MAY 1990 

COMMISSION DECISIONS 

05-02-90 

05-02-90 

05-21-90 

05-22-90 

05-22-90 

05-23-90 

05-23-90 

05-24-90 

Cyprus Empire Corporation 

Arnold Sharp v. Big Elk Creek Coal Co. 

France Stone Company 

Roger L. Stillion v. Quarto Mining Company 

Greenwich Collieries, Div. of Pennsylvania Mines 

Mid-Continent Resources 

Mountain Parkway Stone, Inc. 

Utah Power & Light Company, Mining Division 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-02-90 

05-03-90 

05-04-90 

05-07-90 

05-08-90 

05-08-90 

05-10-90 

05-15-90 

05-15-90 

05-16-9.0 

05-17-90 

05-17-90 

05-22-9.0 

05-22-90 

05-23-90 

05-23-90 

05-23-90 

05-24-90 

05-24-90 

05-24-90 

05-30-90 

Beth Energy Mines, Inc. 

Ten-A-Coal Company 

California Lighweight Pumice, Inc. 

Beaver Creek Coal Company 

Thomas F. Hefner, Jr. v. Texas Lehigh Cement 

Hinkle Contracting Corporation 

Central Ohio Coal Company 

Walker Stone Company, Inc. 

Howard Sand Company 

Bill Pack Land Corporation/PCR Joint Venture 

Bennett Trucking Co./B&S Trucking 

Sanger Rock & Sand 

Vic's Sand & Gravel Company 

Lebanon Rock Incorporated 

Sec. Labor for Bobby Coulter v. Cantu Materials 

R S & W Coal Company, Inc. 

Walsenburg Sand & Gravel Company 

Cantera Hipodromo, Incorporated 

Sec. Labor for Alonzo Walker v. Dravo Basic 

Materials Company, Inc. 

Consolidation Coal Company 

Mountain Parkway Stone, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-04-90 

05-09-90 

05'-11-90 

05 .... 21-90 

05-31-90 

Thomas Mcintosh v. Flaget Fuels, Inc. 

S.L. Peters Construction 

Otis Elevator Company 

Faith Coal Company 

Arnold Sharp v. Big Elk Creek Coal Co. 

WEST 88-250-R 

KENT 89-147-D 

LAKE 89-92-M 

LAKE 88-91-D 

PENN 85-188-R 

WEST 87-88 

KENT 89-27-M 

WEST 89-161-R 

PENN 89-222 

WEVA 89-274 

WEST 89-317-M 

WEST 88-191-R 

CENT 90-62-DM 

KENT 90-5-M 

LAKE 89-53-R 

CENT 89-103-M 

SE 89-152-M 

WEVA 88-318 

KENT 90-29 

WEST 88-275-M 

CENT 90-104-M 

PENN 89-73-M 

CENT 90-1-DM 

PENN 89-139 

WEST 88-184-M 

SE 89-103-M 

SE 90-63-DM 

WEVA 89-234-R 

KENT 89-27-M 

KENT 

SE 

WEST 

SE 

KENT 

90-113-D 

90-2-M 

89-427 

90-1 

89-147-D 

Pg. 911 

Pg. 926 

Pg. 930 

Pg. 932 

Pg. 940 

Pg. 949 

Pg. 960 

Pg. 965 

Pg. 975 

Pg. 987 

Pg. 994 

Pg. 1001 

Pg. 1010 

Pg. 1011 

Pg. 1014 

Pg. 1022 

Pg. 1026 

Pg. 1035 

Pg. 1038 

Pg. 1044 

Pg. 1054 

Pg. 1061 

Pg. 1078 

Pg. 1080 

Pg. 1093 

Pg. 1115 

Pg. 1127 

Pg. 1129 

Pg. 1148 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1151 

1154 

1155 

1159 

1160 
MAY 1990 

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

Amos Hicks v. Cobra Mining, Inc., et al., Docket No. VA 89-72-D. (Judge 

Weisberger, Harch 22, 1990) 

Mettiki Coal Company v. Secretary of Labor, MSHA, Docket No. YOEK 89-19-R, 

YORK 89-20-R. (Judge Fauver, April 9, 1990} 

Secretary of Labor, MSHA v. France Stone Company, Docket No. LAKE 89-92-M. 

(Judge Broderick, April 18, 1990 - Motion to Amend Settlement) 

BethEnergy Mines, Inc. v. Secretary of Labor, MSHA, Docket No; PENN 89-277-R, 

PENN 89-278-R. (Judge Fauver, April 19, 1990) 

Secretary of Labor, MSHA v. Bulk Transportation Services, Docket No. PENN 89-143. 

(Judge Koutras, April 20, 1990) 

Secretary of Labor, MSHA v. Lanham Coal Company, Docket No. KENT 89-186. (Judge 

Broderick, April 30, 1990) 

There were no cases filed in which review was denied. 
COM.MISSION DECISIONS 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 2, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) Docket Nos. WEST 88-250-R 

WEST 88-251-R 

v •. WEST 88-331 

CYPRUS EMPIRE CORPORATION 

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

Commissioners 

DECISION 

BY: Ford, Chairman; Doyle, Lastowka and Nelson, Commissioners 

This proceeding arising under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act•i or "Act"), 

involves a citation and imminent danger withdrawal order issued by the 

Department of Labor's Mine Safety and Health Administration ("MSHA") to 

Cyprus Empire Corporation ("Cyprus"). The citation, as modified, 

alleges a violation of 30 C.F.R. § 75.202(a), requiring that the roof of 

areas where persons work or travel be supported or otherwise 

controlled. 1/ The imminent danger order, issued pursuant to section 

107(a) of th~ Mine Act, arose out of the same conditions as the 

citation. ~/ Also at issue is whether the Secretary of Labor's 

lf 30 C.F.R. § 75.202(a) provides as follows: 

The roof, face and ribs of areas where persons 

work or travel shall be supported or otherwise 

controlled to protect persons from hazards related 

to falls of the roof, face or ribs and coal or rock 

bursts. 

11 Section 107(a) of the Act provides: 

If, upon any inspection or investigation of a coal 

or other mine which is subject to this [Act], an 

authorized representative of the Secretary finds 

that an imminent danger exists, such representative 

911 
prehearing modification of the citation and inuninent danger order was 

proper. Conunission Administrative Law Judge John J. Morris permitted 

the modification, concluded that Cyprus violated section 75.202(a), 

affirmed the inuninent danger order, and assessed a civil penalty of 

$200. 11 FMSHRC 368 (March 1989)(ALJ). For the reasons that follow, we 

affirm the judge's allowance of the modification and his affirmance of 

the inuninent danger order. We reverse the judge's finding of a · 

violation of section 75.202(a), however, and we vacate the citation and 

civil penalty. 

I. 

Cyprus owns and operates the Eagle No. 5 Mine, an underground coal 

mine located in Craig, Utah. During the evening shift on Friday, 

May 20, 1988, Charles Moss, section foreman, observed poor roof 

conditions in the tailgate entry of the 16 East longwall section. The 

area of poor roof was inunediately adjacent to Shield #126, the last 

shield on the longwall face. A walkway running parallel to the face and 

passing under the longwall's shields, including Shield #126, exited into 

the area of bad roof in the tailgate entry. 

Moss contacted the shift foreman, Robert Pobirk, and they examined 

the roof. Pobirk directed Moss to string yellow "danger tape" across 

the end of Shield #126 to block access from the face to the area of bad 

roof. Pobirk also had yellow danger tape placed across the tailgate 

entry outby the area of poor roof conditions to block access from that 

direction. 

On the next shift, on May 21, 1988, miners installed additional 

support in the "dangered off" area between the cribs that were already 

present. They placed two cribs to prevent the poor roof conditions from 

spreading further into the tailgate entry and a third crib to prevent 

rib sloughage. They also installed two roof jacks and two timbers. 

According to Pobirk, additional support was not placed in the area 

closest to Shield #126 because such support would have served no purpose 

and would have exposed the miners installing such support to the hazard 

of a roof fall. Tr. 91-92, 110-11. 

shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an 

order requiring the operator of such mine to cause 

all persons, except those referred to in section 

[104(c)] of this title, to be withdrawn from, and to 

be prohibited from entering, such area until an 

authorized representative of the Secretary 

determines that such inuninent danger and the 

conditions or practices which caused such inuninent 

danger no longer exist. The issuance of an order 

under this subsection shall not preclude the 

issuance of a citation under section [104] of this 

title or the proposing of a penalty under section 

[110] of this title. 

30 U.S.C. § 817(a). 

912 
On the evening shift on Tuesday, May 24, 1988, MSHA Inspector 

Phillip Gibson observed the area of poor roof adjacent to Shield #126. 

The previously strung yellow danger tape was still in place prohibiting 

travel from the longwall walkway into the area of poor roof. The danger 

tape in the tailgate entry was also still in place, prohibiting travel 

from that direction. Inspector Gibson measured the area of poor roof 

adjacent to Shield fl 126 as being 6 feet by 6 feet 10 inches. The 

closest support cribs were about three feet from Shield #126. Joint 

Exhibit 1 shows the adversely affected area and is attached to this 

decision. 

As a result of his observations, Gibson issued to Cyprus a section 

104(a) citation, 30 U.S.C. § 814(a), alleging a violation of 30 C.F.R. 

§ 75.202(b). }/ The citation states: 

Loose, broken roof was present in the tailgate 

entry of the 16 East longwall section. The coal 

roof between two previously erected wooden cribs was 

broken and some roof had fallen to the mine floor. 

Two previously installed resin grouted rods with 

bearing plates were protruding downward about 16 

inches. The roof coal had fallen from around the 

rods and the bearing plates. The affected area was 

6 feet in length and 6 feet 10 inches in width. 

This condition was one of the factors that 

contributed to the issuance of [the imminent danger 

order]; therefore, no abatement time was set. 

Gibson also designated the violation to be of a significant and 

substantial nature. 

At the same time, Gibson issued a section 107(a) imminent danger 

withdrawal order based on the same conditions. The order states as 

follows: 

Condition or Practice 

Loose, broken roof was present in the tailgate entry 

of the 16 East longwall working section. The loose, 

broken roof (coal roof) was 6 feet in length and 6 

feet 10 inches in width. The affected area was 

between two wooden cribs installed within 3 feet of 

the tailgate face shield (No. 126). A violation of 

75.202(b). The operator had already dangered off 

the tailgate entry at the longwall face. 

* * * 

}/ 30 C.F.R. § 75.202(b) provides: 

No person shall work or travel under unsupported 

roof unless in accordance with this subpart. 

913 
Area or Equipment 

The tailgate entry of the 16 East longwall section 

beginning at No. 126 shield and extending outby 

about 10 feet. 

When Inspector Gibson arrived on the surface, he called his 

supervisor, Clarence Daniels. They agreed that to abate the citation 

and order Cyprus would be permitted to continue mining in order to pass 

by the dangerous area. From the time the bad roof conditions were first 

encountered on May 20, the longwall face had advanced 16~ feet, and 

about 8 to 10 feet of further work would carry mining operations 

entirely past the area of poor roof conditions. Gibson modified the 

imminent danger order about two hours after it had been issued to state 

as follows: 

[The] Imminent Danger Order •.• is hereby modified 

to allow mining to resume in order to mine pas[t] 

the affected area of the tailgate entry of the 16 

East longwall section. The roof had sat so 

precariously on the wooden cribs in the tailgate 

entry, that removing them to install additional roof 

supports, posed a greater hazard. 

Gibson imposed no special conditions or restrictions on the continued 

mining. 

When Inspector Gibson returned to the mine the next evening, May 

25, 1988, mining had progressed beyond the poor roof to a point where 

wooden cribs adequately contained the roof over the travelway into the 

tailgate entry. Therefore, he terminated the citation and order. 

Cyprus contested both the citation and withdrawal order, and after 

the Secretary proposed a civil penalty for the alleged violation the 

matters were consolidated for hearing before Judge Morris. On November 

18, 1988, three days before the hearing, the inspector modified the 

citation to allege a violation of section 75.202(a), rather than section 

75.202(b). He similarly modified the withdrawal order to reflect the 

modification of the citation. Counsel for Cyprus was notified of the 

amendment on the same date, and the modifications were served on Cyprus 

on the day of the hearing, November 21, 1988. 

At the hearing, Cyprus' counsel did not object to the modifi-· 

cations. Instead, he acknowledged that the Secretary's counsel had 

notified him approximately one month before the hearing that the 

citation would likely be modified to allege a violation of section 

75.202(a). He also acknowledged that Cyprus was not prejudiced by the 

amendment. Tr. 13. The judge and the parties proceeded with the 

hearing on the basis of the allegation of a section 75.202(a) violation. 

In its posthearing brief, Cyprus nevertheless raised an objection to the 

modification of the citation and order. 

914 
In his decision, the administrative law judge rejected Cyprus' 

belated objection to the modification of the citation and order. The 

judge emphasized that Cyprus had conceded that the modifications had not 

resulted in prejudice. The judge also noted that amendment of pleadings 

is largely committed to the discretion of the trial judge pursuant to 

the standards contained in Fed. R. Civ. P. lS(a). 11 FMSHRC at 379. 

Accordingly, the judge approved the modification of the citation and 

order to allege a violation of .section 75.202(a) instead of 75.202(b). 

Id. 

The judge also affirmed the imminent danger order. He rejected 

Cyprus' argument that the order was invalid because entry into the cited 

area had been prohibited by the danger tape. The judge explained that 

the "purpose of a 107(a) order is not only to cause the withdrawal of 

miners, but to insure that they remain out of the affected area until 

the condition is corrected." 11 FMSHRC at 377. The judge credited the 

MSHA inspector's opinion that the roof condition was imminently 

dangerous to any miner exposed to it. 11 FMSHRC at 376. The judge 

noted that, although in their testimony Cyprus' witnesses did not fully 

embrace the inspector's opinion concerning the imminent danger, their 

actions in supporting the roof and dangering off the area did. 

11 FMSHRC at 376. He further stated that, although no miner had entered 

the dangerous area while it was dangered off, "actual exposure [of] a 

miner to a hazardous condition is not required to find that [an] •.. 

imminent danger exists." 11 FMSHRC at 377. 

Finally, in concluding that Cyprus had violated section 75.202(a), 

the judge agreed with the Secretary's view that, as an acceptable 

alternative to roof "support," the standard's reference to a roof's 

being "otherwise controlled" refers to some form of "physical restraint 

of the defective area." 11 FMSHRC at 378-79. The judge rejected 

Cyprus' view that its installation of yellow danger tape constituted a 

"control" within the meaning of section 75.202(a). 11 FMSHRC at 379. 

The judge stated: 

Id. 

In considering these issues I conclude that 

compliance with § 75.202(a) can be accomplished in 

several ways. Initially, as the regulation 

provides, the area can be supported. In the 

alternative, the area may be barred down. The 

alternative of barring down a defective area is 

contained in the statute and it has been a control 

historically used. If support and barring down are 

not effective (the situation here) then the 

regulation requires effective control. I agree with 

the Secretary's view that some form of physical 

restraint of the defective area is required. 

The judge did not specifically address the question of whether the 

cited area was a place "where persons work or travel" within the meaning 

of section 75.202(a). However, in his discussion of the imminent danger 

order, the judge found that "under normal circumstances, the tailgate 

915 
end of the longwall would allow a miner to come directly off of the 

longwall into the return.entry" and that "there were miners in the 

vicinity of the defective roof." 11 FMSHRC at 377. He also found that 

"no miner walked under the area of bad roof and no one went through the 

area while it was dangered off •••• " Id. 

II. 

Cyprus contends that the judge erred in permitting the modification of the citation and imminent danger order. Cyprus submits that 

the Secretary failed to explain adequately the delay in amending the 

documents and that the delay was unreasonable. 

Although the Commission's procedural rules do not address 

amendment of pleadings, the Commission may properly look for guidance to 

Fed. R. Civ. P. 15(a) ("Rule 15(a)"). 4/ See Commission Procedural Rule 

l(b), 29 C.F.R. § 2700.l(b). Under Rule 15(a), the trial court 

possesses considerable discretion in resolving motions seeking leave to 

amend pleadings. Such leave is to be freely granted in the interest of 

justice, and a court's determinations in this regard will not be 

overturned except for abuse of discretion. ~, ~· 3 J. Moore, 

Moore's Federal Practice Par. 15.08 (2d ed. 1989)("Moore's"). See El 

Paso Rock Quarries, Inc., 3 FMSHRC 35, 38 (January 1981). Among th;-

permissible purposes of such amendments are changes in the nature of the 

plaintiff's claims or legal theories. !:..&.:..• Moore's, supra, Par. 

15.08[3]. Delay alone, regardless of length, does not bar a proposed 

amendment if the other party is not prejudiced. Moore's, Par. 15.08[4]. 

Here, the Secretary, through her modifications, sought only to .allege 

that a different, though substantively related, subsection of the same 

standard applied to the cited conditions. 

Cyprus conceded at the hearing that it was not prejudiced PY the 

modifications, and proceeded with the hearing without protest. If 

Cyprus was aggrieved by the amendments, it should have objected at the 

hearing before the judge; its objection in the post-hearing brief was 

not timely. Cf. A.H. Smith, 5 FMSHRC 13, 17 n. 5 (January 1983). 

Therefore, we~old that the judge did not abuse his discretion in 

allowing the modifications. 

Cyprus argues that the judge erred in concluding that it violated 

~/ Rule 15(a) states in part: 

Amendments. A party may amend his pleading once 

as a matter of course at any time before a 

responsive pleading is served or, if the pleading is 

one to which no responsive pleading is permitted and 

the action has not been placed upon the trial 

calendar, he may so amend it at any time within 20 

days after it is served. Otherwise a party may 

amend his pleading only by leave of court or by 

written consent of the adverse party; and leave 

shall be freely given when justice so requires. • •• 

916 
section 75.202(a) for two reasons: (1) under the cited standard the area 

at issue· was·· not an area "where persons work or travel;" and 

(2) "dangering-off" the area is an acceptable form of "control" of the 

roof. Because we find the first issue dispositive, we need not reach 

the second. 

To establish a violation of 30 C.F.R. § 75.202(a), the Secretary 

was required by the terms of the standard to prove that the cited area 

was an area "where persons work or travel." As discussed above, the 

judge found that "under normal circumstances, the tailgate end of the 

longwall would allow a miner to come directly off the longwall into the 

return entry." 11 FMSHRC 377 (emphasis added). What the judge did not 

consider, however, is whether "normal circumstances" are presented here. 

The record in this case establishes that as soon as Cyprus 

encountered the poor roof conditions, it dangered-off the area to 

prevent miners from entering the area of adverse roof conditions. In 

doing so, Cyprus acted in accordance with accepted safe-mining 

practice. 5/ There is no evidence that at any time during the existence 

of the dangerous roof conditions, other than during the attempt to 

install additional roof support, any miner worked or traveled in the 

cited area. Indeed, the Secretary has conceded as much. 11 FMSHRC at 

377; Tr. 11, 44, 49, 68-69. See also Oral Arg. Tr. 33. The Secretary 

also did not prove that, while the area was dangered-off, the job duties 

of any miners required them to enter the affected area. See, ~, Oral 

Arg. Tr. 9-10, 32-34. Thus, the record establishes that the operator 

acted appropriately in dangering-off the area of bad roof and that no 

miners worked, traveled or were required to enter into the area at 

issue. 

Importantly, we note that in the circumstances presented, the 

Sec~etary .agreed with Cyprus that installation of additional roof 

support was neither necessary nor desirable. The Secretary also agreed 

with Cyprus that the safest and most appropriate course to follow in 

eliminating the danger was to allow continuation of the normal longwall 

~/ For example, section 303(d)(l) of the Mine Act provides: 

If [a mine operator] finds a condition which 

constitutes a violation of a mandatory health or 

safety standard or any condition which is hazardous 

to persons who may enter or be in such area, he 

shall indicate such hazardous place by posting a 

"DANGER" sign conspicuously at all points which 

persons entering such hazardous place would be 

required to pass •..• No person, other than an 

authorized representative of the Secretary or a 

State mine inspector or persons authorized by the 

operator to enter such place for the purpose of 

eliminating the hazardous condition therein, shall 

enter such place while such sign is so posted. 

30 U.S.C. § 863(d)(l). (emphasis added). 

917 
mining process so as to mine past the problem area. Thus, the remedial 

action required by the Secretary here was nothing more than what Cyprus 

itself had determined was necessary in order to prevent miners from 

being exposed to the hazard presented: prohibiting access into the 

tailgate and continuing the normal mining process until mining 

progressed beyond the dangerous area. 

In sum, we conclude that a violation of section 75.202(a) was not 

established because, under the circumstances of this case, the area of 

bad roof at issue was not an area where persons worked or traveled. 

Accordingly, the judge's finding of a violation is reversed, and the 

citation and civil penalty are vacated. 

Finally, Cyprus argues that the judge erred in affirming the 

imminent danger withdrawal order. Cyprus argues that no persons were 

exposed to the hazardous roof conditions since it prohibited access to 

the area and that the nature of the cited roof conditions could not 

reasonably have been expected to cause death or serious harm before they 

were abated. 

Preliminarily, we note that an imminent danger order need not be 

based upon a violation of a mandatory standard in order to be valid. 

See S. Rep. No. 461, 95th Cong., 1st Sess. 39 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 

2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 1317 (1978)("Legis. Hist."); Freeman Coal Mining Co., 1 IBMA 

197, 207-08 (1973), aff'd, Freeman Coal Mining Co. v. IBMA, 504 F.2d 741 

(7th Cir. 1974). Accordingly, despite our vacation of the citation 

alleging a violation of section 75.202(a), the question of the validity 

of the imminent danger order remains. 

The Mine Act defines an imminent danger as "the existence of any 

condition or practice in a coal or other mine which could reasonably be 

expected to cause death or serious physical harm before such condition 

or practice can be abated." 30 U.S.C. 802(j). This definition is 

unchanged from the definition contained in the Federal Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)(the 

"1969 Coal Act"). The Senate report on.the Mine Act explains that the 

Sec·retary' s authority to issue imminent danger orders "should be 

construed expansively by inspectors and the Commission." S. Rep. No. 

181, 95th Cong., 1st Sess. 38 (1977), reprinted in Legis. Hist. Mine Act 

626. 

In discussing the concept of imminent danger, we recently stated: 

In analyzing [the] definition [of imminent 

danger], the U.S. Courts of Appeals have eschewed a 

narrow construction and have refused to limit the 

concept of imminent danger to hazards that pose an 

immediate danger. See, ~· Freeman Coal Mining 

Co. v. Interior Bd. of Mine Op. App., 504 F.2d 741 

(7th Cir. 1974). Also, the Fourth Circuit has 

rejected the notion that a danger is imminent only 

if there is a reasonable likelihood that it will 

918 
result in an injury before it can be abated. 

Eastern Associated Coal Corp. v. Interior Bd. of 

Mine Op. App., 491 F.2d 277, 278 (4th.Cir. 1974). 

The court adopted the position of the Secretary that 

"an imminent danger exists when the condition or 

practice observed could reasonably be expected to 

cause death or serious physical harm to a miner if 

normal mining operations were permitted to proceed 

in the area before the dangerous condition is 

eliminated." 491 F.2d at 278 (emphasis in 

original). The Seventh Circuit adopted this 

reasoning in Old Ben Coal Corp. v. Interior Bd. of 

Mine Op. App., 523 F.2d 25, 33 (7th Cir. 1975). 

Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989). 

The Seventh Circuit has further recognized the importance of the 

inspector's judgment in issuing an imminent danger order: 

Clearly, the inspector is in a precarious position. 

He is entrusted with the safety of miners' lives, 

and he must ensure that the statute is enforced for 

the protection of these lives. His total concern is 

the safety of life and limb .••• We must support the 

findings and the decisions of the inspector unless 

there is evidence that he has abused his discretion 

or authority. (emphasis added). 

Old Ben, supra, 523 F.2d at 31; Rochester & Pittsburgh, 11 FMSHRC at 

2164. 

We disagree with Cyprus that because it had prohibited access to 

the hazardous area, the Secretary's imminent danger order was invalid. 

Under section 107(a) of the Act, the Secretary is responsible not only 

for determining the area of the mine affected by the danger and removing 

miners from such area but also determining when miners may safely reenter the affected area because the conditions or practices that caused 

the danger no longer exist. We cannot conclude that the inspector 

abused his discretion in issuing an order prohibiting re-entry into the 

area until the hazard was eliminated. £/ 

£/ Under the 1969 Coal Act, the Department of Interior's Board of 

Mine Operations Appeal ("Board") addressed the legal effects of an 

operator's voluntary withdrawal of miners upon the validity of imminent 

danger withdrawal orders. Clinchfield Coal Co., 1 IBMA 33 (1971); The 

Valley Camp Coal Co., 1 IBMA 243 (1972). In these decisions, the Board 

emphasized that an imminent danger withdrawal order is more extensive 

than the mere withdrawal of miners; it also confers jurisdiction to 

prohibit re-entry until it is determined that the imminent danger no 

longer exists. The Board accordingly held that the issuance of the 

withdrawal orders involved in those proceedings was proper even though 

the operator had voluntarily withdrawn the miners from the mine before 

the issuance of the orders. Clinchfield, supra, 1 IBMA at 41; Valley 

919 
The hazards of roof falls are well known. See, ~, UMWA v. 

Dole, 870 F-.2d 662, 664 (D.C. Cir. 1989)(citing the preamble to the 

promulgation of MSHA'~ ~urrent r9Qf SUP,port standards, 53 Fed. Reg. 2354 

(January 27, 1988)). Here, Inspects>r 'tabson found that the roof was 

slanted downward, broken, and fractured. Tr. 30, 31-32. He also found 

pieces of roof about one foot wide ~d two or three feet in length on 

the floor. Tr. 30, 44~ ffe found twp 'roof bolts with bearing plates 

about 16 inches below the roof line. Tr. 36. He believed that the roof 

looked so unstable that it ~pμld fall at any time, and that if it did 

fall, it could cause seriou~ physical harm or death. Tr. 31. Cyprus' 

witnesses also acknowledged that the roof conditions in the cited area 

were so bad that it was too dangerous to attempt to resupport the area. 

Tr. 96, 99, 111, 125. Cyprus.' sect~on foreman Moss testified that 11 [t]here were some huge cracks the cribs squeezed together" and that the 

roof "looked realiy heavy. •I Tr. 109. 

Thus, we conclude tpat substantial evi~ence supports the judge's 

affirmance of the order. The inspector did not abuse his discretion in 

issuing the order to control re-entry into an area of bad roof. 

Camp, supra, 1 IBMA at 248. 

920 
III. 

Accordingly, we affirm the judge's action in permitting the 

Secretary to modify the citation and order, we reverse the judge's 

finding that Cyprus violated section 75.202(a), we vacate the citation 

and civil penalty assessed for the violation~ and we affirm the imminent 

danger withdrawal order. 

~ 

Jyce:DOile, ~cl~ CommiSSiOr 

L. Clair Nelson, Commissioner 

921 
SHIELD # 1 26 

SHIELD #125 

SHIELD #124 

~ Cr;bs lnd;coted On Inspector's 

Drow;ng 

® Res;n Roof Bolts 

~ Res;n Roof Bolts lnd;coted On 

Inspector's Drow;ng 

Note: Markings by Cyprus' 

sounsel at the hearing are 

not shown. 

w .. u 

<( 

LL.. 

D 

~mm 

CJ) 

• 

\./olk 'vloy 

Pon Une 

Roof Jock 

T;Mber 
Commissioner Backley concurring in part and dissenting in part: 

I respectfully dissent from that part of the majority decision holding 

that no violation of 30 C.F.R. 75.202(a) occurred. 

There is no factual dispute regarding this issue. The cited roof was in a 

highly dangerous condition. Indeed today we all conclude that the roof 

condition constituted an imminent danger. The gravity of the situation was 

such that MSHA agreed with the operator's determination that the risk involved 

in any remedial effort to .support the roof was unacceptable. The safer course 

of action was to danger-off the area and mine beyond the dangerous area. This 

the operator did. Indeed, the record indicates that no miners ventured past 

the yellow tape used by the operator to danger-off the subject area. 

In evaluating the legal effect of the foregoing, the majority has 

concluded that no violation occurred " .•• because, under the circumstances of 

this case, the area of bad roof at issue was not an area where persons worked 

or traveled." Slip op. at 8. 

I cannot agree with this cramped construction of the cited regulation. A 

reasonable reading of the majority's opinion would lead one to conclude that it 

is now possible to immunize an area of the mine from MSHA enforcement if the 

area is successfully dangered-off. Whether or not the majority intends to 

convey that message is beside the point. In my op1n1on such a conclusion is 

wrong and dangerously contrary to Congressional intent. 

I have carefully reviewed the record in this matter and find the 

Secretary's arguments on this issue to be compelling. The operator's action in 

dangering-off the area was not only " ••• in accordance with accepted safe-mining 

practice", as determined by the majority, Slip op. at 7, but was in fact 

mandatory. Indeed the operator's obligation under the law goes beyond merely 

dangering-off the hazardous area. The roof must be supported or controlled. In 

this case the cited roof was neither supported nor controlled as required by 

the regulation. The imminently dangerous condition was ultimately abated by 

mining past the cited area. 

The majority, however. does not directly reach the issue of whether the 

roof was controlled. The majority has determined that the Secretary failed to 

prove that this was an area where persons worked or traveled. In so 

concluding, the majority has apparently rejected the well-reasoned arg\llllents to 

the contrary urged by the Secretary. Specifically, the Secretary argues that 

ventilation and on-shift examinations required the presence of miners in the 

cited area. The Secretary also lists other necessary maintenance functions 

pertaining to the. roof, water pump and water lines which would ordinarily 

cause miners to be in the cited area. Most significantly, the Secretary argues 

that under the requirements of 30 C.F.R. 75.215(a) the operator is required to 

923 
maintain a safe travelway out of the section through the subject tailgate 

side the longwall. In response to these· arguments, Cyprus concedes that 

although the preshift and onshift examinations did not require miner exposure 

to the cited area, the weekly ventilation examination required under 30 C.F.R. 

75.305 was not a factor in this case because the subject condition existed for 

approximately five days. Oral arg. at 9-10. We are left with the implication 

that had the condition existed beyond a week's time, compliance with the 

examination requirement would have resulted in miner exposure to the cited 

roof. 

In response to the Secretary's concerns regarding necessary maintenance 

functions which would ordinarily cause miners to work under the cited roof, 

Cyprus admitted that if the cited area had not been dangered-off the 

installation of supplemental roof support and the maintenance of pumps "would 

put them into this particular area." Oral arg. 11-12. 

Finally and most significantly, in responding to the Secretary's assertion 

that because 30 C.F.R. 75.215(a) requires that the tailgate side of the 

longwall be maintained as a safe travelway out of the section Cyprus cannot 

simply eliminate the subject tailgate entry as a place where persons work or 

travel, Cyprus argues that the headgate could be used as an escape route, or 

as a last resort, the subject tailgate could have been used since it was not 

physically blocked. Oral arg. at 8. 

In consideration of the foregoing, it is clear that the subject tailgate 

was "indisputably, normally an area where persons work or travel." Sec. brief 

at 18, Oral arg. at 33. Accordingly, I conclude that the regulatory 

threshold "where persons work or travel" has been met in this case. To do 

otherwise, as the majority has reasoned, risks the dangerous misapprehension 

that compliance can be achieved with tape and board. 

In reaching its conclusion of no violation, the majority places 

significant importance upon the fact that" •.• the remedial action required by 

the Secretary was nothing more than what Cyprus itself had determined was 

necessary in order to prevent miners from being exposed to the hazard 

presented ... " Slip op. at 7-8. I share that concern. I also agree that 

Cyprus did not fail to take remedial action. This concern however is not 

relevant to the issue of whether the regulation was violated. The regulation 

contains no such exception. The roof where persons work or travel shall be 

supported or otherwise controlled. The fact that MSHA and Cyprus agreed that 

the dangerous roof was best left undisturbed~ does not in any way diminish or 

alter the fact that the subject roof, located as it was within 36 inches of the 

tailgate shield 126, was in violation of 30 C.F.R. 75.202(a). The manner in 

which compliance is achieved is not an element relating to the determination of 

whether a violation occurred. It is, however, expressly relevant in 

considering the appropriate amount of civil penalty to be assessed. 30 U.S.C. 

Section 820(i). 

924 
Accordingly, I have concluded that the subject area was clearly a place 

where persons ·work or travel and that the cited roof was not supported or 

controlled and that therefore a violation of 30 C.F.R. 75.202(a) occurred. 

Distribution 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

58th Floor 

600 Grant Street 

Pittsburgh, Pennsylvania 15219 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

280 Colonnade Center 

1244 Speer Boulevard 

Denver, Colorado 80204 

925 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 2, 1990 

ARNOLD SHARP 

v. Docket No. KENT 89-147~D 

BIG ELK CREEK COAL COMPANY 

BEFORE: Ford, Chairman; Hackley, Doyle, Lastowka, Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

In this section 10S(c)(3) discrimination proceeding arising under 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. section 801 et 

seq. (1982), the Commission granted Arnold Sharp's petition seeking 

interlocutory review of an order of Administrativ~ Law Judge Gary Melick 

issued February 16, 1990. 

The subject order was issued in response to a letter, dated 

February 5, 1990, from Sharp to the judge. Sharp, who is appearing pro 

se, had requested the judge remove himself from the case because he had 

issued orders staying the proceedings over Sharp's objections. In the 

letter, Sharp expressed concern for a fair hearing and sought 

dissolution of the existing stay order, renewing his demand for a prompt 

hearing. 

In his order denying Sharp's request that the stay be dissolved 

the judge stated: 

••• This case has indeed twice been stayed pending 

final disposition of criminal perjury charges 

against an alleged essential witness in this 

proceeding, Jim Meese. The Complainant himself has 

indeed maintained and pursued those charges. The 

outcome of such perjury charges could have a 

critical impact on the instant case and, of course, 

if such charges are substantiated in such criminal 

proceedings could indeed very well benefit the 

Complainant's position in this case. 

February 16, i990 Order at 2. 

926 
Thereafter Sharp filed the petition for interlocutory review which 

was granted. 

The record developed to date indicates that, subsequent to his 

February 28, 1989 discharge, Sharp appeared and testified before a 

Commonwealth of Kentucky Department of Employment Services referee in an 

effort to secure unemployment compensation. Respondent's Administrative 

Director, Jim Meese, also testified at this hearing. Because Sharp 

believed Meese's testimony at that hearing to be false, he caused a 

criminal complaint and arrest warrant to be issued against Meese. 

Accordingly, on September 13, 1989, Respondent moved for a postponement 

of the instant action, asserting that Meese, the principal and likely 

only witness for respondent in the Mine Act discrimination proceeding 

pending before the administrative law judge, intended to assert his 

Fifth Amendment privilege against self-incrimination "prevent[ing] him 

from testifying further as to the matters surrounding the criminal case 

and any collateral civil matter." Motion for Postponement at 2. 

Sharp filed his opposition to the motion for postponement arguing 

that the criminal matter has no bearing upon the discrimination matter. 

Sharp requested that the then scheduled hearing before the 

administrative law judge go forward. 

The respondent filed a reply asserting: 

•.• The subject matter of the unemployment hearing 

factually mirrors the instant proceeding. Should 

Mr. Meese testify in the hearing scheduled in this 

discrimination proceeding before the Federal Mine 

Safety and Health Review Commission relative to the 

facts surrounding Complainant's discharge, he would 

waive his Fifth Amendment privilege against selfincrimination. In Re: Atterbury, 316 F.2d 106, 109 

(6th Cir. 1963); Anderson v. Commonwealth, Ky. App., 

554 s.w. 2d 882, 884 (1977). 

On September 20, 1989, the judge issued an Order of Continuance 

and Stay Order: 

I find upon consideration of the circumstances that 

the Motion for Continuance is well-founded and that 

it would be in the best interests of this litigation 

to grant a brief continuance and stay in these 

proceedings pending disposition of the noted 

criminal proceedings. This is particularly true in 

this case since the criminal charges involve a claim 

that a witness apparently essential to this case 

gave a false statement in a related proceeding and 

that criminal case is already scheduled for trial in 

the near future. 

Order at 3. 

Thereafter, on January 5, 1990, the criminal charge against Meese 

927 
was dismissed. However, on January 22, 1990, the dismissal was appealed 

and the crlminal action remains pending. Noting these occurrences and 

over the objections of Sharp, the administrative law judge issued a 

second stay order on February 2, 1990, pending" •.• final disposition of 

the noted criminal proceedings ... " Order at 1. 

In determining whether a Fifth Amendment privilege is validly 

invoked, the judge has wide but not unlimited discretion. In exercising 

that discretion, however, the judge must be informed. United States v. 

Metz, 608 F.2d 147, 156 (5th Cir. (1979), cert. denied, 449 U.S. 821, 

101 S.Ct. 80, 66 L.Ed. 2d 24 (1980); Unite'dStates v. Van Deveer, 577 

F.2d 1016, 1017 (5th Cir. 1978); United States v. Hart, 729 F.2d 662, 

670 (10th Cir. 1984), cert. denied, 469 U.S. 1161, 105 S.Ct. 914, 83 

L.Ed. 2d 927. The mere assertion of the Fifth Amendment privilege, 

without more does not exonerate a witness from testifying. The judge 

must make an informed determination of the validity of the claim. 

United States v. Sheikh, 654 F.2d 1057 (5th Cir. 1981), cert. denied, 

455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed. 2d 852. 

We have thoroughly reviewed the present record and find an 

inadequate basis for the existing stay. The record contains only a 

vague indication of the exact nature of the criminal charges pending 

against respondent's witness Meese. More importantly, there is no clear 

indication as to how those charges impact upon the issues presented by 

Sharp's complaint of unlawful discharge in violation of section 105(c) 

of the Mine Act. As such, the record contains an inadequate foundation 

for the present acceptance of respondent's bald claim that Meese's 

testimony in the instant case necessarily would result in a waiver of 

his Fifth Amendment privilege. Further demonstration by respondent and 

further inquiry by the judge are required, especially in light of 

Sharp's right under the Mine Act to an expeditious hearing on his 

discrimination complaint. 

928 
Accordingly, we vacate the existing stay order and remand to the 

judge for further proceedings consistent with this order. 

Distribution 

Mr. Arnold Sharp 

General Delivery 

Bulan, Kentucky 41722 

Edwin S. Ho~son, Esq. 

Hyatt, Tarrant & Combs 

Citizens Plaza 

Louisville, Kentucky 40202 

Administrative Law Judge Gary Melick 

Richard V. 

Jdyce A. 

llf::ka, 

L. Clair Nelson, Commissioner 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

929 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FRANCE STONE COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006. 

May 21, 1990 

Docket No. LAKE 89-92-M 

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

Commissioners 

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

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

April 18, 1990, Commission Administrative Law Judge James Broderick 

issued a decision approving a settlement agreement filed by the 

Secretary of Labor. In the motion the Secretary stated that the terms 

of the settlement had been agreed to by France Stone Company ("France 

Stone"). In accordance with the motion, the judge assessed civil 

penalties of $12,000, the amount originally proposed by the Secretary 

for the two citations involved in this proceeding. On April 20, 1990, 

however, France Stone filed with Judge Broderick a motion to amend the 

settlement, to approve the amended settlement, and to dismiss the 

proceeding. This motion asserted that the Secretary concurred in the 

motion. We deem France Stone's motion to constitute a timely petition 

for discretionary review, which we grant, and we remand this matter to 

the judge for further proceedings. 

The judge's jurisdiction in this proceeding terminated when his 

decision approving settlement was issued. 29 C.F.R. § 2700.65(c). 

Under the Mine Act and the Commission's procedural rules, once.a judge's 

decision has issued, relief from the 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(a). Here, 

France Stone's motion to Judge Broderick constitutes a request for 

relief from the judge's decision, and constitutes a timely filed 

petition for discretionary review. See, ~' Kathleen I. Tarmann v. 

Int'l Salt Company, 12 FMSHRC 1, 2 (January 1990). 

930 
France Stone was not a signatory to the "settlement agreement" 

that it now disputes in part. France Stone's present motion suggests 

that the original settlement submitted to the judge may not have 

reflected the parties' agreement. Although France Stone's motion to 

amend the settlement represents that the Secretary concurs in the 

motion, like the first submission it is not signed by the opposing 

party. In this circumstance, further proceedings before the judge are 

necessary in order to determine the terms of the parties' settlement. 

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

Accordingly, the judge's Decision Approving Settlement is vacated 

and the matter is remanded to the judge for further appropriate 

proceedings. 

Distribution 

Henry Chajet, Esq. 

Jackson & Kelly 

1701 Pennsylvania Ave., N.W. 

Suite 650 

Washington, D.C. 20006 

Rafael Alvarez, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

230 S. Dearborn St., 8th Floor 

Chicago, Illinois 60604 

Richard V. Backley, 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

931 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 22, 1990 

ROGER L. STILLION 

v. Docket No. LAKE 88-91-D 

QUARTO MINING COMPANY 

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

Conunissioners 

DECISION 

BY THE COMMISSION: 

This proceeding involves a discrimination complaint filed by Roger 

L. Stillion. pursuant to the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seg. (1988)(the "Mine Act" or "Act"). The complaint 

alleges that Quarto Mining Co. ("Quarto") violated section 105(c)(l) of 

the Mine Act, 30 U.S.C. § 815(c)(l), when it denied Stillion the 

opportunity to participate in an inspection of the mine without a loss 

of pay. l/ Following an evidentiary hearing, Conunission Administrative 

11 Section 105(c)(l) provides: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[Act] because such miner, representative of miners 

or applicant for employment has filed or made a 

complaint under or related to this [Act], including 

a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

health violation in a coal or other mine, or because 

such miner, representative of miners or applicant 

for employment is the subject of medical evaluations 

and potential transfer under a standard published 

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

such miner, representative of miners or applicant 

for employment has instituted or caused to be 

932 
Law Judge William iauver found that Quarto had unlawfully discriminated 

against Stillion in violation of section 105(c)(l), 11 FMSHRC 523 (April 

1989)(ALJ), and ordered Quarto to pay Stillion back pay, interest and· 

attorney's fees. 11 FMSHRC 875 (May 1989)(ALJ). The Commission granted 

Quarto's petition for discretionary review. For the reasons that 

follow, we affirm the judge's decision. 

The events in question took place at Quarto's Powhattan No. 4 

Mine, an underground coal mine located near Clarington, Ohio. In 

approximately September 1987, Quarto contracted with A&C Construction 

Co. ("A&C") to extend a gob pile located on the top of a hill at the 

mine. Pursuant to the contract, A&C was responsible for, among other 

things, removing and hauling trees, brush, and dirt. In addition, A&C 

subcontracted some of the work for hauling dirt. The work required A&C 

and its subcontractor to use haulage trucks and A&C to use other heavy 

equipment, such as back hoes and bulldozers. It also required A&C's 

employees to work in and around the same area as some of Quarto's 

employees. 

Soon after A&C started the project, Quarto's employees complained 

to Ronald Winkler, a union safety committeeman, and to other union 

officials, about the manner in which A&C employees were driving their 

trucks. (The union was the representative of Quarto's employees for 

Mine Act purposes.) Quarto's employees were also concerned about the 

lack of backup alarms on the trucks and other of A&C's mobile equipment. 

The Quarto employees believed that they were endangered by A&C's work 

practices and equipment. Stillion had himself observed several of the 

complained of conditions. 

Winkler discussed the Quarto employees' safety concerns with some 

of A&C's employees. He also discussed them with John Smith, Quarto's 

foreman for maintenance. The Quarto employees' complaints about A&C 

nevertheless continued. As a result, Ted Hunt, chairman of the union 

safety committee, placed a "Code-A-Phone" call to the Department of 

Labor's Mine Safety and Health Administration ("MSHA") requesting that 

MSHA inspect "all equipment of contractors" at the Quarto mine. 

Ex. Rx-1. '!:./ 

On Friday, October 2, 1987, as a result of the Code-A-Phone 

instituted any proceeding under or related to this 

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

such proceeding, or because of the exercise by such 

miner, representative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this [Act]. 

30 U.S.C. § 815(c)(l). 

'!:._/ Code-A-Phone is a toll-free "hot line" to the MSHA headquarters in 

Arlington, Virginia, that is used to request an inspection of a mine, to 

report safety or health problems, or to report possible violations of 

the mandatory safety and health standards. MSHA's policy is not to 

reveal the source of a Code-A-Phone request or report. 

933 
request, MSHA Inspector Frank Homko arrived at the mine to inspect the 

contractors' equipment. J/ Pursuant to section 103(f) of the Mine Act, 

30 U.S.C. §.813(f), Hunt served as the walkaround representative for 

Quarto's employees during the October 2 inspection. ~/ Percy Hawkins, 

J/ The Code-A-Phone inspection of A&C 1 s equipment was conducted 

pursuant to section 103(g) of the Act, which states in part: 

Whenever a representative of the miners or a miner 

in the case of a coal or other mine where there is 

no such representative has reasonabie grounds to 

believe that a violation of this Act or a mandatory 

health or safety standard exists, or an imminent 

danger exists, such miner or representative shall 

have a right to obtain an immediate inspection by 

giving notice to the Secretary or his authorized 

representative of such violation or danger.... [A] 

special inspection shall be made as soon as possible 

to determine if such violation or danger exists .•.• 

30 u.s.c. § 813(g). 

!:_/ The term 11walkaround11 is used for convenience.in reference to the 

rights granted miners 1 representatives under section 103(f) ·.of the Mine 

Act, which provides: 

Subject to regulations issued by the Secretary, a 

representative of the operator and a representative 

authorized by his miners shall be given an · 

opportunity to accompany the Secretary or his 

authorized representative during the physical 

inspection of any coal or other mine made pursuant 

to the provisions of subsection (a) of this section, 

for the purpose of aiding such inspection and to 

participate in pre- or post-inspection conferences 

held at the mine. Where there is no authorized 

representative, the Secretary or his authorized 

representative shall consult with a reasonable 

number of miners concerning matters of health and 

safety in such mine. Such representative of miners 

who is also an employee of the operator shall suffer 

no loss of pay during the period of his 

participation in the inspection made under this. 

subsection. To the extent that the Secretary or 

authorized representative of the Secretary 

determines that more than one representative from 

each party would further aid the inspection,he can 

permit each party to have an equal of such 

additional representatives. However, only one such 

representative of miners who is an employee of the 

operator shall be entitled to suffer no loss of pay 

during the period of such participation under the 

provisions of this subsection. Compliance with this 

934 
Quarto's safety inspector, represented Quarto on this inspection. 

'.!, 

Inspector Homko, accompanied by.Hunt and Hawkins, went to the gob 

pile to inspect A&C 1 s .equipment. During _the inspection, Hunt elaborated 

to Homko the concerns of Quarto employees about A&C 1 s equipment and work 

practices. The inspection was cut short, however, due to an accident 

unrelated to the issues in this case, and Hunt was paid by Quarto for 

the time during which he participated in the inspection. Hunt asked 

Stillion to act as the miners• walkaround representative when the 

inspection resumed, and Stillion agreed. 

On Monday, October 5, a different MSHA inspector went to the mine 

to investigate the unrelated accident that had occurred on October 2. 

(The Code-A-Phone inspection of the contractors• equipment was not 

scheduled to resume until October 6.) ·The inspector was asked by 

Hawkins if Quarto was responsible for paying a miners• walkaround 

representative who participated in an inspection of an independent 

contractor's work site. The inspector called the MSHA office and 

subsequently advised Hawkins that Quarto was not obligated to compensate 

such an employee walkaround representative. (Hawkins later conceded, 

however, that when posing the question to the inspector, he had not told 

the inspector of the particular safety complaints that had been lodged 

by Quarto's employees.) 

On October 6, MSHA Inspector Gary Gaines resumed the Code-A-Phone 

inspection at the mine. Stillion accompanied Gaines during the 

inspection. Gaines introduced Stillion to A&C employees as a member of 

the local union and as the walkaround represen~ative. Stillion 

testified that when Gaines informed A&C 1 s employees of their right to 

participate in the inspection, .one of the employees responded, "we 

[would] just as soon have somebody from the mine went because we don 1 t 

know the laws anyway. 11 Tr. 131. 

On October 7 and 8, Gaines continued and concluded the Code-APhone inspection with Stillion .accompanying him. Alan Olzer, Quarto 1 s 

safety supervisor, acknowledged that, as a result of the inspection, a 

number of safety violations were found. 

At the conclusion of the inspection, Quarto refused to compensate 

Stillion for the time that he had spent accompanying the inspector. ~/ 

subsection shall not be a jurisdictional 

prerequisite to the enforcement of any provision of 

this [Act]. 

30 u.s.c. § 813(f). 

21 Quarto 1 s refusal to pay Stillion reflected a change of company 

policy. For about 16 years prior to this inspection, employee 

representatives of miners who accompanied MSHA 1 s inspectors during 

inspections of independent contractors• equipment had been paid by 

Quarto. After the mine was acquired by Consolidation Coal Company, the 

policy was changed. Although the new policy was in effect when Hunt 

was paid by Quarto, mine management was not yet aware of the new policy. 

935 
(Subsequently, the union reimbursed Stillion for his lost wages.) When 

Quarto refused to pay Stillion, he filed a complaint with the Secretary 

of Labor alleging discrimination in violation of section 105(c)(l) of 

the Mine Act. After an investigation by MSHA, Stillion was informed by 

the Secretary of her finding that no unlawful discrimination had 

occurred. Accordingly, Stillion filed a discrimination complaint on his 

own behalf with the Commission under section 105(c)(3) of the Act. 

30 U.S.C. § 815(c)(3). 

Following an evidentiary hearing, the judge issued his decision 

finding a violation by Quarto of section 105(c)(l). The judge concluded 

that Stillion was entitled to be paid by Quarto under section 103(f) of 

the Act. 11 FMSHRC at 527. The judge reasoned that the Code-A-Phone 

inspection was the type of inspection subject to the walkaround pay 

requirements of section 103(f). 11 FMSHRC at 526 (citing United Mine 

Workers of America v. FMSHRC, 617 F.2d 615 (D.C. Cir. 1982), cert. 

denied, 459 U.S. 927 (1982); Interpretative Bulletin, 43 Fed. Reg. 

17544-46 (1978)). The judge did not rule, however, on Quarto's 

contention that an owner-operator should not be required under section 

103(f) to pay one of its employees for acting as the miners' walkaround 

representative during an inspection of an independent contractor's 

equipment. 

On review, Quarto again argues that, as an owner-operator, it was 

not required to reimburse Stillion for accompanying an MSHA inspector 

during an inspection of A&C's equipment. Quarto notes that section 

103(f) states that "a representative of the operator and a 

representative authorized by his miners shall be given an opportunity to 

accompany the Secretary or his authorized representative .... " (emphasis 

added). Quarto notes that the term "operator," as defined in the Mine 

Act, specifically includes independent contractors. £/ Quarto 

recognizes that several entities may meet the statutory defin1tion of 

"operator" at one mine site. It asserts, however, that the term 

"operator" is used in the singular in section 103(f), thus indicating 

that one operator is liable to pay walkaround compensation. Quarto 

submits that because the inspection was aimed at A&C's equipment, the 

representative of miners who should suffer no loss of pay should be an 

A&C employee, not an employee of Quarto. Quarto notes that it was A&C, 

not Quarto, that was cited by the Secretary for safety violations as a 

result of the inspection. Therefore, Quarto argues, Stillion was not 

entitled to be paid for his participation during the inspection of A&C's 

equipment, and Quarto did not unlawfully discriminate against him by 

denying him pay. 

£/ Section 3(d) of the Act states: 

"operator" means any owner, lessee, or other 

person who operates, controls, or supervises a coal 

or other mine or any independent contractor 

performing services or construction at such time. 

30 u.s.c. § 802(d). 

936 
We do not agree. Given the particular circumstances of this case, 

we affirm the judge's conclusion that Quarto was required to pay 

Stillion for his participation in the inspection at issue. 

We first note that Stillion's participation in the inspection at 

issue meets the literal requirements for compensation under section 

103(f). Quarto operates, controls, and supervises the Powhattan No. 4 

Mine. 30 U.S.C. § 802(g). During the time in question, Stillion was a 

miners' representative within the purview of section 103(f). 30 U.S.C. 

§ 813(f). Stillion accompanied Inspector Gaines during an inspection 

occurring at Quarto's mine which inspection was of the type triggering 

the right to walkaround compensation under section 103(f). 

Furthermore, that Stillion's participation in the inspection 

furthered the purpose of the walkaround pay provision is clear. "The 

walkaround pay provision and the participation right are both aimed at 

the protection of the health and safety of miners - the single 

overriding purpose of the legislation." Magma Copper Co. v. Secretary 

of Labor, 645 F.2d 694, 698 (9th Cir. 1981). As the Senate Committee 

that by-and-large drafted the Mine Act stated, paid participation in 

inspections by the miners' representative "will enable miners to 

understand the safety and health requirements of the Act and will 

enhance mine safety and health awareness." Senate Committee on Labor, 

Committee on Human Resources, 95th Cong., 2d Sess., Legislative History 

of the Federal Mine Safety and Health Act of 1977 at 616-17 (1978). In 

addition, Congress recognized that paid participation by representatives 

of miners would, because of the representatives' particular knowledge of 

the conditions at the mine, make the inspection "much more thorough." 

Id. at 1054. Thus, the right of paid participation by the miners' 

representative provides MSHA's inspectors needed familiarity with the 

specific working conditions in a particular mine. 

Stillion's participation in the inspection of A&C's equipment met 

these goals. As the judge found, the inspection of A&C's equipment on 

October 6, 7 and 8 arose out of the concern of Quarto's employees for 

their own safety. 11 FMSHRC at 525. Quarto's miners, who complained 

about the safety hazards associated with the use and maintenance of 

A&C's equipment, believed that they themselves were endangered by the 

use of the equipment. Their complaints led to the request for an 

inspection. Stillion, who had been a safety committeeman for five 

years, was familiar with the mine and had personally observed the 

suspect equipment being operated in a manner that he considered unsafe 

for Quarto's miners. Under these circumstances, Stillion had a right to 

participate in the inspection and a right to compensation from Quarto. 

Quarto's argument that it should not be held liable for 

compensating its employee who participated in an inspection that 

resulted in citations being issued to A&C is inapposite in these 

circumstances. Here, Quarto's own employees were exposed to the hazards 

created by A&C's equipment. Although A&C was appropriately cited for 

the violations, since it was in the best position to abate the hazards 

complained of, that does not defeat the walkaround rights of Stillion, 

who served as the sole miners·' representative on the inspection and who 

represented those Quarto miners exposed to the hazards created by A&C's 

937 
equipment. 

Quarto warns that this conclusion is at odds with the purpose of 

the walkaround provision. It suggests that to uphold a right to 

compensation here means that an employee of an independent contractor 

could request an inspection of any part of an owner-operator's mine and 

be paid for participating in any resulting inspection. Quarto suggests, 

as an example, that a truck driver employed by A&C could request, 

participate in and be paid for taking part in an inspection of Quarto's 

preparation plant. See Quarto Br. 12-13. That is not, however, the 

case we are deciding today. Rather, we are deciding only that, where an 

owner-operator's employees are endangered by the activities of an 

independent contractor at the owner-operator's mine, a representative of 

the owner operator's employees who serves as the sole miners' 

representative during an inspection of the contractor's operation is 

entitled to compensation pursuant to section 103(f). Of course, any 

interpretation of section 103(f) that is inconsistent with its 

provisions and does not effectuate its purpose would not be upheld. See 

Magma Copper Co., 1 FMSHRC 1948, 1951-52 (December 1979); aff'd Magma 

Copper Co. v. Secretary of Labor 645 F.2d 694 (9th Cir. 1981), cert. 

denied, 454 U.S. 940 (1981). 

938 
For the re~sons explained above, we conclude that in the 

circumstances of the present case Stillion had a right to walkaround pay 

under section 103(f). ZI 

Accordingly, for the reasons stated above, we affirm the judge's 

decision. 

ZI Quarto appears to suggest that if the Commission concludes that it 

was required to compensate Stillion, it should nonetheless not be held 

liable for a violation of section lOS(c) because it acted in good faith. 

Quarto Br. 19. The basis -for Quarto's "good faith belief" appears to be 

the.statement by the MSHA inspector that payment was not required. An 

operator's reliance on an incorrect legal opinion or theory does not 

defeat effectuation of a miner's statutory rights. Cf. Emery Mining 

Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984). 

939 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 · 

GREENWICH COLLIERIES, DIVISION 

OF PENNSYLVANIA MINES 

CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

v. 

PENNSYLVANIA MINES CORPORATION, 

GREENWICH COLLIERIES 

May 22, 1990 

Docket Nos. PENN 85-188-R 

PENN 85-189-R 

PENN 85-190-R 

PENN 85-191-R 

PENN 85-192-R 

Docket No. PENN 86-33 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding, which is 

before the Commission on interlocutory review for a second time, arises 

940 
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seg. ( 1988 )("Mine Act" or "Act"). This case involves orders of 

withdrawal issued pursuant to section 104(d)(l) of the Mine Act by the 

Department of Labor's Mine Safety and Health Administration ("MSHA") as 

the result of its investigation following a methane ignition and 

explosion at the Greenwich No. 1 mine, an underground coal mine operated 

by Greenwich Collieries, a division of Pennsylvania Mines Corporation 

("Greenwich"). ]J 

In Greenwich Collieries Corp., 9 FMSHRC 1601 (September 1987) 

("Greenwich I"), the Commission reversed the judge's conclusion in his 

first decision (8 FMSHRC 1105 (July 1985)(ALJ)) that the withdrawal 

orders were invalid because they were issued based on an investigation 

after the violations had ceased to exist, and remanded to the judge for 

consideration of remaining issues. On remand, acting on Greenwich's 

motion for summary decision, the judge again invalidated the section 

104(d)(l) withdrawal orders, this time on the ground that, although the 

violations in question had been "found" by MSHA within the 90-day timeframe mentioned in section 104(d)(l), the orders had not been issued 

"forthwith" within the meaning of that section. The judge therefore 

modified the section 104(d)(l) orders to section 104(a) citations. 

lf Section 104(d)(l) of the Act states in pertinent part: 

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 

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 violation 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 .•. to be withdrawn from, 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

30 u.s.c. § 814(d)(l). 

941 
9 FMSHRC 2051 (October 1987)(ALJ). ~/ Both Greenwich and the Secretary 

petitioned.the Commission for interlocutory review of the judge's order 

granting partial summary decision, and we granted both petitions. For 

the reasons that follow, we affirm in result the judge's modification of 

the withdrawal orders and remand for further proceedings. 

I. 

In Greenwich I, we summarized the procedural history of this case 

leading to Greenwich's challenge: 

On February 16, 1984, a methane ignition and 

explosion occurred at the Greenwich No. 1 mine, an 

underground coal mine operated by Greenwich 

Collieries ••.. Three miners were killed and eleven 

others were injured in the explosion. [MSHA] 

arrived at the mine, engaged in rescue and recovery 

efforts, observed conditions at the site, and began 

an investigation of the cause of the explosion. As 

part of its investigation, MSHA examined the entire 

mine between February 25 and April 5, 1984, and 

between March 27 and April 27, 1984, took sworn 

statements from numerous individuals who 

participated in the recovery operations or who had 

information regarding the conditions in the mine 

prior to the explosion. The Secretary's 

investigators concluded that the operator's 

unwarrantable failure to comply with five mandatory 

safety standards contributed to the accident. 

Therefore, on March 29, 1985, MSHA Inspector 

~/ Section 104(a) provides in part: 

If, upon inspection or investigation, the 

Secretary or his authorized representative believes 

that an operator of a coal or other mine subject to 

this [Act] has violated this [Act], or any mandatory 

health or safety standard, rule, order, or 

regulation promulgated pursuant to this [Act], he 

shall, with reasonable promptness, issue a citation 

to the operator. Each citation shall be in writing 

and shall describe with particularity the nature of 

the violation, including a reference to the 

provision of the [Act], standard, rule, regulation, 

or order alleged to have been violated. In . 

addition, the citation shall fix a reasonable time 

for abatement of the violation. The requirement for 

the issuance of a citation with reasonable 

promptness shall not be a jurisdictional 

prerequisite to the enforcement of any provision of 

this [Act]. 

