JULY 1993 

COMMISSION DECISIONS 

07-27-93 ASARCO Mining Company WEST 92-624-RM Pg. 1303 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-07-93 

07-06-93 

07-07-93 

07-07-93 

Quarto Mining Company (previously 

Willis Dimension Stone, Inc. 

unpubl.) LAKE 92-309 Pg. 1311 

Pg. 1314 

Pg. 1316 

07-08-93 

07-08-93 

07-13-93 

07-13-93 

07-19-93 

07-20-93 

07-22-93 

07-22-93 

07-27-93 

07-27-93 

07-27-93 

07-27-93 

07-27-93 

07-28-93 

07-29-93 

07-29-93 

07-29-93 

Woodland Hills & Broken Hill Mining Cos. 

UMWA on behalf of Billy Wilkinson, et al. 

v. Valley Camp Coal co., etc. 

C G & G Trucking Company 

W.J. Bokus Industries, Inc. 

Broken Hill Mining company 

Bonanza Materials Inc. 

Donald L. Giacomo emp. by Wyoming Fuel 

Danny Owens emp. by J & T Coal Inc. 

Zeigler Coal Company 

Consolidation Coal Company 

Lyman-Richey Sand & Gravel Co. 

Costain Coal Incorporated 

Consolidation Coal company 

Mountain Cement Company 

Sec. Labor on behalf of Richard Glover 

v. u.s. Steel Mining Company 

Sec. Labor on behalf of Danny Shepherd 

v. Adena Fuels, Inc. 

Consolidation Coal Company 

UMWA on behalf of Charles Rosen, et al. 

v. Saginaw Mining Company 

Level Land Mining Corporation 

ADMINISTRATIVE LAW JUDGE ORDERS 

07-06-93 

07-20-93 

07-20-93 

Jim Walter Resources, Inc. 

Farco Mining of Texas Inc. 

contests of Respirable Dust Samples 

SE 92-332-M 

KENT 92-712 

WEVA 

KENT 

YORK 

KENT 

WEST 

WEST 

VA 

LAKE 

WEVA 

CENT 

KENT 

PENN 

WEST 

91-1949-C 

92-574 

92-106-M 

92-290 

92-505-M 

92-100 

93-3 

91-636 

92-1049 

92-94-M 

92-1073 

93-231-R 

92-111-M 

WEVA 92-172-D 

KENT 93-219-D 

WEVA 92-1292 

LAKE 93-89-D 

WEVA 92-1038 

Pg. 1318 

Pg. 1319 

Pg. 1321 

Pg. 1331 

Pg. 1355 

Pg. 1361 

Pg. 1371 

Pg. 1373 

Pg. 1375 

Pg. 1378 

Pg. 1403 

Pg. 1408 

Pg. 1418 

Pg. 1430 

Pg. 1438 

Pg. 1440 

Pg. 1444 

Pg. 1446 

SE 93-335-R Pg. 1447 

CENT 93-24 Pg. 1454 

Master No. 91-1 Pg. 1456 

JULY 1993 

Review was qranted in the followinq case durinq the month of July: 

Jerry Ike Harless Towing, Inc. v. Secretary of Labor, MSHA, Docket No. 

CENT 92-276-RM. (Judge Feldman, June 2, 1993) 

Secretary of Labor, MSHA v. Mullins and Sons Coal Company, Inc., Docket No. 

KENT 92-669. (Judge Feldman, June 3, 1993) 

Energy West Mining Company v. Secretary of Labor, MSHA, Docket Nos. 

WEST 92-216-R, WEST 92-421. (Judge Lasher, June 21, 1993) 

Review was denied in the followinq cases durinq the month of July: 

Secretary of Labor, MSHA v. Martin Sales and Processing, Docket Nos. 

WEVA 92-1008, etc. (Judge Koutras, June 7, 1993 ) 

Secretary of Labor, MSHA v. Quarto Mining Company, Docket No. 

