). Much of its 

unhappiness was directed at the civil penalty process. s. Rep. 

No. 95-181, supra at pp. 40-46; Legislative History, supra, at 

pp. 628-634. Indeed, creation of this Commission was one of the 

means devised by Congress to improve assessment and adjudication 

of civil penalties under the 1977 Act. Nothing would be more 

destructive of Congress's stated intention to promote mine health 

and safety than to interpret legislative history which is 

essentially silent on the matter, so as to create a breach in 

enforcement by not levying penalties for regulatory violations. 

It makes far more sense to hold that since violations of regulations are violations of the statute under which they are issued, 

Congress omitted language regarding penalties for violations of 

regulations because it was mere surplusage. See decision of the 

Interior Board of Mine Operations Appeals in United States Steel 

Corporation, 8 IBMA 230 (December 21, 1977). Also, as the 

Solicitor points out, section llO(a) of the Mine Act must be read 

in concert with sections 104(a) and 105(a) which provide for 

issuance of citations for violations including those of a regulation and for notification to the operator of a penalty assessment 

for each such citation. (Solicitor's brief p. 11). See, UMWA v. 

Dole, 870 F.2d 662, 668 n.8 (D.C. cir. 1989). I do not accept 

the operator's scenario whereby Part 50 violations could be 

subject to penalty assessments only after issuance of a 

withdrawal order under section 104(b) for failure to abate. 

(Operator's brief p. 18). There is nothing to indicate Congress 

intended such a convoluted procedure. 

The remainder of the assertions of both parties deal with 

the merits of the case. I cannot decide these issues absent some 

kind of record whether comprised of stipulations or evidence 

after a hearing. Since all these cases apparently involve the 

same issue it may be that the parties can agree that a decision 

in one cas~ can govern all. The parties should confer regarding 

these matters. 

In light of the foregoing, it is ORDERED that the operator's 

motion to dismiss be DENIED. 

It is further ORDERED that the previously entered Order of 

Stay for Discovery be LIFTED and that the discovery requests be 

complied with within 35 days from the date of this order. 

It is further ORDERED that counsel confer with respect to 

the matters set forth above. 

It is further ORDERED that counsel appear at a nonev identiary hearing to discuss the most expeditious manner of 

173 
considering the remaining issues on Tuesday, March 13, 1990, at 

10:00 a.m., Federal Mine Safety and Health Review Commission, 

Office of Administrative Law Judges, Two Skyline Place, Suite 

1000, 5203 Leesburg Pike, Falls Church, Virginia 22041. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Henry Chajet, Esq., G. Lindsay Simmons, Esq., Pamela s. 

Bacharach, Esq., Consolidation Coal Company, 919 Eighteenth 

Street, N.W., Suite 1000, Washington, D.C. 20006 (Certified 

Mail) 

Walter J. Scheller, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

Page H. Jackson, Esq., Office of the Solicitor, U. s. Department 

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

(Certified Mail) 

Mr. Steven Solomon, UMWA, Box 370, Cassville, WV 26527 

(Certified Mail) 

Robert Stropp, Esq., UMWA, 900 15th Street, N.W., Washington, DC 

20005 (Certified Mail) 

Lawrence Beeman, Director , Office of Assessments, U. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Handcarried) 

/gl 

174