30 U.S.C. § 814(a). 

9.42 
Theodore W. Glusko issued to Greenwi~h the five 

section 104(d)(l) orders of withdrawal at issue in 

this case. [_l/] The orders alleged that violations 

of various safety standards had occurred in December 

1983 and January and February 198.4. Each of the 

section 104(d)(l) orders indicated that they were 

based on a section 104(d)(l) citation issued to 

Greenwich on February 24, 1984. The orders also 

indicated that they were terminated at the time that 

they were issued. No miners were withdrawn from the 

mine as a result of the orders. 

9 FMSHRC at 1603. In addition, the orders alleged that each violation 

was of a significant and substantial nature. 

Following our Greenwich I remand, Greenwich contended before the 

administrative law judge that the orders were invalid because they had 

not been issued within 90 days of the issuance of the section 104(d)(l) 

citation upon which they were based and because they had not been issued 

"forthwith," within the meaning of section 104(d)(l). The judge 

rejected Greenwich's contention that the orders were invalid because 

they were not issued within 90 days of the underlying section 104(d)(l) 

citation. He observed that although the orders were issued 

approximately 13 months after the predicate section 104(d)(l) citation 

was issued on February 24, 1984, section 104(d)(l) requires that a 

section 104(d)(l) withdrawal order shall issue 11 [i]f ... within 90 days 

after the issuance of ... [a section 104(d)(l) citation], an authorized 

representative of the Secretary finds another violation of any mandatory 

health and safety standard" caused by an unwarrantable failure. 

9 FMSHRC at 2054 (emphasis added). The judge noted the Secretary's 

assertion that evidence of each of the violations was obtained between 

the date of the explosion, February 16, 1984, and April 27, 1984, when 

formal testimony in the investigation was concluded, and he accepted as 

true the Secretary's allegation that the contested violations were, 

therefore, "found" by the Secretary within 90 days of the February 24 

section 104(d)(l) citation. 9 FMSHRC at 2054. 

The judge further held, however, that the orders were not issued 

"forthwith" within the meaning of section 104(d)(l). 9 FMSHRC at 2056. 

The judge stated that in common usage "forthwith" means "immediately." 

He reviewed the chronology of events in this matter: the orders allege 

violations occurring in December 1983 and January - February 1984; the 

explosion occurred on February 16, 1984; MSHA examined the mine between 

February 25 and April 5, 1984; and MSHA took testimony regarding the 

explosion between March 27 and April 27, 1984. He found that although 

MSHA "could have" issued the orders on April 27, 1984, MSHA waited until 

March 29, 1985, and that the 11-month delay did not demonstrate 

3/ On March 29, 1985, the mine was subject to the prov1s1ons of 

;ection 104(d)(2) of the Mine Act. The withdrawal orders in question 

were nevertheless issued by the Secretary under section 104(d)( 1) to 

"make it clear that they ... relat[ed] back to the time the violations 

were found. 11 Sec. Br. to ALJ 6. 

943 
"immediacy." 9 FMSHRC at 2055. 

The judge further noted that while section 104(a) provides that 

delay in issuing a citation "shall not be a jurisdictional prerequisite 

to the enforcement of any provision of [the] Act," he found no similar 

"saving provision" in section 104(d). 9 FMSHRC at 2056. The judge also 

found no indication in the Mine Act or its legislative history that the 

timeliness requirements of section 104(d) were not jurisdictional 

prerequisites to the issuance of valid section 104(d) withdrawal orders. 

9 FMSHRC at 2056. 

The judge concluded that a showing of prejudice was not required 

to invalidate section 104(d)(l) orders that are not issued "forthwith." 

9 FMSHRC at 2056. He further concluded that, even if prejudice were 

required, he agreed with Greenwich that an 11-13 month delay in 

notification was "inherently prejudicial in some degree to .•. [the] 

operator's ability to defend itself." Id. Based on the foregoing, the 

judge invalidated the five orders and again modified them to section 

104(a) citations. 9 FMSHRC at 2056. The Secretary and Greenwich 

petitioned for interlocutory review, and we granted both petitions. 

II. 

Greenwich contends that the judge erred in holding that MSHA's 

failure to issue the contested orders within 90 days of the section 

104(d)(l) citation did not invalidate the orders. Greenwich argues that 

section 104(d) focuses on the issuance of citations and orders, not the 

detection of the underlying violations. Thus, Greenwich asserts that 

the Mine Act requires that a section 104(d)(l) order must be issued 

within the 90-day probationary period following the date of the 

predicate section 104(d)(l) citation. 

The Secretary asserts that the judge erred in concluding that the 

contested orders were invalid because they were not issued "forthwith" 

after the violations were "found." The Secretary argues that there is 

no jurisdictional time limit in section 104(d)(l) precluding issuance of 

withdrawal orders containing unwarrantable failure findings outside the 

90-day time limit in circumstances where it takes the Secretary more 

than 90 days to "finalize" her "findings" and to issue the appropriate 

orders. The Secretary explains that here, although preliminary findings 

of violation were indeed made within three months of the explosion, in 

accident or disaster situations it may be many more months (or even 

years) before MSHA is able to conclude its investigation, "finally" find 

violations, and issue the appropriate withdrawal orders. The Secretary 

argues that it is contrary to the purposes of the Act to conclude that 

such delay precludes the Secretary from citing the operator for the 

unwarrantable failure violations that it committed. 

The parties' raise two potentially important issues: (1) whether 

failure to issue section 104(d)(l) withdrawal orders within 90 days of a 

predicate section 104(d)(l) citation invalidates the orders; and 

(2) whether the judge erred in invalidating the orders because they were 

not issued "forthwith." 

944 
These a .. :guments raise important issues concerning the construction 

and implementation of section 104(d) of the Mine Act. Upon close 

analysis, however, we conclude that the facts and procedural posture of 

this case do not squarely present the issues, and that their resolution 

is not required for a proper disposition of this case. Therefore, we 

conclude that it is prudent to reserve consideration of such questions 

to a future case truly presenting the issues raised. 

It is important here to understand the relationship between 

sections 104(a) and 104(d) of the Act and, in particular, the specific 

purpose and structure of section 104(d). Under section 104(d) of the 

Act, if an inspector finds a violation and also finds that the violation 

is of a significant and substantial nature and resulted from an 

operator's unwarrantable failure to comply with a mandatory standard, a 

citation noting those findings is issued. For the sake of convenience, 

this citation, the "predicate" citation in the section 104(d) 11 chain, 11 

is commonly referred to as a "section 104(d)(l) citation." Nacco Mining 

Co., 9 FMSHRC 1541, 1545 n. 6 (September 1987). The Commission has 

explained, however, that a "section 104(d)(l) citation" nevertheless is 

a citation issued pursuant to section 104(a) of the Act containing the 

special findings referred to in section 104(d)(l). Utah Power & Light 

Co., 11 FMSHRC 953, 956-57 (June 1989). 

Section 104(d)(l) provides that "[i]f, during the same inspection 

or any subsequent inspection ••• within 90 days after the issuance of 

such citation," the inspector finds a further unwarrantable failure 

violation, a withdrawal order is to be issued unde~ section 104(d)(l). 

Further, if more unwarrantable violations are found during any 

subsequent inspection of the mine, withdrawal orders under section 

104(d)(2) of the Act are to be issued. 30 U.S. C. § 814(d)(2). The 

operator remains on probation, and issuance of withdrawal orders based 

on unwarrantable findings does not cease, until an inspection of the 

mine discloses no further unwarrantable failure violations. Kitt Energy 

Corp., 6 FMSHRC 1596 (July 1984), aff 1 d sub nom. UMWA v. FMSHRC, 768 

F.2d 1477 (D.C. Cir. 1985). This, then, is the section 104(d) 11 chain. 11 

Section 104(d) is an integral part of the Mine Act's graduated 

enforcement scheme, a scheme providing for "increasingly severe 

sanctions for increasingly serious violations or operator behavior." 

Nacco, supra, 9 FMSHRC at 1545, quoting Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 828 (April 1981). Like the overall enforcement 

scheme of the Act, section 104(d) imposes sanctions in a graduated 

manner, with increasingly serious consequences. White County Coal 

Corp., 9 FMSHRC 1578, 1581 (September 1987). The focus of section 

104(d) is upon the operator's unwarrantable conduct. Section 104(d) 

seeks to discourage repetition of such conduct by placing the operator 

on a probationary "chain." This probationary period, backed up by the 

threat of a withdrawal order, is "among the Secretary's most powerful 

instruments for enforcing mine safety." UMWA v. FMSHRC, supra, 768 F.2d 

at 1479. 

In order to preserve the use of section 104(d) as an effective 

deterrent, the use of section 104(d) sanctions has been upheld in 

situations where unwarrantable failure violations have been detected 

945 
after they have ceased to exist, recognizing that many violations by 

their very nature cannot be, or are unlikely to be, observed or detected 

until after they occur. Emerald Mines Corp, 9 FMSHRC 1590, 1594 

(September 1987), aff'd sub nom. Emerald Mines Corp. v. FMSHRC, 863 F.2d 

51, 58-59 (D.C. Cir. 1988); Nacco, 9 FMSHRC at 1581-82; Greenwich I, 

9 FMSHRC at 1605. The Secretary's use, in general, of section 104(d) 

withdrawal orders for past violations has also been upheld because such 

orders are the procedural vehicles specified and required by the Mine 

Act for alleging unwarrantable violations once a predicate section 

104(d)(l) citation has been issued. White County, supra, 9 FMSHRC at 

1581. The Emerald court noted that, in general, such use of section 

104(d) orders is not "pointless" because it serves to place or keep the 

mine operator on the section 104(d) probationary chain. 863 F.2d at 57. 

Here, however, the Secretary issued purported section 104(d)(l) 

orders, but the "orders" served none of section 104(d)'s special and 

important purposes. The Secretary concedes that when the contested 

orders were issued, the Greenwich No. 1 mine was under the section 

104(d)(2) portion of the section 104(d) "chain." Nevertheless, rather 

than is~uing the orders pursuant to section 104(d)(2), the Secretary 

chose instead to issue section 104(d)(l) orders "related back to the 

time the violations were found" or to the time of their occurrence some 

13 months earlier. Sec. Br. to ALJ at 6; Sec. Br. 6. Because the 

enforcement action pursued by the Secretary relates the orders back 11-

13 months in time, the orders had absolutely no probationary effect, 

either then or at the time of their actual issuance. Further, because 

the specific violations cited in the orders had been abated months 

before, the orders were terminated simultaneously with their issuance 

and no miners were withdrawn by these withdrawal orders. See Sec. 

Br. 6, 16. 

Thus, the section 104(d)(l) orders challenged here served none of 

the special probationary or protective purposes of section 104(d). They 

did not affect the existing probationary section 104(d)(2) "chain"; they 

did not require the withdrawal of miners from the areas affected by the 

violations; and, because the violations had ceased to exist, they did 

not require the abatement of unsafe and violative conditions. In sum, 

with these orders the Secretary did not impose any of the special 

sanctions serving as the hallmark of section 104(d) action, and the 

orders served none of section 104(d)'s special purposes. 

The important issues raised by the parties concerning the 

imposition of section 104(d)'s special sanctions should be considered 

and resolved in a case where such sanctions actually have been invoked 

by the Secretary. In resolving challenges to the Secretary's 

enforcement authority, it is important to examine the reality of the 

Secretary's enforcement actions. Emerald, 863 F.2d at 58. Here, under 

the guise of section 104(d) sanctions, the Secretary's enforcement 

action actually amounts to nothing more than citations of violations, 

which citations contain special findings of significant and substantial 

and unwarrantable failure. Were we to pursue here the important issues 

raised by the parties, we would be interpreting section 104(d) in a 

factual context devoid of corrsequential section 104(d) enforcement 

action. In the exercise of our prudential judicial discretion, 

946 
therefore, we conclude that resolution of such important issues under 

these circumstances would be unwise. 

III. 

Accordingly, under the circumstances of this case, the contested 

orders, in essence, are nothing more than section 104(a) citations 

containing special findings, but lacking section 104(d) effect. We 

therefore affirm in result the judge's modification of the orders to 

section 104(a) citations and we remand the matter for his determination 

of the merits of the violations, the significant and substantial and 

unwarrantable failure allegations, and, if necessary, the civil 

penalties to be imposed. 

-t -( 

Richard V. Backley, Conunissioner 

<21L-c_~/ t!. ~,L Joyce A. 1

Doyle, Conunissioner /l 

947 
Distribution 

Linda L. Leasure 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Suite 400 

Arlington, Virginia 22203 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004-2505 

Mary Lu Jordan, Esq. 

Earl R. Pfeffer, Esq. 

United Mine Workers of American 

900 Fifteenth St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Roy Maurer 

Federal Mine Safety and Health Review Commission 

Off ice of Administrative Law Judges 

2 Skline, 10th floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

948 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 23, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEST 87-88 

MID-CONTINENT RESOURCES, INC. 

and 

UNITED MINE WORKERS OF AMERICA 

(UMWA) 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding, brought by the Secretary of Labor 

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seg. (1982)("Mine Act" or "Act"), arises from a dispute between the 

Secretary and Mid-Continent Resources, Inc. ("Mid-Continent"), 

concerning section 103(f) of the Mine Act, the miner "walkaround" 

provision. !/ 

!/ The term "walkaround" is used herein for the sake of convenience 

in reference to the rights granted miners' representatives under section 

103(f) of the Mine Act, which provides: 

Subject to regulations issued by the Secretary, a 

representative of the operator and a representative 

authorized by his miners shall be given an 

opportunity to accompany the Secretary or his 

authorized representative during the physical 

inspection of any coal or other mine made pursuant 

to the provisions of subsection (a) of this section, 

for the purpose of aiding such inspection and to 

participate in pre- or post-inspection conferences 

held at the mine. Where there is no authorized 

miner representative, the Secretary or his 

authorized representative shall consult with a 

949 
I. 

This proceeding arises from a citation and withdrawal order issued 

to Mid-Continent by the Department of Labor's Mine Safety and Health 

Administration ("MSHA") on May 13, 1986, charging Mid-Continent with a 

violation of section 103(f) of the Act. ~/ The citation stated that on 

May 13, 1986, Mid-Continent denied Robert Butera, allegedly a designated 

representative of Mid-Continent's miners, access to Mid-Continent's 

Dutch Creek No. 1 Mine near Redstone, Colorado, for purposes of 

accompanying an MSHA inspector on walkaround during the latter's 

inspection of the mine. About one month earlier, the United Mine 

Workers of America ("UMWA") had notified both MSHA and Mid-Continent, 

pursuant to the Secretary's Part 40 regulations, that it had been 

designated by two employees at the Dutch Creek No. 1 Mine as the 

representative of those miners under the Mine Act. Mr. Butera was 

listed as the specific representative of the miners. 11 Shortly after 

issuance of the citation on May 13, the inspector also issued MidContinent a "no area affected" section 104(b) order of withdrawal, 

30 U.S.C. § 814(b), alleging that Mid-Continent continued to refuse 

Butera the right to accompany the inspector during inspection of the 

reasonable number of miners concerning matters of 

health and safety in such mine. Such representative 

of miners who is also an employee of the operator 

shall suffer no loss of pay during the period of his 

participation in the inspection made under this 

subsection. To the extent that the Secretary or 

authorized representative of the Secretary 

determines that more than one representative from 

each party would further aid the inspection, he can 

permit each party to have an equal number of such 

additional representatives. However, only one such 

representative of miners who is an employee of the 

operator shall be entitled to suffer no loss of pay 

during the period of such participation under the 

provisions of this subsection. Compliance with this 

subsection shall not be a jurisdictional 

prerequisite to the enforcement of any provision of 

this [Act]. 

30 u.s.c. § 813(f). 

~/ There was no evidentiary hearing in this matter. Accordingly, the 

statement of facts in this decision is based on the parties' pleadings 

and briefs and the relevant citation and order issued by MSHA. 

11 30 C.F.R. Part 40, the regulations adopted by the Secretary 

governing the identification of representatives of miners at mines, sets 

forth filing requirements for such representatives and procedures for 

identification of such representatives. 30 C.F.R. § 40.l(b) defines 

"representative of miners" as "[a]ny person or organization which 

represents two or more miners at a coal or other mine for the purposes 

of the Act .... " 

950 
mine. ~/ Prior to an evidentiary hearing before Administrative Law 

Judge John J. Morris, the Secretary moved to dismiss the proceeding on 

the ground that further investigation had disclosed that the individual 

in question was not a properly designated representative of miners. 

Mid-Continent opposed dismissal and moved for declaratory relief. Judge 

Morris denied Mid-Continent's request for declaratory relief and 

dismissed the proceeding. 10 FMSHRC 881 (July 1988)(ALJ). On review, 

Mid-Continent repeats its request for declaratory relief. For the 

reasons that follow, we deny that request and affirm the judge. 

At no time during its thirty-plus years of operation has the UMWA 

represented employees for labor relations purposes at Mid-Continent's 

mines. As early as 1975, however, the UMWA attempted to become the 

collective bargaining representative of Mid-Continent's hourly employees 

when it unsuccessfully sought to have the Redstone Workers Association 

("RWA") decertified as the collective bargaining representative under 

the National Labor Relations Act, 29 U.S.C. § 151 et seg. 

(1982)("NLRA"). Thereafter, the RWA continued as the employees' 

collective bargaining representative until 1981, when, pursuant to a 

representation election requested by the UMWA and conducted by the 

National Labor Relations Board ("NLRB"), Mid-Continent's employees voted 

·to become nonunion. In 1986, the UMWA began another organizing campaign 

among Mid-Continent's hourly employees. Mid-Continent alleges that 

beginning in April 1986, the UMWA proceeded to use the miners' representative process provided by the Mine Act and 30 C.F.R. Part 40 as an 

organizing tool at the Dutch Creek #1 Mine. According to Mid-Continent, 

in April 1986, the UMWA caused to be filed with MSHA the form signed by 

two miners designating the UMWA and Mr. Butera as their representative 

at the mine. In September 1986, the UMWA filed another petition for 

representation with the NLRB. A representation election was held in 

December 1986 and Mid-Continent's employees again rejected representation by the UMWA. 

On March 16, 1987, the Secretary filed with the Commission a civil 

penalty petition in connection with Mid-Continent's alleged violation of 

section 103(f) of the Mine Act. Mid-Continent filed an answer, and the 

matter was assigned to Judge Morris. In October 1987, the judge set the 

case for hearing. At that time, he also allowed the UMWA to intervene 

as a party and permitted the American Mining Congress ("AMC") to appear 

as amicus curiae. Prior to hearing, however, the Secretary filed a 

motion to withdraw the civil penalty petition and to dismiss the 

proceeding. The Secretary asserted that one of the two individuals who 

had signed the form designating Butera as the miners' representative was 

not an active miner at the time that the form was filed and, thus, that 

the designation did not comply with applicable Part 40 requirements. 

Therefore, according to the Secretary, Butera was not a properly 

designated miners' representative and Mid-Continent did not violate the 

Mine Act in denying him access. 

Mid-Continent opposed the Secretary's dismissal request and moved 

~/ A "no area affected" withdrawal order means that actual withdrawal 

of miners from the mine or an area of the mine is not required. 

951 
for declaratory relief. Mid-Continent aigued that a nominal number of 

employees should not be permitted, under color of Part 40, to designate 

as a miners' representative a union that does not also represent the 

employees for collective bargaining purposes under the NLRA. MidContinent contended that the miners' repre~entative process under the 

Mine Act was being improperly manipulated to facilitate organizational 

activity under the NLRA. Mid-Continent also asserted that it had been 

denied constitutional due process in the application of the Part 40 

regulations to it. Mid-Continent further submitted that Butera had been 

given advance notice of the inspection in violation of section llO(e) of 

the Act. 21 Mid-Continent alleged that Butera, who lived several 

hundred miles from the mine, had arrived at the mine entrance at 

6:30 a.m., about the same time as the inspector and, therefore, must 

have been given advance notice of the inspection. Mid-Continent 

requested declaratory relief to the effect that section llO(e) had been 

violated or, alternatively, requested that the matter be referred to the 

Inspector General of the Department of Labor and to the Department of 

Justice. 

The administrative law judge denied Mid-Continent's requests for 

declaratory relief and granted the Secretary's motion to dismiss the 

proceeding. The judge recognized the Commission's discretionary power 

to grant declaratory relief, but stated that "[t]he pivotal issue is 

whether the Commission should exercise its discretion and grant 

declaratory relief." 10 FMSHRC at 885. He concluded that, in this 

instance, declaratory relief was not warranted. The judge noted MidContinent 1 s further contentions that permitting access to its mine by a 

UMWA representative would "clearly conflict" with the NLRA and that the 

Mine Act was being improperly manipulated to facilitate union 

organizational activity under the NLRA. 10 FMSHRC at 885. The judge 

concluded that his role was to adjudicate Mine Act issues and that MidContinent 1 s appropriate avenue of relief, if any, was before the NLRB. 

10 FMSHRC at 885-86. He also rejected Mid-Continent's contention that 

declaratory relief was necessary to explore the tensions between the 

asserted right of a non-employee to serve as a representative during 

inspections and the Act's prohibition of the giving of advanced notice 

of inspections. The judge stated: "[t]he date and time of regularly 

scheduled mine inspections, as mandated by the Act, would probably be 

common knowledge to any interested miner at the site." 10 FMSHRC at 

886. Accordingly, the judge denied Mid-Continent's motion for 

declaratory relief, granted the Secretary's motion to withdraw the civil 

penalty petition, vacated the proposed penalty, and dismissed the 

21 Section llO(e) of the Mine Act states: 

Unless otherwise authorized by this [Act], any 

person who gives advance notice of any inspection to 

be conducted under this [Act] shall, upon 

conviction, be punished by a fine of not more than 

$10,000 or by imprisonment for not more than five 

years or both. 

30 U.S.C. § 820(e). 

952 
proceeding. 10 FMSHRC at 886. 

The Corrimission granted petitions for discretionary review filed by 

both Mid-Continent and amicus AMC. The AMC moved to consolidate the two 

petitions, and the Corrunission granted the motion. Subsequently, ASARCO, 

Inc. ("ASARCO") filed a motion seeking leave to file an amicus brief out 

of time, which the Secretary opposed. The Secretary also filed a motion 

to dismiss the AMC's petition for discretionary review on the grounds 

that the AMC lacked standing to petition the Corrunission for review of 

the judge's decision. On December 19, 1989, the Corrunission issued an 

interlocutory procedural order in which it concluded that the AMC had 

not shown a sufficiently direct and concrete interest in the proceeding 

or that it would be adversely affected by the outcome of the proceeding. 

Accordingly, we granted the Secretary's motion to dismiss the AMC's 

petition for discretionary review and vacated that part of the direction 

for review granting the AMC's petition. Mid-Continent Resources, Inc., 

11 FMSHRC 2399 (December 1989). The Corrunission nevertheless permitted 

the AMC to continue in its role as an amicus, and to participate in the 

oral argument before the Corrunission. £/ 11 FMSHRC at 2404. We also 

denied ASARCO's motion to file an amicus brief. 

II. 

In its brief on review, Mid-Continent primarily addresses the 

merits of the various issues that it sought to put before the judge in 

seeking declaratory relief, proceeding on the premise that this case is 

ripe for the grant of such relief. The Secretary responds essentially 

that this case is not an appropriate vehicle for declaratory relief as 

to any of the substantive issues raised by Mid-Continent because there 

is no actual "case or controversy" between the parties, and, even if 

there were a case or controversy between the parties, the judge did not 

abuse his discretion in denying declaratory relief under the 

circumstances of this case. 

The Corrunission has recognized that it may grant declaratory relief 

in appropriate proceedings. Beaver Creek Coal Co., 11 FMSHRC 2428, 2430 

(December 1989); Kaiser Coal Corp., 10 FMSHRC 1165, 1170-71 (September 

1988); Climax Molybdenum Co., 2 FMSHRC 2748, 2751-52 (October 1980), 

aff'd sub nom. Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 

447, 452 (10th Cir. 1983); see also Youghiogheny & Ohio Coal Co., 

7 FMSHRC 200, 203 (February 1985 )( 11Y&011 ). The sources of this authority 

are section 105(d) of the Act, 30 U.S.C. § 815(d), empowering the 

Corrunission to "direc[t] other appropriate relief," and section 5(d) of 

the Administrative Procedure Act, 5 U.S.C. § 554(e)(1982)( 11APA11 ), which 

£/ The AMC filed a petition for review of this interlocutory 

Corrunission procedural order in the United Stated Court of Appeals for 

the District of Columbia Circuit. AMC v. FMSHRC & Secretary of Labor, 

No. 90-1018 (January 19, 1990). The petition seeks review of the 

Corrunission's determination that the AMC lacked party status and of the 

Corrunission's dismissal of the AMC's petition for discretionary review. 

953 
is incorporated by reference into the Mine Act. 30 U.S.C. § 815(d). Zf 

The discretionary nature of administrative declaratory relief is 

its paramount feature. Thus, the Tenth Circuit in Climax, supra, 

rejecting the operator's contention that the Commission was required to 

grant declaratory relief, explained that the "Commission's power to 

grant declaratory relief is clearly discretionary, see ••• 5 U.S.C. 

§ 554(e) .... [T]he Commission is not required to grant declaratory 

relief unless a failure to do so would be an abuse of discretion." 703 

F.2d at 452 n. 4. The Court discussed the broad boundaries of that 

discretion: 

[5 U.S.C. § 554(e)] of the [APA] clearly commits the 

power to grant declaratory relief to the sound 

discretion of the agency. See also 

30 U.S.C. § 815(d) .... In exercising its 

discretion, the Commission is entitled to assess the 

advantages and disadvantages associated with 

declaratory relief. Advantages include the 

opportunity efficiently to terminate a controversy 

or remove uncertainty, •.. 5 U.S.C. § 554(e), while 

disadvantages include both the administrative burden 

imposed by a policy of issuing advisory opinions and 

the familiar problems surrounding the adjudication 

of abstract controversies. See Yale Broadcasting 

Co. v. FCC, 478 F.2d 594, 602 (D.C. Cir.), cert. 

denied, 414 U.S. 914 ... (1973). 

703 F.2d at 452. See generally Intercity Transp. Co. v. United States, 

737 F.2d 103, 108-10 (D.C. Cir. 1984). The granting of declaratory 

relief is committed, in the first instance, to the sound discretion of 

the Commission administrative law judge but his determination is subject 

to close review by the Commission. See generally lOA C. Wright, A. 

Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2759 

(1983 )("Wright & Miller"); 6A J. Moore, J. Lucas & G. Grether, Moore's 

Federal Practice Par. 57.08 (2d ed. 1987)( 11Moore's 11 ). See also, ~· 

United States v. State of Washington, 759 F.2d 1353, 1356-57 (9th Cir. 

1985)(en bane, per curiam). 

The Commission has noted that "the primary purpose of declaratory 

relief is to save parties from unnecessarily acting upon their own view 

of the law. 11 Beaver Creek, suprf!, 11 FMSHRC at 2430, quoting Climax, 

supra, 2 FMSHRC at 2752. Additionally, for any grant of Commission 

declaratory relief, the complainant must show that there is an actual, 

not moot, controversy under the Mine Act between the parties, that the 

issue as to which relief is sought is ripe for adjudication, and that 

the threat of injury to the complainant is real, not speculative. See 

generally, 5 J. Stein, G. Mitchell & B. Mezines, Administrative Law 

ZI The Commission has held, however, that 5 U.S.C. § 554(e), by 

itself, does not confer declaratory authority upon the Commission unless 

Mine Act jurisdiction otherwise obtains. Kaiser, supra, 10 FMSHRC at 

1170. 

954 
§ 46.03 (1988). 

Analogously, federal courts, in applying the federal Declaratory 

Judgment Act, 28 U.S.C. § 2201 and Fed. R. Civ. P. 57, which implements 

that Act, may grant declaratory relief only in the context of actual 

"cases and controversies." This requirement is imposed by Article III, 

Section 2 of the federal Constitution and by the Declaratory Judgment 

Act itself. See generally lOA Wright & Miller § 2757; 6A Moore's Pars. 

57-11--57-13. Among other things, the Article III "case or controversy" 

requirement weighs against use of the declaratory process to issue 

advisory opinions or to resolve abstract or hypothetical problems. 

~.Maryland Casualty Co. v. Pacific Coal & Iron Co., 312 U.S. 270, 

272-73, 85 L.Ed. 826, 828-29 (1941). Even more relevant to this case, 

Article III prohibits declaratory relief in moot cases. ~. Barany v. 

Buller, 707 F.2d 285, 287 (7th Cir. 1983). As Wright & Miller state: 

The presence of a controversy must be measured at 

the time the court acts. It is not enough that 

there may have been a controversy when the action 

was commenced if subsequent events have put an end 

to the controversy or the opposing party disclaims 

the assertion of countervailing rights. A case is 

moot when the issues presented no longer are "live" 

or the parties no longer have a legally cognizable 

interest in the outcome. 

lOA Wright & Miller § 2757 (pp. 602-17)(footnotes omitted). 

Courts have granted declaratory relief in situations where, 

although the events associated with the action may not have ripened into 

a present controversy, "one or both of the parties have taken steps or 

pursued a course of conduct which will result in an 'imminent and 

inevitable litigation, provided the issue is not settled and stabilized 

by a tranquilizing declaration.'" Bruhn v. STP Corp., 312 F. Supp. 903, 

906 (D. Colo. 1970), quoting Borchard, Declaratory Judgments 57 (2d ed. 

1941). Similarly, "when there is a substantial likelihood that an 

allegedly moot question will recur, the issue remains justiciable and 

declaratory judgment may be rendered to define the rights and 

obligations of the parties." lOA Wright & Miller § 2757 (pp. 617-18). 

We recognize that concepts of mootness must be applied with care 

in the administrative setting. As the Tenth Circuit noted in Climax, 

the Article III "case or controversy" requirement does not literally 

apply to federal administrative agencies like the Commission. 703 F;2d 

at 451, citing Tennessee Gas Pipeline Co. v. FPC, 606 F.2d 1373, 1379-80 

(D.C. Cir. 1979). The Court explained the appropriate administrative 

approach to questions of mootness as follows: 

[A]n agency possesses substantial discretion in 

determining whether the resolution of an issue 

before it is precluded by mootness. However, 

in exercising this discretion, an agency receives 

guidance from the policies that underlie the "case 

or controversy" requirement of article III. In 

955 
particular, the agency 1 s determ.·. ;1ation of mootness 

is informed by an examination of the proper 

institutional role of an adjudicatory body and a 

concern for judicial economy. See [Tennessee Gas 

Pipeline, supra]; Lucas Coal Co. y. Interior Board 

of Mines Operations Appeals, 522 F.2d 581, 587 (3d 

Cir. 1975). As a result, we conclude that an agency 

acts within its discretion in refusing to hear a 

case that would be considered moot if tested under 

the article III "case or controversy" requirement. 

703 F.2d at 451. 

This case is, in fact, moot. The Secretary vacated the underlying 

citation and withdrawal order and sought dismissal of the civil penalty 

proceeding, which relief the judge granted. The enforcement action 

involving that citation and withdrawal order is extinct. Therefore, at 

the time of the judge's order of dismissal, there was not before the 

Commission a live "case or controversy" between the Secretary and MidContinent as to the enforcement action out of which the request for 

declaratory relief arose. 

Nevertheless, even where the Secretary seeks vacation of a 

contested enforcement action, a party to that action may oppose such 

vacation or -seek declaratory relief. Y&O, supra, 7 FMSHRC at 203. The 

Secretary's disclaimer of countervailing rights and her willingness to 

dismiss the proceeding, are important factors to be taken into 

consideration in weighing declaratory relief. The opposing party is 

nevertheless entitled to establish a substantial likelihood of 

recurrence of the claimed enforcement harm or the imminence of repeated 

injury. 

Here, we conclude that no such showing has been made. No course 

of conduct has been shown that will necessarily result in imminent or 

inevitable litigation with the Secretary concerning the issue raised in 

this proceeding. So far as this record discloses, there is no present 

claim by the UMWA or any other labor organization that it has been 

designated as representative of any of Mid-Continent's employees for 

walkaround purposes. In fact, the Secretary states in her brief that no 

notification has been filed with her pursuant to 30 C.F.R. Part 40, 

asserting such representation. S. Br. 10. As the Secretary asserts: 

Nor is there any basis for assuming that such a 

filing will be made in the foreseeable future. 

Since the Secretary vacated the citation [in 

approximately November 1987), the UMWA has not 

sought to reassert miners' representative status by 

obtaining the necessary additional authorization in 

the intervening time period. 

Id. ·Mid-Continent also has not established that similar confrontations 

have since occurred at its mines, nor has Mid-Continent provided 

evidence supporting its claim that the alleged problem of nonemployee 

walkaround representatives is widespread in the industry. 

956 
Thus, :;e are left in this case with Mid-Continent 1 s speculative 

concerns, which, depending as they do upon multiple contingencies and 

amounting to pure conjecture, do not provide the basis for declaratory 

relief. Beaver Creek, 11 FMSHRC at 2431, citing SEC v. Medical 

Committee on Human Rights, 404 U.S. 403, 406 (1972). 

In Climax, the Commission noted that Climax had not abated the 

citation at issue and found "little reason to believe that [Climax] will 

expend monies on abatement or risk loss from failure to abate 

enforcement action by MSHA before contests of any future citations are 

fully litigated." 2 FMSHRC at 2753. Here, Mid-Continent did not abate 

the citation and· was confronted with a "no-area-affected" withdrawal 

order. Indeed, even should the multiple speculative contingencies of 

which Mid-Continent complains occur, the operator has not established 

that it will suffer irreparable harm before contests of any future 

citations are fully litigated. We note that the Secretary's counsel 

assured the Commission at oral argument that it is the Secretary's 

policy to issue a "no area affected" withdrawal order when, as here, an 

operator refuses to comply with a citation alleging a violation of 

section 103(f). Oral Arg. Tr. 29. Such an order does not subject the 

operator to the withdrawal of miners and the attendant consequences of 

lost production. Counsel's assurance reiterates the official policy of 

the Secretary as published in the Secretary's Interpretative Bulletin, 

setting forth guidelines for MSHA inspectors' interpretation and 

application of section 103(f). 43 Fed. Reg. 14546, 14547 (1978). Thus, 

Mid-Continent is at no risk of production loss from failure to abate the 

citation. See Climax, 2 FMSHRC at 2753. 

Further, given the Secretary's assurance that, in the event of an 

operator's failure to abate an alleged violation of section 103(f), 

withdrawal of miners will not ordinarily occur, it should not be 

expected that she would take the more extreme enforcement action of 

attempting to threaten to impose civil penalties upon a noncompliant 

operator pursuant to section llO(b) of the Act, 30 U.S.C. § 820(b); or 

criminal penalties pursuant to section llO(d) of the Act, 30 U.S.C. 

820(d). We therefore believe that the fears·in this regard expressed by 

counsel for Mid-Continent are not well-founded. See Oral Arg. Tr. 54. 

To grant Mid-Continent's request for declaratory relief, the 

Commission would be required to accept a long chain of possible future 

contingencies. The Commission would "express legal opinions on academic 

theoreticals which might never come to pass." Amer. Fidelity & Cas. Co. 

v. Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co., 280 F.2d 453, 

461 (5th Cir. 1960). We do not discern any urgent need for declaratory 

relief or any convincing demonstration that Mid-Continent is being 

forced to act at real, as opposed to hypothetical, peril. 

III. 

Accordingly, we conclude that the judge did not abuse his 

discretion in denying Mid-Continent's request for declaratory relief as 

to the substantive issues in question. In view of this conclusion, we 

need not address the merits of those substantive issues. 

957 
On the foregoing bases, we affirm the judge's decision in 

result. '§_/ 

~/ Commissioner Nelson did not participate in the consideration or 

disposition of this matter. 

958 
Distribution 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Edward Mulhall, Jr., Esq. 

Delaney & Balcomb 

Drawer 790 

Glenwood Springs, Colorado 81602 

Mary hu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Charles Newcom, Esq. 

Susan K. Grebeldinger, Esq. 

Sherman & Howard 

633 17th Street, Suite 3000 

Denver, Colorado 80202 

Edward M. Green, Esq. 

Mark G. Ellis, Esq. 

American Mining Congress 

1920 N Street, N.W., Suite 300 

Washington, D.C. 20036 

Henry Chajet, Esq. 

Jackson & Kelly 

1701 Pennsylvania Ave., N.W. 

Suite 650 

Washington, D.C. 20006 

Administrative Law Judge John J. Morris 

Federal Mine Safety & Health Review Commission 

1244 Speer Blvd., Suite 280 

Denver, Colorado 80204 

959 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, o.r 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

May 23, 1990 

MOUNTAIN PARKWAY STONE, INC. 

Docket No. KENT 89-27-M 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

The issue in this civil penalty proceeding arising under the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. 

(1988)(the "Mine Act"), is whether Commission Administrative Law Judge 

Avram Weisberger erred in concluding that Mountain Parkway Stone, Inc. 

("Mountain Parkway") did not violate 30 C.F.R. § 57.9002 (1988), a 

mandatory safety standard that required that "[e]quipment defects 

affecting safety shall be corrected before the equipment is used." 

11 FMSHRC 1289 (July 1989). lf For the reasons that follow, we hold 

that the judge erred and we reverse. 

Mountain Parkway operates the Staton Mine, an underground 

limestone mine and surface plant·equipped with crushing and screening 

facilities, located in Powell County, Kentucky. On August 17, 1988, 

during a regularly scheduled inspection of the Staton Mine, Eric 

Shanholtz, an inspector of the Department of Labor's Mine Safety and 

Health Administration ("MSHA"), issued a citation to Mountain Parkway 

alleging a violation of section 57.9002. Inspector Shanholtz issued the 

1/ 30 C.F.R. § 57.9002 (1988) was revised as of July 1, 1988, and 

transferred along with 30 C.F.R. §§ 56.9002, 56/57.9001, and 56/57.9073 

to 30 C.F.R. §§ 56.14100 and 57.14100. 53 Fed. Reg. 32497, 32504 

(August 1988). Sections 56.14100 and 57.14100 became effective on 

October 24, 1988 .. 53 Fed. Reg. 32496 (August 1988). Therefore, at the 

time of the inspection on August 17, 1988, former section 57.9002 was 

still in effect. 

960 
citation because he believed there were defects affecting safety in a C50 boom truck parked at the mine. Specifically, the inspector noted 

that there were no stabilizing jacks on the truck. (Stabilizing jacks 

are outriggers that are used to support a boom truck when the boom is 

raised. Tr. 232.) Without such stabilizing jacks, the truck could 

overturn if it were "utilized in the wrong capacity." Tr. 233. 

Shanholtz additionally noted several hydraulic leaks in the boom 

controls and in the boom's left cylinder that presented both fire and 

slipping hazards and allowed the boom to drop. The doors of the truck 

were missing and the truck did not have seat belts. In Shanholtz's 

opinion, these conditions presented the hazard of allowing a driver to 

fall from the vehicle if it took a sharp turn. Shanholtz further 

observed that the truck did not have front or rear lights, although it 

was apparently used underground. Finally, Shanholtz noted that a rag 

was used as a gas cap on the gas tank. Shanholtz testified that the rag 

could act as a wick for the gas and present an explosion or ignition 

hazard. Tr. 232-34. 

At the time of the inspection, the C-50 boom truck was parked at 

the mine and was not "tagged out, 11 i.e., did not have any tags on it to 

indicate that it was in need of repair. Tr. 203-04. In addition, the 

truck was in "turn-key" condition; the only step required to start the 

truck was to turn the ignition key. Tr. 203-04, 249; Exhs. 8-10, 15-16. 

Shanholtz testified that there were tire tracks around the truck 

that he believed to be fresh and that the truck had been used whenever 

there was a need to load. Tr. 183, 189-90. Shanholtz further testified 

that Gary Parks, a mechanic employed by Mountain Parkway, informed him 

that the truck had been used during the night shift immediately prior to 

the inspection of August 17, 1988. Tr. 181-82, 477. Shanholtz 

testified that Mr. Parks also informed him that the boom had dropped 

while the truck was being used to load. Tr. 239. 

Based upon his observations and his discussions with Mountain 

Parkway employees, Shanholtz issued to Mountain Parkway a citation 

pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a), alleging that 

it had violated section 57.9002 and that the violation was of a 

significant and substantial nature. The basis for Shanholtz's 

determination that the violation was significant and substantial was his 

finding that "[t]he likelihood of something happening was reasonably 

likely in th~t if an injury or fatality would occur, then it would be 

serious." Tr. 239. Shanholtz also noted that the mine operator was 

highly negligent because the operator should have observed the condition 

of the truck. After the Secretary of Labor proposed a civil penalty for 

the alleged violation, the matter proceeded to hearing before Judge 

Weisberger. 

Before the judge, Mountain Parkway contended that it could not be 

cited for a violation of section 57.9002 because the truck was not 

actually being used. Mountain Parkway presented testimony by some of 

its employees that at the time of the August 17 inspection, the truck 

had not been used for a period of time. According to these witnesses, 

during that period five of the operator's seven employees were engaged 

in paving at a site 10 to 12 miles away from the mine, an activity that 

961 
did not require use of the truck, and they were not engaged in 

excavation at the mine, which might have required use of the truck. In. 

its Answer to the Secretary's Petition for Assessment of Penalties, 

Mountain Parkway also stated that it was planning to remedy any defects 

on the truck prior to the resumption of excavation work at the mine. 

In his decision, the judge determined, without citing any 

precedent, that section 57.9002 requires "safety defects to be corrected 

as a condition precedent to the use of the equipment" and that there 

could be "no violation in the absence of evidence of the equipment being 

used." 11 FMSHRC at 1295. The judge determined that there was no 

evidence that the truck "was being used" and, therefore, "dismissed" the 

citation. Id. 2/ The Commission granted the Secretary's subsequent 

petition seeki~g review of the judge's decision. On review, the 

Secretary argues that the judge misconstrued section 57.9002 and 

improperly vacated the citation. We agree. 

In Ideal Basic Industries, Cement Division, 3 FMSHRC 843 (April 

1981), the Commission construed the concept of equipment use in 

30 C.F.R. § 56.9-2 (1978) which, like section 57.9002, identically 

provided that "equipment defects affecting safety shall be corrected 

before the equipment is used" (emphasis added). The Commission reviewed 

the evidence in order to determine whether a track mobile with a 

defective coupling had actually been used. After answering that 

question in the affirmative, the Commission explained that even if the 

evidence was insufficient to prove actual use of the track mobile while 

the coupling was defective, the mobile had been nonetheless "used" 

within the meaning of the standard. The Commission based the latter 

holding, in part, upon the fact that the equipment was located in a 

normal work area, was capable of being used, and had not been removed 

from service. 3 FMSHRC at 844-45. See also Allied Chemical Corp., 

6 FMSHRC 1854, 1859 (August 1984)(similarly construing 30 C.F.R. § 57.9-

2 (1978), the identical regulatory predecessor of section 57.9002). 

Ideal's principles are dispositive of the issue presented in this 

case. The evidence that the C-50 boom truck had defects affecting 

safety was largely uncontroverted. The only evidence that Mountain 

Parkway presented to counter Shanholtz's testimony regarding the 

multiple defects existing on the truck was that of Charles Williams, one 

of its employees, who testified that he had seen stabilizing jacks on 

the truck close to the time of the inspection on August 17, 1988. This 

was insufficient to overcome Shanholtz's detailed testimony regarding 

the numerous equipment defects affecting safety that prompted his 

citation. 

The judge's focus on whether the boom truck "was being used" is 

too narrow. Under the standard a violation occurs if equipment "is 

used" while in an unsafe condition. Here although the equipment was not 

in actual use at the time of citation, the record establishes that the 

£/ We assume that the judge intended to vacate the citation in 

accordance with the provisions of section 105(d) of the Mine Act, 

30 u.s.c. § 815(d). 

962 
boom truck had been used while it had the cited defects affecting 

safety. Shanholtz's testimony that Parks had informed him that the boom 

was dropping while the Mountain Parkway employees were using the truck 

to load was unrefuted by Mountain Parkway witnesses. Tr. 239. 

(Shanholtz had also testified, without contradiction, that the truck had 

multiple hydraulic leaks that had allowed the boom to drop. Tr. 233.) 

In this instance, however, and more compelling is the undisputed 

evidence that, at the time of the inspection, the truck was parked in 

the mine in turn-key condition and had not been removed from service. 

In light of Ideal., supra, this evidence established use of equipment 

within the meaning of section 57.9002, obviating any need to show that 

the defective truck was in actual use at the time of the·inspection. We 

also reject Mountain Parkway's apparent defense that it intended to 

remedy any defects prior to the resumption of excavation work. No 

evidence was presented at trial that the truck was "under repair." 

There was no evidence that any employee had been assigned to repair the 

boom truck and no evidence that anyone was actually engaged in repairing 

the truck on August 17, 1988, or at any other time. See, ~' Allied 

Chemical, 6 FMSHRC at 1860. 

Accordingly, we hold that Mountain Parkway violated section 

57.9002, and conclude that the judge erred in vacating the citation in 

issue. 

963 
For the foregoing reasons, the judge's decision with .respect to 

this citation is reversed and th1s matter is remanded for determination 

of the allegation that the violation was of a significant and 

substantial nature and for assessment of an appropriate civil penalty. 

Distribution 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Jeffery T. Staton, V.P. 

Mountain Parkway Stone, Inc. 

Route 1, Box 309-B 

Stanton, Kentucky 40380 

L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

964 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

UTAH POWER & LIGHT COMPANY, 

MINING DIVISION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

May 24, 1990 

Docket No. WEST 89-161-R 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This contest proceeding ar1s1ng under the Federal Mine Safety and 

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

involves issues of whether Utah Power & Light Company, Mining Division 

("UP&L") violated 30 C.F.R. § 75.400, a mandatory safety standard 

prohibiting accumulations of combustible materials, even if UP&L 

complied with the cleanup plan it established pursuant to 30 C.F.R. 

§ 75.400-2. l/ Also at issue are whether the alleged violation was of a 

lf 30 C.F.R. § 75.400, which repeats the statutory language of 

section 304(a) of_ the Mine Act, U.S.C. § 864(a), provides: 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other 

combustible materials, shall be cleaned up and not 

be permitted to accumulate in active workings, or on 

electric equipment therein. 

30 C.F.R. § 75.400-2, entitled "Cleanup program," provides: 

A program for regular cleanup and removal of 

accumulations of coal and float coal dusts, loose 

coal, and other combustibles shall be established 

and maintained. Such program shall be available to 

965 
significant and substantial nature and whether it was caused by UP&L's 

unwarrantable failure to comply with the cited standard. Commission 

Administrative Law Judge John J. Morris concluded that UP&L violated 

30 C.F.R. § 75.400 and that the violation was of a significant and 

substantial nature and caused by UP&L's unwarrantable failure to comply. 

11 FMSHRC 710 (April 1989)(ALJ). For the reasons set forth below, we 

affirm the judge's finding of a violation and his finding that the 

violation was of a significant and substantial nature, but reverse his 

unwarrantable failure determination. 

UP&L operates the Cottonwood Mine, an underground coal mine 

located in Utah. On March 20, 1989, Department of Labor Mine Safety and 

Health Administration ( 11MSHA11 ) Inspector Donald Gibson, accompanied by 

Forrest Adison, UP&L's Fire Boss, and James Behling, UP&L's Safety 

Engineer, conducted an electrical inspection of the Cottonwood Mine. In 

the 9 East working section, Inspector Gibson observed a shuttle car tear 

down part of the line curtain located along the left rib. When Gibson 

looked behind the line curtain, he observed loose coal that he believed 

constituted an impermissible accumulation in violation of section 75.400 

(n.l supra). The mass of loose coal measured 104 feet-6 inches in 

length, 14 to 31 inches in depth, and 12 to 34 inches in width, and 

weighed approximately 500 to 800 pounds. Tr. 80. Gibson issued UP&L a 

withdrawal order pursuant to section 104(d)(l) of the Mine Act, 

30 U.S.C. § 814(d)(l), citing a violation of section 75.400 and 

including significant and substantial and unwarrantable failure 

findings. 

When Inspector Gibson and Mr. Behling arrived on the surface, 

Behling showed Gibson a copy of UP&L's cleanup plan established pursuant 

to section 75.400-2 (n.l supra). Gibson's review of the cleanup plan 

did not affect his decision to issue the withdrawal order because, in 

his opinion, the cleanup plan conflicted with section 75.400 in that it 

permitted accumulations of combustible materials to exist. Gibson 

testified that he issued the order because, among other things, he 

determined that there had been production of coal in the 9 East working 

section on March 17, 1989, and that the cited accumulations resulting 

from that production had not been removed on subsequent idle shifts. He 

was of the opinion that there were possible ignition sources in that 

area and he had observed combustible float coal dust on rock-dusted 

surfaces. Gibson determined that, by the time the next cross-cut was 

driven and the loose coal would have been cleaned up under UP&L's 

cleanup plan (discussed below), the cited mass of coal would have almost 

doubled in size. Gibson was also aware of tests performed by the 

Department of Interior's Bureau of Mines that he believed demonstrated 

that similar amounts of loose coal would propagate an explosion. 

Exh. R-3; Tr. 106-07. 

Based on these same considerations, Gibson further concluded that 

a hazard was created by the cited conditions, that it was reasonably 

likely that an injury could result from those conditions and that the 

injury would be of a serious nature. Accordingly, he found that the 

violation was of a significant and substantial nature. Gibson also 

the Secretary or authorized representative. 

966 
determined that the alleged violation resulted from UP&L's unwarrantable 

failure to comply with the standard. 

UP&L contested the withdrawal order and the matter proceeded to an 

evidentiary hearing before the judge. UP&L contended that it could not 

be cited for a violation of section 75.400 because it was complying with 

its section 75.400-2 cleanup plan and that, under that plan, it was not 

required to clean up the cited coal in the entry until the next 

connecting cross-cut was driven. Specifically, according to UP&L, its 

cleanup plan required that, after a continuous mining machine mines a 

40-foot five-cut sequence in an entry under development, the continuous 

miner is to be backed up and trammed forward to clean the "first 

cuttings" from both sides of the 40-foot cut. Tr. 23, 174; Exh. C-3. 

("First cuttings" are pieces of coal dislodged by the continuous miner 

when the initial development work is performed.) The plan further 

provided that any coal remaining behind the line curtain following the 

initial cleanup "will be cleaned after the connecting cross-cut is 

broken through to prevent the short circuiting of face ventilation." 

Exh. C-3; Tr. 18, 35-37, 188. UP&L explained that, on one occasion less 

than three months prior to Gibson's inspection, it had been cited for a 

violation of a mandatory safety standard when it failed to follow its 

cleanup plan. On January 6, 1989, UP&L had rolled up the line curtain 

in the Third South Section of the Cottonwood Mine in order to clean up 

loose coal behind the line curtain with an electric scoop before the 

connecting cross-cut had been driven. Tr. 198. As a result, MSHA 

Inspector Dick Jones issued a citation to UP&L for violation of 

30 C.F.R. § 75.316, alleging that rolling up the curtain had disrupted 

face ventilation. Inspector Jones noted in that citation that "the 

approved cleanup plan states that the curtain side of the entry will not 

be cleaned until the connecting cross-cut has been made. 11 Exh. C-4. 

In his decision, Judge Morris determined that the largely 

uncontroverted testimony regarding the substantial amount of loose coal 

discovered by the inspector established a violation of section 75.400, 

citing Old Ben Coal Co., 1 FMSHRC 1954 (December 1979)("0ld Ben I"). 

11 FMSHRC at 727. The judge was not persuaded by UP&L's evidence that 

the coal was partially wet or d?Jllp noting that a fire could quickly dry 

damp coal. Id. The judge also rejected UP&L's reliance on its cleanup 

plan on the ground that "a cleanup plan developed pursuant to 75.400-2 

cannot overrule the mandatory duties required in § 75.400. 11 Id. 

Crediting Inspector Gibson's relevant testimony, the judge further 

held that the violation was of a significant and substantial nature, 

citing Mathies Coal Company, 6 FMSHRC 1 (January 1984). 11 FMSHRC at 

728. With respect to the unwarrantable failure issue, .the judge 

determined that UP&L's conduct was aggravated conduct constituting more 

than ordinary negligence. 11 FMSHRC at 728-29. In reaching this 

conclusion, the judge credited testimony that MSHA and UP&L "had 

discussed the practice of cleaning first cuttings" (11 FMSHRC at 728), 

and found that UP&L could employ other adequate methods of cleanup that 

would not allow accumulations to exist and, unlike the rolling up the 

line curtain, would not sacrifice face ventilation (11 FMSHRC at 728-

29). 

967 
On review, UP&L challenges the judge's findings on four grounds: 

(1) UP&L did not violate section 75.400, most particularly because it 

was complying with its section 75.400-2 cleanup plan; (2) section 75.400 

is unconstitutionally vague as applied in this case; (3) substantial 

evidence does not support the judge's finding that the violation was of 

a significant and substantial nature; and (4) substantial evidence does 

not support the judge's unwarrantable failure finding. We consider each 

of these challenges in turn. 

With respect to the issue of violation, the Commission previously 

has held that section 75.400 "is violated when an accumulation of 

combustible materials exists." Old Ben I, 1 FMSHRC at 1956. The 

Commission has further held that a violative "accumulation" exists 

"where the quantity of combustible materials is such that, in the 

judgment of the authorized representative of the Secretary, it likely 

could cause a fire or explosion if an ignition source were present." 

Old Ben Coal Co., 2 FMSHRC 2806, 2808 (October 1980)("0ld Ben II"). 

In defining a prohibited "accumulation" for section 75.400 

purposes, the Commission explained that "some spillage of combustible 

materials may be inevitable in mining operations. However, it is clear 

that those masses of combustible materials which could cause or 

propagate a fire or explosion are what Congress intended to proscribe." 

Old Ben II, 2 FMSHRC at 2808. The Commission emphasized that the 

legislative history relevant to the statutory standard that section 

75.400 repeats "demonstrates Congress• intention to prevent, not merely 

to minimize, accumulations. The standard was directed at preventing 

accumulations in the first instance, not at cleaning up the materials 

within a reasonable period of time after they have accumulated. 11 Old 

Ben I, 1 FMSHRC at 1957. The Commission also indicated that the 

inspector's judgment that a prohibited accumulation exists is "subject 

to challenge before the administrative law judge. 11 Old Ben II, 2 FMSHRC 

at 2808 n.7. Within the context of the broadly phrased standard in 

question, which applies to myriad mining conditions, the inspector's 

judgment will be reviewed judicially by reference to an objective test 

of whether a reasonably prudent person, familiar with the mining 

industry and the protective purpose of the standard, would have 

recognized the hazardous condition that the regulation seeks to prevent. 

See,~· Canon Coal Co., 9 FMSHRC 667, 668 (April 1987). 

Applying the foregoing principles to the record in this case, we 

conclude that the judge properly determined that UP&L violated section 

75.400. Substantial evidence supports the judge's finding that the 

cited mass of loose coal constituted a prohibited "accumulation" within 

the meaning of the Old Ben decisions. The loose coal measured some 104 

feet in length, averaged some 23 inches in width and 22 inches in depth, 

and weighed approximately 500 to 800 pounds. Inspector Gibson testified 

that this amount of loose coal would likely cause an explosion if an 

ignition source were present. Among other things, he relied upon Bureau 

of Mines• tests showing that as little as two 300-pound piles of loose 

coal can propagate an explosion even if an entry is adequately rockdusted. Fire Boss Adison, who helped Gibson measure the loose coal, 

stated that there was an excessive amount of loose coal behind the line 

curtain and agreed that the condition was violative of section 75.400. 

968 
There was also uncontroverted testimony that this amount of loose coal 

would double ·in size from a length of 104 feet to approximately 210 feet 

by the time that the next cross-cut was driven and the loose coal 

cleaned up under UP&L's cleanup plan. Tr. 90-91, 97, 101-02, 140. The 

fact that there was some dampness in the coal did not render it 

incombustible and, as both the judge and inspector properly noted 

(11 FMSHRC at 727; Tr. 96), wet coal can dry out in a mine fire and 

ignite. See Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21 

(August 1985). In light of this evidence, a reasonably prudent person 

familiar with the mining industry would have recognized that this 

relatively large amount of coal was an accumulation prohibited by 

section 75.400. 

UP&L, however, argues that the Old Ben precedent is inapplicable 

because those decisions did not address the manner in which section 

75.400 is to be harmonized with 75.400-2. As noted, UP&L contends that 

it cannot be cited for a violation of section 75.400 because it was 

complying with its section 75.400-2 cleanup program. We disagree. 

Section 75.400-2 implements section 75.400, not vice versa. A cleanup 

plan cannot establish procedures that allow coal and other combustible 

m~terials to accumulate in violation of section 75.400. In agreement 

with the judge, we hold that an operator cannot avoid a finding of 

violation of section 75.400 by arguing that it was merely following a 

section 75.400-2 cleanup plan that it had established. ff 

UP&L also points to language in MSHA's Program Policy Manual 

("Manual") to the apparent effect that existing "accumulations" may be 

removed on a regular basis. See Exh. R-3 at 51-53. The Manual language 

cited by UP&L must be read in context with the Manual's explanation of 

the intent of section 75.400: "The intent of this Section is to prevent 

the accumulations of the specified combustible materials in order to 

reduce the dangers of mine fires and explosions." Exh. R-3 at 51 

(emphasis added). More importantly, the Manual's instructions and 

commentary are not officially promulgated and do not prescribe rules of 

law binding upon the Commission. !:...s..:_, King Knob Coal Co., 3 FMSHRC 

1417, 1420 (June 1981). The interpretation of section 75.400 advanced 

by the Secretary and adopted in the Old Ben decisions overcomes any 

arguable conflict posed by language in the Manual. Finally, we also 

reject UP&L's argument that section 75.400 is unconstitutionally vague 

as applied in this case. As discussed above, in light of the nature of 

the accumulation in question, the inspector's judgment that it 

constituted a prohibited accumulation satisfies an objective reasonable 

person test. 

~/ Although a section 75.400-2 cleanup plan need not be approved by 

MSHA, we believe that this case illustrates the strong desirability of 

communication and cooperation between operators and the Secretary in the 

development of operators' cleanup plans. Such coordination is of great 

importance in ensuring the safety of miners and in implementing the 

policies of the Mine Act. Cf. Southern Ohio Coal Company, 10 FMSHRC 

138, 143 (February 1988); Jim Walter Resources, Inc., 9 FMSHRC 903, 909 

(May 1987). 

969 
Accordingly, we affirm the judge's conclusio~1 that UP&L violated 

section 75.400. 

We also hold that substantial evidence supports the judge's 

conclusion that the violation was of a significant and substantial 

nature. Although we agree with UP&L that the judge could have provided 

a more detailed analysis of this issue, he credited Inspector Gibson's 

testimony, which is detailed. 

A violation is properly designated as being of a significant and 

substantial nature "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 Co., 3 FMSHRC 822, 

825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), 

the Conunission explained: 

In order to establish that a violation of a 

mandatory 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. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-04 (5th Cir. 

1988), aff'g, 9 FMSHRC 2015, 2021 (December 1987)(approving Mathies 

criteria). 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 injury" (U.S. Steel Mining 

Co., 6 FMSHRC 1834, 1836 (August 1984)), and the violation itself must 

be evaluated in terms of continued normal mining operations (U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); ~also Halfway, 

Inc., 8 FMSHRC 8, 12 (January 1986)). 