LAKE 92-309. (Judge Fauver, June 7, 1993) 

Secretary of Labor, MSHA v. The Harriman Coal Corporation, Docket No. 

PENN 92-648. (Judge Maurer, June 16, 1993) 

Clifford Meek v. Essroc Corporation, Docket No. LAKE 90-132-DM. (Judge 

Fauver, June 22, 1993) 

COMMISSION DECISIONS 

ASARCO MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 27, 1993 

: Docket No. WEST 92-624-RM 

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

DECISION 

BY THE COMMISSION: 

This contest proceeding, arising under the Federal Mine Safety and 

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

involves a citation issued by the Secretary of Labor to ASARCO, Inc. 

(hereafter "Asarco"), alleging a violation of 30 C.F.R. § 57.3360. I 

Following an expedited evidentiary hearing, Administrative Law Judge John J. 

Morris upheld the citation and dismissed the proceeding. 14 FMSHRC 1468 

(August 1992)(AIJ). 

Asarco timely filed a petition requestingexpedited review of the 

judge's decision. The Commission granted Asarco's petition for review, 2 

which raises the following issues: (I) whether the citation met the 

particularity requirement of the Mine Act; (2) whether the judge improperly 

shifted the burden of proof to Asarco; and (3) whether the evidence 

i 30 C.F.R. § 57.3360, "Ground support use," provides: 

Ground support shall be usedwhereground conditions, or 

mining experience in similar ground conditions in the 

mine, indicate that it is necessary. When ground 

support is necessary, the support system shall be 

designed, installed, and maintained to control the 

ground in places where persons work or travel in 

performing their assigned tasks. Damaged, loosened, or 

dislodged timber use for ground support which creates a 

hazard to persons shall be repaired or replaced prior to 

any work or travel in the affected area. 

2 In its order granting review, the Commission denied Asarco's request to 

expedite. 

1303 
established a violation of the cited regulation. 3 For the reasons that 

follow, we uphold the judge's conclusion that Asarco violated section 57.3360. 

I. 

Factual and Procedural Background 

Asarco operates an underground silver and copper mine in Troy, Montana. 

The mine, which is 11⁄2 miles long and 1/3 mile wide, utilizes the room-andpillar method. 4 Asarco developed drifts, or underground haulage areas, to 

transport men and materials to and from the ore bodies being mined. 

The UQ I drift, so named for the geological formation, upper quartzite, 

served as a haulage area and, together with the UQ 2 drift, functioned as part of the air intake and exhaust system for the mine. The UQ i drift was 18 to 

20 feet wide, 22 feet high, and approximately 900 feet long. 

On July II, 1992, a roof fall occurred in the UE 158 production area, 

resulting in the death of an equipment operator. On July 13, Seibert Smith, 

an inspector with the Department of Labor's Mine Safety and Health 

Administration ("MSHA"), took part in an inspection of the area where the 

fatality occurred. Smith and the other inspectors traveled the length of the 

UQ i drift to reach the accident area. 14 FMSHRC at 1469. 

Thereafter, Smith left the accident investigation and returned to the 

UQ 1 drift, where he had observed loose ground. Smith directed that several 

tons of rock be scaled down from the ribs at the intersection of the drift and 

the entry to the UE 158 area. Smith noticed roof bolts protruding two to 

three feet from the roof. He also observed small loose rock in the ribs, a 

condition he had not seen in his previous inspections of other sections of the 

mine. 14 FMSHRC at 1470. 

Upon completion of his inspection, Smith conferred with other MSHA 

personnel about conditions in the drift and contacted MSHA's Technical Support 

3 In its petition for review, Asarco also asserts that the judge failed to 

address whether section 57.3360, as applied, was "vague andunenforceable." Pet. 

3-5. Asarco did not refer to this issue in its brief or at oral argument. Consequently, we do not address it. 

4 "Room-and-pillar" mining is described as follows: 

A system of mining in which the distinguishing feature 

is the winning of 50 percent or more of the coal or ore 

in the first working. The coal or ore is mined in rooms 

separated bynarrow ribs or pillars. The coal or ore in 

the pillars is won by subsequent working .... 

in which 

the roof is caved in successive blocks 

.... 