With respect to the first element, we have concluded above that 

the judge properly found that UP&L violated section 75.400. The second 

element, whether a measure of danger to safety was contributed to by 

UP&L's violation, is also established. The relevant legislative history 

demonstrates that Congress recognized that experience has proven that 

loose coal can propagate an explosion and must therefore be kept to a 

m1n1mum. See Old Ben I, 1 FMSHRC at 1957, cit!gg S. Rep. No. 411, 91st 

Cong., 1st Sess. 65, reprinted in Senate Subconunittee on Labor, 

Conunittee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I 

Legislative History of the Federal Coal Mine Health and Safety Act of 

1969, at 191 (1975). Inspector Gibson discovered loose coal in an 

active working area in which possible igniticn sources existed, and in 

which burn areas had previously been discovered. The mass of coal was 

large and in an amount that the Bureau of Mines has found could 

propagate an explosion. Therefore, a "measure of danger to safety" was 

presented by the cited accumulation. 

970 
With respect to the third element, a reasonable likelihood of 

injury caused by the violation, Inspector Gibson testified that the 

continuous miner was generating dust and sparks and had a trailing cable 

with 950 volts of alternating current. Tr. 95-98, 101. He stated that 

other possible ignition sources in the 9 East working section, such as 

the trailing cables of the shuttle car and roof bolter, both of which 

conducted 480 volts of alternate current, could combine with the loose 

coal and cause an explosion. Tr. 106. Gibson also noted that there was 

float coal dust on rock-dusted surfaces within the area, giving it a 

"salt and pepper 11 appearance. Tr. 96. The fact that some of the coal 

accumulations were damp was not determinative because, as· noted above, 

damp coal dries in the presence of fire. Inspector Gibson properly took 

into consideration the fact that, in the normal course of operations, 

the accumulation would expand from 104 feet in length to approximately 

210 feet by the time that the next connecting cross-cut was driven and 

further cleanup undertaken. Tr. 90-91. There was also evidence in the 

record that burn areas had been encountered in the 9 East working 

section and that diesel equipment was sometimes used. Tr. 38, 43, 189, 

217. The foregoing evidence supports the judge's finding that the 

hazard contributed to by the violation, an ignition or explosion in the 

active workings in question, posed a reasonable likelihood of injury to 

any miners working there. 

The fourth element, a reasonable likelihood that the injury in 

question would be of a: reasonably serious nature, was also established. 

The area in which the accumulation existed was an active working 

section. Gibson testified that he believed that it was reasonably 

likely that any injuries resulting from a fire or explosion would be 

serious, including burns and, possibly, a fatality. Tr. 106. Gibson's 

testimony on this point was uncontroverted and proves the fourth 

element. 

We have considered other evidence in the record relied upon by 

UP&L that mitigates the degree of danger created by the violation. We 

conclude, however, that substantial evidence supports the judge's 

finding that the violation was of a significant and substantial nature. 

We turn to the judge's finding that the violation also resulted from 

UP&L's unwarrantable failure to comply with the standard. 

In Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (December 1987), and 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987), we 

held that "unwarrantable failure means aggravated conduct, constituting 

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

violation of the Act. 11 This conclusion was based on the ordinary 

meaning of the term "unwarrantable failure, 11 the purpose of 

unwarrantable failure sanctions in the Mine Act, the Act's legislative 

history, and judicial precedent. We stated that while negligence is 

conduct that is "inadvertent", 11 thoughtless, 11 or "inattentive," conduct 

constituting an unwarrantable failure is conduct that is "not 

justifiable" or "inexcusable". Emery, supra, 9 FMSHRC at 2001. 

The judge found that UP&L's decision to mine in a manner that 

allowed accumulations to exist amounted to an unwarrantable failure to 

comply with section 75.400. 11 FMSHRC at 729. The judge. credited 

971 
test~mony that MSHA had discussed with the operator's upper management 

the practice of cleaning up first cuttings. The judge rejected UP&L's 

argument that it was justified in relying on the prior MSHA citation 

which was issued when UP&L rolled up the line curtain in order to clean 

up loose coal. 11 FMSHRC at 728-29. The judge found that UP&L was not, 

in fact, faced with the choice of either rolling up the line curtain to 

clean up the loose coal behind it and receiving an "Inspector Jones 

citation" for inadequate ventilation at the face, or waiting to clean 

until after the cross-cut had been driven and receiving an "Inspector 

Gibson citation." The judge determined that UP&L could use other 

cleanup methods.which would not violate its ventilation plan and would 

not allow accumulations to exist. 11 FMSHRC 728-29. 

While we agree with the judge that UP&L made a conscious decision 

to adhere to its cleanup plan, such conduct does not rise to the level 

of aggravated conduct constituting more than ordinary negligence. The 

evidence showed that UP&L chose to follow its cleanup plan in good 

faith, believing that such conduct was consistent with applicable 

regulations. Testimony indicates that issuance of the Jones citation 

stating that "the approved cleanup plan states that the curtain side of 

the entry will not be cleaned until the connecting cross cut has been 

made" (emphasis added), led UP&L to believe that it should follow its 

cleanup plan in order to comply with the regulations. Tr. 51-52, 55, 

201. The fact that seemingly conflicting MSHA policies left UP&L in 

doubt as to what was required for compliance with section 75.400 is a 

factor which militates against finding that UP&L's conduct was 

aggravated. King Knob, 3 FMSHRC at 1422. 

Other testimony revealed that UP&L employed the cleanup methods in 

issue because it believed that those methods were safer than alternative 

procedures. Tr. 208. Bad ribs were a major source of problems at the 

Cottonwood Mine, and the cleanup plan adopted at the mine was one which 

could be used consistently throughout the mine and would decrease 

miners' exposure to the ribs. Tr. 207, 217. John Boylen, Mine Manager 

of the Cottonwood Mine, testified that the alternative of using 

ventilation tubing was not employed by UP&L because such a procedure 

would present hazards associated with the use of fans, such as those 

associated with the electric current provided by the cable and the 

possible recirculation of dust and methane. Tr. 208-09. In addition, 

Boylen testified that the process of hanging line curtain was safer than 

the process of hanging ventilation tubing. Tr. 209. 

The Commission has determined that when an operator believed in 

good faith that the cited conduct was the safest method of compliance 

with applicable regulations, even if they are in error, such conduct 

does not amount to aggravated conduct exceeding ordinary negligence. 

Florence Mining Co., 11 FMSHRC 747, 752-54 (May 1989); Southern Ohio 

Coal Company, 10 FMSHRC 138, 142-43 (February 1988). See also 

Westmoreland Coal Co., 7 FMSHRC 1338, 1343 (September 1985). Here, it 

appears from UP&L's testimony that it adopted and followed its cleanup 

program in good faith, believing that it was employing the safest method 

of cleanup available. 

The judge's reliance upon the alleged discussions between MSHA and 

972 
UP&L was misplaced. Preliminarily, we note that the judge did not s~t 

forth his findings with respect to the discussions in a manner such that 

we can attach much weight to them. Moreover, the record lacks 

sufficient or uncontradicted evidence as to the specific content of such 

discussions. Inspector Gibson testified that he had three discussions 

with UP&L regarding cleaning up first cuttings, but he did not indicate 

whether cleaning behind the line curtain was discussed. Tr. 94-95, 136. 

William Ponceroff, Supervisor of MSHA's Orangeville Field Office, 

testified that he had three discussions with UP&L management, including 

Mine Manager Boylen, regarding cleaning up first cuttings, including 

some discussion pertaining to cleaning up behind line curtains. 

Tr. 151-53, 155, 157. Boylen admitted that he had discussed cleaning up 

first cuttings with Ponceroff, but denied discussing cleaning up 

accumulations behind line curtains. Tr. 210-11. Randy Tatton, the 

chief safety engineer of Cottonwood Mine, who was alleged to have been 

present on at least one of the discussions with Ponceroff, also denied 

that the discussion involved cleaning first cuttings behind line 

curtains. Tr. 45, 155. This evidence does not support any finding that 

UP&L delayed the removal of the first cuttings behind the line curtain 

knowing that the practice was violative of section 75.400. Rather, 

UP&L's conduct resulted from a good faith, albeit mistaken, belief that 

the procedures in its cleanup plan were in compliance with section 

75.400. Therefore, we conclude that substantial evidence does not 

support the judge's finding that UP&L's violation of section 75.400 was 

caused by its unwarrantable failure to comply. 

For the foregoing reasons, we affirm the judge's finding that UP&L 

violated section 75.400 and that the violation was of a significant and 

substantial nature but reverse the judge's finding that UP&L's violation 

was the result of an unwarrantable failure to comply with the standard. 

~n F t . I 

~ (_~ --C---l--C~ / ,. /,_ t'Lt- ~(,,, )<-

Richard V. Backley, Commissioner 

Doyle, Commissio r 

L. Clair Nelson, Commissioner 

973 
Distribution 

Timothy M. Biddle, Esq. 

Susan E. Chetlin, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

280 Colonnade Center 

1244 Speer Blvd. 

Denver, Colorado 80204 

974 
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 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

BETH ENERGY MINES 

INCORPORATED, 

Respondent 

MAY 2 1~90 

. . 

: 

. . 

. . DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-222 

A. C. No. 36-00840-03685 

Cambria Slope Mine No. 33 

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

Solicitor, Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary1 

R. Henry Moore, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this Civil Penalty Proceeding, the Secretary (Petitioner) 

seeks civil penalties for alleged violations by Respondent of 

30 C.FR. § 75.301 and § 75.316. Pursuant to notice, the case was 

heard in Johnstown, Pennsylvania, on January 9, 1990. Gerry L. 

Boring and Samuel J. Brunatti testified for Petitioner. Samuel 

Brunatti was called to testify by Respondent. Arthur Britten, 

Charles F. Forst, George w. Moyer, and Nick Carpinello testified 

for Respondent. Respondent filed a Brief on March 9, 1990, and 

Petitioner filed Proposed Findings of Fact and a Brief on 

March 19, 1990. 

Stioulations 

1. Mine 33 is owned and operated by Beth Energy Mines, 

Inc., and subject to the jurisdiction of the Federal Mine Safety 

and Health Act of 1977. 

2. The Administrative Law Judge has jurisdiction over these 

proceedings. 

3. The subject citations were properly served by a duly 

authorized representative of the Secretary of Labor upon agents 

of Beth Engergy at the dates and places stated therein, and may 

be admitted into evidence for the purpose of establishing the 

issuance, but not for the truth of the matters asserted therein. 

975 
4. Beth Engergy demonstrated good faith in the abatement of 

the citations. 

5. The assessment of the civil penalty or civil penalties 

in this proceeding will not affect Beth Energy's ability to continue business. 

6. The appropriateness of the penalty and the size of the 

operator's business should be based on the fact that Beth Energy's 

annual production is 9,751,620 tons and Mine 33's annual production 

tonnage is 2,170,006 tons. 

7. The printout of the civil penalty complaint reflects the 

Secretary's history of violations at Mine 33. 

Findings of Fact 

1. On March 14, 1989, at Respondent's Cambria Slope Mine 

No. 33, at the end of the midnight shift, the methane monitor 

de-ener3ized the power on the longwall face. The miners investigated and determined that there were excessive levels of methane 

present~ they de-energized all the power and withdrew from the 

face. The power remained off during the day shift. 

2. This methane had not been present at the end of the midnigi.1t shift. Arthur R. Britten, a longwall fo:r:eman at Mine 33, 

worked the midnight shift on March 14, 1989. As part of his 

normal duties, Britten inspected the longwall face for the 

presence of methane. During his examinations he detected no 

excessive levels of methane. He also took air readings at the 

headgate entry and obtained a normal reading of approximately 

18,000 cubic feet of air per minute C"cfm"). 

3. Charles F. Forst was the day shift longwall foreman on 

March 14, 1989. When he arrived at the longwall section, the 

miners who had remained from Britten's crew informed him of the 

methane problem. Forst told his crew to proceed to the headgate 

side of the longwall and to remain outby the longwall face until 

an examination was conducted to determine the nature of the 

problem. 

4. Forst examined the face of the longwall and found that 

at the No. 114 chock there was a level of 2.5 percent methane. 

The bottom was broken in the area of the highest methane readings. 

5. Between 8:15 and 8:20 a.m., the crew from the longwall 

approached MSHA Inspector Gerry L. Boring, who was present to 

conduct an inspection, and informed him that their supervisor had 

instructed them to proceed to the headgate side and wait until 

the foreman determined the extent of the methane problem. 

976 
6. Boring entered the return entry and proceeded to the 

tailgate of the longwall, where he met Forst. 

7. Boring and Forst proceeded to take methane readings with 

an approved methane detector at the bleeder evaluation point 54. 

A bottle sample was also taken and the detector and bottle samples 

revealed a reading of 4.9 per~ent. 

8. The methane measurements taken at approximately 8:45 a.m., 

at chock 167 revealed 2.5 percent methane. At chocK 142 a reading 

of 1.5 methane percent was recorded. A bottle sample taken at 

chock 167 revealed a reading of 2.4 percent methane. 

9. Boring returned to bleeder evaluation point 54 and took 

a methane reading of 3.7 percent at approximately 9:05 a.m. 

10. A methane reading at the regulator near bleeder evaluation point 54 revealed 4.2 percent methane, and an air reading of 

20,412 C.F.M. at approximately 9:05 a.m •• 

11. Bill Moyer, Respondent's longwall coordinator, obtained 

higher methane readings by placing his methane spotter closer to 

the bottom. He concluded that the methane was coming from the 

bottom and not from the gob. 

12. At approximately 9:20 a.m., Boring informed Moyer that 

he was issuing a section 107 Ca) Irrmlinent Danger Order and posted 

a sign at the headgate and the tailgate closing off the longwall 

face. 

13. At approximately 9:35 a.m., Boring took an air reading 

at the headgate which measured 16,254 C.F.M. and a methane 

reading of 0.1 percent. At approximately 9:35 a.m., Boring 

measured 2.4 percent methane at chocK 166. Boring then traveled 

to the tailgate section and took an air reading of 5,880 C.F.M. 

and a methane reading of 0.1 percent. At approximately 

10:30 a.m., Boring returned to bleeder evaluation point 54 and 

took a methane reading of 3.4 percent. On the morning of 

March 14, the combined total of air measured by Boring in the 

tailgate and headgate was approximately 23,000 C.F.M. 

14. Boring issued Citation No. 2891347 alleging a violation 

of 30 C.F.R. § 75.301. Boring also issued a section 107 Imminent 

Danger Withdrawal Order. 

15. Also on March 14, 1989, Boring issued Citation 

No. 2891346 alleging that the approved ventilation, methane and 

dust control plan (review no. 32) was not being complied with, in 

that a methane reading of 4.9 percent was detected inby bleeder 

evaluation point No. 54 at Mine 33. 

977 
16. At the time of the issuance of Citation No. 2891346 for 

the alleged violation of 75.316, Beth Energy had an approved 

ventilation· system, methane and dμst control plan. 

17. In the most recent 6 month review of the plan prior to 

the citation herein, Petitioner, on January 31, 1989, approved 

the plan with the following language "These plans and all 

criteria listed under Section 75.316, 30 C.F.R. 75, shall be 

complied with." CGx 7). 

18. The sentence quoted in Finding No. 17 is being included 

by MSHA District Two in approvals of mine plans in the district. 

Discussion and Conclusions of Law 

A. Citation No. 2891347. 

Citation No. 2891347, issued by Boring on March 14, 1989, 

alleges a violation of 30 C.F.R. § 75.301 in that a methane 

reading of 2.5 percent was detected at chock No. 167. Boring's 

uncontradicted testimony establishes that testing by him indicated methane readings, along the longwall panel of 2.5 percent 

at chock 167, 2.7 percent at chock 142, and 1.5 percent at 

chock 114. 

30 C.F.R. § 75.301 provides as follows: 

All ~ctive workings shall be ventilated by a current of air containing not less than 19.5 volume per 

centum of oxygen, not more than 0.5 volume per centum 

of carbon dioxide, and no harmful quantities of other 

noxious or poisonous gases; and the volume and velocity 

of the current of air shall be sufficient to dilute, 

render harmless, and to carry away, flammable, explosive, noxious, and harmful gases, and dust, and smoke 

and explosive fumes. The minimum quantity of air 

reaching the last open crosscut in any pair or set of 

developing entries and the last open crosscut in any 

pair or set of rooms shall be 9,000 cubic feet a 

minute, and the minimum quantity o~ air reaching the 

intake end df a pillar line shall be 9,000 cubic feet a 

minute. The minimum quantity of air in any coal mine 

reaching each worKing face shall be 3,000 cubic feet a 

minute. The authorized representative of the Secretary 

may require in any coal mine a greater quantity and 

velocity of air when he finds it necessary to protect 

the health or safety of miners. In robbing areas of 

anthracite mines, where the air currents cannot be 

controlled and measurements of the air cannot be 

obtained, the air shall have perceptible movement. 

978 
It is Respondent's position that section 301, supra, 

requires at least 9,000 cubic feet of air a minute in order to 

achieve co1npli~nce with the mandate of the first sentence which 

requires velocity and volume of air sufficient to dilute and 

render har~less explosive gasses. Respond~nt refers to undisputed evidence of an airflow of 17-18,000 C.F.M. at the headgate, 

and argues that as such it was fully in compliance with section 

75.301, supra, which is satisfied by a flow of at least 

9,000 C.F.M. It iurther argues that section 75.301, requires 

only a minimum of 9,000 C.F.M. unless the Secretary requires 

more, and that no such requirement was imposed herein. 

I do not accept the interpretation of section 75.301, supra, 

advocated by Respondent. I find that plain language of the first 

sentence of section 15.301, supra, unequivocally requires a current of air sufficient to dilute and render harmless explosive 

gasses.l/ The second sentence requires a "minimum of 9,000 C.F.M. 

reaching the last open crosscut. To hold, as urged by Respondent, 

that section 75.301 is fully satisfied if at least 9,000 C.F.M. is 

provided, would render meaningless the first sentence which requires 

a volume and velocity of air "sufficient to dilute and render harmless explosive gasses." Thus, an airflow exceeding 9,000 C.F.M., as 

on the date in issue, does not comply with section 75.301, supra, if 

it is not sufficient to dilute and render harmless explosive gases. 

As described in Boring's testimony and not contradicted by other 

witnesses, methane was present in concentrations close to the explosive range of 5.15 percent. As such I find that the volume and 

velocity of air was not sufficient to dilute and render the methane 

harmless, and as such 75.301, supra, was violated.~/ 

II. 

According to Boring, the violation herein was significant 

and substantial. The evidence herein clearly established, that 

due to the concentration of methane present, there was a 

~/ I reject Respondent's argument that it is not clear that 

section 75.301, suora, applies to methane. The Dictionary of 

Mining, Minerals, and Related Terms, CU. S. Department of 

Int=rior, 1968) CDMMRT), in defining methane, indicates that 

" ••. with air, however, it forms an explosive mixture, • • . " 

I thus find that methane is an explosive gas and is thus within 

the purview of the first sentence of section 75.301, supra. 

~/ The fact that Respondent's ventilation system was working to 

dilute the methane that was present, and the fact that the methane 

present might have been due to an unexpected outburst rather than 

an accumulation, are factors bearing on Respondent's negligence, 

a~d are discussed in paragraph 6, infra. The fact that Respondent 

might not have been negligent herein, does not relieve it of its 

responsibility for not complying with section 75.301, supra. (See, 

Western Fuels-Utah, Inc. v. FMSHRC 870 F.2d. 711 CD.C. Cir. 1989)~ 

Asarco Inc. - North Western Mining Dept. v. FMSHRC, 868 F.2d 1195 

(10th Cir. 1989)). 

979 
violation as discussed above I, infra, which contributed to the 

hazard of an explosion. (See, Mathies Coal Comoany, 6 FMSHRC 1 

(1984)). However, according to Mathies at 3-4 , supra, to be 

significant and substantial there must also be a reasonable 

likelihood that the hazard contributed to will result in an 

injury. In U. S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836, 

(1984), the Commission indicated that this element" .•• requires 

that the Secretary establish a reasonable likelihood that the 

hazard contributed to will result in an event in which there is an 

injury." The evidence fails to establish this element. The only 

testimony on this point is that of Boring. He acknowledged that 

there were no energized equipment or men in the area. When asked 

what the ignition source was for the methane, he responded as 

follows: "Well, the ignition source could be anything that would 

cause a spark, a roof fall, men within the area, hammers, metal to 

metal, anything that would occur within that given area to create a 

spark that would maybe ignite the methane there" (Tr. 40-41). When 

asked to indicate why he concluded the violation was significant 

and substantial, he said that " ••• if there would have been a 

roof fall, possibly a spark, rock to rock igniting the methane 

causing an explosion" (Tr. 42). He indicated that due to the 

concentration of methane which indicated that somewhere within the 

gob area there was a "volatile situation" (Tr. 42), there was a 

danger of an explosion and that he "felt it was likely" (Tr. 42). 

Since men had been withdrawn from the area, there were no energized 

equipment in the area, and there is no evidence of any condition 

making a roof fall, likely, I conclude that it has not been established that there was a reasonable likelihood of the methane being 

ignited. Accordingly, I conclude that it has not been esablished 

that the violation herein was significant 'and substantial. (See 

Mathies, supra, U. S. Steel, supra). 

III. 

Due to the high concentrations of methane at various points 

in the section, and taking into account Boring's uncontradicted 

opinion that the methane was volatile in the gob, I find that the 

violation herein constituted a high degree of gravity, mitigated 

~by the absence of proof of the presence of reasonably likely ignition sources. The methane present on the morning of March 14, 

was not present when the area was examined in the proceeding, or 

midnight shift. Further, no methane was detected, all power in 

the area was de-ener~ized by Respondent, and miners were withdrawn. Also, the volume and velocity of air prasent was about 

double the minimum required by section 75.301, supra. Further, 

inasmuch ~s the bottom of the mine, which had heaved, had the 

highest methane readings, it might be concluded that the methane 

present was the restilt of an outburst from the bottom and was 

unexpected. Accordingly, I find Respondent not to have been 

negligent with respond to th3 violation herein. Taking into 

account the remaining statutory factors in section llOCi) of the 

Act, I conclude that a penalty of $100 is appropriate. 

980 
B. Citation No. 2891346. 

I. 

The evidence is not controverted that on March 14, 1989, 

Boring took a bottle sample of methane at bleeder evaluation 

point 54, and the results of the testing reveled 4.5 percent 

methane. Boring issued a citation, in essence, alleging a violation of Respondent's ventilation plan. The ventilation plan does 

not contain any language setting any limit on methane at the 

evaluation point tested. However, in the 6 months review of the 

ventilation plan.on January 29, 1989, the MSHA District Manager 

approved the plan with the following sentence: "These plans and 

all criteria listed under section 75.316, 30 C.F.R. 75, shall be 

complied with." The iirst sentence of section 75.316-2 provides 

that "This section sets out the criteria by which district manag~rs will be guided L1 approving a ventilation system and dust 

control plan on a mine-by-mine basis." Section 75.316-2(h} 

provides as follow: "The methane content of the air current in 

the bleeder split at the point where such split enters any other 

split should not exceed 2.0 volume per centum." 

In essence, it i.s Petitioner's position that the MSHA Letter 

of Appro,1al of January 31, 1989, CGx 7), informed Respondent that 

all the criteria set forth in section 75.316-2, supra, are to be 

complied with. It is further maintained by Respondent that the 

criteria set forth in section 316-2, supra, are mandatory, and 

that a distri~t manager can not approve a ventilation plan without such criteria contained therein. Essentially, the only 

authority relied on by Petitioner is United Mine Workers of 

America, Int'l Union v. Dole, 870 F.2nd 662 CD. C. Cir. 1989). 

Petitioner cites United Mirier Workers, supra, for the proposition, in essence, that the criteria in section 75.316, supra, 

were properly incorporated in the ventilation plan by the 

approval letter. (Gx. 7). Petitioner relies on United Mine 

Workers, supra, for the proposition that the district managers do 

not have the authority to approve ventilation plans without 

incorporation of the criteria in section 75.316-2, and quotes the 

following language from United Mine Workers, supra, at 670. 

" ..• if the criteria were actually incorporated into an 

approved plan, the Operator was bound to comply with them." 

In general, the Commission has held that "In plan violation 

cases the Secretary must establish that the provision alle~edly 

violated is part of the approved and adopted plan and that the 

cited condition or practice violates the provision." (Jim Walter 

Resources, Inc., 9 FMSHRC 903, at 907 (May 1987). For the 

reasons that follow, I £ind that the Secretary has not met this 

burden. 

981 
The main issue presented for resolution is whether the 

criteria set forth in section 316-2Ch), can be incorporated 

unilaterally by the Secretary into the Respondent's ventilation 

plan along with all the criteria in section 75.316-2. 

In Zeigler Coal Co. v. Kleppe, 536 F.2nd 398 (D. c. Cir. 

1976),~/ the D. c. Circuit Court of Appeals held that violations 

of requirements in ventilation plans that were not in themselves 

promulgated as mandatory standards were nonetheless enforceable 

under the 1969 Coal Act. The Court reviewed the precise manner 

in which mandatory standards are to be promulgated pursuant 

section 101 of the 1969 Coal Act.4/ The Court concluded that the 

context of the requirement for a ventilation plan in section 303 

of the 1969 Act, the wording of which has been continued in 

section 303 of the 1977 Act, amidst the other provisions of 

section 303 which set out specific standards pertaining to mine 

ventilation, " ••• further suggest that the plan idea was conceived for quite narrow and specific purpose." (Zeigler, supra, 

at 407.) The Court, in Zeigler, supra, at 407, further stated 

with regard to ventilation plans that they were " ••• not to be 

used to impose general requirements of a variety well-suited to 

all or nearly all coal mines, but rather to insure that there is 

a comprehensive scheme for realization of the statutory goals in 

the particular instance of each mine." The Court in Zeigler, 

supra, recognized that ventilation plans " ••• appear to be 

developed by informal negotiations between the Operator and the 

Secretary's representative, without any pretense of compliance with 

§ 101." (Zeigler, supra, at 403.) In this connection the Court 

noted that although the plan must be approved by the Secretary, 

" ••• it does not follow that he has anything close to unrestrained power to impose terms." (Zeigler, supra, at 406). 

In Carbon County Coal Company, 6 FMSMRC 1123, May (1984) 

(Carbon County I) the Commission, in analyzing Zeigler, supra, 

took cognizance of the notation by Carbon County that the Court 

in Zeigler, supra, at 407, drew a distinction between a negotiated plan requirement "'suitable to the conditions and the mining 

$ystem of the coal mine' and a provision of general nature not 

based on the particular conditions at the mine, which the government sought to impose in the plan, but whicn 'should more properly 

have been formulated as a mandatory sta.ndard' in conformity with 

the rule making requirements of section 101 of the 1969 coal Act." 

(Carbon County, I at 1125). 

3/ In Zeigler, suora, which arose under the 1969 Coal Act, 

30 U.S.C. § 801 et seq. (1976) (amended 1977), the Court construed section 303(0) of that Act. This provision was retained 

without change as 303(0) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et~· (1982) (The Act). 

4; Section 101 of the 1969 Coal Act has been repeated in 

section 101 of the Federal Mine Safety and Health Act 0£ 1977. 

982 
The Commission in Carbon County, I, supra, was presented 

with the issue of whether MSHA's insistence on the inclusion in a 

venti~ation plan of a provision, ~pposed by Carbon County, for a 

volume of air more than "free discharge capacity," was proper. 

The commission, in remanding to the trial judge to consider the 

application of Zeigler, supra, specifically stated that it found 

the discussion of Zeigler, supra, "persuasive and compelling," 

(Carbon County I, at 1127, and held that " ••• the general 

principles enunciated in Zeigler apply to the ventilation plan 

approval and adoption process under the Mine Act." (Carbon 

County, lr at 1127.) In Carbon Coal Company, 7 FMSHRC 1367 

(September 1985), (Carbon Country, II), the Commission, at 1370, 

analyzed the statutory system of the approval and adoption of 

ventilation plans as follows: 

The scheme for the approval and adoption of a mine 

specific plan supplements the nationally applicable 

safety and health rulemaking procedures. The bilateral 

approval-adoption process inherent in developing mine 

specific plans results from cotlsultation and negotiation between MSHA and only the specifically affected 

operator, whereas the nationally applicable standards 

are the product of notice and comment rulemaking pursuant to section 101 of the Mine Act. 30 u.s.c. § 811. 

Further, the scope of a mine specific plan is 

restricted exclusively to the mine in which the plan 

will be implemented, whereas a mandatory safety or 

health standard applies across-the-board to all mines. 

(Emphasis added). 

The Commission, in Carbon County, II, supra, at 1370, noted 

that the legislative history of the Act emphasizes the individual 

nature of a illine 3pecific plan. In this connection, the 

Commission in Carbon County, II, supra, at 1370, quoted the 

following language from the Sanate Committee on human resources, 

which reported on the bill which became the Act: "Such individually tailored plans, with a nucleus of commonly accepted 

practices, are ti1e tne best method of regulating such compl.::x and 

9otentially multifaceted problems as ventilation, roof control 

and the like." 

In Jim Walter Resources, Inc., supra, the Commission again 

reiterated the bilateral process of the adoption of ventilation 

plans as follows: "The approval and adoption process is bilateral, 

a~d results in the Secretary and the Operator, through consultation, discussion, and negotiation, mutually agreeing to ventilation 

plans suitable to the soecif ic conditions at particular mines. 

Zeigler v. Kleppe, 536 F.2nd 398, 406-407 (D.C. Cir. 1976); Carbon 

County Coal Company, 6 FMSHRC 1123 (May 1984)." (Jim Walter, 

supra, at 907). Further, the Commission again indicated its view 

wich regard to the "mine-specific" nature of a ventilation plan as 

follows: "The ultimate goal of the approval and adoption process 

is a min2-specif ic plan with provisions understood by both the 

Sacretary and the Operator, and in which they are in full accord." 

(Jim Walter, supra, at 907.). 

983 
Dr~wing upon the principles set forth in Zeigler, supra, 

Carbon County, !r supra, Carbon County, II, supra, and Jim Walter, 

supra, I conclude that the criteria to be. set forth in a ventilation plan can not be unilaterally imposed by the Secretary.~/ I 

~/ I do not find United Mine Workers,· supra, relied on by 

Petitioner, to be dispositive of the issues raised herein. In 

United Mine Workers, supra, the Court was presented with the 

issue as to whether the criteria by which the District Manager 

will be guided in approving roof control plans on a mine-to-mine 

basis, (30 C.F.R § 75.200-6), were mandatory, so as to require the 

Secretary, in promulgating new replacement standards, to establish that the latter provide· at least the same level of protection 

to miners as the old regulations. In holding in the affirmative, 

it clearly was not necessary for the Court to entertain the issue 

presented herein, i.e., whether all criteria by which District 

Managers will be guided in approving a ventilation plan on a 

mine-to-mine basis, are to be incorporated into the ventilation 

plan of an individual mine in the absence of any proof that the 

criteria are to address specific problems at the mine. As such, 

the Court's comments in United Mine Workers, suora, at 670, that a 

plan could be approved only if it conforms to the general criteria 

of the Regulations (30 C.F.R. § 75.200-6) are clearly dicta. 

Similarly, the rejection by the Court, in United Mine Workers, 

suora, of the Operator's argument that a plan for roof support can 

only impose those requirements necessary to address unique conditions peculiar to each mine, does not appear necessary to a 

disposition of the issues before it, as that particular issue did 

not have to be adjudicated. Further, in this connection, it is 

noted that United Mine Workers, suora, took cognizance, at 667, 

of the fact that the contents of any plan are " ••• determined 

through consultation between the·mitie operator and the District 

Manager." Also, the Court specifically noted Zeigler, supra, and 

did not overrule it. In this connection, the Court interpreted 

Zeigler, supra, as saying 11 ••• only that the Secretary could 

abuse her discretion by utilizing plans rather than explicit 

mandatory standards to impose general requirements if by doing 

so, she circumvented procedural requirements for establishing 

mandatory standards laid down in the Mine A.ct. 11 (United Mine 

Workers, supra, at 671.) Further, the Court in United Mine 

Workers, supra, at 672, found Carbon County, II, supra, to be 

consistent with its interpretation of Zeigler, supra, although it 

rejected the argument that under either Carbon County, II, supra, 

or Zeigler, supra, the Secretary " •.• was in a plan precluded 

from requiring mine operators to incorporate measures necessary 

to achieve an overall level of miner protection on all pertinent 

aspects of roof control." ·rhe Court, in United Mine Workers, 

supra, at 672, concluded that Carbon County, II, suora, as 

Zeigler, supra, did no more than set out a 11 ••• warning that 

(continued on page 11) 

984 
further conclude that various criteria are not to be included in 

a ventilation plan unless it is established that they are to 

address a specific problem at the.mine in question. In the 

instant case, not only is the Secretary attempting to 

unilaterally impose a requirement upon Respondent in its 

ventilation plan, but it has not established that the requirement 

would address a specific problem at Respondent's mine, thus 

making it mine specific. To the contrary, it appears to be 

MSHA's policy, as indicated by the testimony of Samuel J. 

Brunatti, an MSHA Ventilation Specialist, to include the approval 

language in question in approvals of mine ventilation plans in 

District Two. As such, it would appear that tha requirement by 

MSHA for Respondent, in its plan, to comply with the criteria in 

75.316 to have been the result of a rote application of 

District Two's policy and not based upon particular conditions at 

Respondent's mine (See, Jim Walter, supra, at 1373). I thus 

conclude that the criteria set out in 30 C.F.R. § 75.316(2)(h) 

are not to be incorporated into Respondent's ventilation plan. 

As such, it has not been established that Respondent violated any 

of. the terms of its ventilation ~lan. Accordingly, Citation 

No. 2891246 should be dismissed._/ 

(Footnote 5 Continued) 

the Secretary should utilize mandatory standards for requirements 

for universal application." Thus, I conclude that United Mine 

WorKers, supra, does not mandate that the principles enunciated 

in Zeigler, supra, as found persuasive by the Commission in 

Carbon County, l and II, supra, and followed in Jim Walter, 

supra, as discussed above, infra, should not be applied in the 

case at bar. 

~/ At the hearing, Respondent's Counsel indicated that 

Respondent was not contesting the Imminent Danger Withdrawal 

Order, No. 2891345 which had oeen issued on March 14, 1989. 

Although it has been decided herein, infra, that there was no 

violation of section 75.316, suora, the finding of imminent 

danger w~s also predicated upon conditions which constituted a 

violation ot section 75.301, which have been established, 

(infra, I,A.}. As such it is concluded that the issuance of the 

Withdrawal Order is sustained. 

985 
ORDER 

It is ORDERED that. Citation No. 2891346 be DISMISSED. It is 

further ORDERED that .Order No. 2891345 was properly issued. It 

is further ORDERED that Respondent, within 30 days of this 

Decision, shall pay $100 as a civii penalty for the violation 

found herein. It is further ORDERED that Citation No. 2891347 be 

AMENDED to reflect the fact that the violation therein was not 

·significant and substantial. 

~~ Avram Weisberger 

Administrative Law Judge 

Distribution: 

Thomas A. Brown, Esq., Office of the Solicitor, u. s. Department 

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

Philadelphia, PA 19104 CCertif ied Mail> 

R. Henry Moore, Esq., Buchanan Ingersoll,· 600 Grant Street, 

58th Floor, Pittsburgh, PA 15219 (Certified Mail> 

dcp 

986 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203. LEESBURG PIKE 

FALLS CHURCH, VIRGINIA . 22041 

· MAY 3 1990" 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), .. . Docket No. WEVA 89-274 

· Petitioner A.C. No. 46-05682-03505 

v. 

Ward Mine 

TEN-A-COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Javier I. Romana ch.,· :Esq• , · U .S • Department of 

Labor, Office of the Solicitor, Arlington, 

Virginia, for the Pet~tioner; 

Harold S. Yo!::-tt, Esq., Bridgeport, West Virginia, 

for the Respon.dent. · 

Judge Maurer 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor (Secretary) pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et seq., the "Act", charging Ten-A-Coal Company 

(Ten-A-Coal) with two violations of the regulatory standards 

found in 30 C.F.R. Part 77. 

Pursuant to notice, this case was heard in Morgantown, West 

Virginia on January 9, 1990. Subsequently, the parties have 

filed post-hearing proposed findings and conclusions which I have 

considered along with the entire record in making this decision. 

STIPULATIONS 

At the hearing, the parties stipulated to the following, 

which I accepted (Tr. 7-8): 

1. The Administrative Law Judge has jurisdiction to hear 

and decide this case. 

2. Inspector James A. Young was acting in his official 

capacity as a federal coal mine inspector on May 3rd, 1989, when 

he issued§ 104(a) Citation No. 2944252 and§ 104(d)(l) Citation 

No. 2944253. 

987 
3. Citation o. 2944252 and Citation No. 2944253 were 

properly served to Respondent's agents. 

4. Abatement of the condition cited in the listed citations 

was timely. 

5. The combined proposed penalty of $800 will not adversely 

affect the Respondent's ability to continue in business. 

6. The respondent does not dispute the facts on the 

proposed assessment data sheet (GX-8). 

DISCUSSION WITH FINDINGS 

Citation No. 2944252, issued pursuant to section 104(a) of 

the Act, charges a violation of the standard at 30 C.F.R. 

§ 77.1004(b) and alleges as follows: 

A proper examination and subsequent action taken was 

not being performed on the 001 pit on the Ward mine 

site. An unsafe ground condition was observed in the 

high wall of the 001 coal pit, and coal was being 

loaded from this pit. The condition was observed by 

the operator and no action was taken other than loading 

coal. 

An unsafe condition in relation to safe work areas 

shall be corrected promptly or the area effected shall 

be posted. The pit was examined and no action taken to 

remove or post. 

Citation No. 2944252 was issued as a section 104(a) citation 

on May 3, 1989, by MSHA Inspector James A. Young. The violative 

condition was abated by the operator to his satisfaction and 

Inspector Young terminated the citation at 12 noon on May 3, 1989. 

Later that day, Inspector Young went back to his office, 

discussed the conditions surrounding the citation with his 

supervisor and decided the conditions met the criteria for an 

unwarrantable failure. ·rherefore, the next day, May 4, 1989, 

Inspector Young modified the previously terminated Citation No. 

2944252 to a section 104 Cd><l> order. 

I find and conclude that the attempted modification cannot 

stand. The inspector no longer had the authority to modify the 

citation after he had terminated it. Once a citation is no 

longer in effect because it has been terminated, it cannot be 

modified. See: Old Ben Coal Co., Docket No. VINC 76-56 

(June 15, 1976) (ALJ Sweeney), Appeal dismissed, IBMA 76-104 

(October 19, 1981). 

988 
Citation No. 2944253; issued pursuant to section 104(d)(l) 

of the Act, charges a violation of the standard at 30 C.F.R. 

§ 77.1000 and alleges as follows: 

The established ground control plan for the Ward mine 

001 pit was not being complied with; in that, the high 

wall above this pit was not scaled back from the edge 

of the wall and all loose material was not removed. A 

required bench of 20' width was not present along the 

highwall above the working pit. Loose clay material 

was above the wall with mud mixed and water passing 

through this material and running into the pit. The 

bench provided on the highwall was only 10' and 

partially filled in with the clay material. Old 

entries were being crossed from an underground mine and 

part of the highwall had collapsed with only a 5' 

barrier left between the bench and the fall. The wall 

was straight up on one side without any bench present 

for over 40'. 

There is no dispute concerning the fact that on May 3, 1989, 

a required bench with a width of 20 feet was not present along 

the highwall above the working pit in violation of the ground 

control plan. 

The pit foreman was a Mr. Eubank and Inspector Young 

observed him on the day in question operating a backhoe, loading 

a coal truck in the bottom of the pit. At that time, Young also 

observ~d the highwall and noticed that it was not scaled back. 

Old underground entries from an underground mine were being 

crossed and part of the highwall had collapsed with a 5-foot 

barrier left between the bench and the wall. The wall was 

straight up on one side with out any bench 'present for over forty 

feet. There had be.en four or .five days of steady rain prior to 

this date and, due to the poor condition of the highwall, loose 

clay material, including rocks, was slipping over the highwall 

and running into the pit. Eubank admitted to Young that he had 

been aware of the condition of the highwall, yet he had continued 

to operate the backhoe because he needed to get the coal out of 

there. 

The widest part of the bench was ten feet, but it got down 

to seven to eight feet in various locations. The highwall itself 

was in excess of sixty feet high. According to the ground 

control plan, the bench was required to be twenty feet wide~ 

Inspector Young issued section 104(d)Cl) Citation 

No. 2944253 for a violation of 30 C.F.R. § 77.1000 because the 

established ground control plan for the Ward Mine 001 pit was not 

989 
being complied with - the highwall above the pit was not scaled 

back from the edge of the wall and a required bench of twenty 

foot width was not present along the highwall above the working 

pit. 

I find that violation to have been proven as charged. 

A "significant and substantial" violation is described in 

section 104Cd>Cl) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

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

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

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: 

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. 

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

1129, the Commission stated further as follows: 

We have e~plained 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)(l), 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). 

990 
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). 

Inspector Young testified that due to the condition of the 

highwall and the lack of size of the bench a discrete hazard was 

created, "[t]here was water in the pit; there was falling 

material of varying size, some of it large, some of it very 

heavy; there was silt; there was water coming over the side of 

the wall which was continually deteriorating the condition of the 

wall." (Tr. 23). Young's testimony demonstrates that there was 

a reasonable likelihood that the hazard contributed to would 

result in an injury. "It was very likely [that somebody could 

have been struck by the falling rock, mud, etc.] because we stood 

there and watched it fall. We were observing it fall the whole 

time we were there." (Tr. 34). Finally, Young's testimony shows 

that there was a reasonable likelihood that the injury in 

question would be of a reasonably serious nature. "We have 

documented records in our agency of fatalities from highwalls 

collapsing and rocks coming over the top." (Tr. 24). Young's 

testimony regarding these matters is uncontradicted, very 

credible and I do credit it fully. 

The Secretary also urges that I find this violation to be an 

"unwarrantable failure". 

In several relatively recent decisions concerning the 

interpretation and application of the term "unwarrantable 

failure," the Commission has further refined and explained this 

term, and concluded that it means "aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act." Emery Mining Corporation, 

9 FMSHRC 1997 (December 1987); Youghiogheny & Ohio Coal Company, 

9 .FMSHRC 2007 (December 1987); Secretary of Labor v. Rushton 

Mining Company, 10 FMSHRC 249 (March 1988). Referring to its 

prior holding in. the Emery Mining case, the Commission stated as 

follows in Youghiogheny & Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that is 

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

unwarrantable conduct is conduct that is described as 

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

unwarrantable failure by a mine operator as aggravated 

conduct constituting more than ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

991 
There is no question that the operator's actions constituted 

aggravated conduct. The foreman was aware of the hazardous 

conditions of the highwall and the bench but made no effort to 

correct the obvious conditions. Instead, the foreman himself 

proceeded to work directly under the highwall and exposed himself 

and the driver of the truck to the risk of death or serious 

injury. 

Citation No. 2944253 will be affirmed in its entirety. 

Furthermore, considering the entire record and the criteria in 

section llOCi) of the Act, a civil penalty of $400, as proposed, 

will be assessed as appropriate to the violation and special 

findings. 

On the same day Inspector Young also issued section 104(a) 

Citation No. 2944252 for a violation of 30 C.F.R. § 77.1004Cb) 

because the operator, after observing the above described 

conditions surrounding the 001 pit on May 3, 1989, did not 

correct these conditions nor did he post the area. 

It is also undisputed that the unsafe conditions of the 

highwall and the pit were not corrected promptly or posted as 

required by section 77.1004(b). Accordingly, that standard was 

violated. 

Inspector Young's unrebutted testimony demonstrates to me 

that the operator's failure to promptly correct the hazardous 

conditions at the highwall or to post the area exposed miners to 

the hazards of falling rocks and mud. Young found Eubank and a 

coal truck driver working directly under the highwall. Young's 

testimony also establishes that it was reasonably likely that the 

hazard contributed to would result in an injury by falling rock. 

Young observed rocks falling into the pit near Eubank and the 

truck driver. Finally, Young's testimony establishes the 

reasonable likelihood that any injury suffered from the falling 

rocks was likely to be fatal or at least produce a serious injury. 

Therefore, I find this violation to be significant and 

substantial as well. Mathies Coal Co., supra. 

For the reason stated earlier in this opinion, the purported 

order will thus be affirmed as an "S&S" section 104(a) citation. 

Considering the criteria in section llO(i) of the Act and 

the entire record herein, along with the arguments of the 

parties, I find that an appropriate civil penalty for this latter 

violation is $200. 

992 
ORDER 

1. Section 104(d)(l) Citation No. 2944253 is AFFIRMED. 

2. Section 104Ca) Citation No. 2944252, unsuccessfully and 

without effect modified to a Section 104Cd)(l) Order, is AFFIRM.ED 

as an "S&S" section 104Ca) Citation. 

3. Ten-A-Coal Company is ordered to pay the sum of $600 

within 30 days of the date of this decision as a civil penalty 

for the violations found herein. 

Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd. Rm., 516, Arlington, VA 22203 

(Certified Mail) 

Harold S. Yost, Esq., 126 W. Main Street, Bridgeport, WV 26330 

(Certified Mail) 

/ml 

993 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE-LAW JUDGES 

COLQNNADE CENTER ; 

ROOM 280. 1244 SPEER BOULEVARD. 

' DENVER. CO 00204 . . 

. MAY 4. \990 

SECRETARY OF LABO~, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CALIFORNIA LIGHTWEIGHT 

PUMICE, INC., 

Respondent~ 

Docket No. WEST 89-317-M 

A.C. No. 04-04602-05515 

Docket No. WEST 89-360-M 

A.C. No. 04-04602-05516 

Docket No. WEST 89-394-M 

A.C. No. 04-04602-05520 

Docket No. WEST 90-21-M 

A.C. No. 04-04602-05521 

Battle Mountain 

DECISION 

Appearances: Nancy E. Resnick, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

Before: 

for Petitioner; 

Mr. L. Kenneth Teel, President, California Lightweight Pumice, Inc., Capistrano Beach, California, 

for Respondent. 

Judge Morri~ . t ·~,,; 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 U.S.C. § 801, et seg. (the ACT). 

After notice to the parties, a hearing commenced in Las 

Vegas, Nevada, on January 9, 1990. The cases involved in the 

hearing were Docket Nos. WEST 89-317-M, WEST 89-360-M, and WEST 

89-394-M. . ' 

At the close of the hearing, respondent requested that it be 

permitted to present evidence as to its financial condition. In 

view of respondent's request, the hearing was reset to April 10, 

1990. Subsequently, Docket No. WEST 90-21-M, a newly assigned 

case, was also set for a hearing on said date. 

994 
Prior to the hearing, the parties reached an amicable 

settlement. ·under the terms of the settlement agreement, 

respondent agrees to pay the penalties originally assessed by the 

Secretary. The citations and the original assessments are as 

follows: 

Citation No. 

3286884 

3069863 

3069864 

3069866 

TOTAL 

3286892 

3463508 

3463509 

3463510 

3463511 

3463512 

3463513 

TOTAL 

3463959 

3462890 

3462891 

3462893 

3443076 

3443783 

TOTAL 

Docket No. WEST 89-317-M 

Assessments 

$ 84.00 

300.00 

500.00 

300.00 

$1,184.00 

Docket No. WEST 89-360-M 

$ 450.00 

Docket No. WEST 89-394-M 

$ 500.00 

46.00 

20.00 

150.00 

400.00 

400.00 

$1;516.00 

Docket No. WEST 90-21-M 

995 

$ 600.00 

600.00 

68.00 

50.00 

500.00 

400.00 

$2,218.00 
In support of their motion to approve the settlement, the 

parties have submitted information relating to the statutory 

criteria for assessing penalties as contained in 30 u.s.c. 

§ 820(i). 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. The settlement agreement is approved. 

2. The foregoing citations and proposed penalties are 

affirmed. 

3. Respondent is ordered to pay to the Secretary the sum of 

$5,368.00 within 60 days of the date of this decision. 

Law Judge 

Distribution: 

Nancy E. Resnick, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 

94105-2999 CCertif ied Mail) 

L. Kenneth Teel, President, California Lightweight Pumice, Inc., 

35541 Camino Capistrano, Capistrano Beach, CA 92624 

(Certified Mail) 

/ek 

996 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

. COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAY 301990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

· Petitioner 

v. 

CALIFORNIA LIGHTWEIGHT 

PUMICE, INC., 

Respondent 

Docket No. WEST 89-317~M 

A.C. No. 04-04602-05515 

·Docket No. WEST 89-360-M 

A.C. No. 04-04602-0551& 

Docket No. WEST 89-394-M 

A.C. No. 04-04602-05520 

Docket No. WEST 90-21-~ 

A.C. No. 04-04602-05521 

Battle Mountain 

MOTION TO AMEND DECISION 

Comes now John J. Morris, Administrative Law Judge, pursuant 

to Cornmision Rule 65(c), 29 C.F.R. § 2700.65(c), and states as 

follows: 

1. The decision herein was issued on May 4, 1990, and the 

Commission has not directed the decis.ion for rev,iew. 

2. On May 21, 1990, petitioner moved that the decision be 

amended to include in WEST 89~317-M the settlement of Citation 

No; 3069865 and the penalty ~herefor of $400.00. 

3. Petitioner states the Said citation was omitted due to 

inadvertent clerical error. 

4. Petitioner alleges respondent has stipulated to the 

correction of this omission. Further, the judge notes that the 

correction in this motion follows the disposition of the other 

17 citations. 

5. An amended decision is attached which incorporates 

Citation No. 3069865 with a penalty of $400. The total adjusted 

penalty is $5,768.00. 

Law Judge 

997 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAY 301990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION. (MSHA), 

Petitioner 

v. 

CALIFORNIA LIGHTWEIGHT 

PUMICE, INC. , 

Respondent 

Docket No. WEST 89-317-M 

A.C. No. 04-04602-05515 

Docket No. WEST 89-360-M 

A.C. No. 04-04602-05516 

Docket No. WEST 89-394-M 

A.C. No. 04-04602-05520 

Docket No. WEST 90-21-M 

A.C. No. 04-04602-05521 

Battle Mountain 

AMENDED DECISION 

Appearances: ~ancy E. Resnick, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petitioner; 

Mr. L. Kenneth Teel, President, California Lightweight Pumice, Inc., Capistrano Beach, California, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges respondent with violating 

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 commenced in Las 

Vegas, Nevada, on January 9, 1990. The cases involved in the 

hearings were Docket Nos. WEST 89-317-M, WEST 89-360-M, and WEST 

89-394-M. . 

At the close of the hearing, respondent requested that it be 

permitted to present evidence as to its financial condition. In 

view of respondent's request, the hearing was reset to April 10, 

1990. Subsequently, Docket No. WEST 90-21-M, a newly assigned 

case, was also set for a hearing on said date. 

998 
Prior to the hearing, the parties reached an amicable 

settlement. Under the terms of the settlement agreement, 

respondent agrees to pay the penalties originally assessed by the 

Secretary. The citations and the original assessments are as 

follows: 

Citation No. 

3286884 

3069863 

3069864 

3069865 

3069866 

TOTAL 

3286892 

3463508 

3463509 

3463510 

3463511 

3463512 

3463513 

TOTAL 

3463959 

3462890 

3462891 

3462893 

3443076 

3443783 

TOTAL 

Docket No. WEST 89-317-M 

Assessments 

$ 84.00 

300.00 

500.00 

400.00 

300.00 

$1,584.00 

Docket No. WEST 89-360-M 

$ 450.00 

Docket No. WEST 89-394-M . 

$ 500.00 

46.00 

20.00 

150.00 

400.00 

400.00 

$1,516.00 

Docket No. WEST 90-21-M 

999 

$ 600.00 

600.00 

68.00 

50.00 

500.00 

400.00 

$2,218.00 
In support of their motion to approve the settlement, the 

parties have submitted information relating to the statutory ~riteria for assessing penalties as contained in 30 u.s.c. 

§ 820(i). 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. The settlement agreement is approved. 

2. The foregoing citations and proposed penalties are 

affirmed. 

3. Respondent is ordered to pay to the Secretary the sum of 

$5,768.00 within 60 days of the date of this amended decision. 

Law Judge 

Distribution: 

Nancy E. ~esnick, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 

94105-2999 -(Certified Mail) 

L. Kenneth Teel, President, California Lightweight Pumice, Inc., 

35541 Camino Capistrano, Capistrano Beach, CA 92624 

CCertif ied Mail) 

/ek 

1000 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD . 

DENVER, CO 80204 

MAY 7 \990 

BEAVER CREEK COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BEAVER CREEK COAL COMPANY, 

Respondent 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. WEST 88-191-R 

Citation No. 3225156 

Trail Mountain Mine No. 9 

Mine ID 42-01211 

CIVIL PENALTY PRoCEEDING 

Docket No. WEST 88-319 

A.C. No. 42-01814-03517 

Trail Mountain No. 9 

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

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

for Petitioner/Respondent; 

David M. Arnolds, Esq., Thomas F. Linn, Esq., 

Beaver Creek Coal Company, Denver, Colorado, 

for Contestant/Respondent. 

Before: Judge Cetti 

Statement of the Proceeding 

These consolidated proceedings concern a Notice of Contest 

filed by the Contestant, Beaver Creek, pursuant to section 105(d) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 815(d), challenging the captioned citation issued by MSHA. The 

civil penalty proceedings concern proposals for assessments of 

civil penalties filed by MSHA seeking assessments against Beaver 

Creek for the alleged violation stated in the citation. 

After notice to the parties, the matter came on for hearing 

on the merits before me at Salt Lake City, Utah. Oral and documentary evidence was introduced, post-hearing briefs were filed, 

and the matters were submitted for decision. I have considered 

the arguments made on the record during the hearing in my adjudication of these matters and the post-hearing briefs filed by the 

parties. 

1001 
ISSUES 

1. Whether the condition and practice cited by the inspector constitutes a violation of 30 C.F.C. 75.1704 by Beaver Creek. 

2. If the alleged violation occurred, was it a "significant 

and substantial" violation. 

3. If a violation occurred, what is the appropriate penalty, in view of the statutory civil penalty criteria at Section 

llO(i) of the Act. 

STIPULATIONS 

The parties have agreed to the following stipulations, which 

I accept: 

1. Beaver Creek Coal Company is engaged in mining and sell~ 

ing of coal in the United States, and its mining operations 

affect interstate commerce. 

2. Beaver Creek Coal Company is the owner and operator of 

Gordon Creek No. 7 Mine, MSHA I.D. No. 42-01814, an underground 

coal mine. 

3. Beaver Creek Coal Company is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 821, et seq. ("the Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The exhibits to be offered by Beaver Creek Coal Company 

a~d the Secretary are stipulated to be authentic, but no stipulation is made as to their relevance or to the truth of the matters asserted therein. 

6. The proposed penalty will not affect Beaver Creek Coal 

Company's ability to continue business. 

7. Beaver Creek Coal Company demonstrated good faith in 

abating the violation. 

8. Beaver Creek Coal Company is a medium-size mine operator 

which had 537,321 tons of coal production in 1987. 

9. The certified copy of the MSHA Assessed Violations 

History accurately reflects the history of this mine for the past 

two years prior to the date of the citation. (Joint Ex. 1) 

1002 
Citation No. 3225156: 

Federal Coal Mine Safety and Health Inspector Larry W. Ramey 

made a Triple A inspection of Beaver Creek's underground coal 

Mine, Gordon Creek No. 7. The inspector cited Beaver Creek for 

the alleged violation of 30 C.F.R. § 75.1704. This mandatory 

regulation essentially restates section 317Cf)(l) of the Mine 

Act, 30 u.s.c. § 877(f)(l) and provides: 

§ 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 surface 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 the entrance 

into the underground are of the mine of surface fires, 

fumes, smoke, and floodwater. Escape facilities approved 

by the Secretary or his authorized representative, properly maintained and frequently 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 even of an emergency. (Emphasis added.) 

Inspector Ramey, in Citation No. 3225156, described the 

alleged violative condition he observed as follows: 

The alternate escapeway belt entry, located in first 

south active section, and main conveyor belt entry was 

not being maintained in the condition to allow all persons, including disabled persons, to escape quickly to 

the surface in the event of an emergency. The following 

conditions did not comply with 75.1704-lA, location as 

follows: First south number one undercast, number nine 

crosscut, outby step platform to belt sixty-two inches 

wide, inby steps to belt sixty-two inches wide. Undercast number eight, crosscut, inby step sixty-nine inches 

wide to belt, outby steps sixty-nine inches to belt. 

1003 
Number three, distance from eight undercast to main belt 

line approximately thirty feet in length, the width between the coal rib and the belt line and belt drive is 

fifty-two inches to forty-four inches in width. Number 

four, the crossunder the main belt is sixty inches wide 

by twenty-four and a half inches high. This condition is 

where the first south belt dumps on to the belt line. NumNumber five, main belt line belt check stoppings located 

located at number four overcast, two steel doors installed 

on each wall forty inches wide by sixty-three inches high. 

Number six, number one crosscut belt checks stopping steel 

door forty inches wide by sixty-three inches high. Number 

seven, steel located at mouth of entry, outside entrance, 

ninety-three inches high by forty-eight inches wide~ see 

diagram below, not to scale. 

Inspector Ramey, after reviewing the Gordon Creek mine map, 

determined that the main intake was the primary escapeway and the 

section belt line was the alternate escapeway. He went underground, accompanied by the mine's general foreman, John Perla, to 

inspect the first south working section. While walking the belt 

line outby, the inspector noted the seven different obstructions 

described in the citation he issued to Beaver Creek. Each of 

these cited obstructions were measured by both. Inspector Ramey 

and Foreman Perla. These measurements were not disputed. 

Inspector Ramey testified that the most serious obstruction 

was the crossunder the main belt at the place where the first 

south belt dumps onto the main belt line. He testified that to 

travel the escapeway at that area "you had to literally get down 

and crawl underneath the main belt to get on the other side of 

the main belt to continue on down toward the outside." 

To travel the escapeway, the miner is required to crawl a 

distance of 4.5 feet under this obstruction with only a 24.5-inch 

clearance from the mine floor to the bottom of the main belt line. 

The Secretary points out that, in addition to the 24.5-inch 

high crossunder the main belt, there are the other cited conditions in the alternate escapeway which included undercasts [items 

Cl) and (2) in the citation] which required miners traveling this 

escapeway to ascend and descend steps after crossing platforms 

built over the undercasts and with a wide clearance between the 

coal rib and the belt drive which narrowed to only 44 inches. 

(No. 3 in the citation). 

However, as Beaver Creek points out in its brief, Inspector 

Ramey's testimony was clear that he considered only one point 

in the escapeway, the crossunder at the main belt, designated as 

1004 
No. 4 in the citation, to be an actual obstruction to passage and 

that he cited the other six points only because they did not meet 

the criteria of Section 75.1704-l(a). For instance, Mr. Ramey 

stated that, if the 69-inch wide steps at the No. 8 crosscut had 

been three inches wider, he would not have cited them, yet the 

three inches would have had "no bearing, very little effect," on 

the ability of men to pass. Mr. Ramey further agreed that the 

doors he cited at points 5, 6, and 7 allowed one person to pass 

fairly easily and that he cited them only because they failed to 

meet the criteria of Section 75.1704-l(a). Mr. Ramey confirmed 

that the crossunder was his only concern as follows: 

Q. And do I understand your testimony that this is the one 

hazard in the citation that you recognized as an obstruction~ that is, that miners would have to get down and crawl 

under [the crossunder] on their way up? 

A. That's correct. 

Mr. Ramey repeated this a short time later. 

Q. Is it your testimony then, in essence, that the one obstruction was in the escapeway, which was the crossunder, and 

that the other points were cited because of the violation or 

the lack of compliance with 1704-l(a). 

A. 30 CFR § 75.1704 was cited because of the 24.5-inch space 

that you had to get down and crawl through. The other areas 

mentioned here were cited because the law states that the 

District Manager has to approve that escapeway if an operator installs that or it should be approved by the District 

Manager. In my opinion, these guidelines were set out, were 

tested that this was the most economical and feasible way, 

due to the width and height, to quickly allow persons to 

escape out of an area. 

In Secretary of Labor v. Utah Power & Light Co., No. WEST 

No. 87-211-R, et al., 11 FMSHRC 1926 (October 27, 1989), the 

commission hela---that the criteria set forth in 30 CFR 

75.1704-l(a) aren't mandatory requirements, and the proper test 

for adequacy of escapeways is whether they are "maintained to 

insure passage at all times of any person, including disabled 

persons," as provided in 30 CF"R 71.1704. 

The panel said that 30 CFR 75.1704 establishes a "general 

functional test" of "passability" and doesn't impose upon operators any obligation to seek MSHA's prior approval for their 

escapeways. 

1005 
The commission explained in footnote No. 5, that the term 

"passability" as used in the decision, was as an abbreviated 

expression for the phrase in section 75.1704, "maintained to 

insure passage at all times of any personi including disabled 

persons." 

Inspector Ramey's testimony that Section 75.1704 "was cited 

because of the twenty-four and one-half-inch (height of the 

undercross of the main belt) that you had to get down and crawl," 

makes it clear that the real issue is whether a 24.5-inch high 

cross-under of the 48-inch wide main belt would insure passage at 

all times of any person, including a disabled person. The indeinspector was clearly of the opinion that it did not. Upon 

independent review and evaluation of all the evidence, I agree 

with Inspector Ramey's opinion. 

Based upon the undisputed measurements and the credible testimony of Inspector Ramey, I find that the 24.5-inch height of 

the 4.5-foot long undercross of the main belt is a hindrance that 

would not insure the passage at all times of any person including 

disabled persons, particularly in a disaster-type situation where 

the entry could be filled with smoke. 

I find that the evidence is insufficient to conclude that 

the violation was significant and substantial in nature. The 

reasons are given below. 

Beaver Creek states that 'its only means of abating the citation was to designate the return entry as the alternate escapeway. 

However, in Beaver Creek's opinion, the belt entry with its 

necessary obstructions was safer than the return. Beaver Creek . 

gave four reasons for its opinion: 1) all smoke is vented to the 

return; 2) the belt itself provides a guide to follow in smoke 

while there is none in the return; 3) the return entry was longer 

than the belt entry; and 4) the return had seven turns at which 

miners could get lost in smoke. Beaver Creek asserts, therefore, 

that miners are more likely to get lost in the smoke in the 

return than they would in the belt entry. 

Several months after the citation was issued, Beaver Creek 

performed and photographed (Exhibits 4A through 4E) a test used 

by MSHA for granting variance from the Section 75.1704-l(a) criteria. The test consisted of two men carrying a third man on a 

stretcher through all points at issue. John Perla, the mine's 

general foreman, took part in the test and testified that the 

test demonstrated that all the cited points could be passed 

without difficulty. He stated that they had no difficulty in 

1006 
going through the (main belt) crossunder and that, although they 

were slowed .down somewhat, the delay was "maybe seconds" but not 

"anything measurable." The belt was protected along each side by 

a rope and underneath by a guard. Beaver Creek also presented 

evidence that the condition cited 1) had existed for years; 

2) had been inspected many times without citation; and 3) in 

Beaver Creek's opinion, was safer than the alternatives it had. 

Beaver Creek contends that there was no violation and, even 

if there was one, it could not be found negligent for the abovestated reasons. Beaver Creek's contention that it was not negligent is rejected. Even assuming arguendo, negligence on the part 

of the enforcing agency, that negligence does not excuse an operator's negligence, nor does it preclude a finding of negligence 

for Beaver Creek's failure to fulfill its responsibility under 30 

CFR § 75.1704. This failure was due to the operator's lack of 

due diligence and indifference, which is ordinary negligence. 

There is merit, however, in Beaver Creek's assertion that 

the violation was not significant and substantial. 

A violation is properly designated "significant and substantial" if, based on the particular facts surrounding that violation, there exists a reasonble 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, 815 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984), the Commission explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary 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 reasonable serious 

nature. 

Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 (5th 

Cir. 1988). 

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," 

1007 
and that the likelihood of injury must be evaluated in terms of 

terms of continued normal mining operations. U.S. Steel Mining 

Co., 6 FMSHRC 1573, 1574 (July 1984). See also Monterey Coal 

Co., 7 FMSHRC 996, 1001-02 (July 1985). The operative time frame 

for determining if a reasonable likelihood of injury exists includes both the time that a violative condition existed prior to 

the citation and the time that it would have existed if normal 

mining operations had continued. Halfway, Inc., 8 FMSHRC 8, 12 

(January 1986>1 U.S. Steel ~ining Co., 7 FMSHRC 1125, 1130 

(August 1985). The question of whether any particular violation 

is significant and subtantial must be based on the particular 

facts surrounding the violation, including the nature of the mine 

involved. Texasgulf, Inc., 10 FMSHRC 498, 500-01 (April 1988)1 

Youghiogheny & Ohio Coal Company, 9 FMSHRC 1007, 2011-12 (December 1987). Finally, the Commission has emphasized that 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 Co., 

6 FMSHRC 1834, 1836 (August 1984). 

Under this precedent and based upon my independent review 

and evaluation of all the evidence, including the testimony of 

Mr. Perla, the mine foreman, I find the evidence presented is 

insufficient to establish that Beaver Creek's violation was significant and subtantial in nature. In partic~lar, with regard to 

the third and tourth elements of the Mathies test, I find the 

evidence presented fails to show a reasonable likelihood that the 

hazard contributed to will result in an injury of a reasonable 

serious nature. See Rushton Mining Co. v. Secretary of Labor, 

No. PENN 88-99-R 11 FMSHRC 1432, 1437. (August 24, 1989). 

Civil Penalty 

Section llO(i) of the Act mandates consideration of six 

criteria in assessing a civil penalty. In compliance with the 

mandate, I have considered the following: 

The parties stipulated the operator's business was of medium 

size. The mine produced 537,321 tons of coal the year prior to 

the issuance of the citation. 

The parties stipulated that the proposed penalty would not 

adversely affect Beaver Creek's ability to continue in business. 

Exhibit JE-1, a computer printout, indicated that within the 

last two years Beaver Creek was assessed 20 violations. 

I find the operator's negligence to be moderate. The company should have known that the 24.5-inch height of the underpass 

of the main belt does not comply with the mandate of the cited 

safety standard. 

1008 
The gravity was high. A miner or a disabled miner attempting to escape during an emergency situation could have been 

seriously impeded. 

The company demonstrated good faith in rapidly abating this 

violative condition. 

Everything considered, ! find tht a civil penalty of $160 is 

appropriate for this violation. 

ORDER 

1. Citation No. 3225156 is modified to delete the characterization "significant and substantial" and, as modified, the 

citation is affirmed. 

2. Contest Proceeding Docket No. WEST 88-191-R is 

dismissed. 

3. Beaver Creek Coal Company is ordered to pay the sum of 

$160 within 30 days of the date of this decision as a civil 

penalty for the violation found herein. 

F. Cetti "~· 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, Beaver Creek Coal Company, 555 Seventeenth Street, 20th Floor, Denver, CO 80202 

(Certified Mail) 

/ek 

1009 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 8 1990 

THOMAS F. HEFNER, JR., DISCRIMINATION PROCEEDING 

Complainant 

v. 

TEXAS LEHIGH CEMENT COMPANY, 

Respondent 

Docket No. CENT 90-62-DM 

MD 89-121 

ORDER OF DISMISSAL 

Before: Judge Maurer 

The Complainant, Thomas F. Hefner, Jr., requests approval 

to withdraw his complaint in the captioned case. He no longer 

desires a hearing concerning this matter. Under the circumstances herein, permission to withdraw is granted, and the case 

is therefore dismissed. 

Distribution: 

Mr. Thomas Francis Hefner, Jr., 206 Pin Oak Drive, Buda, TX 

78610 (Certified Mail) 

Brian S. Greig, Esq., Elizabeth Collum, Esq., Fulbright & 

Jaworski, 600 Congress Avenue, Suite 2400, Austin, TX 78701 

(Certified Mail) 

/ml 

1010 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 8 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v •. 

HINKLE CONTRACTING CORP., 

Respondent 

1990 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-5-M 

A.C. No. 15-00099-05514 

Strunk Crushed Stone 

DECISION 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee 

for Petitioner; 

Robert M. Connolly, Esq., Stites & Harbison, 

Louisville, Kentucky for Respondent. 

Before: Judge Melick 

This case is before me upon remand by the Commission on 

April 4, 1990, to consider the parties' post-hearing briefs 

and to reevaluate the decision rendered in these proceedings 

on March 9, 1990, in light of those briefs. 

Respondent maintains in its brief that the unguarded 

belt cited in this case (Citation No. 3438481) was 

nevertheless safe because Cl) it was at or above shoulder 

height for any man using the adjacent walkway, (2) no one 

has ever been injured by the unguarded belt, (3) the height 

of the belt effectively served as a guard, (4) it would be 

impossible to fall on the belt, (5) a kill switch is not 

vital to safety on larger conveyors, (6) greasing, 

maintenance and clean-up are performed during the evening 

shift while the conveyor is not operating and, (7) workers 

were aware that the kill switch was inoperable. 

I have evaluated all of the factors cited by Respondent 

as purportedly demonstrating the safety of the unguarded belt 

with an inoperable kill switch but find them to be 

unsubstantiated, without merit, or both. Even assuming that 

the belt was located at or above shoulder height for workers 

using the walkway this does not afford protection to the arms 

and hands of persons who may be caught and/or drawn into the 

belt. In addition, even assuming that no one had ever been 

1011 
injured by the belt it cannot reasonably be inferred from 

such evidence under the circumstances herein that serious 

injuries wbuld not occur in the future~ 

Moreover even assuming that the height of the belt 

would prevent persons from falling onto the belt the greater 

hazard is presented by pinch points. The bald statement that 

a "kill switch" is not vital to safety on larger conveyors is 

without evidentiary support and contrary to common sense. 

In addition even assuming that greasing, maintenance and 

clean-up were performed during the evening shift while the 

belt was not operating it is not disputed that the inspector 

himself and other persons observed by the inspector were 

using the walkway adjacent to the conveyor while the belt was 

in operation. Even assuming that workers were aware that the 

kill switch was inoperable the inherent hazard of the 

unguarded belt with an inoperable kill switch was 

nevertheless present. 

Respondent.also maintains in its brief that it was 

without negligence in failing to guard its conveyor and in 

failing to have an operable kill switch because MSHA 

Inspectors Erickson and Manwarring had granted them a 

specific exception from the application of the cited 

mandatory standard. If such an exception had been 

established by credible evidence the argument might have some 

merit. However, Respondent has simply failed to adequately 

support its allegations. 

In any event, mine operators may be presumed to know the 

law £or obtaining modification of the application of 

mandatory standards under section 10l(c) of the Act. 

Likewise mine operators may be presumed to know that MSHA 

inspectors do not have the authority to grant exceptions 

rnodif ications to the application of mandatory standards. 

negligence and unwarrantable failure findings reached in 

case are therefore fully supported. 

or 

The 

this 

With respect to Citation No. 3438483 Respondent argues 

that the decision failed to taken into account the fact that 

it had, before the citation was issued, spent three days 

removing over 200 tons of rock to improve the condition of 

the cited highwall. Even assuming this representation were 

true however the evidence shows that these corrective 

measures were discontinued well before the job of scaling the 

highwall had been completed. There was no credible evidence 

moreover that the operator intended to resume work on the 

highwall. In any event the negligence findings were based in 

part upon the Respondent's abandonment of correcting the 

highwall conditions. 

1012 
Under the circumstances I find no basis for amending the 

findings i.n the decision dated March 9, 1990. 

ORDER 

Hinkle Contracting Corporation 

civil penalties of $1,350 within 30 

decision. J 

:f 

·~ 

\ ... ! 

LJ j / 

is herebi directed to pay 

days of ~he date of t~is 

: 1 • ; _l 

J ; 

/Gary Melick 

Administrative 

;\ 

Law Judge 

Distribution: 

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) 

Robert M. Connolly, Esq., Stites & Harbison, 600 West Main 

Street, Louisville, KY 40202 (Certified Mail) 

nt 

1013 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CENTRAL OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION CMSHA) , Respondent 

SECRETARY OR LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CENTRAL OHIO COAL COMPANY, 

Respondent 

MAY 10 1990 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. LAKE 89-53-R 

Citation No. 2950074;1/20/89 

Muskingum Mine 

Mine ID 33-00989 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 89-91 

A.C. No. 33-00989-03571 

Muskingum Mine 

Appearances: Patrick M. Zohn, Esq., U.S. Department of Labor, 

Office of the Solicitor, Cleveland, OH, for the 

Secretary of Labor; 

David A. Laing, Esq., Porter, Wright, Morris and 

Arthur, Columbus, OH, for Central Ohio Coal Company. 

Before: Judge Fauver 

The Company seeks to vacate a citation and the Secretary 

seeks its affirmance, with a civil penalty, under the Federal 

Mine Safety and Health Act of 1977, 30 c.F.R. § 801 et seq. 

The pivotal issue is whether the Company's 16-mile railroad 

track at its surface coal mine is an "active working area" within 

the meaning of 30 c.F.R. § 77.1713Ca). 

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: 

1014 
FINDINGS OF FACT 

1. Central Ohio Coal Company owns and operates a surface 

coal mine, known as the Muskingu..m Mine, which·encompasses 135,000 

to 140,000 acres. 

2. At all relevant times, the mining process commenced with 

the uncovering and extraction of coal from five pit areas, from 

which the coal was transported by truck to the north end tipple. 

From the tipple, the coal was conveyed by rail to the south end 

preparation plant, where the coal was washed and conveyed off the 

mine premises. 

3. The railroad connecting the north end tipple and the 

south end preparation plant has been in existence for about 20 

years. The railroad is 16 miles long and generally runs through 

remote areas of the mine. It does not pass through or near any 

pit area. 

4. The train can be operated manually or by automatic 

control but is manned by a train operator, called a "trip 

rider." 1/ He or she usually operates the locomotive for half the 

trip and-frequently more than half the trip. When the train is 

on "automatic," the operator stays near the controls. At the 

time of the citation, the duties of the train operator included 

operating the train, observing the railroad track (from:, the 

locomotive) and recording hazards or track conditions warranting 

attention. The day shift foreman had the duty of reviewing the 

inspection logs prepared by the train operators. 

5. On January 20, 1989, MSHA Inspector Robert Grissett 

issued Citation No. 2950074, alleging a violation of 30 C.F.R. 

§ 77.1713(a), as follows: 

Records indicated that this railroad system 

was being examined each shift, however the 

examinations were not being conducted by a certified 

person. 

1/ The company designates the train operator position as 

"trip-rider." This seems to be a misnomer, since the employee 

operates the train at least half the trip, and when the train is 

on automatic he or she remains available to operate the controls 

when needed. This seems analogous to calling an airline pilot a 

"plane rider" because part of the time the plane is on automatic 

pilot or instrument control. Except for a confusing title, the 

train employee's job and duties are understood and not in dispute 

on this record. In this decision, the job is called "train 

operator," rather than "train rider," in the interest of closer 

accuracy. 

1015 
6. Inspector Grissett issued the citation because the 

individuals examining the railroad -- the train operators -- were 

not certified examiners. 

7. In Ohio, "certification" requires that an individual 

obtain a surface foreman's license by passing an exrunination 

given by the Ohio Mine Examining Board. There is no 

certification for the position of train operator or "train rider." 

8. Inspector Grissett had been inspecting this mine for 11 

years. Prior to the citation, MSHA had not required that a 

certified person inspect the railroad, or asked for any records 

pertaining to the inspection of the railroad. For at least five 

years preceding the citation, Inspector Grissett had not 

inspected the 16 miles of railroad. 

9. Around January 19, 1989, MSHA offered to permit the 

train operators to inspect the railroad if they maintained an 

inspection log and if the supervisor of the railroad reviewed the 

log daily and rode the train once every two weeks. If the 

Company had agreed to this, the citation apparently would not 

have been issued. However, when a mutual agreement did not 

materialize, Inspector Grissett requested an interpretation from 

MSHA and subsequently concluded that the railroad was an "active 

working area" within § 77.1713Ca) because of the presence of 

individuals -- such as the train operators and track crew --

working on the train or in the vicinity of the track. He equated 

"active working area" as used in§ 77.1713(a) with "active 

workings" as defined in 30 C.F.R. § 77.2(a). 

10. For about a month before the citation, the Company had 

been maintaining an inspection log filled in by the train 

operators. This practice was commenced at the recommendation of 

the Ohio Division of Mines. It was not based on any violation of 

Ohio mining law. 

11. A track crew worked on the railroad each day. The 

train passed the crew twice on each roundtrip. 

12. A number of derailments had occurred in recent times. 

These dangers gave rise to a complaint to MSHA which resulted in 

the subject investigation and citation. 

DISCUSSION WITH FURTHER FINDINGS 

The key issue is whether the 16-mile railroad is an "active 

working area" within the meaning of 30 C.F.R. § 77.1713(a), which 

provides in part: 

1016 
(a) At least once during each working shift, or 

more often if necessary for safety, each active working 

area and each active surface installation shall be 

examined by a certified person designated by the 

operator to conduct such examinations for hazardous 

conditions and any hazardous conditions noted during 

such inspection shall be reported to the operator and 

shall be corrected by the operator. 

The term "active working area" is not defined in the Act or 

in the regulations, but the Secretary contends it is synonymous 

with the definition of "active workings" in§ 77.2{a), which 

states: 

(a) "Active workings" means any place in a coal mine 

where miners are normally required to work or travel; 

*** 

The Secretary contends that, because the railroad is an area 

"where miners are normally required to work or travel," and the 

railroad is an integral part of the mine, it is necessarily an 

"active working area" within the meaning of§ 77.1713(a). The 

Company submits that "active working area" is not synonymous with 

"active workings," that its railroad is not an active working 

area as that term is used in§ 77.1713(a), and that safety 

standards with respect to the railroad are governed by Subpart Q 

of 30 C.F.R. Part 77, not§ 77.1713(a). 

Section 77.1713(a) requires that, at least once during each 

working shift, "each active working area and each active surface 

installation shall be examined by a certified person ••• " 

(emphasis added). Although not defined in§ 77.2, "surface 

installations" are the subject of considerable regulation in 

Subpart C of Part 77. Section 77.200, entitled "Surface 

Installations: General," provides that: 

All mine structures, enclosures, or other facilities 

(including custom coal preparation) shall be maintained 

in good repair to prevent accidents and injuries to 

employees. 

If "active working area" in § 77.1713(a) were synonyoous 

with "active workings" in§ 77.2(a), the reference in · 

§ 77.1713{a) to "active surface installation" would be 

superfluous. A statute or regulation should be construed so as 

to avoid making any word superfluous. United States v. Handy, 

761 F.2d 1279, 1280 (9th Cir. 1985); King v. Internal Revenue 

Service, 688 F.2d 488, 491 (7th Cir. 1982); Zeigler Coal Co. v. 

Kleppe, 536 F.2d 398, 406 (D.C. Cir. 1976). As stated in 

1017 
Suwannee River Finance, Inc. v. United States, 7 U.S. Cl. Ct. 

556, 560 (1985): 

It is axiomatic that regulations must be-interpreted to 

give meaning to every word, particularly where doing so 

leads to an entirely sensible interpretation of the 

provision in question. 

The language of§ 77.1713(a), similar language contained 

elsewhere in Part 77, and MSHA's own Policy Manual interpretation 

of § 77.1713(a) support the conclusion that "active working area" 

in § 77.1713(a) refers to the pit areas of surface coal mines 

in other words, the working areas where coal is mined and 

extractell. 

Section 77.1004(a) uses the term "working areas" as follows: 

Highwalls, banks, benches, and terrain sloping into the 

working areas shall be examined after every rain, 

freeze, or thaw before men work in such areas, and such 

examination shall be made and recorded in accordance 

with§ 77.1713. [Emphasis added.] 

Terms such as "highwall," "bank," and "bench" are clearly 

associated with the "pit" areas of a surface coal mine where coal 

is uncovered and extracted. Y In § 77.1004, "working area" thus 

refers to the pit or mining areas of a surface coal mine. In 

addition, § 77.1004 provides that examinations conducted pursuant 

to§ 77.1004 "shall be made and recorded in accordance with§ 

77.1713," indicating that "working areas" as used in both 

sections has the same meaning. Statutory or regulatory phrases 

are not construed in isolation. They must be construed in the 

context of the statute or regulation as a whole. Barnson v. 

United States, 816 F.2d 549, 554 ClOth Cir. 1987), cert. denied, 

484 U.S. 896 (1987) (citing United States v. Morton~? U.S. 

822, 828 (1984). As stated in Barnson: 

'!:._/ A "highwall" is "the unexcavated face of exposed 

overburden and coal or ore in an opencast mine or the face or 

bank on the uphill side of a contour strip mine excavation." 

Bureau of Mines, A Dictionary of Mining, Minerals, and Related 

Terms, 543 (1968). A "bench" for purposes of a surface mine is 

"a ledge, which, in open-pit mines and quarries, forms a single 

level of operation above which mineral or waste materials are 

excavated from a continguous bank or bench face." Id. at 96. See 

also 30 C.F.R. §§ 77.1000 et~· as evidencing that "highwalls," 

"banks," and "benches" are part and parcel of the "pit" or mining 

areas of a surf ace coal mine. 

1018 
Generally, when the same words are used in different 

sections of the law, they will be give~ the same 

meaning.· [Citation omitted. J 

See also Arnold v. Eastern Air Lines, Inc., 712 F.2d 899, 904 

(4th Cir. 1983), cert. denied, 464 U.S. 1040 (1984) ("the canon 

of construction is-we-11 established that words repeated within 

the same statutory section have an identical meaning in the 

several places employed")1 Tre-State Terminals, Inc., v. Jesse, 

596 F.2d 752, 757 (7th Cir. 1979) (the connotation of a term in 

one portion of an act may often be clarified by reference to its 

use in others) • 

In its Program Policy Manual, MSHA states with respect to 

§ 77.1713: 

MSHA will continue to require that daily 

on-shift examinations be made in accordance 

with this Section at active working areas of 

surface mines, active surface installations 

at these mines, and preparation plants not 

associated with underground coal mines. MSHA 

will not require daily on-shift examinations 

of the surf ace work areas of underground coal 

mines. [Emphasis added.] 

MSHA's Policy Manual is consistent with the interpretation 

that "active working area" in§ 77.1713(a) means the "pit" or 

"mining area" of a surface coal mine and not simply any location 

where miners are normally required to work or travel. 'fhis seems 

to be a reasonable regulatory distinction, since non-mining areas 

of surface mines, like the surface areas of underground mines, 

are generally not subject to the shift-by-shift changes that may 

characterize the working sections underground (e.g. methane 

accumulation, roof falls, inadequate ventilation) or the pit or 

mining areas of surface coal mines (as the result of drilling, 

blasting and mining operations and the presence of highwalls, 

benches, etc. ) • 

This interpretation of § 77.1713(a) is consistent with the 

fact that MSHA did not require the Company to conduct on-shift 

inspections of haulage roads not located in the pit areas or 

on-shift inspections of the service road that runs parallel to 

the railroad track, even though miners work on or travel these 

roads. It is also consistent with the fact that for 20 years, 

before this citation, MSHA did not require that a certified 

person inspect the railroad. 

1019 
Section § 77 .1713 is included in "Subpart R --

Miscellaneous," which does not refer to railroads or track 

haulage. However, Subpart Q, entitled "Loading and Haulage," 

sets forth numerous mandatory safety standards with respect to 

loading, haulage equipment, trains and railroad tracks. See, 

e.q., §§ 77.1603, 77.1605(m), (n), (p), 77.1606 and 77.1607(v), 

Cw>, (y), and (z). Section 77.1606 is entitled "Loading and 

haulage equipment; inspection and maintenance." Section 

77.1606(a) requires an inspection of mobile loading and haulage 

equipment by a "competent" person and§ 77.1606(b) requires 

inspections of carriers on aerial tramways, as well as the 

bra~es, ropes, and supports thereof. 

Thus, in Subpart Q the Secretary has set forth explicit 

safety standards as to haulage equipment, including trains and 

railroads. Where she found it appropriate, the standards include 

the inspection of loading and haulage equipment. If the 

Secretary had intended that a certified person inspect a railroad 

track each shift, she would clearly have stated such requirement 

in Subpart Q and not relied upon unclear language under the 

"miscellaneous" subpart. For example, a logical place for such a 

requirement would be § 77.1606. 1/ 

Finally, it may be noted, § 77.1713(a) is the surface coal 

mine counterpart to § 75.304, which requires on-shift 

examinations of each "working section" of an underground coal 

mine. Like§ 77.1713(a), § 75.304 requires that at least once 

during each working shift, or more often if necessary for safety, 

each working section shall be examined for hazardous conditions 

"by certified persons designated by the operator to do so." As 

defined in § 75.2, "working section" has a much narrower 

definition than "active working." 4/ 

ll Section 77.1606 states in part: 

"(a) Mobile loading and haulage equipment shall be inspected by a 

competent person before such equipment is placed in operation .***" 

"(b) Carriers on aerial tramways •.• shall be inspected each 

shift; brakes shall be inspected daily; ropes and supports shall 

be inspected as recommended by the manufacturer or as physical 

conditions warrant. ***·" 

_!/Section 75.2Cg)(3) defines "working section" as "all areas of 

the coal mine from the loading point of the section to and 

including the working faces." 

1020 
For all of the foregoing reasons, the Secretary's attempt to 

equate "active working area" as used in§ T7.1713Ca) with "active 

workings" in § 77.2Ca) is ~ejected. I conclude that § 77.1713Ca) 

does not apply to the railroad at the subject mine. Citation No. 

2959974 is therefore invalid. 

CONCLUSIONS OF LAW 

.1. The judge has jurisdiction over these proceedings. 

2. The Secretary failed to prove a violation of 

§ 77.1713Ca) as alleged in Citation No. 2959974. 

ORDER 

1. The Secretary's motion to correct the transcript is 

GRANTED. 

2. Citation No. 2959974 is VACATED. 

3. The civil penalty proceeding is DISMISSED. 

l..l:ll :_~ ~4'M"&A- ~Fauver 

Administrative Law Judge 

Distribution: 

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

Solicitor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

David A. Laing, Esq., Porter, Wright, Morrios & Arthur, 41 S. 

High Street, Columbus, OH 43215 (Certified Mail) 

iz 

1021 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

MAY 151990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 89-103-M 

A.C. No. 14-01492-05501 

v. 

Portable No. 2 

WALKER STONE COMPANY, 

INCORPORATED, 

Respondent 

Docket No. CENT 89-158-M 

A.C. No. 14-00612-05502 

Appearances: 

Before: 

Plant C Mine 

DECISIONS 

Dewey P. Sloan, Jr., Esq., Office of the 

Solicitor, U.S. Department of Labor, Kansas City, 

Missouri, for the Petitioner; 

David s. Walker, President, Walker Stone Company, 

Incorporated, Chapman, Kansas, Pro se, for the 

Respondent. 

Judge Koutras 

Statement of the Proceedings 

These civil penalty proceedings concern proposals for 

assessment of civil penalties filed by the petitioner against the 

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

and Health Act of 1977, 30 u.s.c. § 820(a). The petitioner seeks 

civil penalty assessments against the respondent for six (6) 

alleged violations of certain mandatory safety standards found in 

Part 56, Title 30, Code of Federal Regulations. The respondent 

filed answers and contests, and hearings were convened in Topeka, 

Kansas. 

Issues 

The issues presented in these cases are (1) whether the 

conditions or practices cited constitute violations of the cited 

mandatory safety standards; (2) whether several of the alleged 

1022 
violations were "significant and substantial," and (3) the 

appropriate civil penalties to be assessed for the violations, 

taking into account the civil penalty assessment criteria found 

in section llO(i) of the Act. 

In Docket No. CENT 89-158-M, the respondent raised a question of jurisdiction claiming that the location where the alleged 

violations were cited was not subject to MSHA's enforcement 

jurisdiction because no mining activities covered by the Act are 

taking place at that site. 

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. Sections llO(a) and (i) of the 1977 Act, 30 u.s.c. 

§ 8 2 O ( a) and ( d) . 

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

Findings and Conclusions 

Docket No. CENT 89-103-M 

In this case, the respondent was cited on January 19, 1989, 

for three alleged violations. Section 104(a) non-S&S Citation 

No. 2651871, cited an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.13011, because of an inoperative pressure 

gauge on the air receiver tank of a compressed air drill. The 

inspector found that the violation resulted from a moderate 

degree of negligence, and that an injury was unlikely. The 

violation was abated and the citation was terminated after a new 

pressure gauge was installed on the compressor. 

Section 104(a) S&S Citation No. 2651874, cited an alleged 

violation of 30 C.F.R. § 56.12025, for the failure by the respondent to provide an adequate grounding device for the 110 volt 

parts cleaning machine. The inspector found that an injury was 

reasonably likely, and that the violation resulted from a moderate degree of negligence. The violation was abated and the 

citation was terminated after the machine was properly grounded 

by the installation of a new cable equipped with a grounding 

conductor and proper plug. 

Section 104(a) S&S Citation No. 2651877, cited an alleged 

violation of 30 c.F.R. § 56.12025, for the failure by the respondent to properly ground a 3 horsepower 3 phase 220 volt grinder. 

The inspector found that an injury was reasonably likely, and 

that the violation resulted from a mo~erate degree of negligence. 

The violation was abated and the citation was terminated after 

1023 
the grinder was grounded properly by the installation of a 

grounding wire from the fuse safety switch to the grinder motor. 

When the hearing in this case was convened the parties 

advised me that they proposed to settle the case, and the respondent conceded that the violations occurred and agreed to pay the 

proposed civil penalty assessments in full. In this regard, the 

parties stipulated to the following: 

1. The respondent's portable number two plant is 

subject to the Act and to MSHA's enforcement 

jurisdiction. 

2. The respondent is a small crushed stone operator who employs approximately 3 to 15 miners during the 

course of its mining operation. 

3. Payment of the proposed civil penalty assessments will not adversely affect the respondent's ability to continue in business. 

4. The respondent has no history of prior 

assessed civil penalties for violations of any mandatory safety or health standards. 

The inspector who issued the citations was present in the 

court room, and he expressed his agreement with the proposed 

settlement disposition of this case. After careful consideration 

of the pleadings and arguments presented by the parties in 

support of the proposed settlement of this case, and pursuant to 

Commission Rule 30, 29 C.F.R. § 2700.30, the proposed settlement 

was approved from the bench (Tr. 11-20). I conclude and find 

that the sett1ement is reasonable and in the public interest, and 

my bench decision is reaffirmed, and the settlement IS APPROVED. 

ORDER 

The contested citations are AFFIRMED, and the respondent IS 

ORDERED to pay the following civil penalty assessments in satisfaction of the contested violations in this case: 

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

2651871 01/19/89 56.13011 $20 

2651874 01/19/89 56.12025 $68 

2651877 01/19/89 56.12025 $68 

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

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

this matter is dismissed. 

1024 
Docket No. CENT 89-158-M 

In this case, petitioner's counsel stated that he agrees 

with the respondent's contention that MSHA has no enforcement 

jurisdiction at the location where the citations were issued by 

the inspector during an inspection conducted on May 25, 1989. 

Counsel asserted that the inspection was made because the respondent had filed for a mine identification number at MSHA's 

request. However, a subsequent investigation by MSHA revealed 

that the mine previously operated at the site identified as 

"plant C" has been closed for 10 years and that· the respondent 

does not conduct any crushed stone mining activities at the site 

ahd simply uses the location for an office and small shop. 

Petitioner's counsel confirmed that pursuant to MSHA's 

enforcement policies, the activities conducted by the respondent 

at the location in question are not within MSHA's enforcement 

jurisdiction. Counsel explained that the respondent filed an 

MSHA legal identity form after being instructed by MSHA's Denver 

Off ice to do so and that this triggered an inspection by the 

inspector who.assumed that there was jurisdiction. The inspector 

who conducted the inspection which resulted in the issuance of 

the citations agreed that this was in fact the case and he concurred that MSHA has no jurisdiction in this matter (Tr. 4-11). 

In view of the foregoing, petitioner's counsel moved for a 

dismissal of this case. The motion was granted from the bench, 

and it is herein reaffirmed. Under the circumstances, the petitioner• s previously filed motion for admission of the citations 

and jurisdiction is deemed moot and withdrawn. 

ORDER 

This case IS DISMISSED for lack of jurisdiction, and the 

three contested citations ARE VACATED. 

Distribution: 

Dewey P. Sloan, Jr., Esq., Office of the Solicitor, U.S~ 

Department of Labor, Room 2106, 911 Walnut street, Kansas City, 

MO 64106 (Certified Mail) 

Mr. David s. Walker, President, Walker stone Company, 

Incorporated, P.O. Box 563, Chapman, KS 67431 (Certified Mail) 

/fb 

1025 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

MAY 151990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 89-152-M 

A.C. No. 09-00281-05513 

v. 

Howard Mine 

HOWARD SAND COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Michael K. Hagan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, for 

the Petitioner; 

Harold Brown, Owner, Howard Sand Company, Howard, 

Georgia, Pro se, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent pursuant 

to section 1YO(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 $147 for an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.14112. Respondent filed a timely answer 

and contest, and a hearing was held in Macon, Georgia. The 

parties waived the filing of posthearing arguments, but I have 

considered their oral arguments made on the record during the 

course of the hearing in this matter. 

Issues 

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

condition or practice cited by the inspector constitutes a 

violation of the cited mandatory safety standard, (2) whether the 

violation was "significant and substantial" (S&S), and (3) the 

appropriate civil penalty to be assessed for the violation, 

1026 
taking into account the statutory civil penalty assessment 

criteria found in section llO(i) of the Act. Additional issues 

raised by the parties are identified and disposed of in the 

course of this decision. · 

Applicable Statutory and Regulatory Provisions 

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

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

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

3. Commission Rules, 29 C.F.R. § 2700.1 et seg. 

Stipulations 

The parties stipulated to the following (Tr. 4-6, Exhibit 

ALJ-1) : 

1. The respondent is engaged in a mining operation which affects commerce and it is subject to the 

Act. 

2. The Commission has jurisdiction in this case. 

3. The inspector who issued the subject citation 

is a duly authorized representative of the Secretary 

and a true and correct copy of the citation was served 

on the respondent. 

4. The imposition of a civil penalty assessment 

for the violation will not affect the respondent's 

ability·to continue in business. 

5. A violation of the cited standard, 30 C.F.R. 

§ 56.14112 existed as cited in that the drive shaft 

coupling on the dredge, diesel engine was not equipped 

with a guard at the time of the inspection (Tr. 7). 

6. The violation was abated in good faith. 

7. The respondent's history of prior violations, 

as shown on an MSHA computer print-out (exhibit P-1), 

is correct. 

8. The respondent is a small mine operator. 

9. The issues remaining for trial are the degree 

of negligence and the reasonableness of the proposed 

civil penalty assessment of $147. 

1027 
Discussion 

The contested section 104(a) S&S Citation No. 3432413, 

served on the respondent on May 17, 1989, cites an alleged violation of mandatory safety standard 30 C.F.R. § 56.14112, and the 

cited condition states that "The drive shaft coupling on the 

dredge diesel engine is not equipped with a guard." 

Petitioner's Testimony and Evidence 

MSHA Inspector Darrell Brennan confirmed that he inspected 

the respondent's sand and gravel operation on May 17, 1989, and 

that he issued the citation after finding that the coupling 

apparatus connecting the diesel engine and pump used to pump the 

sand from the pit was not provided with any guarding to prevent 

contact with persons. He stated that the engine was mounted on 

an elevated platform "dredge" approximately 8 feet by 12 feet. 

He explained that the sand is flushed from the pit walls by high 

pressure water hoses into the pit, and it is pumped from the pit 

by the pump in question. Two men are usually present doing this 

work. 

Mr. Brennan stated that the diesel engine is approximately 

4500 horsepower, and that the drive shaft coupling connecting the 

engine to the pump rotates at approximately 1700-1800 rpm•s. He 

described the coupling as a "donut" shaped device which coupled 

the engine and pump shafts together, and he confirmed that it was 

not guarded at all. 

Mr. Brennan stated that there was a plate steel walkway 

approximately 2-1/2 to 3 feet wide adjacent to the unguarded 

coupling. He stated that the walkway is wet and muddy, and that 

the two men working in the pit pumping sand would have occasion 

to come to the platform where the engine was located to check it, 

grease it, or perform maintenance work. Someone would also be 

required to be in the area to start up the engine and pump, and 

to engage the clutch, and they would. also be there to shutdown 

the engine at the end of the work shift. 

Mr. Brennan stated that the wet and muddy walkway conditions 

presented a slipping hazard, and given the fact that the 

unguarded shaft coupling turn~d at a high rate of speed and 

created a "vacuum," he believed that it was reasonably likely 

that someone on the slick walkway would fall directly into the 

unguarded coupling and suffer injuries of a reasonably serious 

nature, including disabling injuries. For these reasons, he 

concluded that the violation was significant and substantial. 

Mr. Brennan confirmed that during a prior inspection of the 

platform "dredge" area in question on September 15, 1988, he 

issued a citation on the same diesel engine because one of the 

V-belt pinch points was not adequately guarded. Although a guard 

1028 
was installed,' he did not believe that it was sufficient to cover 

the pinch point (exhibit P-3). Mr. Brennan believed that the 

shaft coupling which he cited on May 17, 1989, was provided with 

a guard at the time of his previous inspection on September 15, 

1988. 

Mr. Brennan further stated that although he was not certain 

whether the shaft coupling in question was previously guarded, he 

would have issued a citation if it were not guarded. He stated 

that Mr. Brown did not accompany him during his inspections. He 

did not know whether the engine was greased while the engine was 

running, and he was not aware of the respondent's maintenance 

procedures or whether maintenance was ever performed with the 

engine and pump operating (Tr. 8-30). 

Respondent's Testimony and Evidence 

Harold Brown, respondent's owner and operator, stated that 

he operates four sand and gra~el plants and has been in business 

and operated the kinds of equipment associated with his business 

for 60 years. He stated that MSHA inspects his operations two or 

three times a year, and that except for one occasion approximately 10 years ago when he was cited at another operation for 

failing to guard an engine shaft coupler, he has not been previously cited at the Howard Mine for a violation of this kind. 

Mr. Brown confirmed that two men work in the pit pumping 

sand, and that the pumper is usually 60 feet away from the dredge 

where the unguarded engine drive coupler was located. The other 

person may grease the engine as required, and if there is a 

problem he would have to go and check the engine and pump while 

it is in operation. He stated that the pump operates approximately 3 hours a day, 4 days a week, and that the person who is 

there usually sits in his car while the pump is operating. 

Someone would have to start and stop the engine pump each day. 

Mr. Brown conceded that the engine and pump shaft coupler 

cited by Inspector Brennan was not guarded, and that there was a 

violation of the cited standard. However, he believed that the 

proposed civil penalty assessment was excessive for the violation. He stated that although he was previously cited in 

September, 1988, .he was unaware of that violation until he called 

his manager at that operation after he received the May 17, 1989, 

citation from Mr. Brennan. Mr. Brown also believed that he had a 

good safety and accident record, and that he has always corrected 

any conditions brought to his attention by the MSHA inspectors. 

He did not believe that the cited condition was as serious as a 

"pinch point" hazard (Tr. 30-47). 

1029 
Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

standard 30 C.F.R. § 56.14112, for failure to equip the cited 

drive shaft coupling on the dredge diesel engine with a guard. 

The standard requires that equipment guards be securely in place 

while machinery is being operated. The inspector confirmed that 

he cited section 56.14112, rather than section 56.14107, which 

requires the guarding of moving machine parts to protect persons 

from contacting couplings that can cause injury because of his 

recollection that the coupling was guarded during a prior inspection on September 15, 1988, but that the guard was not in place 

when he conducted his inspection on May 17, 1989 (Tr. 28-29). 

The respondent stipulated to the fact of violation, and the 

inspector's unrebutted testimony establishes that the cited 

coupler was not guarded. Under the circumstances, I conclude and 

find that a violation has been established, and the citation IS 

AFFIRMED. 

Significant and Substantial Violation 

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. 

1030 
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). 

Inspector Brennan testified credibly that because of the 

slippery conditions on the steel walkway adjacent to the 

unguarded coupler which would be turning at a high rate of speed 

when the engine was in operation it was reasonably likely that 

someone walking along the walkway with muddy ~oots or shoes would 

fall directly into the coupler and suffer permanently disabling 

injuries. He also believed that a person could break his back or 

suffer very serious injuries if he were to contact the coupler 

(Tr. 14-15). The inspector confirmed that while the walkway was 

provided witlra guardrail on the "outside," no guardrail was 

provided on the "inside" and someone "could get right into the 

motor" (Tr. 26-27) . 

Although Mr. Brown did not consider the hazard presented by 

the unguarded coupler to be a "pinch point" hazard, he agreed 

that the inspector was concerned that the coupling turning at 

1,700 rpm•s under high speed would injure anyone who contacted 

it. He also agreed with the inspector's belief that anyone 

walking on the steel walkway with slippery boots could inadvertently fall into the unguarded coupler. He also conceded that 

someone would walk by the location of the unguarded coupler once 

or twice a day (Tr. 35, 44). 

In view of the foregoing, I conclude and find that the 

violation was significant and substantial, and I agree with the 

inspector's finding in this regard. Accordingly, IT IS AFFIRMED. 

1031 
Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The parties stipulated that the respondent is a small mine 

operator and that the civil penalty assessment for the violation 

will not affect the respondent's ability to continue in business. 

I adopt these stipulations as my findings and conclusions with 

respect to these issues. 

History of Prior Violations 

MSHA's computer print-out with respect to the respondent's 

compliance record for the period May 17, 1987 through May 16, 

1989, reflects that the respondent paid civil penalty assessments 

for 31 violations, eight which were for violations of section 

56.14112. I take note of the fact that 13 of these prior assessments were for non-S&S "single penalty" section 104(a) citations, 

and that the remaining citations were all section 104(a) "S&S" 

citations. 

Negligence 

The inspector made a finding of "moderate negligence" in 

this case, and the petitioner confirmed that this was the case 

and that the respondent is not charged with any "reckless disregard" of the cited standard (Tr. 42). I agree with the inspector's moderate negligence finding and I conclude and find that 

the violation was the result of the respondent's failure to 

exercise reasonable care. 

Gravity 

On the basis of my significant and substantial findings and 

conclusions, I conclude and find that the violation was serious. 

Good Faith Compliance 

The parties stipulated that the violation was abated in good 

faith by the respondent and I adopt this stipulation as my finding and conclusion on this issue. I have taken this into consideration in the assessment of the civil penalty for the violation 

in question. 

Civil Penalty Assessment 

In mitigation of the proposed civil penalty assessment in 

this case, respondent Brown asserted that he operates four plants 

and has never had an injury as a result of the cited unguarded 

equipment during MSHA inspections which have been conducted two 

1032 
times a year since 1978. Mr. Brown also stated that the particular need for a coupler on the cited equipment had never previously been brought to his attention until the inspection in 

May, 1988, and he disagreed with the inspector's belief that the 

cited coupler had previously been guar~ed (Tr. 21, 31). 

Mr. Brown stated further that during his 60 years' of experience 

in the business, he has never had an injury at any of his operations (Tr. 32). He explained that he has operated diesel motors, 

couplers, and pumps similar to the one cited in this case for 

60 years without an injury (Tr. 37-38). Although he conceded 

that he has previously been cited for violations of section 

56.14112, he confirmed that none of these were for failure to 

guard couplers on any of his barges (Tr. 39). 

Mr. Brown further confirmed that subsequent to the issuance 

of the citation in this case, he learned from the manager of one 

of his other operations that a similar coupler was cited by MSHA 

10 or 12 years ago, but that this violation was never previously 

brought to his attention (Tr. 40). 

Although the inspector confirmed that he had previously 

cited the same diesel engine on September 15, 1988, because a 

guard on the drive motor did not cover the pinch points, he 

conceded that the cited standard involved a judgment call as to 

whether the guard was sufficient and that a guard had in fact 

been provided. 

On the basis of the foregoing findings and conclusions, and 

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

Act, including the arguments advanced by the respondent in mitigation of the civil penalty, I conclude and find that a civil 

penalty assessment of $100 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 $100 for the violation which has been affirmed, 

~nd payment shall be made to MSHA within thirty (30) days of the 

date of this decision and order. Upon receipt of payment by 

MSHA, this matter is dismissed. 

fl,, 

G~. ;;,~ Koutras 

Administrative Law Judge 

1033 
Distribution: 

Michael K. Hagan, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 339, 1371 Peachtree Street; N.E., Atlanta, GA 

30367 (Certified Mail) 

Mr. Harold Brown, Howard Sand Company, P.O. Box 83, Howard, GA 

31039 (Certified Mail) 

/fb 

1034 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 161990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

BILL PACK LAND CORPORATION, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

PCR JOINT VENTURE, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-318 

A. C. No. 46-07006-03503 

Whipple Refuse File 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-355 

A. C. No. 46-06415-03502 

PCR Surface 

Appearances: Ronald Gurka, Office of the Solicitor, "Arlington, 

Virginia, for the Secretary; 

Philip D. Mooney, Esq., Hamilton, Mooney, Burgess, 

Young and Tissue, Oak Hill, West Virginia, for 

Bill Pack Land Corporation, 

P. Nathan Bowles, Esq., Bowles, McDavid, Graff and 

Love, Charleston West Virginia, for PCR Joint 

Venture. 

Before: Judge Fauver 

In these consolidated cases the Secretary seeks civil 

penalties for alleged violations of safety standards under the 

Federal Mine Safety Act of 1977, 30 u.s.c. § 801 et~ 

The cases involve a coal mine refuse pile that has been on 

fire for over 50 years. 

The cases were called for hearing on February 13, 1990, 

at Charleston, West Virginia. After testimony, and the 

introduction and documentary evidence, the parties, with the 

presiding judge, had an extensive settlement conference. This 

1035 
led to a settlement agreement that includes a reduced penalty for 

each Respondent, an agreed upon plan for extinguishing the fire, 

and an agreement to modify withdraw orders to permit Respondents 

to resume operations in accordance with the-fire control and 

extinguishing plan. 

I have considered the hearing evidence, and the documents 

submitted with the Secretary's motions to approve settlement, and 

conclude that they are consistent with the purposes of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The Secretary's motion to approve settlement in Docket 

No. WEVA 88-318 is GRANTED. 

2. The Secretary's motion to approve settlement in Docket 

No. WEVA 88-355 is GRANTED. 

3. Respondent Bill Pack Land Corporation shall comply fully 

with all the terms of the fire control and extinguishing plan 

attached to the Secretary's motion for settlement in Docket No. 

WEVA 88-318. 

4. Respondent PCR Joint Venture shall comply fully with all 

the terms of the fire control and extinguishing plan attached to 

the Secretary's motion to approve settlement in Docket No. WEVA 

88-355. 

5. Subj~ct to each Respondent's continued full compliance 

with such fire control and extinguishing plans, the Secretary may 

modify Withdrawal Order Nos. 2574254 and 2574256 to permit the 

Respondents, respectively, to resume operations in compliance 

with such plans. 

6. Citation No. 2715802 and Order No. 2754254 are AFFIRMED. 

7. Respondent Bill Pack Land Corporation shall pay the 

approved penalty of $350 within 30 days of this Decision. 

8. Citation No. 2715803 and Order No. 2574256 are AFFIRMED. 

9. Respondent PCR Joint Venture shall pay the approved 

penalty of $350 within 30 days of this Decision. 

4!,~ '0-ftA,,tVtA_, 

William Fauver 

Administrative Law Judge 

1036 
Distribution: 

Ronald E. Gurka, Esq., Office of the Solicitor, U.S. Department 

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

(Certified Mail) 

Philip D. Mooney, Esq., Hamilton, Mooney, Burgess, Young and 

Tissue, P.O. Drawer 1145, oak Hill, WV 25901 (Certified Mail) 

P. Nathan Bowles, Jr., Bowles McDavid Graff and Love, P.O. Box 

1386, Charleston, WV 25325-1386 (Certified Mail) 

iz 

1037 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BENNETT TRUCKING COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

B & S TRUCKING COMPANY, 

Respondent 

MAY 171990 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-29 

A. C. No. 15-12602-03505 VlA 

Preparation Plant 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-34 

A. C. No. 15-12602-03503 Q7G 

Preparation Plant 

Appearance: G. Elaine Smith, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for the Secretary; 

~usan c. Lawson, Esq., Forester, Buttermore, Turner, 

& Lawson, P.S.C., Harlan, Kentucky, for the 

the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In these Civil Penalty Proceedings, the Secretary (Petitioner) 

seeks civil penalties for alleged violation of the Operator 

(Respondent) of 30. C.F.R. § 77.1710(i). · Pursuant to notice, a 

Hearing was held in Johnson City, Tennessee, on March 28, 1990. At 

the commencement of the Hearing, Petitioner made a Motion for 

Summary Judgment, but indicated that she would proceed with the 

Hearing. A decision was reserved on the Motion. Jim Allen 

Tankersly testified for Petitioner. At the conclusion of the 

Petitioner's case, Respondent made a Motion for Judgment. After 

hearing arguments from both Parties on the Motion, a decision 

granting Respondent's Motion, was announced orally from the Bench. 

In light of this decision, Petitioner's Motion for Summary Judgment 

is denied. 

1038 
Stinulations 

Kent 90~29 

1. Bennett Trucking Company is a Kentucky corporation which 

contracts with companies producing coal for resale in Interstate 

Commerce, and thus is subject to the jurisdiction of the Federal 

Mine Safety and Health Review Commission and its administrative 

law judges pursuant to § 3(d) of the Act. 

2. Bennett Trucking Company contracts with Manalapan Mining 

Company, Inc., which operates a processing plant in Harlan County, 

Kentucky, to perform coal hauling to, from, and within said processing plant. As of August 1989, the processing plant produced 

approximately 1.1 million tons of coal annually. 

3. James Bennett is, and was in August 1989, a partner in 

Bennett Trucking Company. 

4. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly 

issued Citation No. 3163935 at the preparation plant, pursuant to 

§ 104(a) of the Federal Mine Safety and Health Act of 1977, 

citing Bennett Trucking Company for a violation of 30 C.F.R. 

§ 77.1710(i) because the Mack Coal Truck, vehicle number DM811SX, 

owned by Bennett Trucking Company and used to haul coal at the 

preparation plant, was not equipped with seat belts. 

5. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly 

issued Citation No. 3163936 at the preparation plant, pursuant to 

§ 104Ca) of the Act, citing Bennett Trucking Company for a violation of 30 C,F.R. s· 77.1710(i) because the Mack Coal Truck, 

11ehicle number DM 5855X306607, owned by Bennett Trucking Company 

and used to haul coal at the preparation plant, was not equipped 

with seat belts. 

6. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly 

issued Citation No. 3163937 at the preparation plant, pursuant to 

§ 104(a) of the Act, citing Bennett Trucking Company for a violation of 30 C.F.R. § 77.1710(i) because the seat belt buckle on 

one side of the Mack Coal Truck, vehicle number DM6115zx5621, 

owned by Bennett Trucking Company and used to haul coal at the 

preparation plant, had been broken off. 

7. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly 

issued Citation No. 3163938 at the preparation plant, pursuant to 

§ 104(a) of the Act, citing Bennett Trucking Company for a violation of 30 C.F.R. ~ 77.1710Ci) because the Mack Coal TrucK, 

company number 2, owned by Bennett Trucking Company and used to 

haul coal at the preparation plant, was not equipped with seat 

belts. 

1039 
8. On August 29, 1989, MSHA Inspector Johnnie Smith issued 

Citation No. 3168465 at the parparation plant, pursuant to 

§ 104Ca> of the Act, citing Bennett Trucking Company for a violation of 30 C.F.R. § 77.1710Ci) because the-Mack Haul Truck, 

serial number DM115X6641, owned by Bennett Trucking Company and 

used to haul coal at the preparation plant, was not equipped with 

seat belts on the operator's side. 

9. None of the trucks in question are vehicles required to 

have "rollover protective structures" CROPS) pursuant to 30 C.F.R. 

§ 77.403a, and none of the trucks in question are equipped, or 

were equipped in August 1989, with ROPS. 

10. The determining factor in deciding whether the trucks in 

question are vehicles required to be equipped with seat belts 

pursuant to 30 C.F.R. § 77.1710Ci) is whether or not "roll protection," as that term is defined at 30 C.F.R. § 77.2Cw>, is provided, 

and was provided in August 1989, for said trucks. 

11. Each of the trucks in question is equipped, and was 

equipped in August 1989, with a cantilevered "cab-shield," or 

aoron which is attached to the truck bed and extends over the 

c~b from the truck bed, except when the bed is being unloaded. 

12. Each of the five citations listed above were terminated 

on September 8, 1989, after seat belts were provided for each of 

the trucks in question. 

13. The penalty assessment of $50 for each of the citations 

listed above (Nos. 3163935, 3163936, 3163937, 3163938, and 

3168465), fo~ a total assessment of $250, would have negligible 

effect on the ability of Bennett Trucl(ing Company to continue in 

business. 

KENT 90-34 

1. B & S Trucking Company is a Kentucky corporation which 

contracts with companies producing coal for resale in Interstate 

Commerce, and thus is subject to the jurisdiction of the Federal 

Mine Safety and Health Review Com.mission and its Admini.::;trative 

Law Judges pursuant to § 3(d) of the Act. 

2. B & S Trucking Company contracts with Manalapan Mining 

Company, Inc., which operates a processing plant in Harlan 

County, Kentucky, to perform coal hauling to, from, and within 

said processing plant. ~s of August 1989, the processing plant 

produced approximately 1.1 million tons of coal annually. 

3. Ray Ellis is, and was in August 1989, a surface foreman 

for Manalapan Mining. 

1040 
4. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly 

issued Citation No. 3163931 at the preparation plant, pursuant to 

§ 104(a) of the Act, citing B & s Trucking Company for a violation of 30 C.F.R. § 1710(i) because the Mack ·coal Truck, vehicle 

number IM2Bl28C4CA008967, owned by B & S Trucking Company and 

used for hauling and dumping -:it the preparation plant, was not 

equipped with seat belts. 

5. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly 

issued Citation No. 3163932 at the preparation plant, pursuant to 

§ 104(a) of the Act, citing B & S Trucking Company for a violation 

of 30 C.F.R. § 1710Ci) because the Mack Coal Truck, vehicle number 

IM2B238C4DA009196, owned by B & S Trucking Company and used to haul 

coal at the preparation plant, was not equipped with seat belts. 

6. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly 

issued Citation No. 3163933 at the preparation plant, pursuant 

to § 104Ca> of the Act, citing B & S Trucking Company for a violation of 30 c.F.R. § 1710Ci) because the Mack Coal Truck, vehicle 

number 424DM611SX, owned by B & S Trucking Company and used to 

haul coal at the preparation plant, was not equipped with seat 

belts. 

7. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly 

issued Citation N. 3163934 at the preparation plant, pursuant to 

§ 104(a) of the Act, citing B & S Trucking company for a violation 

of 30 C.F.R. § 1710(i) because the Mack Coal Truck, vehicle number 

IM2Bl28CSDA009191, owned by B & S Trucking Company and used to haul 

coal to the preparation plant, was not equipped with seat belts. 

8. None of the trucks in question are vehicles required to 

have "rollover protection structures" CROPS) pursuant to 30 C.F.R. 

§ 77.403a, and none of the trucks in question are equipped, or 

were equipped in August 1989, with ROPS. 

9. The determining factor in deciding whether the trucks in 

question are vehicles required to be equipped with seat belts, 

pursuant to 30 C.F.R. § 77.1710(i), is whether or not "roll protection," as that term is defined at 30 C.F.R. 5 77.2(w), is 

provided, and was provided in August 1989, for said trucks. 

10. Each of the trucks in question is equipped, and was 

equipped in August 1989, with a cantilevered "cab-shield," or 

apron which is attached to the truck bed and extends over the cab 

from the truck bed, except when the bed is being unloaded. 

11. Each of the four citations listed above were terminated 

on August 29, 1989, after seat belts were proviaed. for each of 

the trucks in question. 

12. The penalty assessment of $42 for each of the citations 

listed above (Nos. 3163931, 3163932, 3163933, and 3163934), for a 

total assessment of $168, would have negligible effect on the 

ability of B & S Trucking Company to continue in business. 

1041 
Testimony 

Jimmy Allen Tankersly, an MSHA Inspector, testified that he 

issued Citation 3163935 to Respondent, alleging a violation of 

30 C.F.R. § 1710Ci), in that its coal trucks did not have seat 

belts. He indicated that the violation was significant and substantial in that if the trucks would overturn, it was reasonably 

likely the drivers would be injured, possibly fatally. He 

indicated that the Respondent was negligent in that it should 

have known that the pertinent regulation requires seat belts in 

the trucks in question. He opined that the cab shields on the 

trucks do provide protection and can possibly keep the cab from 

being crushed in the event of the truck turning over. He 

indicated that the cab shield is on the truck except when it 

dumps coal. According to Tankersly, when the trucks are dumping 

coal, they are moving at about 5 miles an hour or less. In 

essence, Counsel for Petitioner indicated that Tan~ersly's testimony with regard to Citation 3163935 is applicable to all the 

Citations issued in these cases. 

Discussion and Conclusion of Law 

At the conclusion of Petitioner's case, Respondent made a 

Motion for Judgment in its favor. After hearing argument from 

both Counsel, the following Bench Decision was rendered (with 

minor corrections of a non substantive nature): 

I have heard argument and have evaluated the evidence and 

the testimony, and I have read the pertinent regulations. I find 

that the Motion was well made and the Secretary has not established her case. 

The reasons are as follows: 

30 C.F.R. § 77.1710(i), requires 

requires a danger of overturning 

protection be provided. 

the regulation that is at issue, 

two elements; first of all it 

and it also rquires that roll 

With regard to the first element the Secretary must establish 

that there is a danger of overturning. I £ind specifically that 

the Secretary did not establish a danger of overturning. The 

evidence from the inspector, Mr. Tankersly, indicated that should a 

vehicle overturn, there would likely be an injury to a person in 

the vehicle. This statement falls short of establishing that there 

was any danger of the vehicle overturning. On that basis alone, I 

grant the Motion.~/ 

.:!/ See, Turner Brothers, Inc., 6 FMSHRC 1219 (May 1984) (Not 

cited in the Bench Decision). In Turner Brothers, supra, 

Judge Koutras held that section 77.1710Ci> does not require seat 

belts for all vehicles, and that an inspector citing a violation 

thereunder must first make a finding that there is a danger of 

overturning befora requiring the seat belts be installed on ROPS 

equipment vehicles. 

1042 
I also note that with regard to the second element of 

section 77.7109(i), it also must be established that roll protection was provided. That term is defined in 30 C.F.R. § 77.lOOCw) 

as meaning a "framework, safety canopy, or ·similar protection for 

the operator when equipment overturns." 

The term "similar protection" modifies the terms immediately 

preceding it, namely "framework" or "safety canopy." The item 

referred to as a cab shield, as depicted in Respondent's 

Exhibits 1 to 8, (specifically in Respondent's Exhibits 1, 7, and 

4), is clearly not a portion of the cab. It is a portion of 

another element of the truck, whicl'l is raiseq when dumping coal. 

Certainly, when it is raised, there is a gap between this item 

referred to as a cab shield, and the truck itself. Thus I can 

not see that it's been established that the item referred to as a 

shield is protection similar to a framework or a safety canopy. 

For these reasons, and primarily for the reason that I 

previously stated, i.e., that it has not been established that 

there has been any danger of the subject trucks overturning, I 

grant the Motion. Accordingly, the citations that have been 

issued herein, shall be dismissed. 