Bureau of Mines, U.S. Department of the Interior, Dictionary of Mining, Minera] 

and Related Terms 941 (1968). 

1304 
Center in Denver for engineering and geological assistance. On July 29, 1992, 

Smith returned to the mine with two representatives of the Denver Support 

Center, mining engineer Sid Hansen and geologist Jerry Davidson. Accompanied 

by a Montana state mine inspector and two Asarco employees, they walked the 

length of the drift and, with a high intensity light, inspected its left side 

from the floor to the roof. They found that the rock was fractured, making it 

only marginally stable. Clay seams in the bedding planes of the rock further 

reduced its stability. Hansen pulled off several rocks from the weakened 

bedding planes and, with his fingers, dug out white clay from seams. 

Conditions were similar the length of the drift. 14 FMSHRC at 1470, 1471-73, 

1479. 

The following day, the MSHA representatives held a close-out conference 

with Asarco and discussed their concern about riband roof conditions in UQ 1 

and the need for ground support. Asarco's unit manager, Doug Miller, 

disagreed with MSHA's assessment that ground support was needed. 14 FMSHRC at 

1472. 

Following the conference, Hansen and Davidson submitted their ground 

stability evaluation of the UQ 1 drift to the MSHA district manager. Their 

memorandum noted that the drift was driven through a shear zone, resulting in 

"an intensely jointed rock mass." Sec. Ex. 7. In addition, the rock mass had 

undergone geochemical alteration, causing white clay to be deposited between 

rock pieces and further weakening. I__dd. Secondary ground support for the roof 

was inadequate and none had been provided for the ribs. Hansen and Davidson 

"strongly recommended that additional rock reinforcement be installed." l__dd. 

(emphasis in original); 14 FMSHRC at 1472. 

On August 6, 1992, Inspector Smith issued a citation to Asarco alleging 

a violation of section 57.3360 based on ground conditions in the UQ 1 drift. 

Asarco filed a notice of contest and requested an expedited hearing, which was 

held on August 13 and 14. The parties waived post-hearing briefs and 

requested an expedited decision. The judge issued his decision on August 25. 

He found that the ground in the UQ 1 drift was unstable, concluded that there 

was a violation, and dismissed the proceeding. 14 FMSHRC at 1479-81. 

II. 

Disposition of Issues 

A. Pa•tlcularity of the Citation 

Asarco challenges the citation on the grounds that it did not meet the 

particularity requirements of the Mine Act. Pet. 3. Asarco further asserts 

that the judge failed to address this issue. Inresponse, the Secretary 

argues that the citation was specific as to the nature of the violation and 

that Asarco was not prejudiced in its ability either to defend the citation or 

to abate the violation. Br. 18, 19. The judge, by considering the merits of 

1305 
the alleged violation, implicitly rejectedAsarco,s argument, 

s 

Section i04(a) of the Mine Act requires that each "citation shall be in 

writing and shall describe with particularity the nature of the violation, 

including a reference to the provision of theAct, standard, rule, regulation, 

or order alleged to have been violated." 30 U.S.C. § 814(a). The Commission has recognized generally that this requirement for specificity allows the 

operator to ascertain what conditions require abatement and to prepare adequately for a hearing on the matter. Se___ee Cyprus TonopahMining Corp,, 15 

FMSHRC 367, 379 (March 1993)• and cases cited. 

The citation states that "[g]round support was not provided and 

installed on the ribs of the UQ i haulage drift to prevent ground fall"; that 

"[a] ground support system shall be installed and maintained throughout the UQ I haulage drift"; and that "ground support shall be installed approximately (5) feet from the floor of the drift and up into the back area." Thus, the 

citation was specific asto thenature of the violation and the need for and 

extent of corrective action. Further, the MSHA inspection team met with 

Asarco officials following the July 29, 1992, inspection and discussed 

conditions in the UQ 1 drift and the need for ground support. Accordingly, we conclude that the citation was sufficiently specific to provide Asarco with 

 notice of the conditions that were alleged to be in violation and of the fact 

that corrective action was necessary to bring Asarco into compliance with the 

regulation. 