ORDER 

It is ORDERED that Citation Numbers 3163935, 3163931, 

3163932, 3163936, 3163937, 3163938, 3168465, 3163933, and 3163934 

be DISMISSED. 

bJ::;;;-

Administrative Law Judge 

Distribution: 

G. Elaine Smith, Esq., Michael Roden, Esq., Office of the 

Solicitor, U. S. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215 (Certified Mail) 

Susan C. Lawson, Esq., Forester Building, First Street, Harlan, 

KY 40831 (Certified Mail) 

dcp 

1043 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAY 171990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SANGER ROCK & SAND, 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-275-M 

A.C. No. 04-01937-05505 

Docket No. WEST 89-71-M 

A.C. No. 04-01937-05506 

Sanger Pit and Mill 

DECISION 

Appearances: Susanne Lewald, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

For Petitioner; 

J.F. Baun, President, Sanger Rock and Sand, 

Sanger, California, pro se 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges respondent San~er Rock & 

Sand (Sanger) with violating two safety regulations _/promulgated 

under the Federal Mine Safety and Health Act, 30 u.s.c. § 801 

et seq. Cthe Act). 

After notice to the parties, a hearing on the merits was 

held in Fresno, California on December 13, 1989. 

The parties filed post trial briefs. 

Threshold Issues 

In support of its motion to dismiss, Sanger raises two 

issues. 

Initially, the operator asserts MSHA did not acquire jurisdiction over it for the reason that the federal government has 

1/ Citation No. 3076869 alleges Sanger violated 30 C.F.R. 

§ 56.14007; Citation No. 3074994 alleges the company violated 

30 C.F.R. § 56.12028. 

1044 
failed to comply with Article I, Section 8, Clause 17 2/ of the 

United States Constitution. Specifically, it is argued that, 

since the United States does not possess fee simple title to 

Sanger's property and since the state of California did not 

cede the property to the United States, then the case should be 

dismissed for lack of "territorial jurisdiction." 

Discussion 

For the purpose of this ruling, I assume the federal government does not own this property and I further assume the property has not been ceded to the federal government by the state of 

California. But I nevertheless conclude that Sanger's arguments 

are misdirected. The cited portion of the Constitution relied on 

is a grant of authority relating to the District of Columbia, the 

seat of government of the United States. 

The Constitutional clause relied on by Sanger does not require that the federal government own property as a pre-condition 

to regulating such property. 

In support of its position, Sanger relies upon United States 

v. Benson, 495 F.2d 475 (1974). 

Benson is not controlling. In Benson the defendants therein were convicted of a robbery that was committed within the 

territorial jurisdiction of the United States. The territorial 

jurisdiction of the United States involved in the case was Fort 

Rucker, Alabama, a military installation. In view of this fact 

the federal military code, by virtue of Clause 17, was the 

exclusive law on the military installation. 

]:_/ The cited portion of the Constitution provides that Congress 

shall have the right: 

To exercise exclusive Legislation in all cases 

whatsoever, over such District (not exceeding ten 

Miles square) as may, by Cession of particular States, 

and the Acceptance of Congress, become the Seat of 

of the Government of the United States, and to exercise like Authority over all Places purchased by the 

Consent of the Legislature of the State in which the 

Same shall be, for the Erection of Forts, Magazines, 

Arsenals, dock-Yards, and other needful Buildings; 

1045 
Since Article I, Section 8, Clause 17 is neither a grant 

of authority to regulate mines nor a restriction on the federal 

authority, it is necessary to look elsewhere in the Constitution 

for such authority. 

The grant of aqthority to regulate mines rests in the 

"Commerce Clause" 31 contained in Article I, Section 8, 

Clause 3 of the Constitution. 

It is apparent, with such a grant of authority, that Congress enacted the Mine Act and defined commerce as it relates 

to mining. Specifically, in Section 4 of the Act, Congress 

stated: 

Each coal or other mine, the products of which 

enter commerce, or the operations or products 

of which affect commerce, and each operator of 

such mine and every miner in such mine shall be 

subject to the provisions of this chapter. 

Further, "Commerce" is defined in the 1969 Act as follows: 

[C]ommerce means trade, traffice, commerce, 

transportation or communication among the 

several states, or between a place in a state 

and any place outside thereof, or within the 

District of Columbia, or a possession of the 

United States, or between points within the 

same state but through a point outside thereof. 

The use of the phrase "which affect commerce" in the Act, 

indicates the intent of Congress to exercise the full reach of 

its constitutional authority under the commerce clause. See: 

Brennan v. OSHA, 492 F.2d 1027 (2d·Cir. 1974)1 United State'S 

v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975)1 Polish 

National Alliance v. NLRB, 332 U.S. 643 (1977). 

11 The cited portion of the Constitution provides that Congress 

shall have the right 

to regulate Commerce with foreign Nations and 

among the several States, and with the Indian 

Tribes. 

1046 
In Perez v. United States, 402 U.S. 146 (1971), it was held 

that Congress may make a finding as to w.hat activity affects 

interstate commerce, and by doing so it obviates the necessity 

for demonstrating jurisdiction under the commerce clause in 

individual cases. 

In short, mining is among those classes of activities which 

are regulated under the Commerce Clause and thus is among those 

classes which are subject to the broadest reaches of federal 

regulation because the activities affect interstate commerce. 

Marshall v. Kraynqk, 457 F. Supp. 907 CW.D. Pa. 1978), aff'd, 

604 F.2d 231 (3d Cir. 1979), cert. denied, 444 U.S. 1014 (1980). 

Further, the legislative history of the Act as well as court 

decisions, encourage a liberal reading of the definition of a 

mine found in the Act in order to achieve the Act's purpose of 

protecting the safety of miners. Westmoreland Coal Company v. 

Federal Mine Safety and Health Review Commission, 606 F.2d 417 

(4th Cir. 1979). See also: Godwin v. Occupational Safety and 

Health Review Commission, 540 F.2d 1013 (9th Cir. 1976), where 

the court held that urisafe working conditions of one operation, 

even if in initial and preparatory stages, influences all other 

operations similarly situated, and consequently affect interstate 

commerce. 

The courts have consistently held that mining activities 

which may be conducted affect commerce sufficiently to subject 

the mines to federal control. See: Marshall v. Kilgore, 478 F. 

Supp. 4 CE.D. Tenn. 1979)1 Secretary of the Interior v. Shingara, 

418 F. Supp. 693 (M.D. Pa. 1978)1 Marshall v. Bosack, 463 F. 

Supp. 800, 801 (E.D. Pa. 1978). Likewise, Commission judges 

have held that intrastate mining activities are covered by the 

Act because they affect interstate commerce. See: Secretary of 

Labor v. Rockite Gravel Company, 2 FMSHRC 3543 (December 1980)1 

Secretary of Labor v. Klippstein and Pickett, 5 FMSHRC 1424 

(August 1983)1 Secretary of Labor v. Haviland Brothers Coal Com-

~' 3 FMSHRC 1574 (June 1981)1 Secretary of Labor v. Mellott 

Trucking Company, 10 FMSHRC 409 (March 1988). 

In a prior decision involving the Secretary and Sanger, Commission Judge August F. Cetti ruled against Sanger's "territorial 

jurisdictional" argument. Sanger Rock & Sand, 11 FMSHRC 403 

(March 1989). 

Sanger also argues that the state of California has its own 

laws and regulations that protect the safety and health of its 

citizens. Therefore, the federal government lacks jurisdiction 

in California. 

1047 
This argument has been raised in a number of cases. Commission judges have consistently held that state and federal OSHA 

statutes do not preempt the 1977 Mine Act. See: Brubaker-Mann, 

Inc., 2 FMSHRC 227 (January 1980); Valley Rock and Sand Corporation, 4 FMSHRC 113 (January 1982); Black River Sand and Gravel, 

Inc., 4 FMSHRC 743 (April 1982); San Juan Cement Company, Inc., 

2 FMSHRC 2602 (September 1980); Sierra Aggregate Co., 9 FMSHRC 

426 (March 1987). I agree with these holdings, and I also note 

that section 506 of the 1977 Mine Act permits concurrent state 

and federal regulation. Under the federal supremacy doctrine, 

a state statute is void to the extent that it conflicts with a 

valid federal statute. Dixie Lee Ray v. Alantic Richfield Com-

~' 435 U.S. 151, 55 L. Ed. 2d 179 (1978); Bradley v. Belva 

Coal Company, 4 FMSHRC 982, 986 (June 1982). 

For the foregoing reasons, Sanger's "territorial jurisdictional" argument in support of its motion to dismiss is denied. 

Sanger also asserts that the Secretary's citaions should be vacat~d because she has not complied with 5 u.s.c. § 552, ii a 

portion of the Administrative Procedure Act. 

!/ The cited statute, a portion of the Administrative Procedure 

Act, provides in part as follows: 

(a) Each agency shall make available to the public 

information as follows: 

Cl> Each agency shall separately state and currently 

publish in the Federal Register for the guidance of the 

public--

(A) descriptions of its central and field organization and the established places at which, the employees 

(and in the case of a uniformed service, the members) from 

whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; 

CB) statements of the general course and method 

by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; 

CC> rules of procedure, descriptions of forms 

available or the places at which forms may be obtained, 

and instructions as to the scope and contents of all 

papers, reports, or examinations; 

(footnote continued on next page) 

1048 
In particular, Sanger states the inspector only presented 

his I.D. card at the time of the inspection. However, the I.D. 

card did not show his title, authority, or other relevant matters. 

In dealing with its citizens, Sanger believes the government, through the federal register, must at least show the inspector's duties, delegated authority, as well as MSHA's central 

and field organizations. 

In its post trial brief Sanger asserts that MSHA's failure 

to publish in the Federal Register has adversely affected it as 

a member of the public. Some, but not necessarily all, of the 

adverse effects are as follows: 

(A) Representatives of the Secretary overstepping their authority with no way for the public to 

know what that authority is. 

(B) Not knowing the "chain of command" in any 

government agency renders the public at an extreme disadvantage when dealing with that agency. 

(C) How, where, and to whom are complaints registered in regard to misconduct by a representative of the 

Secretary if the organization plans are not published? 

(D) Due process is most important to the public 

including mine operators, and without the knowledge of 

how that can be obtained in MSHA's scheme of operations 

leaves them vulnerable to the whims of various individuals. 

(E) Assessments arising from unauthorized actions 

of agency "employees". 

(F) Sanger has been subjected to possible adverse 

effects due to an investigation by Mr. Alvarez CMSHA inspector) during which he demanded and received company 

records to which he may not have had the authority to see. 

This investigation took place on March 3, 1989. A citation 

was issued and the disposition is still pending with adverse effects likely • 

.!/ (Continued) 

(D) substantive rules of general applicability 

adopted as authorized by law, and statements of general 

policy or interpretations of general applicability formulated and adopted by the agency; and 

CE) each amendment, revision, or repeal of the 

foregoing. 

1049 
Sanger also attaches to its brief a federal register publication~/ of Friday, March 31, 1978, dealing with a delegation 

of authority and assignment of responsibility for mine safety and 

health programs. However, Sanger asserts such publications do 

not satisfy the A.P.A. 

The Secretary's contrary positions will be hereafter considered. 

Discussion 

Publication: Section 552(a)(l) of the A.P.A. requires each 

agency to separately state and publish in the Federal Register 

"descriptions of its central and field organization and the 

methods whereby the public may obtain information, make submi ttals or requests or obtain decisions." 

An agency of the federal government is defined by 44 u.s.c. 

1501. 6/ The Mine Safety and Health Administration (MSHA) is 

such an agency. However, MSHA has not complied with this above 

cited A.P.A. 

The Secretary's post trial brief does not refer to any 

relevant publication nor has the judge located any such publication in the Register nor in its codification showing MSHA's 

"central and field organizations." 7/ The statutory directive 

is explicit as to what must be published. 

~/ Federal Register, Vol. 43, No. 63. 

6/ The above cited provision, as it relates to the Federal 

Register and the Code of Federal Regulations, contains the 

following definition: 

"Federal agency" or "agency" means the President 

of the United States, or an executive department, 

independent board, establishment, bureau, agency, 

institution, commission, or separate office of the 

administrative branch of the Government of the 

United States but not the legislative or judicial 

branches of the Government. 

7/ Many matters under the Secretary's jurisdiction have been 

published in the Federal Register and recodif ied in the Code of 

Federal Regulation CCFR). See various subjects published in 

C.F.R. 20, 29, 30, 41, 48 and 50. Volume 30, Part I establishes 

MSHA's official emblem and the balance of 30 C.F.R. generally 

deals with mining. Included in 30 C.F.R. are the Secretary's 

mandatory regulations relating to mining. 

1Q50 
Rather, the Secretary argues Sanger's defense is irrelevant 

because the rights afforded MSHA employees to make inspections, 

etc., do not constitute a delegation of ·any authority vested in 

the Assistant Secretary of Labor [for MSHA]. Particularly, the 

Mine Act empowers authorized employees of MSHA to engage in the 

activities enumerated in Section 103{a) of the Act. 

I reject the Secretary's position. It 

that statutes should be construed together. 

authority in the Mine Act does not override 

to comply with the A.P.A. 

is well established 

In short, the 

MSHA's obligation 

Secondly, the Secretary argues that the Office of the 

Solicitor {of Labor) is not a federal agency. Accordingly, the 

Solicitor does not promulgate rules and regulations which have 

general applicability and legal effect. 

The judge believes this argument involves a mis-communication. A fair reading of Sanger's argument at the hearing as well 

as its post trial brief indicates a focus directed to MSHA, not 

to the Solicitor. 

The Secretary also argues that Sanger has not been adversely 

affected by the lack of any publication. 

The statute does not require that an individual be adversely 

affected by a failure to publish. The Secretary's case in 

support of that position is misplaced. In U.S. v. Fitch Oil 

Company, 676 F.2d 673 (1982) {Temp. Em. C.A.) appellant relied on 

the fact that the Department of Energy's {DOE) "audit policy" had 

been revoked. The appellate court held that such revocation did 

not vest any constitutional or statutory right in respondent oil· 

company or its officers that would invalidate subpoenas for 

books, etc., previously issued. The Court ruled that the "audit 

policy" was not a legislative rule by designation or substance. 

It, was intended to govern internal agency procedures and was 

therefore not binding on the DOE. In the instant case, except 

for the publication of the regulations, 30 C.F.R. § 56.14007 and 

30 C.F.R. § 56.12028, no publication was made. In particular, 

there was no publication of MSHA's "central and field organization for the guidance of the public." 

For a precise articulation of the applicable law I find 

Rowell v. Andrus, 631 F.2d 699 (1980), {10th Cir.) and United 

States v. Two Hundred Thousand Dollars ($200,000) in United 

States Currency, 590 F. Supp. 866 (1984) to be persuasive. 

See.also, Pinkus v. Reilly, 157 F. Supp. 548, D.C.,N.J. (1957). 

1051 
In Rowell the Secretary of the Interior 

Federal Register a regulation in final form. 

was the publication was entered less than 30 

effective date. 

published in the 

The difficulty 

days before its 

On appeal the 10th Circuit Court of Appeals invalidated 

the published rule and action thereunder because it was published 

less than 30 days before its effective date as required by 

Section 553Cd) of the A.P.A~, 631 F.2d at 702. 

In United States v. Two Hundred Thousand Dollars ($200,000) 

in United States Currency, the United States Customs Department 

seized $200,000 at an airport. The Court invalidated the 

forfeiture because Customs failed to satisfy 5 u.s.c. § 552 

(a)(l)(c). 

In short, Customs' form should have been published in the 

Federal Register, 590 F.Supp. at 870, 871. 

The Secretary also argues that to prevail Sanger must show 

actual prejudice which bears upon the violations for which the 

company was cited. 

In the situation presented here the record does not reflect 

that Sanger knew MSHA's central and field organizations. If 

Sanger knew of the matters that should have been published, then 

it could hardly have asserted this defense. However, in this 

case Sanger claims to have been prejudiced. In Citation No. 

3074994, Sanger was cited for violating 30 C.F.R. § 56.12028. !1 

One of Sanger's objections was that the company had no way of 

knowing nor any way to check whether it was obliged to turn over 

ground system testing reports to the MSHA inspector. 

_!!/ The regulation provides: 

§ 56.12028 Testing grounding systems. 

Continuity and resistance of grounding systems 

shall be tested immediately after installation, 

repair, and modification1 and annually there-. 

after. A record of the resistance measured 

during the most recent tests shall be made 

available on a request by the Secretary of his 

duly authorized representative. 

1052 
The final argument presented by the Secretary is that the 

selection of Mr. Alvarez as an authorized employee of the Mine 

Safety and Health Administration is a matter expressly exempted 

from the requirements of the A.P.A. 

I agree. Internal personnel rules and practices are exempt. 

In 5 u.s.c. § 552 (b)(2) an exception appears where the material 

sought "(2) related solely to the internal personnel rules and 

practices of an agency." 

However, the main thrust of Sanger's case seeks information 

showing the inspector's duties, delegated authority as well as 

MSHA's central and field organizations. Such matters are clearly 

within the statutory mandate. 

The Secretary's position is no doubt somewhat difficult. 

She is charged with enforcing the Mine Safety Act. On the other 

hand she is obligated to comply with the direct statutory mandate 

discussed herein. It is the writer's view that if the Secretary 

now publishes in the Federal Register such publication, if otherwise correct, could be effective 30 days thereafter. Rowell v. 

Andrus, supra, 631 F.2d at 705. However, such publication will 

not affect this operator and, for the reasons stated herein, 

these cases should be dismissed. 

Sanger seeks an order dismissing MSHA's citations herein. 

Since Sanger's motion of dismissal is to be granted it is not 

necessary to consider any additional issues raised in the case. 

ORDER 

1. In WEST 88-275-M: Citation No. 3076869 and all penalties therefor are vacated. 

2. In WEST 89-71-M: Citation No. 3074994 and all penalties 

therefor are vacated. 

3. WEST 88-275-M and WEST 89-71-M are dismissed. 

Law Judge 

1053 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 221990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

VIC'S SAND & GRAVEL COMPANY, 

Respondent 

Docket No. CENT 89-104-M 

A.C. No. 14-00483-05505 

Vic's Sand Pit 

DECISION 

Appearances: Oscar L. Hampton, III, Esq., Office of the 

Solicitor, U.S. Department of Labor, Kansas City, 

Missouri, for the Petitioner; 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

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

Mine Safety and Health Act of 1977, 30 u.s.c. §. 820(a). Petitioner seeks a civil penalty assessment in the amount of $50 for 

an alleged violation of mandatory injury reporting standard 

30 C.F.R. § 50.20, as stated in a section 104(a) Citation 

No. 2651810, served on the respondent by MSHA Inspector James G. 

Enderby, on January 25, 1989. The condition or practice cited is 

as follows: 

A employee of the company was seriously injured in 

July 1988 that required medical attention and was lost 

time away from work. The company did not file a MSHA 

Form 7000-1 within the required time for reporting. 

All injuries to anyone that occurs on the mine property 

are required to be reported to MSHA within 10 days of 

occurrence. 

The respondent contested the citation, and pursuant to 

notice served on the parties, a hearing was convened in Wichita, 

Kansas, on April 25, 1990. The petitioner appeared, but the 

1054 
respondent did not. The hearing proceeded in the absence of the 

respondent, and the petitioner presented testimony and evidence 

in support of the citation. 

Issues 

The issues presented in this case are (1) whether or not the 

respondent violated the cited standard, and if so, the appropriate civil penalty that should be imposed for the violation, 

and (2) whether or not the respondent's failure to appear at the 

hearing constitutes a waiver of its right to be further heard in 

this matter. 

Applicable statutory and Regulatory Provisions 

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

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

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

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

Discussion 

The Respondent's Failure to Appear at the Hearing 

The record clearly establishes that the respondent received 

notice of the time and place of the hearing by certified mail. 

When its representative Vic Eisenring failed to appear, I telephoned his office in Wichita and was advised by his secretary 

that the respondent had mailed a check to MSHA on Friday, 

April 20, 1990, in payment of the civil penalty assessment and 

that the respondent did not attend to appear at.the hearing. The 

petitioner's counsel informed me that he was not aware of any 

payment made by the respondent for the violation in question, and 

that his attempts to contact the respondent prior to the hearing 

were fruitless. Under the circumstances, the hearing proceeded 

in the absence of the respondent, and the petitioner presented 

its case. 

On May 4, 1990, I issued an Order to Show Cause to the 

respondent (Vic Eisenring) affording him an opportunity to 

explain why he should not be defaulted and a summary decision 

entered ordering payment of the civil penalty because of his 

failure to appear at the hearing or otherwise inform me that he 

would not appear. 

By letter dated May 11, 1990, the respondent filed a reply 

to my show-cause order. Mr. Eisenring asserted that he has paid 

the civil penalty assessment. With regard to his failure to 

appear at the hearing, Mr. Eisenring states that a family emergency prevented his appearances, and that the hearing notices 

1055 
contained no instructions that he was to telephone the presiding 

judge if he could not appear. 

The record reflects that Mr. Eisenring's office is in 

Wichita, and the hearing was held in that same city. When I 

telephoned Mr. Eisenring's office on the morning of the hearing 

and spoke to his secretary, she said nothing about any emergency 

and simply stated that Mr. Eisenring had mailed a check to MSHA 

in payment of the civil penalty and would not appear at the 

hearing. Notwithstanding the family emergency, and taking into 

account the fact that Mr. Eisenring's secretary informed me that 

he had mailed the check to MSHA on Friday, April 20, 1990, 5-days 

prior to the scheduled hearing, I believe it is reasonable to 

conclude that Mr. Eisenring did not intend to appear at the 

hearing. 

With regard to.Mr. Eisenring's failure to communicate with 

me, as previously noted, the hearing was scheduled in the same 

city where his office is located. The Amended Notice of Hearing 

which Mr. Eisenring received by certified mail on April 19, 1990, 

informed him of the location of the hearing in Wichita, and my 

office telephone number is listed in the notice. Notwithstanding 

the fact that the hearing notice did not specifically instruct 

Mr. Eisenring to contact the court if he did not intend to appear 

at the hearing, since the hearing was convened in Wichita to 

accommodate Mr. Eisenring, and since the hearing notice included 

the location of the hearing and my office telephone number, I do 

not find it unreasonable to expect Mr. Eisenring or his secretary 

to simply call my office, or the district court in Wichita where 

the hearing was convened, to inform me that he would not appear. 

In view of the foregoing, I conclude and find that pursuant 

to Commission Rule 63, 29 C.F.R. § 2700.63, the respondent is in 

default, and that his failure to appear constitutes a waiver of 

his right to be further heard in this matter. 

Petitioner's Testimony and Evidence 

MSHA Insoector James G. Enderbv testified that he conducted 

an inspection at the respondent's site on December 20 or 21, 

1988, and noticed that one of its employees, Hollis Pridgett, was 

wearing a cast o.n his foreman. Mr. Pridgett explained that he 

was injured while repairing a tire in the shop. Mr. Pridgett 

stated that while filling a tire with air, it did not "bead" 

properly and it jumped off the tire stand and struck his arm and 

wrist causing a simple fracture to his forearm and multiple 

fractures to his wrist. He received medical attention and extensive surgery to his wrist and he missed several work days. 

Mr. Enderby stated that Mr. Pridgett informed him that the 

tire belonged to the respondent and that he was preparing to put 

1056 
it on his personal pick-up truck which was used for the benefit 

of the respondent in picking up equipment. 

Mr. Enderby stated that the respondent's owner Vic Eisenring 

informed him that he had telephoned MSHA's-office in Denver and 

the state workmen's compensation inspector and was told that he 

was not required to report the injury. Mr. Enderby stated that 

he reviewed the respondent's telephone records for July and 

August, 1988, and found no record of any long distance out-ofstate calls to Denver. Mr. Eisenring could not recall who he 

spoke with and indicated that it may have been an 11 800 11 number. 

Mr. Enderby then advised Mr. Eisenring that it was his opinion 

that the injury had to be reported. He then advised 

Mr. Eisenring to fill out and file an MSHA Form 7000-1, injury 

report and to.attach a letter to it explaining the circumstances 

of the injury so that his supervisor could review it and make a 

determination as to whether a citation should be issued because 

of the respondent's failure to report the injury within 10 days 

as required by section 50.20. 

Mr. Enderby stated that during a follow-up inspection on 

January 25, 1989, he issued several citations and asked 

Mr. Eisenring whether he had mailed in the injury report which 

they had previously discussed. Mr. Eisenring responded that he 

mailed it and then left the property. Mr. Enderby then asked 

Mr. Eisenring's secretary, Cecilia Taylor, whether she had mailed 

the report and she informed him that she had not mailed the 

report because "it was tax time." Mr. Enderby then issued the 

citation. He also telephoned his office and determined that the 

report which Mr. Eisenring claimed he had mailed had not been 

received. 

Mr. Enderby stated that he subsequently spoke with 

Mr. Eisenring about the matter and that Mr. Eisenring "used some 

profanities" and informed him that he "would take him to court" 

and contest the citation. 

Mr. Enderby identified exhibit P-1 as a copy of Form 7000-1, 

filed by Mrs. Taylor on January 25, 1989, after the citation was 

issued. The report was submitted to MSHA's Denver, Colorado 

office, and Mr. Enderby stated that he received a copy of the 

report in his office on February 17, 1989. He then terminated 

the citation that same day. The report reflects that 

Mr. Pridgett was injured on July 15, 1988, while he "was working 

on his personal tire and was mounting the tire on a rim and the 

tire exploded." It also reflects that Mr. Pridgett injured his 

"hand-arm," missed 102 days of work, and that he "still is 

restricted." 

Mr. Enderby stated he made a finding of "high negligence" 

because MSHA's policy guidelines require such a finding in cases 

concerning reporting violations pursuant to section 50.20, unless 

1057 
there are mitigating circumstances. Mr. Enderby confirmed that 

there were no such mitigating circumstances in this case. 

Mr. Enderby confirmed that he did not consider the violation 

to be "significant and substantial" because it was not reasonably 

likely to result in any injury. He did not believe that the 

respondent exhibited good faith compliance because the injury was 

not reported until 33 days after he had previously advised 

Mr. Eisenring to report it and submit an explanatory letter when 

he discussed the matter with him in December, 1988. In addition, 

the injury which occurred on July 15, 1988, was not reported 

until approximately 5 months later. 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

reporting standard 30 C.F.R. § 50.20, which requires a mine 

operator to report an occupational injury within 10 working days 

after its occurrence. The term "occupational injury" is defined 

by section 50.2(e) in pertinent part as follows: 

Any injury to a miner which occurs at a mine for which 

medical treatment is administered, or which results in 

* * * inability to perform all job duties on any day 

after an injury, * * *· 

The evidence in this case clearly establishes that 

Mr. Pridgett suffered serious injuries to his arm and wrist on 

July 15, 1988, that he received medical treatment for his 

injuries, and was incapacitated and missed work for a number of 

days immediately following his injuries. Contrary to the respondent's assertion that the injury occurred when Mr. Pridgett was 

performing work on his personal tire for his pick-up, the inspector's credible testimony reflects that the truck was to be used 

by Mr. Pridgett in performing services for the respondent. Even 

if I were to accept the respondent's assertions that Mr. Pridgett 

was working on his own personal vehicle, the applicable definition of "occupational injury" makes no such distinctions. The 

evidence establishes that the injury occurred at the mine, that 

medical treatment was administered, and that the injury resulted 

in Mr. Pridgett's inability to perform his job duties on any day 

following his injuries. Under the circumstances, all of the 

criteria for reporting such an injury were met and I conclude and 

find that the injury was an "occupational injury" which was 

required to be reported by the respondent within 10 days of its 

occurrence. The respondent clearly did not do so. Accordingly, 

I conclude and find that the petitioner has established a violation of section 50.20, by a preponderance of the evidence, and 

the citation issued by Inspector Enderby IS AFFIRMED. 

1058 
Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's ·Ability to Continue in Business 

Exhibit P-2, a summary of the respondent's mine production, 

reflects 6,267 manhours worked in Calendar-Year 1988. Inspector 

Enderby testified that the respondent employed four persons "on 

site," and also used the services of two truck drivers. He 

considered the respondent to be a small mine operator engaged in 

the sand and gravel business, and he stated that the principal 

product is sand which is sold and used in construction, for road 

materials, and in the production of concrete. 

The respondent failed to appear in this case. In the 

absence of any evidence to the contrary, I cannot conclude that 

the civil penalty assessed by me for the violation in this case 

will adversely affect the respondent's ability to continue in 

business. 

I conclude and find that the respondent is a small mine 

operator, and I have taken this into consideration in assessing a 

civil penalty for the violation which I have affirmed. 

History of Prior Violations 

Exhibit P-2, a summary of the respondent's prior history of 

assessed violations (excluding single penalty assessments timely 

paid) reflects that the respondent paid civil penalty assessments 

for one violation in 1986, and one violation in 1987. Inspector 

Enderby confirmed that the respondent had not previously been 

charged with any reporting violations pursuant to Part 50, 

Title 30, Code of Federal Regulations. 

I conclude and find that the respondent has a good compliance record and I have taken this into consideration in this 

case. 

Gravity 

I conclude and find that the violation was non-serious. 

Negligence 

Although the record in this case, including the respondent's 

answer, suggests that the respondent may have been informed that 

it was not required to report the injury, I find no credible or 

probative evidence to confirm or corroborate this assertion by 

the respondent. Further, there is no evidence to establish that 

the respondent ever filed the required injury report until after 

the inspector issued the citation on January 25, 1989. 

I find the inspector's testimony that he advised 

Mr. Eisenring on December 20, or 21, 1988, to file the required 

1059 
report to be credible. Mr. Eisenring apparently failed to follow 

the inspector's advice, and I find no evidence to support any 

conclusion that the report was timely filed. Under all of these 

circumstances, I agree with the inspector's high negligence 

finding and it is affirmed. 

Good Faith Compliance 

I find the inspector's testimony that he advised 

Mr. Eisenring of his opinion that the injury sustained by 

Mr. Pridgett on July 15, 1988, was required to be reported to be 

credible. In my view, the inspector acted reasonably and 

afforded Mr. Eisenring an opportunity to submit the report with 

an explanation as to why he had not filed it earlier. 

Mr. Eisenring failed to do so. Under the circumstances, I agree 

with the inspector's conclusion that the respondent failed to 

exercise good faith in timely complying with the requirements of 

the cited standard. 

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 proposed civil penalty assessment of $50, for the violation which has been affirmed is reasonable and appropriate. Accordingly, IT IS AFFIRMED. 

ORDER 

If it has not already done so, the respondent IS ORDERED to 

pay a civil penalty assessment in the amount of $50, to MSHA 

within thirty (30) days of the date of this decision and order. 

Upon receipt of payment, this matter is dismissed. 

~A/;~ Administrative Law Judge 

Distribution: 

Oscar L. Hampton, III, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 2106, 911 Walnut Street, Kansas City, 

MO 64106 (Certified Mail) 

Vic Eisenring, Owner, Vic's Sand & Gravel Company, 4620 West 21st 

Street, Wichita, KS 67212 (Certified Mail) 

/fb 

1060 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 221990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 89-73-M 

A.C. No. 16-00039-05505 

v. 

Lebanon Quarry 

LEBANON ROCK INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION 

Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Robert M. Mumma II, President, Lebanon Rock, 

Incorporated, Harrisburg, Pennsylvania, Pro se, 

for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for 

two alleged violations of certain mandatory safety standards 

found in Part 56, Title 30, Code of Federal Regulations. A 

hearing was held in Harrisburg, Pennsylvania, and the parties 

waived the filing of posthearing briefs. However, they presented 

oral arguments at the close of the hearing, and I have considered 

these arguments in the course of my adjudication of this matter. 

Issues 

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

respondent violated the cited mandatory safety standards, 

(2) whether the violations were "significant and substar:itial" 

(S&S), and (3) the appropriate civil penalties to be assessed 

1061 
pursuant to the civil penalty assessment criteria found in 

section llO(i) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of this 

decision. 

Applicable statutory and Regulatory Provisions 

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

30 u.s.c. § 301, et seq. 

2. Sections 56.9006 and 56.12016, Title 30, Code of Federal 

Regulations. 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

Stipulations 

The parties stipulated to the following (Tr. 6-7): 

1. The Lebanon Quarry is owned and operated by 

the respondent and it is subject to the jurisdiction of 

the Act. 

2. The presiding judge has jurisdiction to hear 

and decide this matter. 

3. The violations were timely abated by the 

respondent. 

4. The quarry production is approximately 200,000 

tons a year. The quarry produces high calcium 

limestone (Tr .. 28). 

5. The respondent's history of prior violations, 

as shown by an MSHA computer print-out, reflects a 

favorable history of compliance. 

6. Payment of the proposed civil penalty assessments will not adversely affect the respondent's ability to continue in business. 

7. The respondent owns the property where the 

subject quarry is located and it shares the property 

with the Elco Concrete Company. 

Discussion 

The facts and evidence in this case establish that an accident occurred on May 25, 1988, at a portable limestone crushing 

and processing plant owned and operated by the respondent. 

Patrick Werth, a laborer who sometimes operated the crusher, was 

injured while performing work repairing the skirting on a return 

1062 
belt. Mr. Werth had turned the belt off by using a push button, 

but he did no:t lock the belt out with a lock which was provided 

and available at the electrical switchbox location. While he was 

performing this work, the crusher operator and a loader operator 

were attempting to dislodge a rock which was stuck in the crusher 

jaws. The crusher and crusher take-away belt were running while 

this work was going on, and this was a normal and acceptable 

operating procedure when rocks are stuck in the crusher. 

After freeing the rock, the loader operator who was helping 

the crusher operator, started the return belt which Mr. Werth was 

working on. Mr. Werth was standing on a portion of the return 

belt which was not visible from the location where the crusher 

and loader operator were working, and they could not see 

Mr. Werth because the view was obstructed by the belt structure 

and framework. No signal or warning was sounded before the 

return belt was started up, and since it was not locked out, 

Mr. Werth was drawn through a 15-inch high opening and suffered 

cracked vertebrae. When the crusher operator realized that 

Mr. Werth was on the belt when it started up, he immediately shut 

it down by using the same push button used by Mr. Werth to turn 

the belt off. The push button was located at the crusher station 

where the crusher and loader operator were working to free the 

rock. 

As a result of the accident, MSHA Inspector Andrew Nawa 

conducted an investigation, and after completing it he issued the 

following citations: 

Section 104(a) "S&S" Citation No. 2626303, May 26, 1988, 

cites an alleged violation of 30 C.F.R. § 56.12016, and the cited 

condition or practice is described as follows: 

The plant helper or laborer was injured while 

repairing the return belt conveyor skirting. The 

helper was on the belt while other employees were 

working on the primary crusher trying to free a hangup. When the hang-up was cleared the conveyor belts 

were started. A lock-out system was provided but not 

used. 

Section 104(a) "S&S" Citation No. 2626304, May 26, 1988, 

cites an alleged violation of 30 C.F.R. § 56.9006, and the cited 

condition or practice is described as follows: 

A start-up signal was not provided for the crushing plant. An employee was injured while in a confined 

space and not provided with adequate warning of the 

start-up of the plant. 

1063 
Petitioner's Testimony and Evidence 

Patrick Werth testified that he was employed by the respondent as a laborer and was laid off on December 17, 1989. He 

confirmed that he was working at the mine on May 25, 1988, when 

he was injured when he was caught under a brace on the return 

belt of the portable plant when the belt was started up while he 

was standing on it while repairing the belt skirting. 

Mr. Werth stated that he went to the belt area to work on 

the belt after he had helped two other employees, Mr. Stanley 

Deck and Mr. Alberto Rolon, free up a rock which was stuck in the 

crusher jaw. He confirmed that he had shut the belt down by 

turning it off at a switch box which was located at the platform 

which was over the crusher where the work to free the rock was 

taking place. The switch box was approximately 100 feet from 

where he was working on the belt skirting. He also confirmed 

that he told Mr. Rolon and Mr. Deck that he was going to work on 

the return belt. 

Mr. Werth stated that he had worked for the respondent for 

9 weeks before he was injured and that he received no training 

during his employment. He stated that on the day he started work 

he was instructed to go to the crusher and that another employee 

told him what to do. He identified his boss during the 9 weeks 

of his employment as Mr. Doug Glasford, who he identified as the 

quarry foreman or superintendent (Tr. 14-19). 

Mr. Werth stated that the entire length of the return belt 

on which he was working could not be seen from the starting 

switch box location and that the view along 10 feet of the belt 

was obstructed by the belt bracing (Tr. 20). 

Mr. Werth stated that he suffered three cracked vertebrae 

when he was caught in the belt bracing and was hospitalized for 

7 days. He was out of work for a year and 2 months, cannot lift 

heavy objects, and he sometimes has pain (Tr. 20). 

On cross-examination, Mr. Werth explained what he was doing 

while attempting to free the rock lodged in the crusher and he 

confirmed that the crusher and crusher belt were both in operation. He confirmed that if the rock were freed, it would have 

dropped through the crusher and onto the running belt, and that 

it would have jammed the return belt which he had shut off when 

it reached that point. He conceded that the shutting down of the 

return belt was not normal procedure, and that normally all of 

the belts are started before the crusher is started (Tr. 22). 

In response to further questions, Mr. Werth confirmed that 

operating the crusher while attempting tJ free the rock was 

normal procedure because the crusher vibration will help free the 

jammed rock (Tr. 25). He confirmed that he had never heard about 

1064 
the belt lock out procedure and that the switch which he used to 

shut off the .return belt was a push button on/off switch. There 

was no switch at the location where he was working on the return 

belt skirting, and in order to start and stop the belt, he would 

have to go to the switch located at the crusher platform (Tr. 

28-29). 

Mr. Werth stated that after the rock was cleared from the 

crusher Mr. Deck started up all of the belts after he saw the 

rock go down the crusher. He confirmed that Mr. Rolon quickly 

stopped the return belt because he knew that he was there (Tr. 

30) . 

Andrew Nawa, self-employed, testified that he was formerly 

employed by MSHA as a district health specialist and left in 

August, 1988. He confirmed that he visited the mine on May 26, 

1988, to conduct an investigation of the accident concerning 

Mr. Werth. He identified exhibit G-1, as the accident report 

which he prepared. He explained his findings and confirmed that 

he issued the citations in question (Tr. 31-39). 

Mr. Nawa confirmed that he issued Citation No. 2626303, 

citing a violation of 30 C.F.R. § 56.12016, because the power 

switches for the belt conveyors were not locked out while 

Mr. Werth was performing his work (Tr. 39, exhibit G-2). He 

confirmed that locks were provided by the respondent in the 

control trailer where the electrical power switches for the plant 

were located. The locks were provided for the lockout system, 

and they were hanging on the wall. However, they were not.used 

to lock out the belt conveyors and no warning signs were posted. 

The belts should have been locked out in the trailer where the 

off/on switch was located and at the primary crusher area by the 

person who shut it off (Tr. 41-42). 

Mr. Nawa stated that the violation was significant and 

substantial because an accident occurred and that if a belt 

starts up and moves when someone is not expecting it, he could 

sustain injuries ranging from a pinched finger to a fatality. He 

stated that there is "a vast history of accidents of people 

getting hurt that way." Since the accident occurred, the likelihood of injury was high (Tr. 42). 

Mr. Nawa stated that he based his high negligence finding on 

the fact that an order had been issued approximately a month 

earlier at the site for failure to use a lockout system which was 

available. He believed that the order was served on Elco 

Concrete Products, but that the management at the site was aware 

of what transpired (Tr. 43). 

Mr. Nawa confirmed that he issued Citation No. 2626304, 

citing a violation of section 56.9006, for the failure by the 

respondent to provide and use a start-up signal before starting 

1065 
the conveyor belts (Tr. 43). Petitioner's counsel asserted that 

the cited standard has been redesignated as section 56.14201, as 

part of Title 30, Code of Federal Regulations, effective July 1, 

1989 (Tr. 45, exhibit G-4). Counsel confirmed that the standard 

in effect at the time the citation was issued is essentially the 

same, and the respondent agreed:(Tr. 45-46). 

Mr. Nawa stated that he cited a violation of section 

56.9006, because the accident occurred when Mr. Werth was in a 

position where he could not be seen from the location of the 

start-up switch and no signal system was provided. He confirmed 

that the entire length of the belt was not visible from either of 

the two belt start-up positions and that he personally determined 

that this was the case and that no warning systems were installed 

on any of the belts (Tr. 47-48). 

Mr. Nawa confirmed that the violation was significant and 

substantial because the accident occurred, the lack of a start-up 

signal can result in serious accidents, and he was personally 

aware of injuries resulting from the lack of such a signal. 

There was always a risk that someone will be caught in moving 

machinery because they are not aware that it is going to move. 

If a signal were used, a person would have time to stay clear of 

the moving equipment (Tr. 48). 

Mr. Nawa stated that he made a finding of moderate negligence because start-up signals were in use in other places at the 

facility, and he was not sure that the respondent was aware of 

the need for a signal at the cited portable plant (Tr. 49). 

On cross-examination, Mr. Nawa confirmed that the prior 

order was served on Elco Concrete Products and not on Lebanon 

Rock, and he conceded that he was not sure about who the management personnel were who were operating at the same facility as 

the respondent. However, he believed that there was continuity 

among the same individuals and companies who operated at the 

site. He stated that when he went to the site to investigate the 

accident a lady serving as the scale master was vague as to who 

was in charge of the respondent's operation and that 20 minutes 

passed before anyone appeared and identified themselves as the 

respondent's superintendent (Tr. 51-52). 

In response to further question, Mr. Nawa confirmed that 

Mr. Werth was not trained in the use of the lockout system, and 

he doubted that Mr. Rolon and Mr. Deck received any training (Tr. 

60) . 

MSHA Metal/Non-Metal Inspector Elwood Frederick, testified 

that he terminated Citation No. 2626304, after the respondent 

installed a signal belt on the crusher oil pump to signal when it 

was started and a siren which also sounded when the conveyor belt 

system was started up. Mr. Frederick confirmed that he had 

1066 
previously inspected the respondent's plant in March, 1988, and 

that he issued a combined section 107(a) order and 104(a) citation to Elco Concrete Products, Inc., citing a violation of 

section 56.12016, for failing to lock out the primary crusher 

main conveyor belt before performing work on the belt skirts 

(exhibit G-5). 

Mr. Frederick stated that the respondent and Elco operated 

at the same quarry location and that the respondent owned the 

land. He explained that prior to March, 1988, there was no 

distinction between the two operations and they were conducted by 

the same family, namely, the family of Mr. Mumma, the respondent's owner. Referring to his notes and an MSHA conference work 

sheet which were attached to a copy of his order/citation, 

Mr. Frederick stated that Mr. Doug Glasford was identified as the 

respondent's plant superintendent, and that Mr. Richard Allwein 

was identified as Elco's superintendent. He explained that 

during his inspections of the quarry site, he encountered problems in identifying the specific family members or individuals 

who were responsible for the respondent's and Elco's operations, 

and that this was caused by a split among the family who had 

interests in both operations. As a result of these problems, 

Mr. Frederick assigned an MSHA independent contractor ID Number 

to Elco so that he could distinguish it from the respondent's 

operation. He stated that Elco operated at the front of the 

quarry site, and that the respondent operated to the rear of the 

property near the quarry (Tr. 68-77). 

On cross-examination, Mr. Frederick confirmed that during 

his inspection on March 24, 1988, Mr. Glasford informed him that 

he was the respondent's plant superintendent. Mr. Frederick also 

confirmed that Mr. Allwein had worked at the quarry site for a 

long time. He also believed that the respondent and Elco were a 

part of a company known as Pennsy Supplies, in which Mr. Mumma 

had an interest (Tr. 77-79). 

Respondent's Testimony and Evidence 

Robert M. Mumma II, respondent's president, explained the 

operation of the plant portable crusher system which is used to 

process high calcium limestone. He stated that when the plant 

was originally purchased and installed, it was a complete 

"turn-key" package which he believed included a belt alarm for 

the crushing unit in question. He produced a copy of a March 2, 

1987, proposal from the plant manufacturer and supplier which 

includes the operational specifications for all of the portable 

qrushing plant equipment (exhibit R-1). Referring to paragraph 

two on page two of the specifications concerning the secondary 

crushing unit, Mr. Mumma pointed out that they include an "oil 

pressure/temperature alarm switch." 

1067 
Mr. Mumma stated that according to normal operating procedures all maintenance on the crushing plant is performed while 

the plant is down and not in operation. He stated that when the 

crusher unit is operating, all of the belt conveyors are supposed 

to be running and that Mr. Werth should not have shutdown the 

return belt with the "on-off" switch which he used, and that this 

switch is intended to be used only in emergencies. 

Mr. Mumma confirmed that he owns 50 percent of Lebanon Rock 

and that his late father's "estate" owns 50 percent of the 

company. He also confirmed that he has no interest in Elco 

concrete, but that other family members have a controlling 

interest in that company. He also confirmed that he has an 

interest in several other inter-locking companies which he identified as Pennsy Supply and 11 999 11 • 

Mr. Mumma denied that Mr. Glasford was employed by Lebanon 

Rock as a superintendent or foreman, and he characterized him as 

a "consultant" who worked on customer problems and other company 

administrative matters. He confirmed that Mr. Glasford may have 

interviewed prospective employees, including Mr. Werth. 

Mr. Mumma confirmed that he had no knowledge as to whether the 

respondent had any written safety rules and procedures, or any 

written training program (Tr. 110-135). 

Mr. Werth was called in rebuttal by MSHA, and he stated that 

Mr. Glasford hired him for his job with the respondent and supervised his work "most of the time." Mr. Werth confirmed that he 

knew Mr. Barnett, but denied that Mr. Barnett ever supervised or 

instructed him as to his job duties (Tr. 136-139). 

Findings and Conclusions 

Fact of Violation - Citation No. 2626303 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.12016, which provides as follows: 

Electrically powered equipment shall be deenergized before mechanical work is done on such equipment. 

Power switches shall be locked out or other measures 

taken which shall prevent the equipment from being 

energized without the knowledge of the individuals 

working on it. suitable warning notices shall be 

posted at the power switch and signed by the individuals who are to do the work. Such locks or preventive 

devices shall be removed only by the persons who 

installed them or by authorized personnel. 

The failure to deenergize electrically powered equipment and 

to lock out power switches before any mechanical work is done on 

1068 
the equipment has been consistently held to constitute a violation of mandatory safety standard 30 C.F.R. § 57.12016, and the 

identical standard section 56.12016, applicable to surface metal 

and nonmetal mines. See: MSHA v. Adams stone Corporation, 

7 FMSHRC 692, 706-707, (May 1985); MSHA v. ·FMC Corporation, 

4 FMSHRC 1818, 1821-22 (October:1982), petition for Commission 

review denied, November 16, 1982; MSHA v. Greenville Quarries, 

Incorporated, 9 FMSHRC 1390, 1428 (August 1987); North American 

Sand and Gravel Company, 2 FMSHRC 2017 (July 1980); Brown 

Brothers Sand Company, 3 FMSHRC 734 (March 1981) ; Ozark-Mahoning 

Company, 11 FMSHRC 859 (May 1989), aff'd by the Commission on 

March 21, 1990; Price Construction Company, 7 FMSHRC 661 (May 

1985) • 

MSHA's credible and unrebutted evidence clearly establishes 

that the crusher return belt on which Mr. Werth was standing and 

working at the time of the accident was not locked out. The belt 

is an electrically powered piece of equipment, and although it 

was deenergized by Mr. Werth by the use of a push button, it was 

not locked out at the main power switch as required by section 

56.12016. Further, there is no evidence that the respondent took 

other measures to prevent the return belt from being energized 

and started without the knowledge of Mr. Werth while he was 

working on it. Under all of these circumstances, I conclude and 

find that MSHA has established a violation by a preponderance of 

the evidence, and the citation IS AFFIRMED. 

Fact of Violation - Citation No. 2626304 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.9006, which provides as follows: 

When the entire length of a conveyor is visible 

from the starting switch, the operator shall visually 

check to make certain that all persons are in the clear 

before starting the conveyor. When the entire length 

of the conveyor is not visible from the starting 

switch, a positive audible or visual warning system 

shall be installed and operated to warn persons that 

the conveyor will be started. 

Section 56. 9.006 requires the installation and use of a 

positive audible or visual warning system for a conveyor belt 

when the entire length of the conveyor is not visible from the 

starting switch. The purpose of this requirement is to provide a 

warning to persons that the conveyor will be started. In this 

case, the credible and unrebutted testimony of Mr. Werth and 

Inspector Nawa establishes that the portion of the return belt on 

which Mr. Werth was standing was not visible from the starting 

switch which was located at the crusher station where the loader 

and crusher operator were working and from where the return belt 

was started up after the rock was cleared from the jaws of the 

1069 
crusher. The evidence also establishes that Mr. Werth could not 

be seen from that location. 

In the answer filed by the respondent on June 14, 1989, 

Mr. Mumma took the position that a start-up horn or signal would 

not have been activated since the primary crusher was never 

shutdown at the time Mr. Werth was performing work on the belt. 

During the course of the hearing, Mr. Mumma pointed out that the 

crusher equipment supplier's proposal and specifications for 

crushing units include an oil pressure and temperature alarm 

system and switches, and he explained that when the crusher unit 

is started up the crusher unit alarm will sound until the oil 

pressure is increased to a workable level. He suggested that 

this alarm satisfies the requirements of the standard. 

I take note of the fact that the crusher specifications 

includes an electrical turnkey system wired to the main electrical generator source of power located and mounted in a plant 

trailer. However, I find no provisions for any alarms or warning 

devices installed on the belt conveyor components. The specifications include a remote start/stop button located on the work 

platform adjacent to the primary crusher and feeder to allow the 

plant operator to control the feed to the jaw crusher. 

Inspector Nawa testified that the entire length of the 

return belt was not visible from the control switch located at 

the crusher platform area where the crusher and loader operator 

were working to free the rock and that Mr. Werth was not in view 

while he was standing on that portion of the belt which could not 

be seen from the crusher platform location. Mr. Nawa confirmed 

that there was no signal system in effect to warn Mr. Werth that 

the return belt conveyor would be started by use of the switch 

located at the crusher platform. 

Inspector Frederick, the individual who terminated the 

violation, testified that he did so after the respondent 

installed a signal bell on the crusher unit oil pump to signal 

when it was started, and also installed a siren which sounded 

when the conveyor belt system was started. A copy of the violation notice of termination issued by Inspector Frederick reflects 

the installation of these devices. 

Although Mr. Mumma's testimony suggests that the crusher 

unit alarm system was initially installed on the crusher unit as 

part of the turnkey installation of the portable plant, the fact 

remains that the return conveyor belt, which could be turned on 

and off by use of a remote push button "on-off" switch located at 

the crusher unit work platform, was not provided with an alarm, 

or equipped to sound an audible alarm or warning when that belt 

conveyor was again started up after it was turned off. Section 

56.9006, requires the installation and use of such a warning 

device when the entire length of the conveyor belt is not visible 

1070 
from the starting switch. Under the circumstances, I conclude 

and find that MSHA has established a violation by a preponderance 

of the evidence, and the citation IS 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 

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 

1071 
(April 1988); Youghiogheny & Ohio Coal company, 9 FMSHRC 2007 

(December 1987). 

I conclude and find that both of the citations issued by 

Inspector Nawa involved significant and substantial violations of 

the cited standards. The failure to lock out the power switch to 

the conveyor belt resulted in serious injuries to Mr. Werth who 

was standing on the belt conveyor performing work. He suffered 

several broken vertebrae, was hospitalized, and missed many 

months of work. Although the belt had been shutdown by means of 

a push button, the power was not locked out, and when it was 

started up again, Mr. Werth was drawn into the belt conveyor 

support bracket opening and was injured. The accident could not 

have occurred if the power switch had been locked out with the 

locks which were available in the switch trailer. The seriousness of the hazard was exacerbated by the fact that Mr. Werth had 

received no safety training and was not informed about the lockout procedures. 

The failure to provide an audible belt conveyor start-up 

signal contributed to the accident and injuries. If such a 

signal were in use when the belt was started, Mr. Werth may have 

had an opportunity to jump off the belt and avoid the serious 

injuries which he sustained. In addition, the evidence establishes that while working on the belt conveyor, Mr. Werth was out 

of the view of the two individuals who were working to free the 

rock from the crusher. Although Mr. Werth had helped work to 

free the rock shortly before the accident, after he left the 

platform area, further communications were not maintained, and 

the belt was started without any prior signal to warn Mr. Werth, 

who was out of the view of the person who started it. In such 

situations, it is reasonably likely that accidents of the kind 

which occurred in this case will happen, with resulting injuries 

of a reasonably serious nature. Under all of these circumstances, I conclude and find that the inspector's significant and 

substantial findings with respect to both violations was clearly 

justified, and they ARE AFFIRMED. 

size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

The evidence in this case reflects that the respondent is a 

small limestone mine operator, and the parties have stipulated 

that the payment of the civil penalty assessments for the violations in question will not adversely affect the respondent's 

ability to continue in business. 

History of Prior Violations 

An MSHA computer print-out concerning the respondent's 

history of prior violations reflects that for the period May 26, 

1986 through May 25, 1988, the respondent made payment in the 

1072 
amount of $336 for six assessed violations, none of which are for 

violations of the mandatory standards cited in this case. The 

parties have stipulated that the respondent has a favorable 

history of compliance, and I agree and adopt this as my finding 

and conclusion on this issue. 

Good Faith Compliance 

The parties stipulated that the respondent timely abated the 

violations in good faith. I adopt this stipulation as my finding 

and conclusion on this issue. 

Gravity 

In view of my significant and substantial (S&S) findings, I 

conclude and find that both of the violations were serious. The 

failure to lock out the return belt on which Mr. Werth was working when it was started resulted in serious injuries to 

Mr. Werth. Further, the failure by the respondent to provide an 

audible or visual warning system for the crusher belt system, 

particularly the return belt conveyor where Mr. Werth was working, contributed to the accident and resulting injuries. The 

portion of the belt where Mr. Werth was standing was not visible 

from the crusher station and Mr. Werth could not been observed by 

the person who started up the belt. If a signal or warning had 

been installed and used, Mr. Werth may have had an opportunity to 

jump clear of the belt, and he probably would not have been 

injured. 

Negligence 

Citation No. 2626304, 30 C.F.R. § 56.9006 

The inspector found that this violation was the result of 

moderate negligence on the part of the respondent. I agree with 

this finding and conclude and find that the violation resulted 

from the respondent's failure to exercise reasonable ordinary 

care. 

Citation No. 2626303, 30 C.F.R. § 56.12016 

Inspector :Nawa based his "high negligence" finding on the 

fact that the respondent had been previously cited for a violation of section 56.12016, by Inspector Frederick on March 24, 

1988, after he observed the plant operator preparing to work on 

some belt skirts without locking out the belt power switch. 

However, the evidence establishes that this prior violation was 

served on Elco Concrete Products, Inc., and it is not included as 

part of the respondent's history of prior violations. Conceding 

that this is the case, the petitioner nonetheless suggests that 

because the respondent's superintendent, Doug Glasford, was 

present when the prior violation was issued, and was aware of the 

1073 
circumstances, the respondent had constructive notice of the 

violation and the conditions cited, and should have taken appropriate steps to enforce its lockout procedures at the time of the 

accident involving Mr. Werth. 

Inspector Frederick testified that prior to his inspection, 

the quarry was operated by Mr. Mumma's family and there was no 

distinction between Lebanon Rock and Elco Concrete. 

Mr. Frederick believed that Mr. Mumma had an interest in both 

operations, but due to certain "inter-family" differences and 

"turmoil" following the death of Mr. Mumma's father, he had 

difficulty in identifying any specific family members or management officials who were responsible for each of these operations. 

He explained that a separate MSHA Mine ID number was assigned to 

Elco Concrete in order to distinguish it from the respondent's 

operation, and a notation on an MSHA "conference sheet" which is 

attached to a copy of the citation issued by Mr. Frederick 

(exhibit G-5) reflects that "two different operations" were being 

conducted at the quarry site. 

Mr. Frederick further testified that Mr. Glasford was serving as the respondent's superintendent at the time of his inspection and that he was with him when he observed the violative 

conditions. Mr. Frederick confirmed that Mr. Glasford was also 

present at the "closeout meeting" following his inspection and 

that the violation and lockout procedures were discussed with him 

and a representative of Elco Concrete. The conference worksheet 

reflects that Mr. Glasford was present on March 29, 1988, as the 

representative of the respondent. 

Mr. Mumma denied any ownership interest in Elco Concrete 

Products Inc. He explained that he has a 14 percent interest in 

a holding company known as 11 999 11 , which owns Pennsy Supply 

Company, and that Pennsy owns Elco Concrete. Mr. Mumma also 

denied that Lebanon Rock and Elco Concrete ever operated as a 

single entity at the quarry site, and he further explained that 

prior to 1985, the quarry was owned by the Corson Lime Company, 

and that his family was not involved in that operation. He 

testified that Lebanon Rock Company was established in 1985, and 

purchased the property and began mining high calcium limestone, 

and that Elco Concrete began mining dolomite at the site during 

the spring of 1988 (Tr. 127-128). 

Mr. Mumma identified his quarry superintendent as Mr. Gerald 

Barnett and the record establishes that the contested citations 

were served on Mr. Barnett. Further, Inspector Nawa's accident 

report of May 25, 1988, identifies Mr. Barnett as the quarry 

superintendent at that time. Mr. Werth confirmed that he knew 

Mr. Barnett, but he denied that Mr. Barnett ever supervised him 

or instructed him as to his job duties. Mr. Werth further testified that he was hired by Mr. Glasford, and that Mr. Glasford was 

his "boss." 

1074 
Mr. Mumma denied that Mr. Glasford was an employee of 

Lebanon Rock, and he characterized him as a "consultant" who 

handled sales and administrative matters and who was paid by the 

day or hour based on his billings. He stated that Mr. Glasford 

may have been associated with Lebanon Rock for 4 or 5 months, but 

was not at the site full time. Conceding that Mr. Glasford may 

have interviewed Mr. Werth for employment, Mr. Mumma stated that 

either he or Mr. Barnett hired Mr. Werth through the payroll 

department. He conceded that Mr. Glasford was on the property 

when the two citations were issued and that he "must have been 

contending (sic) to work there" (Tr. 130). 

Mr. Mumma took the position that Mr. Werth deviated from 

normal operating procedures by shutting down the belt while the 

other two employees were attempting to free the rock which had 

lodged in the jaws of the crusher. Mr. Mumma argued that the 

respondent provided the proper locks, but that in his attempts to 

do "something beneficial for the company," Mr. Werth violated 

company policy concerning the normal operating procedures for 

shutting down the equipment (Tr. 154). 

With regard to the prior violation issued by Inspector 

Frederick, Mr. Mumma took the position that the respondent should 

not be held accountable for this violation since it was served on 

Elco Concrete Products, Inc. Mr. Mumma asserted that 

Mr. Glasford was not given a copy of the previously issued violation, was not given any information in this regard, and had 

nothing to transmit to the respondent, and that he simply "overheard a verbal conversation" (Tr. 156). Mr. Mumma further 

asserted that if the prior violation had been served on the 

respondent, he would have received a copy in his office and would 

have been informed about the violation and would have had an 

opportunity to take appropriate action by immediately reviewing 

the plant operational procedures with his employees. Mr. Mumma 

suggested that since he had no prior knowledge of the previous 

violation, he should not be penalized for any negligence. He 

also expressed some doubts as to whether Mr. Werth actually 

informed Mr. Rolon and Mr. Deck that he was going to perform work 

on the belt which was started up and resulted in his injuries 

(Tr. 154-159). 

The respondent's reliance on Mr. Werth's alleged negligence 

as a defense to the citation is rejected. The petitioner's 

position on this issue is correct, and I conclude and find that 

the respondent may be held strictly liable and accountable for 

the violation regardless of any fault by one of its employees. 

Although any negligence by Mr. Werth may be considered in mitigation of any civil penalty assessments for the violations which 

have been affirmed in this case, I cannot conclude that the 

evidence establishes that Mr. Werth was negligent. His credible 

and unrebutted testimony establishes that he received no training 

1075 
and was not aware of any lockout procedures. The respondent's 

suggestion that Mr. Werth may not have notified Mr. Rolon and 

Mr. Deck that he was going to work on the belt which was started 

up and caused his injuries is likewise rejected. Mr. Rolon and 

Mr. Deck were not called to testify in this case and I find 

Mr. Werth to be a credible witness and I believe his unrebutted 

testimony. 

The record in this case establishes that the prior violation 

issued by Inspector Frederick was in fact served on Elco Concrete 

Products under its own MSHA Mine ID number, and as previously 

noted, it is not included in the respondent's history of prior 

violations. Under the circumstances, I find some merit in the 

respondent's argument that it should not be penalized for the 

negligence attributable to Elco. With regard to Mr. Glasford's 

knowledge of the prior violation, and the respondent's constructive notice of the violative conditions, since Mr. Glasford was 

not called to testify, his managerial role with respect to the 

respondent's operation at the time this violation was issued, as 

testified to credibly by Inspector Frederick, remains unrebutted. 

Although I find Mr. Mumma's testimony concerning Mr. Glasford's 

status believable, I am not totally convinced that Mr. Glasford 

was not informed about the prior cited conditions. Nor am I 

convinced that Mr. Glasford did not occupy a managerial position 

with the respondent, and I credit Mr. Werth's testimony that 

Mr. Glasford was his boss. 

Apart from any knowledge by the respondent with respect to 

the prior violation, I conclude and find that the evidence and 

testimony presented in this case, taken as a whole, supports a 

finding of a high degree of negligence by the respondent for the 

citation in question. Althoqgh Mr. Mumma asserted that had he 

been informed of the prior violation, he would have taken appropriate steps to review the plant operational procedures with his 

employees, he conceded that he had no knowledge of the existence 

of any written company safety rules and procedures. Mr. Mumma 

did not rebut the fact that Mr. Werth was not trained, and he 

acknowledged that he had no knowledge of the existence of any 

company training program (Tr. 132). He simply believed that 

Mr. Werth had been assigned to Mr. Rolon for training, and that 

Mr. Barnett was responsible for overseeing the operation of the 

plant. However, Mr. Rolon and Mr. Barnett were not called to 

testify, and in the absence of any testimony from these key 

employees, Mr. Werth's unrebutted and credible testimony establishes that he was not trained and had no knowledge of any ·lockout procedures. 

Mr. Mumma's acknowledgement of the fact that the respondent 

provided the locks for use by its employees, establishes a strong 

inference that it was aware of the requirements of the cited 

standard, and Mr. Mumma conceded that he was aware of these 

requirements (Tr. 90). I believe that it is not unreasonable to 

1076 
expect the respondent to insure that Mr. Werth was trained, or 

otherwise made aware of the existence of the locks, including the 

necessity for using them to lock out a belt before he performed 

any work. Further, given the fact that Mr. Werth was working 

with Mr. Rolon, an individual who Mr. Mumma stated was supposed 

to train Mr. Werth, and who knew that Mr. Werth was working on 

the belt, I can only conclude that the respondent failed to take 

reasonable steps to adequately supervise Mr. Werth's work, and 

that its failure to do so contributed to the accident which 

resulted in serious injuries to Mr. Werth. Under all of these 

circumstances, I conclude and find that the violation was the 

result of a high degree of negligence on the part of the respondent, and the inspector's finding in this regard IS AFFIRMED. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

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

Act, I conclude and find that the following civil penalty assessments are reasonable and appropriate for the violations which 

have been affirmed: 

Citation No. 

2626303 

2626304 

05/26/88 

05/26/88 

30 C.F.R. Section 

56.12016 

56.9006 

ORDER 

Assessment 

$1,000 

$ 800 

The respondent IS ORDERED to pay the civil penalty assessments for the violations in question, and payment is to be made 

to MSHA within thirty {30) days of the date of this decision and 

order. Upon receipt of payment, this matter is dismissed. 

~~~ 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) 

Mr. Robert M. Mumma II, President, Lebanon Rock, Inc., P.O. 

Box 1531, Harrisburg, PA 18105 (Certified Mail) 

/fb 

1077 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 231990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF BOBBY COULTER, 

Complainant 

v. 

CANTU MATERIALS, INC., 

Respondent 

Before: Judge Broderick 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. CENT 90-1-DM 

MD 89-38 

Sheppard Pit 

By order issued March 23, 1990, I found Respondent in 

default for failure to file an answer to the complaint of 

discrimination filed by the Secretary on behalf of Bobby Coulter, 

and for failure to respond to an order of show cause issued 

January 11, 1990. 

Because of Respondent's default, I found that it had 

violated section 105 ( c) ( .1) of the Act in discharging Bobby 

Coulter on or about March 13, 1989, for activity protected under 

the Act. I ordered Respondent to expunge its records of any 

references to the discharge of Bobby Coulter, and to pay to the 

Secretary a civil penalty in the amount of $600. I further 

ordered Respondent to pay Bobby Coulter full back pay and other 

benefits from the date of his discharge until the date he resumed 

full employment, with interest on the back pay calculated in 

accordance with the formula contained in 54 Fed. Reg. 2226 

(January 19, 1989), and to pay Complainant the expenses 

associated with this litigation. 

I directed the Secretary to submit a statement of the amount 

claimed as back pay with interest and the amount of litigation 

expenses. on May 14, 1990, the Secretary filed a statement of 

Amount Claimed, a copy of which was served on Respondent 

May 10, 1990. No litigation expenses are claimed. Respondent 

has not replied to the Statement. Therefore, I accept the 

Secretary's statement of the amount of back pay less interim 

earnings from March 13, 1989, until he resumed full employment 

April 8, 1989. 

1078 
ORDER 

Therefore, IT IS ORDERED: 

l •· The findings and orders issued March 2 3 , 19 9 o, are 

AFFIRMED. 

2. Respondent shall pay to Complainant within 30 days of 

the date of this decision the sum of $912.31 representing lost 

wages and interest as follows: · 

Back wages 3/13/89 to 3/20/89 

Withheld wages 

Wage differential 3/20/89 to 

4/7/89 

Travel expenses 

Interest 3/13/89 to 4/7/89 

$280.00 

217.00 

206.25 

205.52 

5.54 

$912.31 

A"/., ~ c 1 fJ.,1-od/vl;J v/lvU.-"'~ .• M;,__ 

James A. Broderick 

Administrative Law Judge 

Distribution: 

Jack F. Ostrander, Counsel for Safety and Health, U.S. Department 

of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 

501, Dallas, TX 75202 (Certified Mail) 

Cantu Materials, P.O. Box 425, Eagle Lake, TX 77434 (Certified 

Mail) 

slk 

1079 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 23'1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RS & W COAL COMPANY, INC., 

Respondent 

Docket No. PENN 89-139 

A.C. No. 36-01818-03524 

R S & W Drift 

DECISION 

Appearances: Mark v. Swirsky, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Randy Rothermel, RS & W Coal Company, Inc., 

Klingerstown, Pennsylvania, Pro gg_, for the 

Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent pursuant 

to section llO(a) 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 $300, for an alleged violation of mandatory training standard 30 C.F.R. § 48.5(a). Respondent filed a timely 

answer and contest, and a hearing was held in Reading, 

Penpsylvania. The parties waived the filing of posthearing 

briefs, and I have considered their oral arguments made on the 

record during the course of the hearing in this matter. 

Issues 

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

condition or practice cited by the inspector constitutes a 

violation of the cited mandatory safety standard, (2) whether the 

violation was "significant and substantial" (S&S), and (3) the 

appropriate civil penalty to be assessed for the violation, 

1080 
taking into account the statutory civil penalty assessment 

criteria found in section llO(i) of the Act. Additional issues 

raised by the parties are identified and disposed of in the 

course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

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

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

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated that the respondent is a small coal 

mine operator employing eight miners, and that its annual production is 3,300 tons. They also agreed that payment of the proposed civil penalty assessment will not adversely affect the 

respondent's ability to continue in business (Tr. 4). 

Discussion 

The contested section 104(a) S&S Citation No. 2677716, 

served on the respondent on November 15, 1988, cites an alleged 

violation of mandatory training standard 30 C.F.R. § 48.5(a), and 

the cited condition or practice is described as follows: 

Darin Schwartz, determined to be a new miner, was 

observed working in the skidmore rock tunnel underground portion-of the mine. A discussion with 

Mr. Schwartz revealed that he had received little of 

the required 40 hours of new miner training. 

The company's approved training plan dated 

12-18-87 states "32 hours of new miner training will be 

given at the Schuylkill County Mine Safety Training 

Center and all 40 hours of training will be completed 

before new employee is assigned work duties 

underground." 

This citation is issued in conjunction with 

104(g) (1) Order No. 2677715 for violation of 114 of th~ 

Act. 

In conjunction with the citation, the inspector also issued 

a section 104(g) (1) "S&S" Order No. 2677715, on November 15, 

1988, withdrawing the cited untrained miner from the mine. The 

order states as follows: 

1081 
Darin Schwartz, observed performing laborer duties 

in the skidmore rock tunnel in the underground portion 

of the ·mine has not received the requisite safety 

training as stipulated in section.115 of the Act. 

Mr. Schwartz has been determined to be a new miner 

hired by this company. 11-15-88, who has received little 

or none of the required 40 hours of new miner training. 

In the absence of such training, Darin Schwartz, 

laborer, is declared to be a hazard to himself and 

others and is to be immediately withdrawn from the mine 

until he has received the required training. 

A citation (No. 2677716) for violation of 

30 C.F.R. § 48.5(a), has been issued in conjunction 

with this order. 

Petitioner's Testimony and Evidence 

MSHA Inspector Dennis L. Mvers testified that he inspected 

the respondent's mine on November 15, 1988, and was accompanied 

by Mr. Randy Rothermel, the foreman. Mr. Rothermel informed him 

that miner Walter Wehry was working underground. After proceeding underground to the working section, Mr. Myers found that 

miner Darren Schwartz was working with Mr. Wehry loading coal 

into a buggy. Mr. Schwartz informed Mr. Myers that this was his 

first day on the job underground and that he had worked for 

1 week at another contract mine operation. Mr. Schwartz also 

informed Mr. Myers that he had received no training (Tr. 13-16). 

Mr. Myers stated that he asked Mr. Schwartz if he knew what 

a "three piece set" was, and he replied that he did not. 

Mr. Myers explained that this was one of the methods of roof 

control which may be used at the respondent's mine and that it is 

a subject usually covered in the 40-hour training given to new 

miners. Mr. Myers confirmed that he also asked Mr. Schwartz 

about the mine roof control and ventilation plans, and that he 

had no knowledge of the plans (Tr. 17-18). 

Mr. Myers stated that Mr. Rothermel was present while he 

questioned Mr. Schwartz and stated that he was training 

Mr. Schwartz. Mr. Myers then informed Mr. Rothermel that he 

could not train Mr. Schwartz because he was not listed as a 

trainer or instructor in the respondent's training plan. 

Mr. Rothermel informed Mr. Myers that he was a trainer at a 

previous mining operation and Mr. Myers informed Mr. Rothermel 

that Mr. Schwartz would have to be withdrawn from the mine 

because he had not been trained (Tr. 19). 

Mr. Myers stated that Mr. Rothermel telephoned MSHA's 

district supervisor for education and training, Charles Moore, 

from his off ice and inquired as to why he was not listed as an 

instructor. Mr. Myers stated that he informed Mr. Moore that 

1082 
pursuant to the respondent's training plan new miners had to be 

trained at the Schuylkill County Vo-Tech facility, and that the 

approved training instructor was Mr. Richard Rothermel, Randy's 

brother, and the respondent's president and foreman. Mr. Myers 

confirmed that Richard Rothermel was listed on the MSHA ID form 

which he reviewed, but that Randy Rothermel was not. After 

speaking with Mr. Moore, Mr. Myers issued the citation and withdrawal order and served them on Randy Rothermel (Tr. 22). 

Mr. Myers stated that he discussed the respondent's training 

plan with Mr. Rothermel and advised him to have it updated and 

that he could request technical assistance from MSHA. Mr. Myers 

stated that he had no knowledge that the respondent had ever 

requested prior assistance from MSHA regarding the training plan. 

He confirmed that Mr. Schwartz left the property and that when he 

next returned to the mine on December 6, 1988, Mr. Schwartz was 

not there (Tr. 22). 

Mr. Myers confirmed that he cited a violation of section 

48.5(a), because he considered Mr. Schwartz to be a new miner, 

and he determined through his conversation with Mr. Schwartz and 

Mr. Rothermel that Mr. Schwartz was an untrained inexperienced 

miner (Tr. 23). 

Mr. Myers stated that the violation was significant and 

substantial because there was a very good possibility that an 

inexperienced miner working underground would be exposed to an 

injury to himself and other miners (Tr. 24). Mr. Myers confirmed 

that he made a finding of "high negligence" because Mr. Rothermel 

had previously served as a training instructor and knew that as a 

new employee Mr. Schwartz could not go underground without any 

training. Mr. Myers found no mitigating circumstances, and he 

believed that the respondent could have made other arrangements 

to train Mr. Schwartz and should have contacted MSHA to assist 

him before the citation and order were issued (Tr. 24). 

Mr. Myers identified a. copy of the respondent's approved 

training plan which lists Richard Rothermel as the approved 

instructor, and he confirmed that the plan was in effect at the 

time the citation and order were issued, and that Randy Rothermel 

produced the plan for his review (Tr. 25, exhibit P-10). 

Mr. Myers confirmed that he has never seen a 1985 training plan 

which was identified as exhibit P-7 (Tr. 26). Mr. Myers confirmed that Mr. Schwartz was withdrawn from the mine because he 

had not received 40 hours of new miner training before he was 

assigned work duties (Tr. 26). 

On cross-examination, Mr. Myers explained why he believed 

Mr. Schwartz was exposed to mine hazards while working underground without the benefit of training (Tr. 27-29). Mr. Myers 

confirmed that the respondent submitted another· training plan to 

MSHA's district office in Wilkes-Barre approximately a week or 

1083 
2-weeks prior to the hearing in this case, but that he was not 

familiar with the specifics of that plan (Tr. 32). Mr. Myers 

identified some MSHA training materials produced by 

Mr. Rothermel, and Mr. Rothermel pointed out that the information 

reflects that on-the-job training "is best" (Tr. 34). 

Mr. Myers confirmed that Richard Rothermel was not at the 

mine on November 15, 1988, and that Randy Rothermel said nothing 

about Richard being involved in any training for Mr. Schwartz. 

Mr. Myers stated that Randy Rothermel simply informed him that he 

was training Mr. Schwartz "on the job" (Tr. 42). Randy Rothermel 

did not indicate that Mr. Wehry was training Mr. Schwartz (Tr. 

43) . 

Mr. Myers confirmed that assuming that he was qualified to 

administer training, Randy Rothermel could administer the training. However, the applicable approved mine training plan only 

listed Richard Rothermel as the qualified training instructor 

(Tr. 44). Mr. Myers confirmed that he found no MSHA training 

form 5023 for Mr. Schwartz, and that this form is required to be 

filled out by Vo-tech showing the dates of the training and the 

training which was administered and received by the miner (Tr. 

4 7) • 

Mr. Myers conceded that Mr. Schwartz may have received some 

on-the-job training during the time he was underground on the day 

of the inspection, but that he was required to have a full 

8 hours of training on-the-job and 32 hours of additional training prior to performing any work underground and that this is 

specified in the respondent's training plan (Tr. 48-50). 

MSHA Supervisory Inspector Dean W. Updegrave confirmed that 

he is Inspector Myers' supervisor, and after reviewing the citation and order issued by Mr. Myers, he agreed that they were 

properly issued (Tr. 61). Mr. Updegrave stated that approximately 3 days after the citation and order were issued, Randy 

Rothermel came to his off ice and informed him that he could train 

Mr. Schwartz because he was listed as an approved training 

instructor on the mine training plan. Mr. Updegrave stated that 

he then reviewed his file and a copy of the training plan with 

Mr. Rothermel and informed him that his name did not appear on 

the plan as a trainer. Mr. Rothermel then stated "well, it was 

on, somebody took it off" (Tr. 62). 

Mr. Updegrave stated that he informed Mr. Rothermel that 

Mr. Schwartz would have to have 32 hours of classroom training 

time and 8 hours "introduction to the work environment" before he 

was assigned a job (Tr. 62). Mr. Rothermel then requested that 

the training plan be changed. Mr. Updegrave then reviewed the 

mine legal identity report and found that Randy Rothermel was not 

listed as one of the mine partners, and that only Richard 

Rothermel and Mr. Wehry were listed as partners. Randy Rothermel 

1084 
then informed Mr. Updegrave that he was a partner, and 

Mr. Updegrave gave him blank copies of the legal identify form 

and advised him to file them in order to have him listed as a 

partner. He also advised Mr. Rothermel to request a change in 

the training plan if he so desired (Tr. 63). 

Mr. Updegrave stated that prior to the inspection by 

Mr. Myers, Richard Rothermel visited his office to discuss the 

mine training plan. Richard requested that Randy Rothermel's 

name be deleted from the plan because he was not a qualified 

instructor. Richard Rothermel informed Mr. Updegrave that he did 

not have the facilities at the mine to train new employees and 

opted to have them trained at the Vo-tech school for the 32 hours 

of classroom training. The new plan was accordingly changed and 

approved by MSHA, and it listed Richard Rothermel as the approved 

trainer, and it provided that 32 hours of training would be 

conducted at the Vo-tech school (Tr. 65-66: exhibits P-10, P-8, 

and P-9). Mr. Updegrave identified exhibit P-11 as a copy of a 

letter dated December 18, 1987, advising the respondent that the 

new training plan had been approved (Tr. 68). He also identified 

a copy of a letter from Richard Rothermel submitting information 

concerning the revision and addendum to his approved training 

plan (Tr. 68-70, exhibit P-12). Mr. Updegrave confirmed that 

Randy Rothermel was not involved in these modifications and 

revisions of the mine training plan (Tr. 71). 

Mr. Updegrave confirmed that the respondent filed a new 

training plan with MSHA's Pottsville office approximately a week 

prior to the hearing and Richard Rothermel informed him that he 

did not want Randy Rothermel to be included in the plan as a 

training instructor. Mr. Updegrave also confirmed that he has 

not received any new mine legal identity forms from Randy 

Rothermel (Tr. 71). 

Mr. Updegrave confirmed that pursuant to the respondent's 

prior 1985 training plan, all of the 40-hour new miner training 

could be done at the mine site (Tr. 91). 

Respondent's Testimony and Evidence 

Darren Schwartz testified that prior to the day of the 

inspection by Mr. Myers, he worked at another mine for a week. 

He confirmed that the day of the inspection was his first day of 

work at the respondent's mine. He stated that he had shoveled 

coal underground for 4 hours before the inspector came underground, and that he had shoveled 25 scoops of coal. He confirmed 

that Mr. Rothermel pointed out several safety things to him when 

he first went underground (Tr. 94-96). 

Mr. Schwartz stated after he came to the surface, Mr. Myers 

would not permit him to do any surface work until he was trained 

at the Vo-tech school. He confirmed that he completed his 

1085 
surface training on May 25, 1989, and his underground training on 

July 28, 1989 (Tr. 100). 

Randy Rothermel testified that at.the time of the inspection 

he was not aware of the 1987 training plan·and was only familiar 

with the one he filled out.in 1985. He stated that the 1985 plan 

permitted him to train newly employed miners, and that the pending plan revision would allow him to do this again. 

Mr. Rothermel could not explain why he was not aware of the 1987 

plan (Tr. 107). He explained that he works one shift and his 

brother Richard. works another shift, and that the mine plans are 

continuously being changed and that he has "a drawer full of 

them" (Tr. 108) • 

On cross-examination, Mr. Rothermel stated that the mine was 

working two shifts in 1985 and 1987, and that the mail was 

received at a company office away from the mine site. He stated 

that his brother works the third shift from 10 p.m. to 5:00 a.m. 

and comes to the mine 6 days a week, and that he works the first 

shift from 7:00 a.m. to 2:00 p.m. (Tr. 111). He stated that he 

lives 3 or 4 miles from his brother, and that they spoke to each 

other "all the time away from the mine." He stated that his 

brother never told him that he had changed the mine legal identity information, and he believed that he did so because a share 

of the mine was sold to his brother in 1987 or 1988. 

Mr. Rothermel confirmed that he has always owned a share of the 

mine (Tr. 112). 

Mr. Rothermel confirmed that he took Mr. Schwartz underground, explained some things to him, and that he was in the 

company of one of the other mine partners. He did not believe 

that Mr. Schwartz was performing any work duties, and that he was 

only shoveling coal (Tr. 115-116). He asserted that he intended 

to train Mr. Schwartz that day, and that he had been underground 

for 4-hours prior to.the inspector's arrival, and if the inspector had not arrived he would have trained Mr. Schwartz for the 

remainder of the day (Tr. 119). He conceded that he was not with 

M~. Schwartz all of the time, but spent 2 hours with him underground before leaving to conduct other business (Tr. 119-120). 

However, he communicated with Mr. Schwartz over the intercom (Tr. 

121) . 

Mr. Updegrave was recalled and he confirmed that in the 

event Vo-tech cannot train a newly employed miner at any given 

time, the respondent could have contacted MSHA's district manager 

for a waiver to permit him to allow one of MSHA's training specialists to conduct the training. He also indicated that the 

Vo-tech facility has an evening training program to allow miners 

to timely complete their training (Tr. 123). 

Mr. Updegrave confirmed that the Vo-tech training is scheduled when there are 10 or more persons to be trained, but there 

1086 
are times when only two people are in class. He again confirmed 

that Richard Rothermel informed him that he did not have the time 

to train miners at the mine and since he wanted to send them to 

Vo-tech, he submitted a change for his plan (Tr. 124). 

Mr. Updegrave explained the newly submitted training plan by 

Richard Rothermel (Tr. 126-130) ~· 

Findings and Conclusions 

Fact of Violation 

The respondent in this case is charged with a violation of 

the training requirements found in 30 C.F.R. § 48.5(a), because 

of its failure to provide training for newly employed miner 

Darren Schwartz, as required by section 48.5(a) and the respondent's approved mine training plan. Section 48.5(a), requires 

that each new miner receive no less than 40 hours of training 

before he is assigned to any work duties, and approximately 

8 hours of this training is required to be given at the mine 

site. 

Mr. Randy Rothermel agreed that MSHA's training regulations 

require a new miner to receive no less than 40 hours of training 

before he is assigned to any work duties (Tr. 31). However, he 

took the position that MSHA's training materials which were 

recently given to him reflect that on-the-job training is the 

"best" method for training miners, and that pursuant to his plan, 

training may be given "on site" and that it is not necessary that 

it be given at the local county Vo-tech facility (Tr. 35). 

MSHA's counsel pointed out that pursuant to the respondent's 

applicable training plan, Richard Rothermel may administer part 

of the new-miner training, and that Vo-tech is an alternative 

source for administering the training. He further pointed out 

that all training must be administered by a qualified instructor 

and that the plan provisions list where the training is to be 

administered for each of the subjects covered by the plan (Tr. 

36-40). He confirmed that pursuant to the plan, certain portions 

of the training may be done at the mine by a qualified instructor 

and certain portions may be done at the Vo-tech facility (Tr. 

41) . 

Mr. Rothermel asserted that he had no knowledge of the 

training plan relied on by Mr. Myers prior to the inspection, and 

that he was only familiar with the prior 1985 plan which lists 

him as an instructor (Tr. 51). Mr. Rothermel and the inspector 

confirmed that the applicable plan was found in an envelope in a 

desk drawer in the mine office with various other papers, including the mine ventilation and roof-control plans and that "it took 

us a little bit to find them" (Tr. 29). 

1087 
Mr. Rothermel stated that he did not want to train new 

miners at the Vo-tech school, and that if the new plan is 

approved, miners will be trained at the mine (Tr. 77-78, 89). He 

took the position that even though Mr. Schwartz was underground, 

"he was shoveling coal and I don't consider that work" (Tr. 

79-80). He also took the position that Mr. Schwartz was receiving training at the time he was found underground by Inspector 

Myers (Tr. 81). He also expressed concern that the training 

administered at the Vo-tech facility is not given at all times, 

and that newly employed miners must wait for months before they 

are hired in oraer to be trained. 

The evidence adduced in this case clearly establishes that 

the cited miner in the employ of the respondent at the time of 

the inspection in question was a newly employed inexperienced 

miner who had not received the requisite training pursuant to the 

respondent's MSHA approved training plan. The respondent's 

suggestion that the cited miner was not performing any work 

underground at the time he was found by the inspector is 

rejected. The evidence establishes that the untrained miner was 

shoveling and loading coal, and his own testimony attests to the 

fact that he had been underground for approximately 4 hours 

shoveling and loading coal. Under the circumstances, I conclude 

and find that the petitioner has established a violation by a 

clear preponderance of all of the credible and probative evidence 

in this case, and the contested citation IS AFFIRMED. I also 

conclude and find that the withdrawal of the untrained miner was 

proper in the circumstances. 

Significant and Substantial Violation 

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 

1088 
violation; (3) a reasonable likelihood that the hazard 

contribμted 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). 

Inspector Myers' based his "S&S" finding on his belief that 

an inexperienced and untrained miner working underground would be 

exposed to an injury to himself and to other miners and that 

mining is a very hazardous occupation (Tr. 23-24). He explained 

that during the time he was underground, Mr. Schwartz would have 

been in a confined area with coal cars moving back and forth, and 

in the event of a derailment "he could very well get hurt" if he 

were struck by one of the cars. Although Mr. Myers indicated 

that Mr. Schwartz was "off to the side" of the coal chute while 

loading coal, he stated that when he was shoveling and cleaning 

up the coal he was directly under the coal chute, and that the 

coal buggies moved back and forth while they were being loaded. 

In the event one of the chute poles broke loose, the coal could 

have rolled out and over the chute board and caught Mr. Schwartz. 

Mr. Rothermel contended that he intended to train 

Mr. Schwartz underground on the day of the inspection, and 

although Mr. Schwartz was underground for 4 hours before he was 

found by the inspector, Mr. Rothermel conceded that he was only 

with him for 2 hours underground. Mr. Rothermel also indicated 

that he "explained some things" to Mr. Schwartz while he was 

underground with him, and that Mr. Schwartz was in the company of 

one of the mine partners. However, there is no evidence that the 

partner was training Mr. Schwartz, nor is there any evidence that 

1089 
Mr. Schwartz was doing anything other than shoveling and loading 

the coal. 

Mr. Schwartz confirmed that he was shoveling coal that had 

run out over the coal buggy. He confirmed·that Mr. Rothermel 

pointed out to him that he should kept "his arms and legs inside" 

while going inside the mine, showed him where the escape route 

was, and pointed out the mine intercom to him (Tr. 95-96). 

Although Mr. Schwartz indicated that he had worked at another 

mine operation for a week prior to his first day of employment 

with the respondent, there is no evidence or information of 

record as to the extent of his work at the other facility, nor is 

there any evidence as to whether the hazards presented at previous place of employment were similar or different from those 

presented at the respondent's underground mine. 

I conclude and find that Inspector Myers' credible and 

unrebutted testimony supports a reasonable conclusion that as an 

untrained, inexperienced miner, Mr. Schwartz's presence in the 

respondent's underground mine without the benefit of the required 

training exposed to him a reasonable likelihood of serious 

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

inspector's "S&S" finding was reasonable and proper in the circumstances, and IT IS AFFIRMED. 

Size of Business and Effect of Civil Penaltv Assessment on the 

Respondent's Ability to Continue in Business 

The parties stipulated that the respondent is a small mine 

operator and that the civil penalty assessment for the violation 

will not affect the respondent's ability to continue in business. 

I adopt these stipulations as my findings and conclusions with 

respect to these issues. 

History of Prior Violations 

Exhibit P-14, a computer print-out concerning the respondent's history of assessed violations, reflects that the respondent paid $144 in civil penalty assessments for four violations 

issued during the period from November 15, 1986 through 

November 14, 1988. All of the violations were section 104(a) 

citations, and the respondent was not previously cited for any 

training violations. I conclude and find that the respondent has 

a good compliance record and I have taken this into consideration 

in assessing the civil penalty for the violation which has been 

affirmed. 

Good Faith Compliance 

Mr. Schwartz was immediately removed from the mine and left 

the property after the citation and order were issued. The 

inspector terminated the citation after he returned to the mine 

1090 
and determined that Mr. Schwartz was no longer employed by the 

respondent. Absent any evidence to the contrary, I conclude and 

find that the violation was abated in good faith. 

Gravity 

In view of my "S&S" findings and conclusions, I conclude and 

find that the failure by the respondent to train Mr. Schwartz 

before putting him to work underground constituted a serious 

violation of the cited standard. 

Negligence 

Inspector Myers based his "high negligence" finding on the 

fact that Mr. Randy Rothermel had previously served as a training 

instructor and should have known that as a newly employed miner, 

Mr. Schwartz could not go underground prior to receiving the 

training required by the respondent's approved training plan 

which was in effect at the time of the inspection. The inspector 

~believed that Mr. Rothermel should have attempted to contact MSHA 

for assistance, or made other arrangements to train Mr. Schwartz 

prior to the issuance of the citation and order. 

Although I am convinced that Mr. Rothermel was aware of the 

training requirements, it seems obvious to me from the record in 

this that there is a serious lack of communication between the 

Rothermel brothers with respect to their own training programs 

and plans, as well as their respective authority with regard to 

the operation of the mine. MSHA's supervisory Inspector 

Updegrave, who was in contact with Richard Rothermel concerning 

certain proposed revisions to the training plan, confirmed that 

Randy Rothermel was not a party to those discussions. Randy 

Rothermel was apparently oblivious to the fact that his brother 

had deleted his name as the approved training instructor, and had 

not included his name as one of the mine operators in MSHA's mine 

identification papers. 

Although I find it difficult to believe that Mr. Randy 

Rothermel was totally oblivious to the fact that the 1985 mine 

training plan had been revised and replaced by a new plan which 

was approved in December, 1987, the testimony of Inspector Myers 

indicating that the new plan was in an envelope in a desk drawer 

in the mine office, and that it took some time to find it, and 

Inspector Updegrave's testimony that the MSHA letter informing 

the respondent of the new plan was addressed to Richard 

Rothermel, and that Randy Rothermel was not involved in the 

changes made in the new plan, lends some credence to Randy 

Rothermel's plea of ignorance of the new plan. However, given 

the fact that both Rothermel brothers apparently have an ownership interest in the mine and are equally accountable for the 

violation, I cannot conclude that the respondent may be absolved 

from any negligence for the violation. Further, upon review of 

1091 
the 1985 and 1987 training plans in question, I find that the 

only substantial change is the designation of Richard Rothermel, 

rather than Randy Rothermel, as the approved and qualified training instructor. Both plans require 40 hours of training for new 

miners with less than 1 year experience during the previous 

3 years, and I conclude and find that the respondent knew, or had 

reason to know, that Mr. Schwartz had to be completely trained 

before he was allowed to work underground. I reject Randy 

Rothermel's belated and self-serving explanation that he was 

training Mr. Schwartz on the very day that the inspector found 

him underground. Under the circumstances, I conclude and find 

that the inspector's "high negligence" finding was not unreasonable, and IT IS AFFIRMED. 

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 $300 for the violation which has been 

affirmed is reasonable and appropriate, and IT IS AFFIRMED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $300 for the violation in question. Payment 

shall be made to MSHA within thirty (30) days of the date of this 

decision and order, and upon receipt of payment, this matter is 

dismissed. 

'~-~~ Administrative Law Judge 

Distribution: 

Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Mr. Randy Rothermel, RS & W Coal Company, Inc., R.D. #1, Box 36, 

Klingerstown, PA 17941 (Certified Mail) 

/fb 

1092 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD. 

MAY 2 31990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

WALSENBURG SAND & G.RAVEL 

COMPANY, 

Respondent 

DENVER, CO 80204 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-184-M 

A.C. No. 05-04311-05501 

Ross Pit 

Docket No. WEST 88-214-M 

A.C. No. 05-03920-05504 

Vezzani Pit 

DECISION 

Appearances: Margaret A. Miller, Office of the Solicitor, 

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

For Petitioner; 

Ernest u. Sandoval, Esq., Walsenburg, Colorado, 

For Respondent. 

Before: Judge Cetti 

These cases are before me upon the petition for civil 

penalties filed by the Secretary of Labor pursuant to Section 

105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. Section 801 et seg., the "Act," charging Walsenburg 

Sand & Gravel Company (Walsenburg) with a violation of 13 safety 

standards found in Title 30 of the Code of Federal Regulations, · 

Part 56, for surface metal and non-metal mines. 

Walsenburg 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 Pueblo, Colorado. Oral and documentary evidence was introduced, post-hearing briefs filed, and the matter 

was submitted for decision. 

The general issues before me are whether Walsenburg violated the cited regulatory standards, whether or not certain 

alleged violations were significant and substantial as alleged, 

and if violations are found, what is the appropriate civil · 

penalty to be assessed in accordance with Section llO(i) of 

the Act. 

Walsenburg, at all relevant times herein, owned or leased 

and operated three sand and gravel pits in the general vicinity 

of Walsenburg, Colorado. Two of the pits, the Ross Pit and 

Vezzani Pit, were inspected by Federal Mine Inspector Lyle K. 

Marti. The inspector issued two citations for alleged violations 

of regulatory standards at the Ross Pit and 11 citations for 

alleged violations of regulatory standards at the Vezzani Pit. 

1093 
Docket No. WEST 88-214-M 

Background Information 

Lyle K. Marti, a federal mine inspector, in his inspection 

of the Vezzani pit, was accompanied by Gary M. Vezzani, VicePresident of Walsenburg. The Vezzani Pit is a small intermittent 

seasonal operation. Raw material is extracted from the earth and 

processed. At the pit there is a crusher with screening facilities, a maintenance shop, and a hot plant. The pit is in operation from time to time when the operator has need for the products processed there. On the day of the inspection the plant and 

crusher were not operating and only one employee was at the site. 

As a result of the inspection, Inspector Marti issued 11 

citations. Four of the citations involved guards for moving 

machine parts. Three of the guard-related citations involve 

alleged violations of 30 C.F.R. § 56.14001 for failure to properly guard exposed moving machine parts which may be contacted by 

persons and which may cause injury to persons. The other guardrelated citation was for the alleged violation of 30 C.F.R. 

§ 56.14006 which requires guards to be securely in place while 

machinery is being operated. The other seven citations involve 

alleged violations of electrical equipment standards. 

Stipulation 

The parties stipulated that each of the 11 citations accurately describes what Inspector Marti observed during his 

inspection of the Vezzani Pit. (Consequently, I quote from 

each citation the condition or practice observed by Inspector 

Marti.) 

Citation No. 3065798 

This citation alleges a 104Ca) S&S violation of 30 C.F.R. 

§ 56.14001. The citation describes the condition observed by 

Inspector Marti as follows: 

The chain and gear sprocket to the tail 

pulley on the feeder belt conveyor of the 

Cedar Rapids Crusher was not guarded against 

personal contact. 

1094 
Inspector Marti testified that the chain and gear sprocket 

could easily_ be contacted by persons doing cleaning or maintenance work in the area. Such a contact could result in the 

loss of a finger, an arm, or a hand. 

Mr. Marti testifed that he could tell from the shininess 

of the teeth of the sprocket, which is created by movement of 

the chain, that the machinery had been operated during the week 

or two before the inspection. Gary Vezzani would not tell him 

when the machinery was last operated. 

Inspector Marti discussed this violation with Gary Vezzani 

who told him, "We don't have men in that area when this machinery 

is in operation." 

Citation No. 3065799 

This citation alleges a 104(a) S&S violation of 30 C.F.R. 

§ 56.14001. The condition observed by Inspector Marti is stated 

in the citation as follows: 

The drive shaft and its couplings to the 

roller drum on the Cedar Rapids Crusher, 

SN 100861, was not guarded against personal 

contact that would cause injury to the person. 

The cited standard, 30 C.F.R. § 56.14001 provides as 

follows: 

Gears; sprockets; chains; drive, head, tail, 

and takeup pulleys; flywheels; couplings; 

shafts; sawblades; fan inlets; and similar 

exposed moving machine parts which may be 

contacted by persons and which may cause injury to persons, shall be guarded. 

Inspector Marti stated that the revolving drive shaft had 

couplers and keyways that could catch your clothing and wrap you 

into it, or you. could fall against it. A person making contact 

could sustain serious bodily injury. 

Inspector Marti testified that the rotating drum had a 

smoothness which reflected a shine that indicated the crusher 

had operated within the past 48 hours. In addition, he also 

noticed that along the wheels, along the rims, and on the frame 

of the crusher, there was a build-up of some very light material. 

1095 
Citation No. 3065884 

This citation charges a Section 104(a) S&S violation of 

30 C.F.R. § 56.14001. The stipulation of the parties established 

that Inspector Marti observed the following condition during his 

inspection which he described in the citation as follows: 

The tail pulley on the Plains Radial Stacker 

Conveyor with equipment # 72-8430 was not guard 

[sic] to prevent contact that could cause a 

serious injury to the person. 

Inspector Marti testified that there was no guard to prevent 

a person reaching in between the roller and the self-cleaning 

tail pulley and making contact with the pinch point. A guard 

should have extended below the frame and extended forward so an 

employee could not reach in behind and get caught in the pinch 

points. If one got caught in the pinch point, it could cause 

serious bodily harm or death. The height of the top of the belt 

around the tail pulley is approximately 48 inches above the 

ground and the bottom of the belt approximately 30 inches above 

the ground. The sheen on the bars of the tail pulley indicated 

that it had been operated recently. If it had not been operated 

recently, it would have had a dull-looking finish rather than a 

sheen. 

Citation No. 3065800 

This citation charges a Section 104(a) S&S violation of 

30 C.F.R. § 56.14006 as follows: 

The guard for the chain drive and gear 

sprockets of the tail pulley on the Peerless 

belt conveyor, SN: 2566 was not kept in place. 

30 C.F.R. § 56.14006 provides as follows: 

Except when testing the machinery, guards 

shall be securely in place while machinery is 

being operated. 

Mr. Marti testified that the guard was not in place. The 

guard was lying beside the frame of the belt conveyor exposing 

the idle pulley, drive pulley, and the pulley chain of this 

conveyor. This machinery was not being tested while the inspector was at the site. 

1096 
The guard was partially buried by loose material that 

came off the conveyor indicating to the inspector that the 

machinery had been operated the previous day. There were no 

tracks in and around the area showing where anyone had made 

adjustments or had been testing. There was in fact nothing to 

test in the area. The inspector would expect an employee to 

be near or around the sprocket and pulley since the area must 

be kept "cleaned out" in order for the tail pulley and the belt 

to operate properly. It is quite common not to shut a plant 

down just to clean up around the tail pulley. Inspector Marti 

testified it is also common for maintenance people to go ahead 

and grease the bearing while the machinery is being operated. 

This is why all moving machinery parts that a person can contact 

must be guarded. 

Electrical Citations 

The seven remaining citations charge violations of a number 

of regulatory standards involving electrical equipment. The 

parties stipulated that each of these seven citations accurately 

describes the condition observed by Inspector Marti during his 

inspection of the vezzani Pit. 

Citation No. 3065795 

This citation alleges a Section 104Ca) non-S&S violation of 

30 C.F.R. § 56.12005, as follows: 

The electrical power cable (Triangle PWC 

Inc. #814 Type SO) to the motor on the radial 

stacker belt conveyor (Plains equipment number 72-8430) was installed across the top of 

the roadway whereby vehicles running over it 

could cause possible internal damage to its 

conductor. The power cable was not bridged 

nor protected by other means. 

The cited safety standard, § 56.12005, provides as follows: 

Mobile equipment shall not run over power 

conductors, nor shall loads be dragged over 

power conductors, unless the conductors are 

properly bridged or protected. 

1097 
Inspector Marti testified that the power cable was lying 

across the roadway next to the crusher. The power cable ran 

from the control panel to the radial stacker. The power cable 

was not bridged nor protected. This cable was a power conductor 

with four cables inside of it. Three of the conductors are hot 

and one is a ground conductor. It was obvious from the mobile 

equipment tracks he observed that mobile equipment was running 

over this cable. It appeared to the inspector that the roadway 

was used every day that the crusher was operating. The power 

conductor went from the distribution panel over to the radial 

stacker belt conveyor, a distance of approximately one hundred 

feet. 

Citation No. 3065881 

This citation alleges a Section 104(a} S&S violation of 

30 C.F.R. § 56.12025 which reads as follows: 

The electric motor, (3-phase, 440 VAC, 

7! HP) mounted on the frame of Pearless 

belt conveyor SN: 2566, was not framegrounded with a continuous ground conductor 

to its source of power. 

30 C.F.R. § 56.12025 provides as follows: 

All metal enclosing or encasing electrical circuits shall be grounded or provided 

with equivalent protection. This requirement does not apply to battery-operated 

equipment. 

Inspector Marti testified that the electrical three~phase 

motor mounted on the frame of the Peerless belt conveyor was not 

grounded with a continuous ground conductor to its power source. 

There was no ground conductor whatsoever attached to the motor. 

Should a fault occur, the frame of this motor would become energized. If someone came in contact with this equipment, one 

would receive a shock which could be serious and even fatal. 

The motor was wired for 440 volts. It was a 7! HP motor that 

would take 9.2 to 11 amps at normal operation. The equipment 

is outdoors so that on some days it would be dry and on some 

days it would be wet. When the ground is wet or damp you could 

receive a "higher degree" of shock. 

1098 
Citation No. 3065882 

This citation alleges a Section 104(a) S&S violation of 

30 C.F.R. § 56.12030 as follows: 

The power cable (4/8 type SU) male plug on 

the end next to the Peerless belt conveyor 

had a bare conductor exposed at the male plug 

clamp fitting. 

The cited safety standard provides as follows: 

When a potentially dangerous condition is 

found it shall be corrected before equipment 

or wiring is energized. 

Inspector Marti testified that he observed a bare phase 

conductor on the power cables's male plug on the end next to 

the Peerless belt conveyor. He stated that this is a potentially dangerous condition since a person coming in contact with 

the bare conductor could receive a serious shock. Normally, 

you would not expect to see the conductor at all if it was installed properly. The wiring on the machinery is a three-phase 

system that involves 440 volts. The length of the bare exposed 

area was less than a quarter of an inch. (See photo Ex. 13). 

Inspector Marti said that the violation was visible to anyone 

working in that area. However, the small length of the bare 

segment Ct inch) will be taken into consideration in my evaluation of the gravity of the violation and the penalty to be 

assessed. 

Citation No. 3065883 

This citation alleges a Section 104(a) S&S violation of 

30 C.F.R. § 56.12008 and reads as follows: 

The power cable leading out the bottom 

of the 30 amp, 3-phase safety disconnect 

box mounted on the generator control panel 

was not provided with a fitting to prevent 

strain on the conductor termination and 

the conductor installation from possible 

[sic] be cut on the metal edge causing an 

electrical shock hazard. 

The cited safety standard, 30 C.F.R. § 56.12008, provides 

as follows: 

1099 
Power wires and cables shall be insulated 

ad.equately where they pass into or out of 

electrical compartments. Cables shall enter 

metal frames of motors, splice boxes, and 

electrical compartments only through proper 

fittings. When insulated wires, other than 

cables, pass through metal frames, the holes 

shall be substantially bushed with insulated 

bushings. 

Inspector Marti testified that the citation accurately 

describes what he observed. A fitting should have been installed in the opening in the center of the box. The purpose 

of the fitting is to secure and protect the phase conductors 

from hitting against the metal sides of the opening. The fitting prevents the metal from cutting the insulation and creating 

an electrical hazard. If the insulation were cut, it would cause 

a fault creating the hazard of an electrical shock. It would 

energize not only the box but the entire frame and everything 

hooked to it. 

Citation No. 3065885 

This citation alleges a Section 104(a) S&S violation of 

30 C.F.R. § 56.12013 and reads as follows: 

The electrical power cable (leading to the 

electric motor mounted on the frame of Peerless belt conveyor and with SN: 2566) was not 

spliced properly. It was not made mechanically 

strong, insulated to that of the original, nor 

was it provided with damage protection on the 

outer jacket of the original cable. 

The cited safety standard, 30 C.F.R. § 56.12013 provides as 

follows: 

Permanent splices and repairs made in power 

cables, including the ground conductor where 

provided, shall be: 

(a) Mechanically strong with electrical conductivity as near as possible to that of the 

original; 

Cb) Insulated to a degree at least equal to 

that of the origina~, and sealed to exclude 

moisture; and 

1100 
(c) Provided-with damage protection as near 

as. possible to that of the original, including 

good bonding to the outer jacket. 

Inspector Marti testified that the citation accurately 

describes the condition he observed. The individual conductor 

had just one or two wraps of electrical tape over the individual 

conductors. There were 3-phase conductors and one ground conductor. The splice allowed moisture to seep in and did not provide the same damage protection or mechanical strength as near 

as possible to that of the original. If someone stepped on the 

splice, he could receive a serious shock that could be fatal 

depending on the amount of voltage and the condition of the 

ground at the time. 

Citation No. 3065886 

This citation charges a Section 104(a) non-S&S violation of 

30 C.F.R. § 56.12028, and reads as follows: 

A record of continuity and resistance of 

the plant electrical grounding syst·em was 

not available for review. 

The cited safety standard, 30 C.F.R. § 56.12028 provides as 

follows: 

Continuity and resistance of grounding 

systems shall be tested immediately after 

installation, repair, and modificationi 

and annually thereafter. A record of the 

resistance measured during the most recent 

tests shall be made available on a request 

by the Secretary or his duly authorized 

representative. 

Inspector Marti testified that he asked Gary Vezzani, 

who accompanied him on his inspection, for the record of the 

resistance measured during the most recent testing of the continuity and resistance of the grounding system. Mr. vezzani 

told him a record of the electrical ground check was not 

available. 

1101 
Citation No. 3065887 

This citation charges Walsenburg with a Section 104(a) 

non-S&S violation of 30 C.F.R. § 56.12018; and reads as follows: 

The safety fuse disconnect boxes on the 

generator set control panel board were not 

labeled to show which unit they control. 

The cited safety standard, 30 C.F.R. § 56.12018, provides as 

follows: 

Principal power switches shall be labeled 

to show which units they control, unless identification can be made readily by location. 

Inspector Marti testified that the labeling on the disconnect power switches to motor control and other crushing 

facilities were not labeled to show which unit they controlled. 

Identification could not be made readily by location. 

Walsenburg's case 

Other than the federal Mine Inspector Lyle K. Marti, the 

only witness to testify at the hearing was Louis Vezzani, owner 

and operator of Walsenburg, and the Vezzani Pit. Walsenburg's 

primary defense to all the violations at the Vezzani Pit was as 

follows: 

1. On the day of inspection the plant was not operating. 

2. The plant was last in operation approximately two weeks 

before Mr. Marti's inspection. 

3. Even though the cited equipment may have been hooked up 

(the generator with its panel box, the Peerless conveyor, and the 

Plains conveyor), it had never been in operation at the pit. 

Mr. Vezzani, when asked who hooked the equipment up from 

the generator to the motors of the conveyors, responded in the 

following manner: 

A. I don't have any idea. Probably one of the 

men. One of the crusher men. I don't know. 

I'm not even sure they were hooked up. 

Q. Well, Mr. Marti testified that they were 

hooked up. Do you disagree with that? 

A. I can't disagree with that. I don't know 

that. 

1102 
Q. So, if they were hooked--wouldn't it make 

. sense that they were hooked up from the generator to the motor because they would want 

to be used? 

A. Yes, if they hooked them up, I'm sure that.' s 

the reason for it. They might have just 

hooked them up to see if the motors would 

run on them. I don't know. I wasn't there 

when they did that. If anybody did that. 

Q. They have to operate the motors to see if 

they run, is that correct? 

A. Yes. The electric motors, yes. 

Mr. Vezzani testified that he closed the Vezzani Pit approximately two weeks before Mr. Marti's inspection. The Secretary 

points ou: that 30 C.F.R. § 56.1000 requires an operator to notify MSHA of the commencement of operations as well as temporary 

or permanent closures. The operator must also indicate whether 

the operation will be continuous or intermittent. Walsenburg's 

legal identity report indicated that at the time of the inspection the vezzani pit was an open mine operated on an intermittent 

basis. There was no closure on file with MSHA. On the date of 

inspection the pit was an open mine, subject to inspection. The 

fact that the machinery at the vezzani Pit was not actually in 

operation on the day of inspection is legally irrelevant. 

It appears from the record that Mr. Marti is an experienced 

and well-qualified federal mine inspector. Based upon his observation of the appearance and condition of the machinery and the 

surrounding area at the time of his inspection, he was of the 

opinion that the plant had been in operation a short time prior 

to his inspection, and that while it was in operation it was in 

the same violative condition that he observed at the time of his 

inspection and noted in the citations and testimony. 

I credit the testimony of Inspector Marti and, on the basis 

of the stipulation of the parties and testimony of Inspector 

Marti, I find there was a violation of the regulatory standard 

specified in each of the citations issued for violation at the 

vezzani Pit. 

The Ross Pit 

The Ross Pit is a sand and gravel pit that was leased by 

Walsenburg to provide the gravel Walsenburg needed for a highway 

project. Walsenburg subcontracted with the Southway Construction 

Company of Alamosa to bring one of its portable crushers to the 

Ross Pit and crush the aggregate at the pit. On January 26, 

1103 
1988, Mr. Marti, a federal mine inspector, made an inspection of 

the Ross Pit. As a result of that inspection he issued two 

citations to Walsenburg. 

Citation No. 3065898 

This citation charges Walsenburg with a Section 104(a) nonS&S violation of 30 C.F.R. § 56.1000. The citation reads as 

follows: 

The Operator (Walsenburg Sand & Gravel) started 

mining operations at the Ross Pit during the week 

of Jan. 25, 1988. This mine site is located in 

Pueblo county, State of Colorado. The operator 

failed to give notification of commencement of 

operation to Rocky Mountain District Manager of 

Mine Safety and Health Administration. 

The cited regulatory standard, 30 C.F.R. § 56.1000 provides 

as follows: 

The owner, operator, or person in charge of any 

metal and nonmetal mine shall notify the nearest 

Mine Safety and Health Administration and Metal 

and Nonmetal Mine Safety and Health Subdistrict 

Office before starting operations, of the approximate or actual date mine operation will commence. 

The notification shall include tpe_mine name, location, the company name, mailing address, person 

in charge, and whether the operations will be continuous or intermittent. 

When any mine is closed, the person in charge 

shall notify the nearest subdistrict off ice as 

provided above and indicate whether the closure 

is temporary or permanent. 

Inspector Marti testified that on January 18, 1988, he 

received notification from Southway Construction Company CSouthway) of their intention to move a portable gravel crusher into 

the Ross Pit and begin crushing operations. Inspector Marti 

could find no computer listing of the legal identity of the Ross 

Pit. Consequently, he went to the pit to make an inspection. At 

the pit he talked to Darrell Yohn, the foreman for Southway, who 

told him that they had a contract with Walsenburg to crush 

130,000 tons of material at the pit. Southway has portable 

crushers with a portable identification number. Inspector Marti 

talked to Louis vezzani, the .President of Walsenburg, during his 

inspection of the Ross Pit and informed him that he was in vio-. 

1104 
lation of 30 C.F.R. § 56.1000 for his failure to fill out a legal 

identity report and notify the MSHA District management of commencement of· operation at the Ross Pit. Mr. vezzani opened his 

briefcase and gave the inspector the needed legal identification 

report and notification. The legal identity report was dated 

January 23, 1989. Since the report was given to MSHA after 

operations had begun, there was a violation of 30 C.F.R. 

§ 56.1000. The minimum penalty of $20 was appropriately assessed 

for this violation. 

Mr. Marti testified that during his January 26, 1988, inspection of the Ross Pit, he observed an Allis-Chalmer dozer 

owned and operated by Walsenburg. He talked to the dozer 

operator Carl Pfaffenhauser, who informed him that he was 

employed by Walsenburg and that Mr. vazzani would soon be 

arriving at the Ross Pit. 

Mr. Darrell Yohn, the foreman for Southway, informed the 

inspector that Walsenburg had leased the 20 acres that included 

the Ross Pit. At the time of his inspection, the subcontractor 

Southway was operating their portable crusher at that pit. 

There were two other employees there who informed him they were 

employed by Walsenburg. They were working with the Allis-Chalmer 

dozer. They were stripping - taking off and pushing aside the 

overburden material from the material that was to be crushed. 

Mr. Yohn told Mr. Marti that they started working at the pit 

during the week of January 18. Mr. Marti testified that the 

legal identity report which was handed to him by Mr. Louis 

Vizzani during his January 26, 1988, inspection of the Ross Pit 

showed that Walsenburg was the operator of the Ross Pit. 

Citation No. 3065900 

This citation charges Walsenburg with a 104Ca) S&S violation of 30 C.F.R. § 56.9022. The citation reads as follows: 

The outer bank of the elevated roadway into 

the Ross Pit was not provided with a berm or 

guard. For approximately 175 feet the outer 

edge of the roadway drop-off 3-18 feet approximately. The hazard is increased by it being 

only 8-11 feet wide and also the weather condition. 

The cited regulatory standard, 30 C.F.R. § 56.9022, provides 

as follows: 

Berms or guards shall be provided on the outer 

bank of elevated roadways. 

1105 
Inspector Marti testified the only access to the pit was 

a narrow dirt road approximately 180 feet long that leads up to 

the crusher and the excavation site of the Ross Pit. The road's 

elevated incline to the top was approximately 150 to 160 feet 

long. In order to maneuver on this narrow road, the inspector 

used a four-wheel drive. He talked to Darrell Yohn, foreman- ~or 

Southway Construction Company, who told him that it was the only 

available road for employees to get in and out of the work site 

at the Ross Pit. It was also used as a haul road to bring in 

water and fuel. 

Foreman Yohn told him that under Southway's contract with 

Walsenburg, it was Walsenburg's responsibility to see that the 

road was bermed. Mr. Yohn told Inspector Marti him that the day 

before the inspector arrived at the Ross Pit, Walsenburg almost 

lost the flatbed and the dozer tractor it was hauling over the 

edge of the elevated road. Southway had to hook on to the flatbed with their front-end loader to assist in pulling the equipment up the grade. Inspector Marti stated that he examined the 

area and saw tire tracks in the mud that indicated that the 

vehicle had gone off the edge of the road. There were no berms 

or guardrails installed on the road. MSHA normally requires that 

the berm be placed to the axle-height of the largest vehicle that 

is being used on the mining property. The natural repose dropoff of the elevated road varied in height up to approximately 

18 feet. If a vehicle went off the road it could roll over and 

drop 18 feet. 

Inspector Marti testified that since the roadway was used 

by Southway as well as Walsenburg he informed foreman Yohn that 

if the citation were not abated by construction of the berm, the 

citation would be replaced by an order which would close the road 

and no one could go in or out of the Ross Pit. 

The inspector testified that he served the citation on 

Mr. Vezzani and explained to him the date by which the violation 

had to be abated. There was a timely abatement of the violation 

by Southway. 

Mr. Marti testified that the violation was significant and 

substantial in nature. He explained that the hazard created by 

lack of a berm on the road is that it would allow a vehicle that 

got too close to the edge, to go over. He stated that if a 

vehicle dropped off the elevated portion of the road "there was 

a high degree of bodily injury all the way from a permanent 

injury to a fatality." In the inspector's opinion there was a 

reasonable likelihood of an accident. 

1106 
The inspector testified that this was the only road used 

during the two days he was at the Ross Pit making the inspection. 

He observed one of Walsenburg's maintenance vehicles come to the 

pit when they had a problem with the dozer. 

Louis Vezzani, President of Walsenburg, testified that in 

October 1987 he entered into a contract with the State Highway 

Department for a highway job near Pueblo. In order to do the 

job Walsenburg needed a rock pit that could supply the needed 

gravel-. Walsenburg subleased the Ross Pit in October 1987 and 

proceeded to apply to the Mine Land Reclamation Board for a 

permit to mine gravel at the Ross Pit. Mr. vezzani testified 

that the permit was issued to him on January 25, 1988. 

Walsenburg subcontracted the crushing of the gravel at the 

Ross Pit to Southway Construction Company of Alamosa. 

Mr. Vezzani testified that he does not know when Southway 

moved its equipment into the Ross Pit.· He did not know whether 

Southway built any roads at the Ross Pit. 

Mr. vezzani testified that he had nothing to do with the 

elevated road that was cited. At the time of the inspection 

they already had a 36-foot wide road at the west end of the pit 

that they were going to use to haul gravel out. He admitted 

that some of the employees on his crew may have driven up the 

cited road. He himself drove up the elevated road several times 

in Walsenburg's company pickup and looked at the pit. He had no 

employees working at the Ross Pit at the time of the inspection. 

He owned several Allis-Chalmers dozers but did not have a dozer 

at the pit. When Mr. Vezzani was asked if the person on the 

grader at the Ross Pit was telling Inspector Marti the truth when 

he said he worked for Walsenburg, Mr. vezzani replied, "I don't 

have any way of knowing that. I don't know." Asked if Foreman 

Yohn was being honest when he told the inspector that Southway 

was not responsible for the overburden or the dozer, Mr. Vezzani 

replied, "I can't answer it. Mr. Yohn will have to answer that. 

I'm sorry." 

Mr. Vezzani testified that he always drove to the Ross Pit 

in his company pickup. He drove there at least once every day, 

sometimes using the cited elevated road. However, Walsenburg 

did not haul any material out of the pit until three months after 

the inspection. Walsenburg's answer, filed October 27, 1988, 

states, "Our haul road is 30 feet wide on the west end of the pit 

built in time for haulage purposes." (Emphasis supplied). 

1107 
Mr. vezzani testified that when Walsenburg got its permit 

from the Mine Land Reclamation to start operations at the Ross 

Pit on Janu·ary 25, 1988, Southway had already moved in with its 

mobile crusher and had been crushing for several days. 

On cross-examination, Mr. Vezzani testified that he had an 

employee by the name of Carl Pfaffenhauser. He was Vezzani's 

blade operator on the highway project, which commenced in October 

of 1987. Asked if he had loaned any of his employees to Southway 

to work at the Ross Pit, Mr. Vezzani replied, "To my knowledge, 

no." Mr. Vezzani went on to explain that some time in late 

February or early March of 1988, he "laid some of his employees 

off for a three-week period and they could have worked for 

Southway during that time." 

Inspector Marti was recalled and testified that at the time 

of his inspection the cited elevated roadway was the only road 

into the Ross Pit. However, when he returned to terminate the 

citation a month later, he observed that after the inspection 

another road had been constructed along the west side of the pit. 

Discussion 

Inspector Marti is an experienced, well-qualified inspector. 

I credit his testimony. Some of the evidence he presented was 

hearsay, but it was, in my opinion, reliable hearsay. Based upon 

the testimony of Inspector Marti, I find that Walsenburg violated 

the provisions of 30 C.F.R. § 56.9022 as alleged in the citation 

issued. 

Even assuming arguendo, that Walsenburg made very little 

use of the cited elevated roadway, the citation was properly 

issued to Walsenburg. The language employed by Congress in 

drafting the Mine Act, the legislative history of the Act, and 

several court of appeals decisions show that the Secretary can 

cite the operator, the independent contractor, or both, for 

violations committed by the independent contractor. Mine operators are "absolutely liable for violations by independent contractors." Harman Mining Co. v. FMSHA, 671 F.2d 794 (4th Cir. 

1981). 

The prime question for consideration in determining a violation of the Mine Act is whether the alleged condition existed 

at the mine. The Fifth Circuit has held that "if the Act or 

its regulations are violated, it is irrelevant whose act precipitated the violation or whether or not the violation was found 

to affect safety~ the operator is liable," Allied Products Co. v. 

FMSHRC, 666 F.2d 890,894 (5th Cir. 1982). 

1108 
The legislative history of the Mine Act confirms that Congress clearly intended the Secretary to have broad discretion to 

cite either owners or independent contractors or both for violations involving independent contractors~ In the Senate report 

on the bill that ultimately became the Mine Act, the Committee on 

Human Resources stated the following: 

In enforcing this Act, the Secretary should 

be able to issue citations, notices, and orders, 

and the Commission should be able to assess 

civil penalties against such independent contractors as well as against the owner, operator, 

or lessee of the mine. The Committee notes 

that this concept has been approved by the 

federal circuit court in Bituminous Coal Operators' Ass'n. v. Secretary of the Interior, 547 

F.2d 240 CC.A. 4, 1987). 

(S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977).) Thus, 

Congress intended to enable, but not to require, enforcement 

against independent contractors. Further, this language makes 

clear that the Secretary is authorized to cite owner-operators 

for their independent contractors' violations. The passage also 

expressly endorses Bituminous Coal Operators' Ass'n (BCOA) v~ 

Secretary of Interior, 547 F.2d 240 (4th Cir. 1977), holding 

that under the Coal Act, the Mine Act's predecessor statute, the 

Secretary could cite owners, contractors, or both for the 

contractors' violation. 

The second significant passage from the legislative history 

appears in the Conference Committee Report on the Mine Act. 

That report contains the following explanation: 

The Senate bill modified the definition of 

"operator" to include independent contractors 

performing services or construction at a mine. 

This was intended to permit enforcement of the 

Act against such independent contractors and 

to permit the assessment of penalties, the 

issuance of withdrawal orders, and the imposition of civil and criminal sanctions against 

such contractors who may have a continuing 

presence at the mine. [Emphasis added.] 

(S. Conf. Rep. No. 95-461, 95th Cong., 1st Sess. 37 (1977).) 

Again this language shows a congressional intention only to 

permit enforcement against independent contractors not require 

it. 

1109 
A number of court of appeals decisions have uniformly 

construed the Mine Act as granting the Secretary broad discretionary authority. The Third Circuit considered the Mine 

Act's legislative history, as well as the BCOA decision, in 

determining whether under the Mine Act the Secretary has discretion to hold owners responsible for certain independent 

contractors' activities. In National Industrial Sand Ass'n. 

v. Marshall, 601 F.2d 689 (1979), a group of operators challenged a regulation requiring them to provide training in mine 

safety and health to the employees of some of their independent 

contractors. The owner-operators argued that, because the Mine 

Act's definition of "operator" includes independent contractors, 

the Secretary must enforce the regulation against independent 

contractors, rather than owners, where the contractors control 

the job being performed. The court held that the inclusion of 

both owners and independent contractors in the definition endowed the Secretary with discretion to assign responsibility to 

either. 601 F.2d at 703. In reaching this conclusion, the court 

referred with approval to the reasoning of the BCOA decision 

that the Coal Act's definition of operator gave the Secretary 

discretion to enforce the Act against owners or contractors for 

the contractors' violations. 601 F.2d at 702. The court also 

examined the legislative history accompanying the Mine Act and 

concluded that, when Congress amended the definition of 

"operator" to include independent contractors, "Congress was 

clearly concerned with the permissive scope of the Secretary's 

authority, not with the mandatory imposition of statutory duties 

on independent contractors." 601 F.2d at 703. 

In Harman Mining Co. v. FMSHRC, supra, Harman, an owneroperator, challenged a withdrawal order issued to it for an 

incident involving Norfolk and Western Railroad, its independent 

contractor. The Fourth Circuit rejected Harman's argument that 

the Secretary should have cited the independent contractor, 

reasoning: "Even assuming, however, that Norfolk and Western 

had some degree of culpability, the Secretary had discretionary 

authority to cite Harman for the violation." 671 F.2d at 797. 

The court ruled that under both the Coal Act and the Mine Act 

"mine owners are absolutely liable for the violations by independent contractors, 11 and cited with approval the reasoning of 

BCOA on joint and several liability. In addition, the court 

decided that the Secretary had exercised his discretionary . authority in an "appropriate manner" in issuing the citation 

against Harman. 

Similarly, in Cyprus Industrial Minerals Co. v. FMSHRC, 

664 F.2d 1116 (9th Cir. 1981), the Ninth Circuit rejected an 

1110 
operator's claim that the employment of an independent contractor removed the operator from lia~ility under the Mine Act. 

The court noted that the addition of the term "independent 

contractors" to section 3Cd) of the Mine Act did not require 

the Secretary to cite only the independent contractori rather, 

the addition permitted the Secretary to cite the independent 

contractor, the operator, or both. 664 F.2d at 1119. The court 

concluded that the Secretary "did not abuse his discretion" 

by citing the owner-operator. 664 F.2d at 1120. 

Thus, the language employed by Congress in drafting the 

Mine Act, th~ legislative history of the Act, and several court 

of appeals decisions show that the Secretary can cite the owneroperator, the independent contractor, or both, for violations 

committed by the independent contractor. The decision as to 

whom to cite is of a discretionary nature. In this case the 

Secretary exercised her discretion and acted within the scope 

of that discretion by citing the Walsenburg, even if we assume 

arguendo that the cited elevated road at the Ross Pit was used 

primarily by Southway and very little by Walsenburg. 

Significant and Substantial 

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 by the violation will result in an injury or illness 

of a reasonably serious nature. Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 815 (April 1981). In Mathis Coal Co., 6 

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

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: 

Cl) the underlying violation of a mandatory safety standardi (2) a discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violationi (3) a 

reasonable likelihood that the hazard contributed to will 

result in an injuryi and (4) a reasonable likelihood that 

the injury in question will be of a reasonable serious 

nature. · 

Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 

CSth Cir. 1988). 

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," 

and that the likelihood of injury must be evaluated in terms 

1111 
of continued normal mining operations. U.S. Steel Mining Co., 

6 FMSHRC 1573, 1574 (July 1984). See also Monterey Coal Co., 

7 FMSHRC 996, 1001-02 (July 1985). The operative time frame for 

determining if a reasonable likelihood of injury exists includes both the time that a violative conditon existed prior to 

the citation and the time that it would have existed if normal 

mining operations had continued. Halfway, Inc., 8 FMSHRC 8, 12 

(January 1986): U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(August 1985). 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. Texasgulf, Inc., 10 FMSHRC 498, 500-01 (April 

1988>: Youghiogheny & Ohio Coal Company, 9 FMSHRC 1007, 2011-12 

(December 1987). Finally, the Commission has emphasized that 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 Co., 6 FMSHRC 1834, 1836 (August 1984). 

Under this precedent and based upon my independent review 

and evaluation of all the evidence, including the photographs 

that are in evidence and the physical location of each hazard, 

I find the evidence presented is insufficient to establish that 

any of Walsenburg's violations were significant and substantial 

in nature. In particular, with regard to the third element of 

the Mathies test, I find the evidence presented is insufficient 

for me to conclude that a reasonable likelihood existed that the 

hazard contributed to by any one of the violations will result 

in a serious injury. In support of this finding it should be 

noted that the undisputed evidence in this case establishes that 

this pit operated intermittently and that when it was in operation, only two or three employees operated the facility. Exposure to the hazardous violative condition was not high. Louis 

Vezzani testified that during the 25 years the vezzani plant was 

in operation, they never had a lost-time injury. His testimony 

was undisputed. Upon evaluation of the evidence I find that, 

while the violations were serious, there is insufficient evidence 

to conclude that there was a reasonable likelihood that the hazard contributed to by the violation would result in a serious 

injury. 

Motion of Both Parties Denied 

The Secretary made a motion for default judgment because 

Respondent failed to serve her with a copy of respondent's 

answer. The answer was filed by the operator, Louis vezzani, not 

by his counsel. The Secretary's counsel did not know Respondent 

1112 
was represented by counsel until she received Respondent's reply 

to my prehearing order. The Secretary was provided with a copy 

of the answer and the Secretary's motion for default was denied. 

Respondent moved for sanctions and for dismissal of all citations 

on grounds that the Secretary did not serve him with a copy of 

her reply to the prehearing order and again because she filed her 

post-hearing brief a few days late. I have considered the matter 

and I deny all motions. There is no meritorious reason why these 

cases should not be decided on the merits. 

Civil Penalty Assessment 

Section llO(i) of the Act mandates consideration of six 

criteria in assessing a civil penalty. In compliance with the 

mandate, I have considered the following: 

The operator's sand and gravel business was of small size. 

Both the Ross Pit and the Vezzani Pit were small intermittent 

operations. 

In the absence of any evidence to the contrary, I find 

that proposed penalties would not adversely affect Walsenburg's 

ability to continue in business. 

Exhibit P-7, a computer printout, indicated that, within 

the two years prior to the inspection of both the Ross and 

Vezzani pits, Walsenburg was assessed no violations. This is 

a good history. 

I find the operator's negligence to be moderate. The gravity was high. The guard-related violations, the electricityrelated violations, and the elevated roadway violation were serious and could have resulted in serious bodily harm or death, even 

though the evidence is insufficient to conclude that there was 

a reasonable likelihood that the hazard they contributed to would 

result in an injury. 

The company demonstrated good faith in its abatement of the 

violations. 

Everything considered, I assess civil penalties which I find 

appropriate for each violation as follows: 

1113 
Citation No. 

3065795 

3065798 

3065799 

3065800 

3065881 

3065882 

3065883 

3065884 

3065885 

3065886 

3065887 

3065898 

3065900 

30 C.F.R. No. 

56.12005 

56.14001 

56.14001 

56.14006 

56.12025 

56.12030 

56.12008 

56.14001 

56.12013 

56.12028 

56.12018 

56.1000 

56.9022 

ORDER 

Total 

Penalty Assessed 

$20.00 

40.00 

40.00 

40.00 

40.00 

25.00 

30.00 

40.00 

50.00 

20.00 

20.00 

20.00 

50.00 

$435.00 

1. Citation Nos. 3065798, 3065799, 30657800, 3065881, 3065882, 

3065883, 3065884, 3065885, and 3065900 are modified to delete the 

characterization "significant and substantial" and, as modified, 

the citations are affirmed. 

2. Citation Nos. 3065795, 3065886, 3065887, and 3065898 are 

affirmed. 

Walsenburg Sand & Gravel Company is ordered to pay the sum 

of $435 within 30 days of the date of this decision as a civil 

penalty for the violations found herein. 

Distibution: 

F. Cetti 

istrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, l961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Ernest U. Sandoval, Esq., P.O. Box 541, Walsenburg, CO 81089 

(Certified Mail) 

ek/ot 

1114 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 24J990 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 89-103-M 

A.C. No. 54-00298-05504 

v. 

Cantera Hipodromo Mine 

CANTERA HIPODROMO, INCORPORATED,: 

Appearances: 

Before: 

Respondent 

DECISION 

William G. Staton, Esq., Office of the Solicitor, 

U.S. Department of Labor, New York, New York, for 

the Petitioner; 

Antonio Ortiz Brunet, President, Cantera 

Hipodromo, Canovanas, Puerto Rico, Pro se, 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 $178, for an alleged 

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

respondent filed an answer denying the violation, and a hearing 

was held in San Juan, Puerto Rico. The parties did not file 

posthearing briefs, but I have considered their oral arguments 

made in the course of the hearing in 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) whether the alleged violation was "significant and substantial" (S&S), and (3) the appropriate civil penalty to be assessed against the respondent for. · 

1115 
the violation based upon the civil penalty assessment criteria 

found in section llO(i) of the Act. 

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 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 seg. 

Discussion 

The contested section 104(a) "S&S" Citation No. 3049732, was 

issued on October 19, 1988, and it cites an alleged violation of 

mandatory safety standard 30 C.F.R. § 56.11001. The cited 

condition or practice states as follows: 

No safe means of access was provided to the drive belt 

of vibrator #2. This area is visited for maintenance, 

the height from the ground is about 9 feet. 

Petitioner's Testimony and Evidence 

MSHA Supervisory Mine Inspector Juan Perez testified as to 

his experience, and he confirmed that he has served as an inspector for 15 years. He stated that he made a courtesy visit to the 

respondent's stone processing plant on August 27, 1987, when it 

was initially constructed, and that he did so at the request of 

the respondent. He confirmed that the plant was not producing 

during his visit and that he inspected the equipment and informed 

the respondent that a platform was required around the perimeter 

of the No. 2 vibrator in order to provide a safe means of access 

for personnel who would be performing periodic greasing and 

maintenance for the unit. 

Mr. Perez explained the operation of the rock crushing and 

sizing plant, and produced a sketch of the No. 2 vibrator, which 

reflects how it appeared during his courtesy visit without the 

platform, and how it appeared during his compliance inspection on 

October 19, 1988, with a platform on one side of the No. 2 

vibrator (exhibit P-1). 

Mr. Perez stated that the No. 2 vibrator was approximately 

9 feet high from ground level to the platform area, and that the 

unit itself was approximately 3 feet high. The distance from the 

top of the unit to the ground below was 12 feet. Mr. Perez . 

confirmed that while MSHA usually recommends that a work platform 

be completely installed around all sides of a vibrator unit at 

other similar plants, he accepted the respondent's installation 

of a work platform, with guard rails, around two sides and rear 

1116 
of the unit, and that this provided a safe means of access to the 

unit when maintenance is being performed (photographic exhibits 

R-5 and R-6). 

Mr. Perez confirmed that when he inspected the plant on 

October 19, 1988, respondent's plant supervisor Ramon Rondon was 

with him. Mr. Perez stated that he observed that one platform 

with a handrail was installed along the left side of the unit, 

and that the platform with handrails which should have been 

installed on the right side of the unit was lying on the ground 

away from the unit in an area where the grass had grown around 

it, and it appeared to be in a rusty condition (photographic 

exhibit R-1). 

Mr. Perez stated that Mr. Rondon informed him that he was 

having problems with the No. 2 vibrator screens which were 

located inside the unit, but that the unit was required to process and size some of the stone which was dumped into it by means 

of a conveyor belt. Mr. Rondon further informed him that he 

intended to continue using the unit even though he was experiencing some mechanical problems with the screen devices. Mr. Perez 

stated that he observed some stockpiled stone materials on the 

ground, and he assumed that the materials had been recently 

processed through the No. 2 vibrator. 

Mr. Perez stated that maintenance work and greasing had to 

be performed on the vibrator on a daily basis, or at least two 

times a week, and that the lack of a work platform on both sides 

of the unit did not provide a safe means of access for at least 

one of the maintenance personnel who performed this work. 

Mr. Perez believed that the lack of a platform exposed the maintenance man to a danger of falling 9 feet to the ground if he 

were on a ladder performing work on the side of the unit without 

the platform, and at least 12 feet to the ground if he were on 

top of the unit attempting to perform some work on the unit. 

Mr. Perez further believed that it was reasonably likely that a 

fall would occur, and that if it did, the individual would likely 

suffer lost work day injuries of a reasonably serious nature. 

Under all of these circumstances, Mr. Perez concluded that the 

violation was significant and substantial. 

Mr. Perez confirmed that he based his moderate negligence 

finding on the fact that the respondent intended to install the 

required platform and had installed a platform with handrails 

along one side of the vibrator unit (Tr. 14-42) . 

On cross-examination, Mr. Perez confirmed that although his 

experience does not include maintenance work on vibrators, he has 

observed the greasing and maintenance work performed from platforms on similar units. Mr. Perez further confirmed that while 

he did not know how long the vibrator screen was not in an operational condition, he believed that the problems experienced by 

1117 
Mr. Rondon with the screening devices occurred on the day of his 

inspection .. 

Mr. Perez stated that he spoke to Mr. Ortiz during the 

afternoon of his inspection, and he confirmed that Mr. Ortiz 

informed him that the new No. 2.vibrator unit had arrived at the 

dock and would be brought to the site and installed by the end of 

the week. 

Mr. Perez stated that during his inspection on October 19, 

1988, he observed a wooden ladder at the plant and that 

Mr. Rondon informed him that the ladder was sometimes used to 

grease and service the No. 2 vibrator unit. Since the ladder 

reached only to the middle of the unit, Mr. Rondon further 

informed him that someone would climb to the top of the unit from 

the platform which was on one side of the unit in order to grease 

or service it. Under these circumstances, Mr. Perez believed 

that the use of a ladder, and climbing to the top of the unit, 

presented a falling hazard to the individual using these means of 

access to reach and service the No. 2 vibrator and screens. 

Mr. Perez stated that he observed no one performing any 

greasing or maintenance work on the vibrator on the day of his 

inspection, and he observed no grease fittings from the unit to 

the ground. He also confirmed that the vibrator gears were 

intact on the machine and he did not observe any of the machine 

parts shown in photographic exhibits R-2, R-3, and R-4, on the 

ground. 

Mr. Perez confirmed that the same No. 2 vibrator unit was 

cited by MSHA Inspector Roberto Torres Aponte during a previous 

inspection on March 30, 1988, and that the citation was issued 

pursuant to section 56.11001, because a platform was not 

installed around the unit to provide a safe means of access for 

maintenance work on the unit (Tr. 53-63). 

MSHA Inspector Alexandro Baptista confirmed that he terminated the October 19, 1988, citation issued by Inspector Perez, 

and that he did so after finding that platforms with guard rails 

had been installed around three sides of the No. 2 vibrator. 

Mr. Baptista also confirmed that the No. 1 vibrator unit was also 

equipped with a platform and guard rails (Tr. 75-77). 

Antonio Ortiz Brunet, respondent's presfdent, stated that he 

operates three plants, and he described them as a sand plant, a 

stone quarry plant, and the portable stone crushing, sizing, and 

processing plant which was inspected by Inspector Perez on 

October 19, 1988. Mr. Ortiz confirmed that he requested 

Mr. Perez to visit the plant when it was being constructed, and 

he did not dispute the need for work platforms to provide a safe 

means of access for the No. 2 vibrator unit. Mr. Ortiz stated 

that he has always done what was required of him to comply with 

1118 
the law and MSHA's requirements, and to insure the safe operation 

of his plant. 

Mr. Ortiz stated that he contested the citation because he 

was not happy with the action taken by Inspector Perez. He 

explained that he informed Mr. Perez that the plant was not in 

operation because the No. 2 vibrator was inoperative and that a 

new vibrator, which was at the dock, would be installed within a 

few days and that the platforms would also be installed at the 

same time. After the vibrator and platforms were installed, 

Mr. Ortiz stated that he called Mr. Perez and invited him to the 

plant to verify the installation, but that Mr. Perez declined to 

come to the plant and informed him that he did not have the time. 

Mr. Ortiz confirmed that the top of the vibrator was 12 feet 

above ground level, and that the vibrator was approximately 

4 feet high. He conceded that only one platform was installed 

along one side of the vibrator on October 19, 1988, and that the 

other platform had been removed and was on the ground. Mr. Ortiz 

stated that the vibrator was being dismantled in anticipation of 

the installation of the new one which he had purchased. He 

stated that the vibrator was not in operation on the day of the 

inspection because of the inoperative screens and that it had not 

been in operation for approximately 4 weeks prior to the inspection. He stated further that the vibrator gears had been removed 

from the unit prior to the inspection, and he produced three 

photographs of the old parts which he said were on the ground 

(exhibits R-2, R-3, and R-4). He indicated that the gears were 

removed while both platforms were in place, and that the platform 

which was not in place and on the ground when Inspector Perez 

observed it had been taken down while the vibrator unit was being 

dismantled. He confirmed that he was not at the plant everyday, 

but tries to visit it once a week. 

Mr. Ortiz stated that during the time the vibrator was 

inoperative, he sold the materials which had been previously 

processed and stockpiled through the plant. He agreed that if 

the plant were in operation the citation would be justified. 

However, since the plant was down and could not operate with the 

broken vibrator, he did not believe that the citation issued by 

Mr. Perez was justified, and he considered the inspector's action 

as unfair (Tr. 78-99). 

Inspector Perez was recalled, and he confirmed that when he 

observed the No. 2 vibrator on October 19, 1988, it was intact 

and no gears or other parts were removed, and he observed no 

evidence of any repair work. He further confirmed that he spoke 

with plant superintendent Rondon who informed him that there h~q 

been a problem with the vibrator that morning and that only half 

of the plant was operating. The superintendent in no way indicated that the plant had been down for 4 weeks (Tr. 101-102). 

Mr. Perez believed that the plant was in operation the previous 

1119 
weeks because of the coloring of the stockpiled crushed rock. He 

stated that after he had finished his inspection, and while 

discussing the results with Mr. Rondon, Mr. Ortiz informed him 

about the vibrator problem (Tr. 103). 

Plant Superintendent Ramon ~--Rondon testified that on the day 

of the inspection work was being performed on the ball bearings 

and pulleys of the screening machine. He explained that crushing 

could not be done because the vibrating screen was stuck (Tr. 

109-111). Mr. Rondon confirmed that the vibrator was shutdown on 

the day of the inspection. He explained that the vibrator and 

screen were working on the morning of the inspection, but that 

when they became stuck that same morning, the vibrator was shutdown. He also indicated that the vibrator was operational 

11-days prior to the inspection (Tr. 112-113). The vibrator was 

working the day of the inspection, but when some of the parts 

broke, the plant was shutdown (Tr. 116). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 c.F.R. § 56.11001, for failure to provide a 

safe means of access for the No. 2 vibrator at its crushed stone 

screening and processing plant. Section 56.11001, provides as 

follows: "Safe means of access shall be provided and maintained 

to all working places." 

The evidence in this case establishes that Inspector Perez 

had previously made a "compliance assistance" visit to the plant 

in August 1987, during which time he advised the respondent of 

the need for a platform to provide access to all sides of the 

vibrator where maintenance work was required to be done on the 

equipment. Upon his return to the plant site on October 19, 

1988, to perform a regular plant inspection, Inspector Perez 

found that a platform had been installed around one side of the 

vibrator but not on the other side where greasing and other 

maintenance work was required to be performed. Mr. Perez found 

the platform, with guard rails attached, which should have been 

installed around the rest of the vibrator, lying on the ground, 

and it appeared to have been there for some time. Under these 

circumstances, and since one side of the vibrator lacked a platform which would provide a safe means of access for maintenance 

personnel, Mr. Perez issued the citation. 

The respondent's president, Antonio Ortiz Brunet, did not 

dispute the need for work platforms on both sides of the No. 2. 

vibrator to provide a safe means of access for maintenance personnel, nor did he dispute the fact that only one platform had 

been installed on one side of the vibrator on the day of the 

1120 
inspection, and that the other platform had been removed and was 

lying on the ground. 

In his defense, Mr. Ortiz maintained that at the time of the 

inspection, the cited vibrator was not in operation because of 

some inoperative screens, and that it had not been in operation 

for approximately 4-weeks prior to the inspection. He also 

maintained that the vibrator gears had been removed, and that the 

vibrator was being dismantled in anticipation of replacement by a 

new one which had arrived on the island and was awaiting delivery 

from the dock to the plant. Since the plant was down and could 

not operate with a broken vibrator, Mr. Ortiz believed that the 

citation was not justified, particularly when he informed the 

inspector that the vibrator was being replaced by a new one. 

The question of whether or not the vibrator was in operation 

at the time of the inspection is relevant to the question of 

whether or not the situs of the violation was a "working place" 

covered by section 56.11001, and it is also relevant to the 

gravity or seriousness of the violative condition. The fact that 

the respondent purchased a new replacement vibrator prior to the 

inspection, and that it intended to install it, may not serve as 

a defense to the violation, but it may be considered as evidence 

of the respondent's good faith compliance. 

Mr. Ortiz' testimony that the vibrator was inoperative on 

the day of the inspection, and that the plant was down, and had 

not operated for 4 weeks, is in direct conflict with the testimony of Inspector Perez, and the respondent's own witness, plant 

superintendent Ramon Rondon. Mr. Perez testified that he personally observed the cited vibrator on the day of his inspection 

and that it was intact and the gears had not been removed. 

Mr. Perez saw no evidence of any repair work taking place, and he 

testified that Mr. Rondon informed him on the day of the inspection that the vibrator may have experienced some problem earlier. 

in the week, and that it did develop a problem on the morning of 

the inspection, but at least half of the plant was still in 

operation at that time. Mr. Rondon testified that although some 

maintenance work was being performed on the screening machine on 

the morning of the inspection, the vibrator in question had been 

in operation that morning, but it subsequently developed a problem and the plant had to be shutdown. Mr. Rondon also testified 

that the vibrator had been operational at least 11-days prior to 

the inspection. 

Mr. Ortiz argued that a photograph of the vibrator gear, 

which also shows the date of the newspaper depicted in the photograph, establishes that the vibrator was not installed, and tha~ 

the plant was down on the day before the inspection (Tr. 105). 

Although the inspector indicated that Mr. Ortiz was not with him 

when he visited the plant during his inspection, Mr. Ortiz stated 

1121 
that he was there in the afternoon (Tr. 105). He also stated 

that he tried to visit the plant at least once a week. 

I have examined the photographs of the vibrator gears which 

Mr. Ortiz claims had been removed prior to-the day of the inspection (Exhibits R-2, R-3, and R-4). Apart from the photographs, 

Mr. Ortiz produced no documentation or maintenance records to 

establish when the vibrator gears were removed and sent to the 

shop for maintenance. Photographic exhibit R-3, is dated in ink 

on the reverse side, and the dates "7-22-1988" and 11 7-19-1988" 

appear. No further explanation was forthcoming from Mr. Ortiz 

with respect to these dates. Assuming the photographs were taken 

in July, 1988, this would have been some 3-months prior to the 

issuance of the citation on October 19, 1988, and any suggestion 

that the gears had been removed and the plant was down as early 

as July, 1988, would be contrary to the testimony by Mr. Ortiz 

that the plant was down for 4-weeks prior to the inspection. It 

would also be contrary to the testimony of Mr. Rondon that the 

vibrator and plant were in operation as early as 11-days prior to 

the inspection, and indeed, on the morning of the inspection. It 

is impossible to decipher the date of the newspaper shown in 

photographic exhibit R-2, even with a hand-held magnifying glass. 

Under the circumstances, I have given little evidentiary weight 

to the photographs in question. 

After careful consideration of all of the evidence and 

testimony in this case, I find the testimony of Inspector Perez 

and Mr. Rondon to be more credible than that of Mr. Ortiz. Based 

on the testimony of Mr. Perez and Mr. Rondon, I conclude and find 

that the vibrator and plant were in operation on the morning of 

October 19, 1988, when the inspection was conducted by Mr. Perez, 

and Mr. Ortiz' assertion to the contrary is rejected. I further 

conclude and find that the cited vibrator location which lacked a 

platform to provide a safe means of access for maintenance and 

service personnel was a "working place" within the meaning of the 

cited standard, and that the petitioner has established a violation by a preponderance of the evidence. Accordingly, the citation IS AFFIRMED. 

Significant and Substantial Violation 

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). 

1122 
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). · 

Based on the evidence and the credible testimony of 

Inspector Perez, I conclude and find that the violation posed a 

discrete falling hazard and constituted a significant and substantial violation. The intent of the cited standard section 

56.11001, is to provide a safe means of access for mine personnel 

who are required to service equipment or to routinely check it 

during its operation. In this case, the lack of a platform 

deprived mine personnel of a safe mans of access to the equipment. Inspector Perez determined that the vibrator required 

either daily or weekly maintenance, and that maintenance per- . 

sonnel who were required to service the equipment would reasonably likely be exposed to a hazard of falling approximately 9 feet 

to the ground below. If this occurred, it would be reasonably 

likely that a person would suffer more than just ''first aid" type 

1123 
of injuries (Tr. 33-34). He explained that without the platform 

as a safe means of access to the vibrator, anyone servicing the 

equipment would have to climb on top of it to service it or 

perform maintenance work, and that usually one person performs 

this task (Tr. 35). Mr. Perez confirmed that plant superintendent Rondon informed him that an employee was required to service 

the vibrator, and that without the platform, the person doing the 

work accessed the equipment by climbing on top of it from a 

nearby walkway (Tr. 43, 49-51). 

In view of the foregoing, I conclude and find that the 

petitioner has established by a preponderance of the evidertce 

that the violation was significant and substantial. Accordingly, 

the inspector's finding in this regard IS AFFIRMED. 

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

Ability to Continue in Business 

The evidence reflects that the respondent operates a sand 

plant, a stone quarry plant, and a portable rock processing plant 

where the violation in question took place. The respondent's 

total annual production was approximately 51,071 man-hours, and 

the facility where the citation was issued worked 17,440 manhours annually. The respondent employs a total of 11 employees 

(Tr. 13) • 

The respondent's President, Antonio Ortiz Brunet described 

the facility in question as a stone crushing and sizing plant 

producing and processing stone which was sold and used to make 

asphalt, concrete, and cement blocks. 

I conclude and find that the respondent is a small crushed 

stone mine operator, and absent any evidence to the contrary, I 

further conclude and find that the civil penalty assessment for 

the violation in question will not adversely affect the respondent's ability to continue in business. 

Good Faith Compliance 

Inspector Perez fixed the abatement time as October 23, 

1988, and Mr. Ortiz confirmed that the new No. 2 vibrator unit 

was installed within 3 or 4 days after the citation was issued. 

Inspector Perez confirmed that Mr. Ortiz telephoned him later in 

the week after the citation was issued and informed him that the 

new vibrator had been brought to the facility and installed with 

the platform around three sides. 

Although the record reflects that the citation was term- . 

inated on December 27, 1988, Inspector Perez agreed that the 

respondent exercised good faith compliance in timely abating the 

condition and providing a safe means of access to the No. 2 

vibrator. I conclude and find that the respondent timely 

1124 
corrected the cited condition in good faith within the time fixed 

by Inspector. Perez, and I have taken this into consideration in 

assessing the civil penalty for the violation in question. 

History of Prior Violations 

The petitioner did not submit any information with respect· 

to the respondent's compliance record or prior history of violations. However, MSHA's proposed civil penalty assessment 

includes an MSHA Form 1000-179, which reflects that the respondent had eight a_ssessed violations for the 24-month period prior 

to the issuance of the contested citation on October 19, 1988. 

One of those prior violations is a section 104(a) "S&S" Citation 

No. 3050735, issued on March 3-Q,_ 19AEL,_citing a violation of 

30 C.F.R. § 56.11001, for the failure of the respondent to provide a safe means of access for the same No. 2 vibrator screen 

unit which is the subject of the contested citation in this case. 

Under the circumstances, although I cannot conclude that the 

respondent has a particularly poor compliance record, I have 

considered the fact that the respondent was cited a second time 

for the identical condition 7 months after the first violation 

which was issued on March 30, 1988. 

Negligence 

Inspector Perez confirmed that he based his moderate negligence finding on the fact that the respondent intended to comply 

with section 56.11001, and had installed one.of the platforms 

which provided some access to at least one side of the No. 2 

vibrator at the time of his compliance inspection of October 19, 

1988. 

Mr. Ortiz testified that at the time the citation was issued 

the new No. 2 vibrator which he had purchased at a cost of 

$38,000, exclusive of spare parts, which cost an additional 

$10,000, was at the receiving dock and had not as yet been 

delivered to the site for installation. Mr. Ortiz testified 

further that the old vibrator was causing problems and the new 

one had been ordered as a total replacement. Under the circumstances, I agree with the inspector's moderate negligence finding, and I conclude and find that the violation resulted from the 

respondent's failure to exercise reasonable care by removing part 

of the platform and leaving it off of the No. 2 vibrator unit 

until the new one was taken to the plant site and installed. 

Gravity 

In view of my significant and substantial (S&S) findings,.I 

conclude and find that the violation was serious. 

1125 
Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section llO(i} of the Act, I conclude and find that the petitioner's proposed civil penalty:assessment in the amount of $178, 

for the violation in question, is reasona.ble and appropriate, and 

IT IS AFFIRMED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $178 for the violation which has been affirmed 

in this case. Payment is to be made to the petitioner within · thirty (30} days of the date of this decision and order, and upon 

receipt of payment; this matter is dismissed. 

Distribution: 

William G. Staton, Esq., Office of the Solicitor, U.S. Department 

of Labor, 201 Varick Street, Room 707, New York, NY 10014 

(Certified Mail} 

Mr. Antonio Ortiz Brunet, President, Empresas Ortiz Brunet, Inc., 

Box 1839, Guaynabo, PR 00657-1839 (Certified Mail} 

/fb 

1126 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 24 \990 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

. . ON BEHALF OF ALONZO WALKER, : 

Docket No. SE 90-63-DM 

MD 90-03 

Complainant 

v. R & S Material 

DRAVO BASIC MATERIALS 

COMPANY, INC., 

Respondent 

. . 

. . 

Appearances: 

DECISION 

William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, AL, 

for the Secretary, 

R. Henry Moore, Esq., Buchanan Ingersoll 

Professional Corporation, Pittsburgh, PA, 

for the Respondent. 

Before: Judge Fauver 

On April 24, 1990, a hearing was held on the Secretary's 

Application for Temporary Reinstatement under§ 105Cc> of the 

Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801 et 

seq. 

Following oral argument, a decision was entered from the 

bench. This decision confirms the bench decision. 

I find that the evidence establishes a prima facie case of a 

successor-in-interest relationship between R & S Materials, Inc4, 

(predecessor) and Dravo Basic Materials Company, Inc., 

(successor). 

The hearing evidence satisfies the Secretary's burden of 

showing that the complaint by Alonzo Walker was not frivously 

brought. This finding is ma:de without ruling in any way .on the 

merits of the case. 

1127 
ORDER 

WHEREFORE IT IS ORDERED that, pending a final decision on 

the complaint of discrimination, Respondent~ Dravo Basic 

Materials Company, Inc., shall irii.mediately reinstate Alonzo 

Walker to the position he held at subject mine immediately before 

his discharge on January 10, 1990, or to a similar position, at 

the same rate and overtime pay, shift assignment, and with such 

other employment benefits that he would be receiving had he not 

been discharged. Provided: the parties may agree to an economic 

reinstatement Cpay without physical reemployment) if they file a 

signed agreement to such reinstatement with the signed consent of 

Alonzo Walker. 

Distribution: 

ftbt~ 9-~//-'-7 William Fauver 

Administrative Law Judge 

William Lawson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2015 2nd Ave., N. 201, Birmingham, AL 35203 (Certified 

Mail) 

R. Henry Moore, Esq., USX Tower, 57th Floor, 600 Grant Street, 

Pittsburgh, PA 15219 (Certified Mail) 

Mr. Alonzo Walker, 3305 Lincoln Drive, Selma, AL 36701 (Certified 

Mail) 

iz 

1128 
FS.:DERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 24, 1990 

CONSOLIDATION COAL COMPANY, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

. . 

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 

. . 

. . 

. . 

. . 

1129 

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, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 90-3 

A. C. No. 46-01867-03815 

v. Blacksville No. 1 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 90-8 

A. C. No. 46-01318-03901 

Appearances: 

Before: 

Robinson Run No. 95 

DECISION 

Henry Chajet, Esq., Jackson & Kelly, 

Washington, D.C.; and Walter J. Scheller, III, 

Esq., Consolidation Coal Company, Pittspurgh, 

Pennsylvania, for the Contestant-Respondent; 

Page H. Jackson, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, 

for the Respondent-Petitioner. 

Judge Merlin 

The above-captioned twelve notices of contest have been 

filed by the operator, Consolidation Coal Co~pany, pursuant to 

section 105(d) of the Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(d), (hereinafter referred to as the "Act" or 

the "Mine Act") , challenging the validity of citations issued 

to it by the Secretary of Labor under section 104(a) of the Act, 

30 u.s.c. § 814(a), which allege violations of 30 C.F.R. 

§ 50.30-l(g) (3). 29 C.F.R. § 2700.20 et seq. Docket No. 

WEVA 90-3, as captioned above, is the Secretary's petition for 

the assessment of civil penalties filed in accordance with 

section 105(d) supra, and sections llO(a) and (i) of the Act, 

30 u.s.c. § 820(a), and (i), for the assessment of civil penalties in the amount of $250 apiece for the violations disputed in 

the notices of contest. 29 C.F.R. § 2700.25 et seq. Docket No. 

WEVA 90-8 is a petition filed by the Secretary seeking penalties 

of $250 each for twelve additional 104(a) citations, also based 

upon alleged violations of 30 C.F.R. § 50.30-l(g) (3). 

on January 24, 1990, I issued an order upholding the 

validity of Part 50 and determining that penalties could be 

assessed for violations thereunder. On February 14, 1990, I 

denied the operator's request to certify my order for interlocutory appeal. By order dated March 8, 1990, the Commission 

denied the operator's request for interlocutory appeal. .Thereafter on March 22, 1990, a prehearing conference was held with 

counsel and on April 30, 1990, the parties submitted st~pulations 

1130 
of law and fact together with supporting briefs. On May 16, 

1990, counsel appeared at oral argument. 

The issue presented for resolution is whether the operator 

violated 30 C.F.R. § 50.30-l(g) (3) as charged, and if so, the 

appropriate amount of civil penalties to be assessed. 

section 103(d), 30 u.s.c. § 813(d), sets forth the recordkeeping provisions of the Mine Act as follows: 

(d) All accidents, including unintentional roof 

falls (except in any abandoned panels or in areas which 

are inaccessible or unsafe for inspections), shall be 

investigated by the operator or his agent to determine 

the cause and the means of preventing a recurrence. 

Records of such accidents and investigations shall be 

kept and the information shall be made available to the 

Secretary or his authorized representative and the 

appropriate State agency. Such records shall be open 

for inspection by interested persons. Such records 

shall include man-hours worked and shall be reported at 

a frequency determined by the Secretary, but at least 

annually. 

Part 50 of the Secretary's regulations, 30 C.F.R. Part 50, 

provides in pertinent part as follows: 

Subpart A--General 

§ 50.1 Purpose and scope. 

This Part 50 implements sections 103(e) and 111 of 

the Federal Coal Mine Health and Safety Act of 1969, 

30 u.s.c. 801 et seq., and sections 4 and 13 of the 

Federal Metal and Nonmetallic Mine Safety Act, 30 

u.s.c. 721 et seq., and applies to operators of coal, 

metal, and nonmetallic mines. It requires operators to 

immediately notify the Mine Safety and Health Administration (MSHA) of accidents, requires operators to 

investigate accidents and restricts disturbance of 

accident related areas. This part also requires operators to file reports pertaining to accidents, occupational injuries and occupational illnesses, as well as 

employment and coal production data, with MSHA, and 

requires operators to maintain copies of reports at 

relevant mine offices. The purpose of this part is to 

implement MSHA's authority to investigate, and to 

obtain and utilize information pertaining to, accidents, injuries, and illnesses occurring or originating 

in mines. In utilizing information received under 

Part 50, MSHA will develop rates of injury occurrence 

(incident rates or IR), on the basis of 200,000 hours 

1131 
of employee exposure (equivalent to 100 employees 

working 2;000 hours per year). The incidence rate for 

a particular injury category will be based on the 

formula: 

IR=no. of cases x 200,000 

hours of employee exposure 

MSHA will develop data respecting in]ury severity using 

days away from work or days of restricted work activity 

and the 200,000 hour base as criteria. The severity 

measure (SM) for a particular injury category will be 

based on the formula: 

* 

SM=sum of days x 200,000 

hours of employee exposure 

* * * * 

Subpart c--Reportinq of Accidents, Injuries, 

and I1lnesses 

§ 50.20. Preparation and submission of MSHA Report 

Form 7000-1--Mine Accident, Injury, and Illness Report. 

(a) Each operator shall maintain at the mine 

office a supply of MSHA Mine Accident, Injury, and 

Illness Report Form 7000-1. These may be obtained from 

MSHA Metal and Nonmetallic Mine Health and Safety 

Subdistrict Offices and from MSHA Coal Mine Health and 

Safety Subdistrict Offices. Each operator shall report 

each accident, occupational injury, or occupational 

illness at the mine. The principal officer in charge 

of health and safety at the mine or the supervisor of 

the mine area in which an accident or occupational 

injury occurs, or an occupational illness may have 

originated, shall complete or review the form in accordance with the instructions and criteria in §§ 50.20-1 

through 50.20-7. * * * 

* * * * * 

Subpart D--Quarterly Employment and Coal 

Production Report 

§ 50.30 Preparation and submission of MSHA Form 7000-

2--Quarterly Employment and Coal Production 

Report. 

(a) Each operator of a mine in which an individual worked during any day of a calendar 

quarter shall complete a MSHA Form 7000-2 in 

1132 
* 

§ 

* 

accordance with the ins~.cuctio.ns and criteria 

in § 50.30-1 * * *· 

* * * * 

50.30-1 General instructions for completing MSHA Form 

7000-2. 

* * * * 

(g) Employment, Employee, Hours, and Coal Producti on-- * * * * * 

(3) Total employee-hours worked during the 

quarter: Show the total hours worked by all employees 

during the quarter covered. Include all time where the 

employee was actually on duty, but exclude vacation, 

holiday, sick leave, and all other off-duty time, even 

though paid for. Make certain that each overtime hour 

is reported as one hour, and not as the overtime pay 

multiple for an hour of work. The hours reported 

should be obtained from payroll or other time records. 

If actual hours are not available, they may be estimated on the basis of scheduled hours. Make certain 

not to include hours paid but not worked. 

Citation No. 311400 which is the citation in the notice 

of contest WEVA 89-234-R and the first citation in the penalty 

petition WEVA 90-3, is representative of all citations 

involved in this matter. It cites a violation of 30 C.F.R. 

§ 50.30-l(g) (3) . 1 In describing the condition or practice 

Citation No. 311400 provides as follows: 

Evidence gathered during a Part 50 Audit of this 

mine indicates that the operator significantly over 

reported Employee Hours on the Quarterly Employment and 

Coal Production Report (Form 7000-2) for the 

forth [sic] quarter of calendar year 1988. According 

to management 3/4 of an hour is turned in each day for 

each employee which covers time spent on mine property 

before and after work hours. 

The parties have submitted the following stipulations: 

1. Consolidation Coal Company ("Consol") is the owner and 

operator of the Blacksville No. 1 Mine located in Monongalia 

County, West Virginia. 

1 Each citation in the notices of contest and in the two 

penalty petitions deals with a different calendar quar~er in one 

of the two Consolidation mines involved. 

1133 
2. Consol is the owner and operator of the Robinson Run 

No. 95 Mine located in Harrison County, West Virginia. 

3. Consol, the Blacksville No. 1 Mine, and the Robinson Run 

No. 95 Mine are subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (hereinafter "the Mine Act"). 

4. The Mine Safety and Health Administration, United states 

Department of Labor, (hereinafter "MSHA") has been the agency 

responsible for the enforcement of the Mine Act. 

5. All of the citations at issue in these matters were 

issued by a duly authorized representative of the Secretary of 

Labor and properly served upon Consol, and can be resolved 

together upon the basis of these joint stipulations. 

6. The Administrative Law Judge and the Federal Mine Safety 

and Health Review Commission have jurisdiction of these cases 

. pursuant to Sections 105 and 113 (d) of the Mine Act, 30 u.s.c. 

§§ 815, 823 (d). 

7. With respect to the issues previously decided by the 

Administrative Law Judge in his Order dated January 24, 1990, the 

parties agree that they will not brief or reargue them at this 

time, but that they are preserved for appeal. Nothing contained 

herein shall serve to waive said issues or be alleged or deemed 

an admission against Consol or the Secretary with respect to said 

issues. 

8. The violations alleged in the individual citations were 

abated by Consol within the time set for abatement. 

9. Copies of the subject citations are authentic and may be 

admitted into evidence. 

10. 30 C.F.R. § 50.20 requires, inter alia, that mine 

operators and independent contractors, submit a MSHA Form 7000-1 

(MSHA Mine Accident, Injury, and Illness Report Form) to MSHA 

within ten days after any accident, occupational injury, or 

occupational illnesses occurs at the mine or is diagnosed as 

having originated at the mine. 

11. 30 C.F.R. § 50.20 requires such reporting regardless of 

whether the event occurs during, before, or after a scheduled 

shift, and, in the case of an accident, regardless of whether the 

individual injured is a miner or employee of the mine operator. 

12. 30 C.F.R. § 50.30 requires each operator of a mine and 

independent contractors, which had any individual workipg any day 

at the mine during the calendar quarter, to submit a completed 

1134 
MSHA Form 7000-2 ("Quarterly Employment and Coal Production 

Report"). 

13. Data from Forms 7000-1 and 7000-2 are used to calculate 

the MSHA injury incidence rate pursuant to the formula set forth 

at 30 c.F.R. § 50.1. MSHA calculates such MSHA injury incidence 

rates for each mine, each mine operator, each state, each MSHA 

District and Subdistrict office, and on a national basis, using 

this formula. 

14. The hours reported on Form 7000-2 are also used by MSHA 

to calculate a "tons per hour worked" figure for the coal industry on a national basis. On occasion, MSHA has used such 

information to calculate a "tons per hour worked" figure for 

individual mines. The calculations of "tons per hour worked" 

statistics has no relationship to MSHA's statutory safety mission 

and is done only as a public informational service. Consol 

maintains that such use is not relevant to this case. 

15. With respect to Consol, the hours reported on 

Form 7000-2 are not used for any statutory or regulatory purpose 

other than the calculation of an incidence rate. With respect to 

all independent contractors and operators of mines other than 

coal mines, MSHA uses the hours reported from Form 7000-2 for 

purposes of 30 C.F.R. Part 100. Such Part 100 use is not applicable to Consol. Consol maintains that such Part 100 use is 

irrelevant to this case. 

16. The incidence rate is used by MSHA as one method to 

analyze injury and illness trends and allocate inspection 

resources. 

17. In addition to the calculation of incidence rates, 

MSHA uses the information obtained from the Form 7000-1 to: 

(a) determine whether an accident should be investigated; (b) 

analyze injury and illness trends by type, occupation or location; and (c) allocate inspection resources and to focus 

inspections. 

18. Accidents and occupational injuries occurring to miners 

off mine property, such as a coal truck driver injured in an 

acci~ent on a public highway, are not subject to the reporting 

requirements of 30 C.F.R. § 50.20. 

19. MSHA does not require, and Consol has not recorded time 

spent on mine property by nonemployee visitors such as inspect~rs, manufacturer's representatives, or representatives of 

miners on nonscheduled shifts. Consol maintains that lack of 

r7porting ~ime estimates on MSHA Form 7000-2 for representatives of miners on nonscheduled shifts stems from an oversight if 

MSHA utilizes injuries of such personnel for incidence rate 

calculations. 

1135 
20. The Secretary's accident and injury computer data 

summaries list events reported pursuant to 30 C.F.R. § 50.20(a) 

by mine sit·e, occupation, activity of injured, location of accident and equipment involved. The abstracts do not specify the 

time of the event, whether the event occurred on shift or off 

shift, or whether the employee was being paid when the event 

occurred. There are some occupations and certain time periods at 

the Blacksville No. 1 Mine and Robinson Run No. 95 Mine for which 

injuries did not occur in 1986, 87 and, 88. The following are 

summaries of the summaries for the mines and years during which 

the citations in this case were issued. 

(a) At the Blacksville No. 1 Mine, for calendar year 1988, 

Consolidation Coal Company reported a total of fifty-one (51) 

reportable incidents; fourteen (14) of the reportable incidents 

were accidents without injuries; twenty-eight (28) were underground injuries to miners and foremen; three (3) were surface 

injuries to miners and foremen; and six (6) were compensation 

awards for occupational illnesses. While the location where some 

of the events which occurred were unknown, none of the reported 

injuries specified that they occurred at the bathhouse or the 

parking lot. 

(b) At the Robinson Run No. 95 Mine, for calendar year 

1988, Consolidation Coal Company reported a total of seventyeight reportable Part 50 incidents. Fifteen (15) of the reportable incidents were accidents without injuries; forty-eight (48) 

were underground injuries to miners and foreman; four (4) were 

surface injuries; and eleven (11) were compensation awards for 

occupational illnesses. While some of the locations where the 

events occurred were unknown, one (1) of the reported injuries 

specified that it occurred at the bathhouse. The miner injured 

at the bathhouse was the "shower room employee" who was injured 

while cleaning the shower room. The time of the incident was 

unknown. 

(c) At the Blacksville No. 1 Mine, for calendar year 1987 

Consolidation Coal Company reported a total of seventy-eight (78) 

reportable incidents. Fourteen (14) of the reportable incidents 

were accidents without injuries; one was a non-occupationally 

related cardiac arrest; forty-three (43)' were underground injuries; three (3) were surface injuries; and fourteen (14) were 

compensation awards for occupational illnesses. While the location of some of the injuries was unknown, one (1) of the reported 

injuries specified that it occurred at the bathhouse when an 

employee was struck in the head by a falling basket. 

(d) At the Robinson Run No. 95 Mine, for calendar year 1987 

Consolidation Coal Company reported a total of one hundred thirty 

incidents. Thirty-two (32) of the reportable incidents were 

accidents without injuries; fifty-two (52) were underground 

1136 
injuries, ten (10) were surface injuries; thirty-six (36) were 

compensation awards for occupational illnesses. While some of 

the reported injuries occurred at unknown areas of the mine, one 

(1) of the reported injuries specified that it occurred at the 

lamp house. The miner injured at the lamp house got cleaning 

solution in his eyes while cleaning his protective glasses. One 

(1) of the reported injuries also specified that it occurred at 

the "bath unit". The miner in the bath unit injured his back 

while crawling on a screen. None specified that they occurred at 

the parking lot of the mine. 

(e) At the Blacksville No. 1 Mine, for calendar year 1986 

Consolidation Coal Company reported a total of forty-five (45) 

incidents. Fifteen (15) of the reportable incidents were 

accidents without injuries; fifteen (15) were underground injuries; three (3) were surface injuries; and, fourteen (14) were 

compensation awards for occupational illnesses. While some of 

the injuries occurred at unknown locations of the mine, none (0) 

of the reported injuries specified that they occurred at the 

bathhouse or parking lot of the mine. 

(f) At the Robinson Run No. 95 Mine, for calendar year 1986 

Consolidation Coal Company reported a total of seventy-two (72) 

incidents. Fifteen (15) of the reported incidents were accidents 

without injuries, nineteen (19) were underground injuries; four 

were surface injuries; thirty-four (34) were compensation awards 

for occupational illnesses. While some of the reported incid~nts 

occurred at unknown locations, one (1) of the reported inj~ries 

specified that it occurred at the bathhouse. The miner injured 

at the bathhouse was taking a shower when he struck his head on 

the shower water valve causing a laceration. 

21. Examples of pre and post "shift" occupational injuries 

at the Blacksville No. 1 Mine and the Robinson Run No. 95 Mine 

during the years 1986, 1987, and 1988, that have been reported by 

Consol to MSHA, pursuant to 30 C.F.R. § 50.20, by the filing of 

MSHA Forms 7000-1, and used to calculate consol's incidence 

rates, include: 

MINE DATE EMPLOYEE 

Robinson Run1 9/19/86 George Sandy 

INCIDENT DESCRIPTION 

pre-shift; fell in 

parking lot; broke arm 

[Footnote 1 of the stipulations] Consol has informed 

Counsel that this injury was reported on a Form 7000-1. The 

injury does not appear on the secretary's accident and injury 

computer data summary referred to in Stipulation 20. Counsel 

have not been able to resolve this discrepancy. 

1137 
Blacksville .4/07/87 

Robinson Run 8/10/87 

Robinson Run 9/18/86 

John Raines pre-shift; falling basket 

in bathhouse; laceration; 

sutures 

Mark Wentz pre-shift; cleaning 

solution in eye; lost 

time 

W.D. McKinney post-shift; showering in 

bathhouse; lacerations to 

right ear 

22. Violations of mandatory safety or health MSHA standards 

at the Mine, caused by Consol employees, subject Consol to MSHA 

citations regardless of whether they occur during, before or 

after a scheduled shift. For purposes of MSHA jurisdiction and 

to promote a safe work place, Consol considers all employees to 

be on duty and subject to Consol's rules and policies whenever 

they are on mine property. 

23. Whenever its employees are on mine property Consol 

considers such time to be "exposure time" during which defined 

injuries and illness are reportable to MSHA. 

24. Consol requires that employees report to work prior to 

the beginning of their scheduled shift so that they can be fully 

prepared to begin their shift by obtaining necessary equipment or 

clothing (e.g., lamps, self-rescuers, dust sampling pumps). 

25. Consol requires that employees remain on mine property 

after the end of their scheduled shift to return equipment and 

materials prior to departing from mine property. 

26. While scheduled shift duration is eight hours in 

length, actual shift time can vary by 10-15 minutes, more 

or less, depending upon variables such as transportation 

availability or crew readiness. 

27. The amount of pre and post shift time that employees 

spend on mine property is variable at Consol's mines, and at 

other mine sites, and no accurate record is kept of such time by 

Consol. 

28. Hourly employees are not paid for pre and post shift 

exposure time on mine property and estimates of such time are not 

used for wage calculations. 

29. Consol complies with 29 C.F.R. Part 516 and 29 c.F.R. 

§ 1904.21. Consol maintains that such fact is irrelevant to this 

case. 

1138 
30. Salaried employees at Con~ol's Blacksville No. 1 Mine 

and Robinson.Run No. 95 Mine are paid a predetermined salary biweekly, based on working five scheduled shifts per week. These 

salaried employees are estimated to be on the mine site an 

average of 1.5 hours per shift in excess of their scheduled eight 

hour shifts. This 1.5 hours includes exposure time spent in work 

activities and at the bathhouse and the parking lot, before and 

after scheduled shifts. 

31. Consol maintains payroll records of the number of days 

worked by its salaried employees, but such records are solely for 

the purpose of payroll calculations and tracking absenteeism, 

sick leave and vacation time. The records do not reflect actual 

time worked or time spent at the mine site. 

32. To arrive at its estimate of hours to be reported on 

MSHA Form 7000-2 for salaried employees, Consol determines their 

reportable hours by multiplying the number of scheduled shifts at 

which salaried employees were present, times 8 scheduled hours 

plus 1.5 average additional on site hours [reportable 

hours = shifts present x ( 8+ 1. 5) ] • 

33. MSHA has not issued citations for violations of 30 

C.F.R. § 50.30 based on Consol's calculations of salaried 

employee hours on MSHA Form 7000-2 for the Blacksville No. 1 Mine 

and Robinson Run No. 95 Mine. 

Because Consol's payroll records do not reflect actual hours 

of salaried employees, MSHA has always accepted for salaried 

employees at the Blacksville No. 1 Mine and the Robinson Run 

No. 95 Mine an estimate of reportable hours on Form 7000-2. The 

citations at issue in this proceeding are not predicated upon the 

hours reported by Consol for salaried personnel. 

34. Consol maintains payroll records of 8 hour shifts 

scheduled, and overtime pay due for each hourly employee at the 

Blacksville No. 1 Mine and the Robinson Run No. 95 Mine. These 

records indicate, inter alia, the eight hour shift the hourly 

employee was scheduled to work; whether the employee was present 

during the shift; and the total number of hours to be paid, 

including overtime due. If the hourly employee(s) did not appear 

for the scheduled shift, the record indicates the reason, and 

whether the employee is to be compensated for that time. such 

records are prepared solely for the purpose of payroll calculations, tracking absenteeism, sick leave and vacation time and do 

not reflect actual time worked or time spent at the mine site. 

35. To arrive at its estimate of hours to be reported on 

MSHA Form 7000-2 for hourly employees, Consol determines their 

mine site exposure hours by multiplying the number of scheduled 

shifts during which the employees were present, times the a 

scheduled shift hours plus the number of overtime hours to be 

1139 
paid, plus .75 hour of average time on the site in excess of 

scheduled shift time and overtime paid [Reportable hours=shifts 

present x(8+overtime hours+.75)). 

36. For both hourly employees and salaried employees the 

time paid or scheduled shifts do not, accurately reflect time 

actually worked since they do not account for the idle periods 

that are paid (e.g., lunch or awaiting transportation). 

Similarly, time paid or scheduled shifts do not reflect pre and 

post shift time spent on mine property. 

37. The estimated 45 minute component of hourly employee 

exposure was determined by surveying a number of experienced and 

competent Consol officials who had observed employees at these 

Consol mines. The estimate constitutes Consol's best estimate of 

actual exposure time before and after scheduled shifts. 

38. When the 45 minute estimate is combined with the 

scheduled shift time and overtime component, these components 

reflect the number of hours that Consol believes each hourly 

employee spends at the mine site on a daily basis. 

39. MSHA maintains that since March 9, 1978, it has consistently interpreted the language of 30 C.F.R. § 50.30-l(g) (3) to 

require the reporting of hours recorded on payroll records or 

other time records, such as time clocks, if those records were 

available. MSHA also maintains it has consistently allowed the 

submission of estimated hours as reportable hours only when 

payroll records or other records do not reflect actual hours 

worked. Counsel for the Secretary has no knowledge of any citation or order having previously issued for reporting pre and post 

shift time on MSHA Form 7000-2. Consol maintains that, among 

other things, the documents referred to in Stipulations 40 and 41 

evidence inconsistent interpretation of reportable hours. 

40. On November 7, 1975, the Mining Enforcement and Safety 

Administration issued a memorandum addressing the American 

National Standards Institute (ANSI) Z-16.1 (1967) and its role as 

"an integral part of a uniform system for developing statistics 

by MESA. • • • II 

41. MSHA has published a series of., Information Reports 

interpreting the provisions of 30 C.F.R. Part 50. (hereinafter, 

called "Guidelines") None of the Guidelines were published in 

the Federal Register but they were distributed to mine operators. 

From March 1978 until December 1986 the Guidelines contained a 

definition of employee hours that provides as follows: 

"Employee hours" constitutes the total number 

of hours worked by all employees during the 

quarter covered. Include as employees those 

1140 
ir1 operating, production, maintenance, transportation, mine off ice, supervision and administration. overtime hours are to be 

reported on a straight time basis, i.e. actual exposure time only must be reported. 

This definition was deleted by the December 1986 Guidelines. 

The December 1986 Guidelines, distributed to mine operators 

including Consol in January 1987, added a new sentence to the 

repetition of 30 C.F.R. § 50.30-l(g) (3): 

Do not include time spent on mine property 

outside of regularly scheduled shifts, i.e. 

bathhouse, parking lot, etc. 

42. Prior to the decision in Freeman United Coal, 6 FMSHRC 

1577 (1984), Consol and other mine operators reported hours for 

hourly employees by reporting hours paid, including idle time and 

lunch time, but not pre and post shift exposure time spent on 

mine property. Prior to this change in reporting practices 

Consol and other operators did not report pre and post shift 

injuries since the operators considered them non-occupationally 

related. Prior to the change in reporting practices, Consol and 

other mine operators reported estimated time for salaried 

employees. 

43. After the Review Commission's decision in Freeman 

United Coal, 6 FMSHRC 1577 (1984), Consol and other operators 

initiated reporting of pre and post shift incidents and exposure 

time hours on mine property. 

44. Consol did not make any inquiry to the Secretary as to 

the effect of the Freeman United Coal decision.on the reporting 

requirements of 30 C.F.R. § 50.30. The Secretary did not issue 

any policy memorandum or other instructions to the industry 

regarding the effect of the decision. The Secretary did not make 

any inquiry of Consol regarding the effect of the decision. The 

Secretary asserts that the Freeman United Coal decision had no 

effect upon the reporting requirements of 30 C.F.R. § 50.30 and 

thus no inquiries or pronouncements were appropriate. 

45. Consol did not inform the Secretary that it had changed 

the method by which it determined reportable hours for purposes 

of 30 C.F.R. § 50.30-l(g) (3) until MSHA inspectors inquired about 

the discrepancy between payroll records and the Form 7000-2s 

during the conduct of the audit which resulted in the issuance of 

the citations in this case. 

46. The Secretary has insufficient knowledge to accept or 

deny that the components reported by Consol reflect the actual 

time spent by hourly employees on mine property each day. Accordingly, the parties stipulate that, for the dispositlon of 

1141 
these cases, the Chief Administrative Law Judge can assume that 

these components when combined reflect the actual time spent by 

hourly employees at the Blacksville No. 1 Mine and the Robinson 

Run No. 95 Mine on the days when they are at the mine site. 

47. Consol is a large coal mine operator and generally has 

an average history of violations under the Mine Act for a mine 

operator of its size. 

48. The parties stipulate that, for the disposition of· 

these cases, the Chief Administrative Law Judge can find that: 

{a) the proposed penalties, while not agreed to by the parties, 

will not affect Consol's ability to stay in business; and {b) the 

citations were abated in good faith. The parties are unable to 

stipulate as to the degree of negligence, if any, involved in 

causing the alleged violations. 

However, Consol maintains that the change in its reporting 

practice was undertaken consistent with the advice of counsel and 

the Secretary has no evidence to the contrary. 

49. The Parties agree that the Administrative Law Judge 

should take judicial notice of the documents referred to in these 

stipulations and include them in the record of this case. 

Upon review I have determined that the stipulations submitted by the parties provide an appropriate and adequate basis 

upon which to decide this case. Accordingly, the stipulations 

_are hereby ACCEPTED. 

As set forth above, section 50.30-l(g) (3) requires each 

employer under the Mine Act to report total hours worked by all 

employees. The regulation subsequently directs that hours 

reported be obtained from payroll or other time records. Based 

upon the record before me, I conclude that MSHA has consistently 

interpreted 50.30{g)-1{3) to require reporting of hours recorded 

on payroll records or other time records whenever such records 

are available. As set forth in the stipulations, MSHA informational guidelines have been changed in certain respects, but not 

in a manner crucial to the determination of what constitutes 

employee hours worked for reporting purposes (Stipulation 41). 

The inclusion as employees of those in operation, maintenance, 

etc. was deleted in the 1986 Program Circular (Gov•t. Exh. 1). 

Also, a new instruction was adopted in the 1986 Program Circular 

telling employers not to include time spent on mine property 

outside of regularly scheduled shifts (Gov•t. Exh. 1, p. 15). 

However, the instruction to obtain hours worked from payroll or 

other time records is the same in the 1978 manual (Gov•t. Exh. 6, 

p. 16), the 1980 manual (Gov't. Exh. 7, p. 15) and the 1986 

manual (Gov•t. Exh. 1, p. 15). It is this provision which I find 

determinative. 

1142 
I have carefully r~viewed the operator's argument that the 

proper construction of the regulations would include in hours 

worked, unpaid hours spent on mine property {Operator's brief pp. 

8-13). I do not find the operator's representations persuasive 

in light of the fact that until 1984 it accepted the Secretary's 

views and reported employee hours in the manner prescribed by the 

Secretary {Stipulation 43). I recognize that because of the 

Commission's decision in Freeman Mining Company, 6 FMSHRC 1577 

{July 1984), the operator began to report off-shift on-site 

accidents under section 50.20 of the regulations, supra, which it 

had not done previously {Stipulation 42). However, I do not 

believe the Freeman decision justifies changing the interpretation of section 50.30-l{g) {3) regarding hours worked, when this 

is the interpretation the Secretary always has followed. In this 

connection, I bear in mjnd that the Commission has been admonished that deference is due the Secretary's interpretation of 

her own regulations. Brock v. Cathedral Bluffs Shale Oil. Co., 

et. al., 796 F.2d 533, 538 (D.c. cir. 1986) ~ Secretarv of Labor 

v. Cannelton Industries, 867 F.2d 1432, 1435 {D.C. Cir. 1989). 

Secretary of Labor v. Western Fuels-Utah,~~ F.2d ~~ {D.C. 

Cir. April 6, 1990). Therefore, the operator's ex parte attempt 

to redefine hours worked by adding thereto 45 minutes per shift 

cannot be allowed. 

A contrary result is not warranted because salaried 

workers are treated differently than hourly workers. Section 50.30-l{g) {3) provides that where actual hours are not 

available, they may be estimated on the basis of scheduled hours. 

The parties agree that salaried employees are paid a predetermined bi-weekly salary based on 5 scheduled shifts per week and 

that for purposes of reporting hours under section 50.30-l{g) (3) 

the operator adds, and the Secretary accepts, 1.5 hours per shift 

{Stipulations 30, 32, 33). The operator asserts that salaried 

and hourly employees should be treated the same and that since 

the Secretary accepts the operator's estimate of an extra 1.5 

hours per shift for reporting of hours of salaried employees 

under 50.30-l{g) (3), it should accept the operator's estimate of 

45 minutes per shift for hourly employees {Operator's brief pp. 

12, 13). This argument cannot be accepted. It overlooks the 

fact that although payroll records for hourly employees may not 

be completely accurate insofar as hours worked are concerned 

{e.g. lunchtime, pre and post shift times), these records by and 

large do reflect the time hourly employees work and are paid, 

whereas this is not true of salaried employees. As the operator 

itself admits, renumeration of salaried employees is the same 

regardless of whether they work 8 hours or 15 hours a day {Operator's brief p. 12, Hearing Tr. 51-54). In allowing estimates for 

salaried employees for whom there are no records of actual hours 

worked, section 50.30-l{g) (3) is consistent with general principles. American National Standards Institute (ANSI) A2.2.2., 

p. 10 (1977); 3.2(2), p. 12 (1967). See also Solicitor's 

letter dated May 17, 1990. 

1143 
In light of the foregoing, I find violations existed in the 

subject cases. 

By no means, however, is this the end of the inquiry 

essential to proper consideration and disposition of the matters 

presented. The Mine Act requires not only that a finding be made 

whether or not a violation existed, but in addition directs that 

attention be given to six criteria, including gravity and 

negligence, for determining the appropriate amount of penalty to 

be assessed. Section llO(i) of the Act, supra. Accordingly, the 

nature, character and extent of these violations must be 

evaluated. 

The subject cases are unusual because appraisal of the 

criteria, most particularly gravity, leads to what is in fact the 

heart of the dispute between the parties. The Solicitor admits 

the violations are not serious, but he does not adequately explain why (Solicitor's brief p. 30, Hearing Tr. pp. 39-41). A 

determination of the seriousness of the violations requires 

examination of the use to which the hours reported under 

§ 50.30-l(g) (3) are put. The parties agree that the hours 

reported under § 50.30-l{g) (3) on Form 7000-2 together with 

accidents reportable under § 50.20 on Form 7000-1 are used in the 

formula set forth in § 50.1, supra, to arrive at the injury 

incidence rate for each mine and mine operator (Stipulation 13). 

The parties further agree that insofar as Consol is concerned the 

hours reported under § 50.30-l{g) (3) are used only for inclusion 

in the formula (Stipulation 15). Despite the Solicitor's representations to the contrary at the oral argument (Hearing Tr. 17-

20, 66-69), I believe that because of the data fed into it, the 

formula in § 50.1 produces an inherently flawed injury incidence 

rate. The numerator of the equation consists of accidents reportable whenever they occur on the mine site regardless of when 

they happen, i.e. on-shift, pre-shift or post-shift. The denominator of the formula, however, is employee exposure hours which 

is equated by the Secretary with the hours worked as reported 

under § 50.30 (Stipulations 12, 13; Solicitor's brief pp. 23-25; 

Hearing Tr. 16-17). As explained above, the§ 50.30 hours are 

paid, on shift hours. Accordingly, the numerator and denominator 

are mismatched with the former premised upon place but the latter 

predicated upon time and place. The operator's objection to the 

product of this formula as skewed data is well-taken (Operator's 

brief pp. 22-26). 

The parties agree that for 1986-1988 there were only four 

off-shift reportable incidents at the two mines involved in these 

cases (Stipulation 21). The Solicitor does not specifically 

argue the formula should be upheld because these incidents are 

de minimis, but his statements seem to imply this (Solicitor's 

brief p. 25, footnote 10; Hearing Tr. 15). I am unconvinced 

because a three year sampling of only two mines is an 

1144 
insufficient basis upon which to conclude that the infirmities in 

the formula are of no account. Indeed, the parties have agreed 

that the formula is a basis upon which MSHA directs its investigative resources as well as analyzes illness and injury trends 

(Stipulation 16). 

That the formula is flawed is further demonstrated by the 

Solicitor's agreement that I may assume for purposes of deciding 

these cases that the 45 minutes added to hours worked by the 

operator reflect the time actually spent at the mine by hourly 

employees (Stipulation 46). If therefore, there were mutuality 

in the components of the formula, the incidence rate would be 

substantially affected, because the addition of 45 minutes would 

constitute almost a 9% increase in the denominator of the 

formula. 

The Solicitor's representation that the injury incidence 

rate under the Mine Act is comparable to that under the 

Occupational Safety and Health Act, 29 u.s.c. 651 et seq., (hereafter referred to as "OSHA"), must be rejected (Solicitor's brief 

pp. 23-25) • The incidence rate under OSHA like that under the 

Mine Act is arrived at by dividing the number of injuries by hour 

worked. Recordkeeping Guidelines for Occupational Injuries and 

Illnesses, Sept. 1986 (Gov't Exh. 3, p. 59). But the definition 

and application of these terms are far different under OSHA than 

under the Mine Act. Reportability of accidents under OSHA is not 

determined solely by reference to the work site as it is under 

the Mine Act. Rather under OSHA there is a rebuttable presumption of reportability applicable to accidents that occur on an 

employer's premises, but when the event happens off the premises 

reportability is determined by an evaluation of whether the 

activities were work related (Gov't Exh. 3, pp. 32, 34-35). In 

addition, events occurring on the parking lot or in recreational 

facilities are not reportable under OSHA. The other factor in 

the incidence equation, i.e., exposure hours, also is treated 

differently under OSHA than the Mine Act. Although employee 

hours worked are determined under OSHA initially by reference to 

payroll records, the concept is expanded in determining exposure 

hours (Gov•t Exh. 3, A-4, p. 54). Thus the OSHA manual directs 

that: 

The figure for hours worked should reflect the actual hours of work-related exposure for all employees. If injuries and 

illnesses experienced during a particular 

activity are recordable, then the employee's 

time spent in the activity should be included 

in the hours worked estimate. Work-related 

exposures include most of the employees' 

activities on the employers' premises as well 

1145 
as situations off premises where the 

employees are engaged in job tasks or are 

there as a condition of employment. 

(Gov't. Exh. 3, A-5, p. 54). 

Accordingly, under OSHA there is a correlation between 

reportable events and the time during which they occur. It is 

just this correlation which is missing in the § 50.1 formula 

under the Mine Act. The Solicitor's assertion that "actual hours 

of work-related exposure" applies only to paid time, is unsupported and therefore, rejected (Solicitor's brief p. 24, footnote 

9: Hearing Tr. 35-36). 

If the Secretary can achieve such correlation and balance 

under OSHA, it is difficult to see why she cannot do so under the 

Mine Act. I recognize that Stipulation 46 which agrees that the 

45 minutes estimated by the operator accurately reflects time 

spent on mine property by hourly employees, has been entered into 

only for purposes of these cases. However, as a general matter 

composition of a meaningful formula for an injury incidence rate 

under the Mine Act would appear to be the Secretary's responsibility, at least in the first instance, rather than the 

operator's. 

In sum therefore, the only effect of the operator's failure 

to report hours worked as defined by the Secr~tary under 

§ 50.30-l(g) (3) is that these hours were not included in the 

§ 50.1 formula. Because the formula as presently written and 

applied produces flawed data, I find the violations are nonserious and technical in nature. Indeed, what the violations 

highlight is the need for the Secretary to revisit the issues 

posed by those sections of the reporting regulations involved 

in these cases. 

There is no question that after the Freeman decision the 

operator intentionally changed its reporting of hours worked 

under § 50.30-l(g) (3) by adding 45 minutes to each shift and that 

it did not tell the Secretary what it was doing (Stipulations 43, 

44 and 45). As set forth above, I appreciate the dilemma the 

operator found itself in because of the flawed incidence rate 

formula. However, this is no excuse for the operator's actions. 

Whatever difficulties may be presented by the Secretary's interpretation of the Act and regulations, no operator is free to take 

the law into its own hands by deciding for itself what the law 

means and how it can best be applied. The egregious nature of 

the operator's conduct is augmented by the clandestine nature of 

its activities. The operator could have openly challenged the 

Secretary's position immediately after the Freeman decision. 

Instead, it chose to act in secret until the Secretary found out. 

This ~perator which is one of the largest in the mininq industry, 

certainly knows better. Accordingly, I find negligence was high. 

1146 
The other criteria have been stipulc:i..ed. The violations 

were abated in a timely manner; prior history is average; size is 

large: and imposition of penalties herein will not affect the 

operator's ability to continue in business (Stipulations 8, 47, 

48). 

It is ORDERED that the documentary exhibits (Gov't Exh. 1-8 

and Operator's Exh. 1 and 2) be ADMITTED. 

It is further ORDERED the operator's motion to strike be 

DENIED. 

It is further ORDERED that insofar as the existence of 

violations and a finding of high negligence are concerned the 

Secretary's motion for summary judgment be GRANTED. 

It is further ORDERED that a penalty of $100 be ASSESSED for 

each of the 24 violations involved in these cases. 

It is further ORDERED that the operator PAY $2,400 within 30 

days from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Henry Chajet, Esq., Jackson & Kelly, Consolidation Coal Company, 

Suite 650, 1701 Pennsylvania Avenue, N.W., 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 

1147 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 301990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOUNTAIN PARKWAY STONE, 

INCORPORATED, 

Respondent 

Docket No. KENT 89-27-M 

A.C. No. 15-15676-05511 

Staton Mine 

DECISION ON REMAND 

Before: Judge Weisberger 

STATEMENT OF THE CASE 

On May 23, 1990, the Commission issued a decision pursuant 

to the Secretary's petition to review my decision in this matter 

issued on July 14, 1989. In essence, the Commission found that 

Respondent violated 30 C.F.R. § 57.9002 as alleged in a citation 

issued by MSHA Inspector Eric Shanholtz on August 17, 1988. 

(Mountain Parkway Stone, Inc., 12 FMSHRC, (Slip op., May 23, 

1990)). The Commission reversed by decision with respect to the 

vacation of the citation in issue, and remanded the matter "· 

for determination of the allegation that the violation was of a 

significant and substantial nature and for assessment of an 

appropriate civil penalty." (Mountain Parkway Stone, Inc., 

supra, at 4) • 

I. 

In its decision, the Commission noted Shanholtz's detailed 

testimony regarding the numerous equipment defects affecting 

safety that prompted his citation. (Mountain Parkway Stone, 

Inc., supra, at 3). It further found that "The evidence that the 

C-50 boom truck had defects affecting safety was largely 

uncontroverted" (Mountain Parkway stone, Inc., supra, at 3). The 

Commission summarized the largely uncontroverted testimony of 

Shanholtz with regard to the various defects affecting safety, . · 

and the hazards of these defects as follo~s: 

1148 
Specifically, the inspector noted that there were no 

stabilizing jacks on the truck. (Stabilizing jacks are 

outrigge~s that are used to support a boom truck when 

the boom is raised. Tr. 232.) Without such 

stabilizing jacks, the truck could.overturn if it were 

"utili'zed in the wrong capacity." Tr. 233. Shanholtz 

additionally noted several hydraulic leaks in the boom 

controls and in the boom's left cylinder that presented 

both fire and slipping hazards and allowed the boom to 

drop. The doors of the truck were missing and the 

truck did not have seat belts. In Shanholtz's opinion, 

these conditions presented the hazard of allowing a 

driver to fall from the vehicle if it took a sharp 

turn. Shanholtz further observed that the truck did 

not have front or rear lights, although it was 

apparently used underground. Finally, Shanholtz noted 

that a rag was used as a gas cap on the gas tank. 

Shanholtz testified that the rag could act as a wick 

for the gas and present an explosion or ignition 

hazard. Tr. 232-34. (Mountain Parkway Stone, Inc., 

supra, at 2). 

Shanholtz opined that the violation herein was significant 

and substantial based on his finding that "[t]he likelihood of 

something happening was reasonably likely in that if an injury or 

fatality would occur, then it would be serious." Tr. 239. 

Shanholtz indicated that illness and injury was reasonably likely 

to occur because "just accumulation of the defects in themselves 

presented a reasonable likelihood of an injury occurring" (sic) 

Tr. 238. He essentially agreed with the counsel for petitioner 

that, with regard to each of the dangers he testified to that 

were involved in each of the defects he cited, the dangers would 

be reasonably likely to occur. 

I find, based on Shanholtz's basically uncontradicted 

testimony, as noted by the Commission, that with regard to the 

defects he noted, which constituted a violation of section 

57.9002, supra, there were discrete safety hazards contributed to 

by. the violation herein. (See, Mathies Coal Company, 6 FMSHRC 1, 

3 (1984)). In order for the violation herein to be considered 

significant and substantial, it also must be established, as set 

forth in Mathies~ supra, at 3-4, that there was "a reasonable 

likelihood that the hazard contributed to will result in an 

injury." The Commission in Consolidation Coal Company, 6 FMSHRC 

189, 193 (1984), explained that this element "embraces a showing 

of a reasonable likelihood that the hazard will occur, because, 

of course, there can be no injury if it does not." 

Although Shanholtz described the hazards involved in each of 

the safety defects in question, and concluded that these were 

reasonably likely to occur, he did not provide the basis for this 

conclusion. Nor does the record contain sufficient facts to 

1149 
support this conclusion. Thus, I find that it has not been 

established that the hazards involved in the various safety 

defects were reasonably likely to occur. As such, it must be 

concluded that it has not been established that the violation 

herein was significant and substantial (Mathies, supra, 

Consolidation Coal, supra). 

II. 

The testimony of Shanholtz is essentially uncontradicted 

with regard to the existence, at the date of the inspection, of 

numerous defects in different parts of the truck in question. 

Also uncontradicted is Shanholtz•s testimony, as summarized above 

(I., infra), with regard to the specific hazards attendant upon 

the various safety defects. Also the Commission noted that the 

record establishes that the truck had been used while it had the 

cited safety defects. I thus conclude that the violation herein 

was of a moderately high level of gravity. Taking into account 

the remaining statutory factors set forth in section llO(i) of 

the Act, as stipulated to by the parties, as well as the history 

of violation as indicated by Exhibit 1, I conclude that a penalty 

of $98 is proper for the violation found herein. 

ORDER 

It is ORDERED that within 30 days of this decision, 

Respondent shall pay $98 as a penalty for the violation of 

Citation No. 3253338. 

Avram 

L~ Weisberger 

Administrative Law Judge 

Distribution: 

Colleen A. Geraghty, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

Mr. Jeffery T. Staton, Vice President, Mountain Parkway Stone, 

Inc., Route 1, Box 309-B, Stanton, KY 40380 (Certified Mail) 

/fb 

1150 
ADMINISTRATIVE LAW JUDGE ORD~RS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

54!03 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6232 

May 4, 1990 

THOMAS J. MCINTOSH, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 90-113-D 

MSHA Case No. BARB CD 90-06 

FLAGET FUELS, INC., 

Respondent No. 1 Surface 

ORDER DENYING RESPONDENT'S REQUEST 

TO DISMISS COMPLAINT 

Statement of the Case 

This proceeding concerns a complaint of discrimination filed 

by the complainant against the respondent pursuant to section 

105(c) (3) of the Federal Mine Safety and Health Act of 1977. The 

complainant alleges that he was discharged by the respondent from 

his employment as a bulldozer operator on or about December 8, 

1989, because of his refusal to operate a bulldozer he reasonably 

and in good faith believed to be unsafe and because he had voiced 

safety complaints about said bulldozer to the respondent's 

vice-president. 

The respondent has filed an answer to the complaint denying 

that it discharged the complainant or discriminated against him 

in violation of the Act. With regard to the complainant's 

jurisdictional pleading at paragraph three (3) of his complaint, 

the respondent takes the position that the complaint is untimely 

and states that it "specifically controverts jurisdiction of the 

Commission for failure to meet the statutorily prescribed filing 

deadline." Respondent requests that the complaint be dismissed 

with prejudice. 

Although the Act provides that a discrimination complaint 

must be filed within 30 days after receipt of the Secretary's 

written determination that no violation has occurred, and the 

Commission's proposed rule changes as published in the Federal 

Register on February 12, 1990, 55 Fed. Reg. 4853-4866, will 

include the same statutory time limit, under the Commission's 

present rules of procedure there is no time limit for filing such 

a complaint. The applicable present rules provide as follows: 

1151 
§ 2700.40 Who may file. 

(a) The secretary. A complaint of discharge, 

discrimination or interference under section 105(c) of 

the Act, 30 u.s.c. § 815(c), shall be filed by the 

Secretary after an investigation under section 

105(c) (2) of the Act, if he finds that a violation of 

section 105(c) (1) of the Act has occurred. 

(b) Miner, representative, or applicant for 

employment. A complaint of discharge, discrimination 

or interference under section 105(c) of the Act, may be 

filed by the complaining miner, representative of 

miners, or applicant for employment if the Secretary 

determines that no violation has occurred. 

§ 2700.41 When to file. 

(a) The Secretary. A complaint of discharge 

discrimination or interference shall be filed by the 

Secretary within 30 days after his written 

determination that a violation has occurred. 

(b) Miner, representative, or applicant for 

employment. A complaint of discharge, discrimination 

or interference under section 105(c) of the Act, may be 

filed by the complaining miner, representative of 

miners, or applicant for employment if the Secretary 

determines that no violation has occurred. 

The pleadings reflect that the complainant timely filed his 

complaint with MSHA on December 11, 1989. By letter dated 

January 26, 1990, and received by the complainant on February 1, 

1990, MSHA advised the complainant that based on a review of the 

information gathered during its investigation of his complaint, 

it concluded that a violation of section 105(c) of the Act had 

not occurred. The complainant then filed the instant complaint 

with the Commission by letter and enclosure dated March 5, 1990, 

and the complaint was docketed on March 9, 1990.· 

It has been held that the time limitations found in section 

105(c) of the Act are not jurisdictional. see: Christian v. 

South Hopkins Coal Company, 1 FMSHRC 126, 134-136 (April 1979); 

Bennett v. Kaiser Aluminum & Chemical Corporation, 3 FMSHRC 1539 

(June 1981); Secretary v. 4-A Coal Company. Inc., 8 FMSHRc·905 

(June, 1986); Buelke v. Thunder Basin Coal Company, 11 FMSHRC 240 

(February, 1989). 

In the following cases, the Commiss.ion held that the failure 

by miners to timely file discrimination complaints for time 

periods ranging from 60 days to 7 months after the events 

complained of should not be barred, and the complaints"were 

1152 
permitted. See: Gary M. Bennett v. Kaiser Aluminum & Chemical 

Corp., 2 MSHC 424 (1981); Charles J. Frazier v. Morrison-Knudsen, 

Inc., 2 MSHC 2057 (1981); Rex Allen v. UNC Mining & Milling, 

2 MSHC 2089 (1981); Richard c. Johnston v. Olga Coal Co., 2 MSHC 

224 7 ( 198'.IJ . 

The respondent makes no claim that it has been prejudiced by 

the complainant's slight delay in filing his complaint with the 

Commission after receiving notification from MSHA that it did not 

intend to pursue his case further, and I cannot conclude that any 

such delay has deprived the respondent of a fair and meaningful 

opportunity to defend against the claim of alleged 

discrimination. 

ORDER 

In view of the foregoing, the respondent's request to 

dismiss the complaint IS DENIED, and this case will be scheduled 

for a hearing on the merits in the near future at a time and 

place convenient to the parties. 

Distribution: 

/ij'~/ Administrative 

~rg~'; Koutras 

c:t: ~ Law Judge 

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

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

Rick L. Thomas, Esq., Flaget Fuels, Inc., 825 High Street, 

Hazard, KY 41701 (Certified Mail) 

/fb 

1153 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 9, 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AN.D HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 90-2-M 

A.C. No. 38-00052-05502 S3N 

v. 

Langley Plant & Mine 

S.L. PETERS CONSTRUCTION, CO.,: 

Respondent 

ORDER DENYING PROPOSED SETTLEMENT 

SHOW CAUSE ORDER 

Neither the Motion to Approve Settlement filed 

May 7, 1990, nor the attached docwnentation support a finding 

that a violation of the cited standard (30 C.F.R. § 56.14104) 

in fact did occur. In addition the Secretary's Accident 

Investigation Report concludes that "(t]here were no 

violations of 30 C.F.R., Regulations and standards applicable 

to metal and nonmetal mining and milling operations in 

reference to welding on inflated tire/run assemblies." 

Wherefore the Motion to Approve Settlement -is de 

The Secretary is hereby ordered to how cause on or b 

May 25, 1990, why this.Civil Penal Proceeding shoul 

dismissed. See Co-o Minin FMSHRC 3475 (1980 

Distribution: 

Stephen J. Simko, Jr., Esq., U.S. 

of the Solicitor, 1371 Peachtree S 

30367 (Certified Mail) 

jlμ 

a/tive Law Judge 

16261 

partment of Labor, Office 

eet, N.E., Atlanta, GA 

J. Carroll Bryant, Esq., P.O. Drawer 496, Aiken, SC 29802 

(Certified Mail) 

nt 

1154 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

May 11, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OTIS ELEVATOR COMPANY, 

Respondent 

. . 

ORDER 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-427 

A.C. No. 42-01944-03502 B70 

Cottonwood Mine 

This order addresses petitioner's motion to compel discovery 

on the grounds that respondent's responses to her requests were 

evasive, incomplete and unresponsive. Respondent has filed in 

opposition to petitioner's motion. 

The issues presented are as follows: 

I 

Request for Admission No. 4: Please admit 

that said electrician Billy Syddall on or about 

February 9, 1989, was employed by Otis Elevator 

Company to test, maintain, repair and trouble 

shoot the elevator system located at the Cottonwood Mine, Emery County, Utah operated by Utah 

Power and Light Company. 

Response: Respondent denies that Billy 

Syddall was an electrician. Respondent does 

not know what petitioner means by the term 

"employed" as it is used in this admission 

request. On February 8, 1989, Mr. Syddall 

found that unqualified persons including 

MSHA inspectors and mine electricians were 

operating the elevators in an unsafe manner. 

Respondent believes no elevator work was 

performed on February 9, 1989. 

Discussion 

In Request for Admission No. 1, Otis admitted that Billy 

Syddall was an "employee" of Otis but Otis now claims Syddall 

was not "employed" in the mine on February 9, 1989. 

In view of these assertions Otis should either admit or deny 

request for admission No. 4. 

1155 
The judge recognizes that the requests herein do not establish that Syddall was an "electrician". However, Otis' present 

response is inadequate. 

Accordingly, petitioner's motion to compel is granted and 

respondent is ordered to answer Request for Admission No. 4 

within 20 days of the date of this order. 

II 

Request for Admission No. 5: Please 

admit that on or about February 9, 1989, 

that said Billy Syddall, an employee of 

Otis Elevator Company, was not a "qualified person" as that term is defined at 

30 C.F.R. § 77.103. 

Response: Respond admits that Mr. Syddall 

does not carry a green mine electrician's 

card and nor has he taken any tests administered for mine electricians. Mr. Syddall 

is a highly qualified elevator mechanic 

and has completed all requirements to be a 

journeyman mechanic. 

Discussion 

The cited regulation, section 77.103, is an extensive 

regulation setting forth in what manner an individual can be a 

"qualified person." 

The answer of respondent is not responsive. Respondent can 

either admit or deny that Billy Syddall is a qualified person. 

Since the request for admission refers to 30 C.F.R. § 77.103, 

respondent can cite the particular portion of the regulation 

respondent relies on in support of its position. 

In its response Otis states that petitioner's request No. 5 

is improper because it calls for an admission of law and not fact. 

However, Rule 33, F.R.C.P., in many instances has allowed such 

interrogatories as they serve a useful purpose of narrowing-the 

issues. Wright and Miller § 2167. 

Accordingly, petitioner's motion to compel is granted and 

respondent is ordered to answer request for admission No. 5 

within 20 days of the date of this order. 

1156 
III 

Request for Production No. 2: Please produce for the period of February 9, 1988, to 

February 9, 1989, any and all service logs, 

work orders, time cards, repair and maintenance orders complied by Billy Syddall 

and performed at the Cottonwood Mine, Emery 

County, Utah operated by the Utah Power and 

Light Company on the elevator system at that 

mine. 

Response: Respondent objects to this request 

on the grounds that it is ambiguous, overly 

broad, and seeks documents for a period of 

time which is not relevant to the issues in 

controversy. The only issue in this case 

concerns the events related in the citation. 

To the extent the request goes further it is 

in the nature of a fishing expedition. Beyond 

that, it seeks documents which may be the 

private property of Mr. Syddall. 

Discussion 

Citation No. 3416117 herein alleges electrician Billy 

Syddall was not qualified person. Further, his duties required 

testing and trouble shooting the elevator system. The citation 

was issued on February 9, 1989. 

Petitioner's request of documents for a year prior to the 

date of the citation is reasonably calculated to lead to admissible evidence. The period of time for which the documents 

are sought is reasonable. 

I am unable to see how service logs, worK orders, time 

cards, repair and maintenance orders could be the private 

property of any employee. 

The relevancy of the information sought is apparent. 

Namely, did an unqualified person perform duties at the mine. 

The records sought also seem to be normal records maintained 

in the course of any business involving a maintenance contract. 

1157 
Otis states it is prepared to defend against allegations 

the regulation was violated on February 9, 1989, but it objects 

to the Secretary's "fishing expedition."· As indicated above, 

the evidence sought may be relevant to establish a violation on 

February 9, 1989. 

Accordingly, petitioner's motion to compel is granted and 

respondent is ordered to produce the documents requested in 

Request No. 2 within 20 days of the date of this order. 

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 

w. Scott Railton, Esq., Reed, Smith, Shaw & Mcclay, Otis Elevator 

Company, 1200 18th Street, N.W., Washington, D.C. 20036 

/ot 

1158 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6232 

May 21 ;' 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FAITH COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-1 

A.C. No. 40-02701-03532 

Goforth Mine 

ORDER DENYING REQUEST FOR CONTINUANCE OF HEARING 

on May 18, 1990, the petitioner's counsel called my office 

and left a message requesting a continuance of the hearing 

scheduled in this matter in Chattanooga, Tennessee on June 7, 

1990. The stated reason for the request is that counsel has to 

be available in another matter for depositions on June 7, 1990, 

and he seeks a rescheduling of the hearing to later in June or 

July, 1990. 

The notice of hearing in this matter was mailed to the 

parties on March 30, 1990, and I assume that the referenced 

depositions were scheduled after that date. In any event, in 

this case, the petitioner is seeking a $54 civil penalty 

assessment foT the alleged failure by the respondent to submit 

certain valid respirable dust samples. The respondent contends 

that the samples were taken and timely mailed. The issues do not 

appear to be complex, and I see no reason why the Regional 

Solicitor cannot assign this case to another attorney for trial. 

Further, I see no reason why counsel of record in this case 

cannot reschedule the depositions for another time. 

The presiding judge's trial docket is full through the month 

of August, 1990, and taking into account other case assignments, 

this case would not be tried until the fall if it were to be 

continued. I simply cannot conclude that such a delay is 

warranted. 

In view of the foregoing, the request for a continuance IS 

DENIED, and the hearing will proceed as scheduled. 

b.d~i::~-. Administrative Law Judge 

1159 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ARNOLD SHARP, 

v. 

BIG ELK CREEK 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

· MAY 3 1 :1990 

DISCRIMINATION 

Complainant 

Docket No. KENT 

COAL COMPANY, PIKE CD 89-08 

Respondent 

DECISION AND ORDER REINSTATING STAY 

PROCEEDING 

89-147-D 

Appearances: Arnold Sharp, Bulan, Kentucky, pro ~~ 

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, 

Louisville, Kentucky for Respondent. 

Before: Judge Melick 

This Discrimination Proceeding under Section 105(c)(3) 

of the Federal Mine Safety and Health Act of 1977, is before 

me following interlocutory review by the Commission remanding 

the case on May 2, 1990, for evidentiary proceedings to 

determine whether the Respondent's Motion for Stay should be 

reinstated. The history of these proceedings, as 

summarized by the Commission, is set forth below: 

The record developed to date indicates that, 

subsequent to this February 28, 1989, discharge, 

Sharp appeared and testified before a Commonwealth 

of Kentucky Department of Employment Services 

referee in an effort to secure unemployment 

compensation. Respondent's Administrative 

Director, Jim Mees~, also testified at this hearing. 

Because Sharp believed Meese's testimony at that 

hearing to be false, he caused a criminal complaint 

and arrest warrant to be issued against Meese. 

Accordingly, on September 13, 1989, Respondent 

moved for a postponement of the instant action, 

asserting that Meese, the principal and likely only 

witness for Respondent in the Mine Act 

discrimination proceeding pending before the 

administrative law judge, intended to assert his 

Fifth Amendment privilege against 

self-incrimination "prevent[ing] him from 

testifying further as to the matters surrounding 

the criminal case and any collateral civil matter." 

Motion for Postponement at 2. 

1160 
Sharp filed his opposition to the motion for 

postponement arguing that the criminal matter has 

no bearing upon the discrimination matter. Sharp 

requested that the then scheduled hearing before 

the adrclinistrative law judge go forward. 

The respondent filed a reply asserting: 

••• The subject matter before the 

unemployment hearing factually mirrors 

the instant proceeding. Should Mr. Meese 

testify in the hearing scheduled in this 

discrimination proceeding before the 

Federal Mine Safety and Health Review 

Commission relative to the facts 

surrounding Complainant's discharge, he 

would waive his Fifth Amendment privilege 

against self-incrimination. In Re: 

Atterbury, 316 F.2d 106, 109 (6th Cir. 

1963); Anderson v. Commonwealth, Ky. 

App • , 5 5 4 S • W. 2 d 8 8 2 , 8 8 4 ( 19 7 7 ) • 

On September 20, 1989, the judge issued an 

Order of Continuance and Stay Order: 

I find upon consideration of the 

circumstances that the Motion for 

Continuance is well-founded and that it 

would be in the best interests of this 

litigation to grant a brief continuance 

and stay in these proceedings pending 

disposition of the noted criminal 

proceedings. This is particularly true 

in this case since the criminal charges 

involve a claim that a witness apparently 

essential to this case gave a false 

statement in a related proceeding and 

that criminal case is already scheduled 

for trial in the near future. Order at 

3. 

Thereafter, on January 5, 1990, the criminal 

charge against Meese was dismissed. However, on 

January 22, 1990, the dismissal was appealed and 

the criminal action remains pendirig. Noting these 

occurrences and over the objectioris of Sharp, the 

administrative law judge issued a second stay order 

on February 2, 1990, pending" ••• final disposition 

of the noted criminal proceedings ••• " Order at 1. 

1161 
The evidence adduced at subsequent expedited hearings in 

London,. Kentucky confirms the undisputed representations by 

counsel for Respondent in connection with his motions for 

continuance. Mr. Sharp in his complaint herein alleges 

discharge and discrimination in violation of section 

105Cc}(l} of the Federal Mine Safety and Health Act of 1977 

(Mine Act) in retaliation for his previously successful Mine 

Act litigation against the Respondent. Among the acts of 

alleged unlawful harassment and retaliation and claimed 

evidence of ill-will toward him are 12 instances of purported 

false statements by Respondent's administrative director, 

James Meese. In particular, and of special relevance to this 

proceeding, Sharp alludes to four allegations of false 

swearing by Mr. Meese before the Commonwealth of Kentucky 

Unemployment Insurance Commission with respect to: Cl) the 

filing of a worker's compensation claim, (2) investigation of 

the accident giving rise to the alleged filing of the 

worker's compensation claim, (3) the number of days off 

experienced by Arnold Sharp, and (4) the firing by the 

company employing the defendant of Ralph Patrick. (See 

Statement of Appeal, page 6-Respondent's Motion Exhibit No. 

1 ) • 

The record shows that on August 11, 1989, Arnold Sharp 

also initiated a criminal complaint in the Kentucky courts 

against Meese by charging that on June 12, 1989, Meese 

"unlawfully made a false statement while under oath co the 

Commonwealth of Kentucky unemployment division". An arrest 

warrant was thereafter issued to Mr. Meese charging him with 

the offense of "false swearing" under KRS 523.040._:./ 

These charges were subsequently dismissed at a 

preliminary hearing before a judge of the Perry County 

District Court and the Perry County attorney thereafter 

appealed that dismissal to the P,erry County Circuit Court. 

=/ KRS (Kentucky Revised Statutes) 523.040 provides as 

follows: 

False Swearing. - Cl> A person is g·ui 1 ty of false 

suearing when he makes a false statement which he 

does not believe under oath required or authorized 

by law. ( 2 > false swearing is a class B 

misdemeanor. 

The crime of false swearing under Kentucky law is 

distinguished from perjury in that the false statement need 

not be material to prove the offense.See Commonwealth v. 

Thurman, 691 s.w. 2d 213 (Kentucky, 1985)~ 

1162 
While the initial criminal charging documents do not set 

forth any specific acts of "false swearing", the Commonwealth 

Attorney in his brief on appeal, specified four acts of 

"false swearing" which had been identified to him by 

Mr. Sharp. They were purportedly made at a hearing before 

the Kentucky Unemployment Insurance Commission as follows: 

Cl) The filing of a worker's compensation claim, (2) 

investigation of the accident giving rise to the alleged 

filing of the worker's compensation claim, (3) the number of 

days off experienced by Arnold Sharp, (4) the firing by the 

company employing the defendant of Ralph Patrick (Statement 

of Appeal at page 6 - Respondent's Motion Exhibit No. 1). 

These alleged acts of "false swearing" are identical to 

four of the twelve charges of false testimony alleged by 

Sharp to be evidence of harassment, ill-will, and 

discrimination as well as evidence of an unlawful discharge 

under Section 105(c) of the Mine Act in this case. Such 

evidence would therefore be relevant and admissible in these 

proceedings. Mr. Sharp continues to assert that this 

evidence is essential to his discrimination case herein. At 

the hearing Sharp stated "all the issues are going to be 

brung [sic] up in the case because that's what they say they 

fired me on which he outright lied." (Tr. 32) 

At the evidentiary hearing, counsel for Respondent, as 

he previously stated in connection with his motions for 

continuance, again stated that James Meese would be an 

essential witness and probably the only witness, for the 

defense against Sharp's allegations. On this issue the 

following colloquy occurred at the hearing: 

The Court: *** What is the essence of your defense? 

Mr. Hopson: Are you asking'what are the facts that we 

intend to prove or who we would prove--

'" 

The Court: Yes, what are the facts you intend to prove. 

Mr. Hopson: We intend to prove t~~t Mr.~s~arp under the 

absentee policy had incurred sufficient disC-ipline, 

had been put on notice that his job was in 

jeopardy--

The Court: For what? 

Mr. Hopson: For absenteeism. And had gotten to the 

point where he was on probation for absenteeism 

when he incurred a very suspicious injury for which 

1163 
we sought a medical release in order to obtain 

medical information. He flat refused to supply 

that release. We were unable to get further 

medical information and as a result of that virtual 

insubordination, as well as his overall poor 

attendance record, he was terminated. Now, Mr. 

Meese is the only witness that has knowledge of 

those facts. He's the only one we have that can 

testify to those facts. 

The Court: Why is that? What is his position? 

What are his duties and responsibilities in 

relation to these charges? 

Mr. Hopson: He is director of administration for this 

company which at the time of Mr. Sharp's discharge 

had only 80 employees. It's not a big company. he 

had personnel function as well as various other 

administrative duties. 

The Court: And it was his action and his determinations 

that led to Mr. Sharp's discharge? 

Mr. Hopson: 

absenteeism. 

warnings, he 

(Tr. 14-16) 

That's correct. He tracked the 

He, in fact, wrote Mr. Sharp the 

wrote Mr. Sharp the discharge letter. 

In addition Mr. Meese testified at the hearing that in 

his capacity as administrative director of Respondent, Big 

Elk Creek Coal Company, he oversees the administrative and 

personnel functions for the company. He testified that he 

alone was responsible for tracking employee attendance and 

absenteeism including Mr. Sharp's. He was the only company 

witness at the cited unemployment proceeding and the only 

person knowing the "full scope" of the case. In addition 

Meese was the person who made the final decision to discharge 

Sharp and purportedly is the only person with firsthand 

knowledge of all the reasons for Sharp's discharge. 

The relationship between the criminal charges against 

Meese and the testimony needed from Meese in the defense of 

this case was further explored in the following colloquy: 

(by Mr. Hopson] Mr. Meese, I'd like you to 

turn now to a document in the Exhibit which is 

1164 
marked-as Respondent's Exhibit 1 to this motion 

which is a document toward the end of the Exhibit 

some 10 to 15 pages from the end of the Exhibit 

called, Statement of Appeal and it's tendered by the 

Perry County Attorney. Do you see that? If you 

would, turn to page six of that document. In the 

first document. In the first full paragraph of 

that document there are four items listed 

pertaining to the false swearing allegations: (a) 

the filing of a workers' compensation claim; Cb) 

investigation of the accident giving rise to the 

alleged filing of the worker's compensation claim; 

Cc) the number of days off experienced by Arnold 

Sharp; Cd) the firing by the company employing the 

Defendant of Ralph Patrick. My question, Mr. 

Meese, is did the investigation of the accident 

giving rise to the alleged filing of the workers' 

compensation claim involve you? Did you do it? 

[Mr. Meese] Yes. 

Is that involved in your review of the facts which 

led to Mr. Sharp's termination? 

(Mr. Meese] Yes. 

And (c), the number of days off experienced by 

Arnold Sharp, did the number of days off 

experienced by Mr. Sharp play any part in the 

decision to terminate him? 

(Mr. Meese] Yes. 

And (d) the firing by the company employing 

Defendant and Ralph Patrick, did the question of 

whether Mr. Patrick was fired or he quit an issue 

or is it an issue in the discrimination case which 

is before the Commission in some way? 

I'm not sure--could it be an issue? 

Yes. 

I'm not sure I follow the question. 

Was there any question in the unemployment proceeding 

raised regarding unfair treatment of Mr. Sharp and 

whether he was singled out? 

I don't recall. 

1165 
The Court: Was Mr. Patrick, he was apparently fired? 

Mr. Hopson: Your Honor, that's an issue in the criminal 

case. The contention by Mr. Sharp is that he quit. I 

believe the testimony in the unemployment case was that 

he was fired and it's related to I believe absenteeism 

or something. And that is one of the things that Mr. 

Meese is now charged with in the criminal case. 

The Court:. Was testifying allegedly falsely in the 

unemployment compensation proceeding about the 

basis for Mr. Patrick's separation from the 

company? 

Mr. Hopson: That's correct. 

The Court: It is maintained by Mr. Sharp that this case 

was not the same as his case? 

Mr. Hopson: That is my understanding. 

The Court: And the company apparently took the position 

that it was the same? 

Mr. Hopson: That's my understanding, Your Honor. 

The Court: I see. It would be evidence according to 

Mr. Sharp that he was treated differently than this 

other gentleman for similar circumstances? 

Mr. Hopson: I believe that's correct. 

The Court: All right. 

Q33 Mr. Meese, if I ask you questions regarding the 

basis for Mr. Sharp's termination and the events which 

led up to that and your investigation of all that in a 

discrimination proceeding before the Commission before 

this criminal case is resolved, what would your response be? · 

A I've been advised by counsel to plead the Fifth 

Amendment, my Firth Amendrilent right, until this criminal 

matter is cleared, up. C Tr. 41-44) 

This testimony is not disputed. It is apparent 

therefore that the factual evidence giving rise to both 

Sharp's allegations of Section 105Cc) violations and the 

allegations of criminal "false swearing" initiated by Sharp 

li66 
before the Kentucky Criminal Courts are intertwined and in 

significant respects, identical. It may also reasonably be 

inferred from his testimony that Meese would decline in these 

proceedings to answer any questions relating to the criminal 

charges now pending before the Kentucky courts and that he 

would assert his privilege against self incrimination under 

the Fifth Amendment to the United States Constitution. 

The Fifth Amendment provides that "[n]o person ••• shall 

be compelled in any criminal case to be a witness against 

himself ••• 11 U.S. Const. Amend. V. It is well-established 

that this privilege is applicable to administrative 

proceedings. Murphy v. Waterfront Commission of New York 

Harbor, 378 U.S. 52 (1964); Roach v. NTSB, 804 F.2d 1147 

(10th Cir. 1986) cert. denied 108 S. Ct. 1732 (1988). In 

order to sustain the privilege the trial judge need only 

determine that the implications of the question posed or the 

evidence demanded, considered in the setting in which it 

arises, might lead to injurious disclosures. Only if the 

incriminating effects are not evident is it proper to require 

some explanation from the witness of his fear of 

incrimination. Hoffman v. U.S., 341 U.S. 479, 486-87 (1950). 

Obviously it would defeat the purpose of the privilege to 

require the witness to disclose in explanation of the fear of 

prosecution the very facts about which he or she is entitled 

to keep silent, so the scope of the privilege is quite broad. 

Hoffman, supra at page 488. Specifically, the witness cannot 

be compelled to produce testimony which could involve the 

direct disclosure of guilt for past acts. Glickstein v. 

U.S., 222 U.S. 139 (1911). . 

The determination of whether the assertion of the Fifth 

Amendment privilege is proper ordinarily arises during trial 

and in fact can only, in the final analysis, be determined 

on a question-by-question basis. Here the issue arises in 

the context of a request for a stay pending final resolution 

of criminal charges against a key defense witness for "false 

swearing". On the basis of the undisputed record herein it 

is clear that in.order to defend itself from the charges of 

discrimination under Section 105Cc) of the Act the Respondent 

corporation will necessarily have to call James Meese as a 

witness. Indeed Respondent c9ncedes that without Meese, it 

likely could not defend itself an~ would have to sustain a 

decision by default. 

It is also clear from the undisputed record that 

questions relevant and material to this. cas.e .. would likely be 

posed·to t"lr. Meese at any trial on the merits and· that the 

1167 
potentially incriminating effects of such questions would be 

obvious. Hoffman, supra. It would therefore defeat the 

purpose of the privilege to require Mr. Meese to make further 

disclosure in explanation of his fear of prosecution. 

In U.S. v. Wilcox, 450 F.2d 1131 (5th Cir., 1971) the 

Court stated, in an analagous situation, as follows: 

And so when a witness is asked a question that 

could show that he had already committed a crime 

i.e., perjury at a prior trial, his refusal to 

answer is permissible almost by the definition of 

self-incrimination. He is still criminally 

accountable for his perjury, but he may not be 

convicted out of his own mouth over his claim of 

privilege. ·rhus the aphorism that one cannot take 

the Fifth Amendment on the ground that if he 

testifies he will perjure himself applies only as 

an excuse for not testifying initially. It does 

not mean that having once testified, the Fifth 

Amendment is not available to avoid giving further 

testimony which might expose the witness to 

substantial risk of prosecutions growing out of the 

prior testimony. 

See also U.S. v. Prior, 381 F. Supp. 870 (1974). 

Thus it is clear that if trial on the merits of this 

case would proceed now before final disposition of the 

criminal charges against Mr. Meese, Meese would assert his 

privilege in response to material questions and the mine 

operator would be unable to fairly defend itself. There is 

accordingly a conflict between the interest of the 

Complainant in a prompt trial of his 105(c) complaint and the 

corporate mine operator's right to defend itself. Faced with 

a similar conflict the U.S. Court bf Appeals, Federal Circuit 

in Afro-Lecon, Inc. v. U.S., 820 F.2d 1198 (Fed. Cir. 1987), 

applied a balancing test for determining whether a stay of 

the civil proceedings should be granted.~ 

2; See also U.S. v. Kordel, 397 U.S. 1 (1970); K.J.F. 

Fabrics, Inc. v. U.S., 651 F. Supp. 1437 (Ct. Int. Trade 

1986); Paul Harrigan-and Sons, Inc. v. Enterprise Animal Oil 

Co., 14 F.R.D. 333 (E.D. Pa. 1953); and U.S. v. U.S. 

currency, 626 F.2d 11 (6th Cir. 1980) in support of the 

proposition that a stay of a civil action in favor of a 

related criminal proceeding is appropriate when a 

corporation's employees are unable to testify in the civil 

proceeding because they have been charged in a related 

criminal action. 

1168 
In Afro-Lecon, the General Services Administration Board 

of Contract Appeals had refused the corporation's motion for 

a stay of the civil appeal and required the corporation to 

respond to its order to compel discovery from the corporation. 

The corporation had sought a stay because its key witnesses 

such as officers, former employees, and consultants were 

advised by counsel not to participate in responding to the 

Board's order on the basis of their Fifth Amendment rights 

against self-incrimination. The Board, in its decision 

denying stay, had noted that the refusal of crucial witnesses 

of the corporation to testify made it impossible for the 

corporation to comply with the Board's previous order. 

While noting that the Constitution does not require a 

stay of civil proceedings pending the outcome of criminal 

proceedings, the Court held that the Board should balance the 

interest of the corporation in a stay against the possible 

prejudice to the appellee arising from the potential loss of 

important evidence because of the stay. The Court noted that 

the corporation's interest in the stay was strong since its 

officers and employees claimed the Fifth Amendment. The 

court in Afro-Lecon, remanded to the Board for a 

determination of whether the corporation's plant manager 

could properly claim a real and appreciable risk of 

self-incrimination. 

Similarly, the Commission has remanded this proceeding 

for a determination of the propriety of Meese's Fifth 

Amendment claim. As I have already found, Meese's risk of 

self-incrimination in this case is clear as is the likelihood 

of his assertion of the privilege at any trial on the merits. 

In applying the Af ro-Lecon balancing test to the present 

case, it is clear that a further stay is warranted. As in 

Afro-Lecon, the corporation herein has a strong interest in 

staying this action until Meese's criminal charges are 

resolved and he is available to testify. Without Meese's 

testimony, it would be deprived of its right to have a 

m~aningful opportunity to defend itself. 

In balancing Sharp's interest in avoiding delay arising 

from a stay of this action I conclude that the Fifth 

&nendment privilege and the corporation's right to defend 

itself should take precedence. See Vardi Trading Co. v. 

Overseas Diamond Corp., 1987 U.S. Dist. LEXIS 8580, slip op. 

at 4 CS.D.N.Y. 1987) (Attached hereto as Appendix A). There 

is not even a suggestion that evidence would be lost as a 

1169 
result of any delay. Moreover since Sharp and Meese appear 

to be the only material witnesses in this action, since 

similar evidence appears to have been preserved in 

transcripts from other proceedings and in other written 

records and since the criminal proceeding will likely entail 

many of the same factual issues, it is unlikely that any 

evidence would be lost. 

In addition, the recrod shows that Sharp has already 

collected unemployment benefits for at least a portion of the 

period of lost wages since his discharge and, if successful 

in this proceeding, would be entitled, with certain 

exclusions, to backpay with interest. It may also reasonably 

be inf erred that Respondent would in any event appeal any 

adverse decision thereby delaying any final disposition. 

It is also~significant to note in this.case that it is Sharp 

who has initiated and pursued the criminal,action giving rise 

to the delay herein. It would be particularly inequitable 

therefore to permit him to now proceed in this action while 

the operator cannot defend itself. 

Accordingly the Stay Order previously issued in this 

case is hereby reinstated to remain in effect until such time 

as the criminal charges pending against James Meese (Case No. 

90-X-001 in the Perry County Circuit Court Commonwealth of 

Kentucky} have become final. 

There are also other compelling reasons for not 

immediately proceeding to trial in this case but to await 

final resolution of the criminal charges. Conviction of the 

mine operator's key witness for "false swearing" could 

provide significant evidence demonstrating lack of 

credibility. Rule 609, Federal Rules of Evidence; 33 Fed. 

Proc. L. Ed. Witnesses §§ 80:105 - 80:118. Indeed in some 

jurisdictions conviction of such an offense is so devastating 

to witness credibility that the witness is completely barred 

from even giving testimony under oath. 

It is my judgment that such evidence is so potentially 

critical and significant to this case in light of the 

singular importance of the testimony of ·Mr. Meese, that trial 

on the merits of this case should in any event not proceed 

until final resolution of those criminal charges. As the 

Commission has often stated, one of the important functions 

of the administrative law judge is the assessment of witness 

credibility. See~' Robinette v. United Castle Coal Co., 

3 FMSHRC 803 (1981); Secretary o.b.o. Bush v. Union Carbide 

Corp., 5 FMSHRC 993 (1983); Bjes v. Consolidation Coal Co., 6 

FMSHRC 1411 (1984). It is therefore important that the 

trial judge independently exercise that judgment and properly 

consider that factor in regulating the course of the hearing. 

1170 
For. this additional and independent reason 

Order must be reinstated. 

Distribution: 

1\,. 

J(l 

.":i 

Gari~Melick 

Admi'.rHstrative 

<70~~: 756-626.1 

\j: .. 

.• 

aw Judge 

Mr. Arnold Sharp, General Deliyery·, Bulan, KY 41722 

(Certified Mail) 

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, Citizens 

Plaza, Louisville, KY 40202 (Certified Mail) 

nt 

1171 
' Services of Mead Data Central l'.PPENDIX A 

14TH CASE of Level 1 printed in FULL format. 

Vardl Trading Company, Plaintiff, v.·Overseas Diamond 

Corporation and Harold Arvtv, ·individually, Defendants 

No. BS Civ.~2240 (CSH) 

-

PAGE 2 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF 

NEW YORK 

1987 U.S. Dist. LEXIS 8580 

September 22, 1987, Decided; September 23, 19B7, filed 

OPlNlONBY: t•1J 

HAIGHT 

OPINION: 

MEMORANDUM OPINION AND ORDER 

HAIGHT, District Judge: 

In this civil action based upon diversity of citizenship n1 deferidants moved 

for an order staying the proceedings until the resolution of criminal charges 

pending against them in Florida arising out of the same or related commercial 

transactions. Plaintiff opposed the stay, and subsequently moved for summary 

judgment pursuant to Rule 56 F.R.Civ.P. Defendants contend that the prayed-for 

stay should embrace plaintiff 1 s summary judgment motion. 

n1 According to the pleadings, plaintiff Vardi Trading Company is a New York 

partnership maintaining its principal place of business in New York City. 

Defendant overseas Diamond Corporation is a for~ign corporation, maintaining its 

principal place of business in Miami, Florida. Defendant Harold Arviv is a 

citizen and resident of Toronto~ Canada. 

Far the reasons which fallow, 1 grant defendant 1 s motion for a sta.v of these 

·civil proceedings, and deny plaintiff's motion for summary judgment without 

prejudice ta subsequent renewal. 

I. 

Plaintiff alleges that at the pertinent times it was engaged in business as 

an importer and wholesale distributor of precious gems: Complaint! para. 

C*Zl 5. The complaint further alleges that "heretofore and prior to April 12, 

1983" plaintiff sold quantities of rubies and sapphires to the corporate 

defendant, Overseas Diamond Corporation. Id., paras. 7, 8. The individual 

defendant, Harald Arviv, ts alleged to be the principal of Overseas, and the 

guarantor of 90 promissory notes executed by Overseas in favor of pla1ntif~ to 

pay for the gems. Id., paras. 7, 12, 21. 

Plaintiff's motion for summary judgment, filed and served subsequent to 

defendant's motion for a stay, proceeds on the theory that plaintiff delivered 

the contracted-for gems to Overseas and has not been paid far them. Summary 

judgment ts sought agains~ overseas on the promissory notes, and against Arv1v 

on h1s guarantees. 

1172 
•rvices of Mead Data Central 

PAGE 3 

1987 U.S. Dist. LEXIS 8580~ *2 

q'his civil action was commenct:!d on March 11, 1985. 

1 0n September 21 1 1984 the State Attorney far Broward County, Florida filed in 

the Circuit Court for the Seventeenth Judicial Circuit of Florida a criminal 

information n2 aQainst.a number of entities and individuals. The defendants 

include Overseas- and Arvi v. In essence the defendants are charged with 

participating in a racketeering enterprise and over-arching fraudulent scheme 

·referred to as "The C*3l Gemstone Enterprise." Arviv is charged with 

incorporating Overseas "for the purpose of supplying inferior grade gemstones" 

to the victims of a "boiler room" operation. The information alleges that Arviv 

incorporated Overseas for that illi~it purpose an or about September 19, 1980. 

The information further alleges that 0 beginning an or about December 1, 1980 and 

continuing an or about May 31, 1983, HAROLD ARVIV and RICHARD PRICE did supply inferior grade gemstones through OVERSEAS DIAMOND CORP." to victims of the 

scheme. Information No. 84-10703 CFA at p. 49. 

n2 So styled in the copy attached to the motion papers. Defendants call the 

charging instrument an 11 indictment. 11 

Defendants contend, and plaintiff does not appear to dispute, that gems sold 

by plaintiff to overseas constitute a portion of the gems which overseas and 

Arviv are accused of utilizing in violation of the Florida criminal statutes. 

Arviv has given a deposition in the case at bar. However, when the 

questioning focused upon the true value of the gems overseas purchased from 

plaintiff, Arviv asserted his fifth amendment privilege. 

In these circumstances, defendants move for a stay of this litigation pending resolution [*4l of the criminal charges in Flarida 1 and plaintiff moves for 

summary judgment on the promissory notes and guarantees given to secure payment 

for the gems it sold to Overseas. 

II. 

It is apparent that the true value of the gems sold by plaintiff to 

defendants is a central issue in both the criminal and civil cases. To convict 

defendants on the_ criminal charges, the prosecution must presumably prove that 

-defendants knowingly and willfully sold 11 inferior grade gemstones" to third 

parties at prices in excess of their true value. On the other hand, in the civil 

.case defendants would presumably defeat plaintiff 1 s·c1aim far the purcha~e price .in the sale from plaintiff to Overseas 1f the proof demonstrated that the gems 

.were of a quality inferior to that contemplated by the contract. 

In any event, the issue of valuation is sufficiently intertwined arnong the 

.two cases to entitle defendants to a stay Of the c1v11 proce~dinos. 

Defendants are simply not in a position to make factual averments wi~h respect. 

to the ~ems' value while the criminal charges against them are pendin9. Arviv'~ 

reliance upon the fifth amendment during a deposition taken on October 8, 

1985, during the pendency of the criminal (•5J information, was justified. The same principle extends to defendant's resistance to plaintiff's motion for 

summary judgment. During the pendency of the criminal charges defendants cannot, 

·consistent with their c-onstitutional privilege, be required to say anything on 

the key issue of valuation. The fifth amendment is a privileqe of broad 

application •. ~It can be asserted in an1 proceeding, civil o~crimtnal, 

administrative or judicial, investigatory or adJUdicatory; and it protects 

1173 
~r\:is:es of Meed .Data Central 

PAGE 4 

1987 U.S. Dist. LEXIS 85801 •5 

against any disclosures that the witness reasonably believes could be used in a 

criminal orosecution or could lead to other evidence that m1qht be so used." 

Kastigar v. United States, 406 U.S. 441, 444, 45 (1972> <footnotes omitted) •. 

·A stay of these civil proceedings constitutes a·necessary and hence 

appropriate safeguard of defendants• fifth amendment privilege. Defendants ~annot, consistent with that privilege, be compelled to choose between waiving ·it, or suffering the practical equivalent of a judgment by default in the 

civil case. 1 appreciate that the stay will result in inconvenience and 

delay to the plain ti ff, but under settled authority tt1e. fifth amendment 

privilege takes precedence. See, t•6l e.g., Diemstag v. Bransen, 49 F.R.D. 

327, 328 CS.D.N. Y. 1970>. The cases cited by plaintiff are factually inappasi te. 

Conclusion 

For the foregoing reasons, -and in the exercise of my discretion, I grant defendant's motion for a stay of all proceedings in the case at bar, inc1u9ing further discovery and resolution of plaintiff's motion for summary judgment, 

pending trial or other disposition of the criminal charges in Florida. 

Plaintiff's motion for summary judgment is accordingly denied on the present record, without ~rejudice ta renewal when the basis for the stay no longer exists. : 

Defendants' counsel are directed to advise the Court and plaintiff's counsel 

by letter every three months, beginning an November 1, 1987, with respect to the 

status of the criminal proceedings against defendants 1n Florida. · 

In the interim, the Clerk of the Court is directed to place this case upon 

the Suspense Oock~t. 

It is Sa Ordered. 

1174