Finally, Asarcocounsel's extensive examination and cross examination of 

witnesses concerning the condition of the ribs and roof in the UQ 1 drift 

demonstrate that Asarc0 had been able to adequately prepare for trial and knew 

the condition it was required to abate. Thus, Asarco's actions at the hearing do not substantiate ambiguity, or lack of specificity, in the citation. Accordingly, we reject Asarco's challenge to the citation based on 

particularity grounds. 

B. Burden of Proof 

Asarco argues that the judge improperly shifted the burden of proof in 

this contest proceeding. The judge stated at the beginning of the hearing that "the burden of proof rests with the Contestant, Asarco, with respect to 

the issues in contest." Tr. 5. 6 Asarco asserts that, as a matter of law, the judgeshlfted the burden and that this burden shifting had an effect that 

was adverse to Asarco. The Secretary responds by acknowledging that he hears 

the burden of establishing a violation and that it is obvious from the conduct 

of the hearing and judge's decision that the burden of proof was with the 

Secretary. 

5 At the hearing, Asarco'sreference to the particularity issue consisted 

of one sentence in its opening argument asserting that the requirements were not 

met. Tr. 8. Thus, the judge,s treatment of the issue is consistent with its 

development in the record. 

6 Counsel forAsarco failed to object to the judge's statement. 

130 6 
The record shows that, in his opening statement, counsel for the 

Secretary described the theory of his case and the proof he would offer in 

support of the citation. Tr. 9-10. The judge required the Secretary to 

proceed first with his case. Tr. 5, ii. Counsel for the Secretary then 

examined, as his primary witness, the inspector who issued the citation. 

Asarco responded by presenting expert witnesses to rebut the Secretary's 

evidence. Asarco's counsel, in presenting his closing argument, cited a 

Commission case to support his statement tha• "it's MSHA's burden to 

demonstrate ... that the operator's actions are inconsistent with ... a 

standard." Tr. 364-65. The judge's decision adheres to the same analytical 

approach in requiring the Secretary to carry the burden of proving the 

validity of the citation. 

The judge misstated the law concerning which party bore the burden of 

proof. The Commission has long held, "In an enforcement action before the 

Commission, the Secretary bears the burden of proving any alleged violation." 

Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987). Accord: Wyoming 

Fuel Co., 14 FMSHRC 1282, 1294 (August 1992). We conclude, however, that the 

judge's conduct of the hearing and the analysis in his decision are consistent 

with proper allocation of the burden of proof in this proceeding. 

C. Evidence 

The Commission is bound by the terms of the Mine Act to apply the 

substantial evidence test when reviewing an administrative law judge's 

decision. 30 U.S.C. § 823(d)(2)(A)(ii)(1). The term "substantial evidence" 

means "such relevant evidence as a reasonable mind might accept as adequate to 

support [the judge's] conclusion." Rochester •Pittsburgh Coal Co,, 11 FMSHRC 

2159, 2163 (November 1989), quoting Consolidated Edison Co, v. NI/IB, 305 U.S. 

197, 229 (1938). While we do not lightly overturn a judge's factual findings 

and credibility resolutions, neither are we bound to affirm such determinations if only slight or dubious evidence is present to support them. See, 

e__•g•, Krispy Kreme Doughnut Corp, v, NLRB, 732 F.2d 1288, 1293 (6th Cir. 

1984); Midwest Stock Exchange, Inc, v, NLRB, 635 F.2d 1255, 1263 (7th Cir. 

1980). We are guided by the settled principle that, in reviewing the whole 

record, an appellate tribunal must also consider anything in the record that 

"fairly detracts" from the weight of the evidence that supports a challenged 

finding. Universal Camera Corp, v, NI/IB, 340 U.S. 474, 488 (1951). 

Testlmonyby the MSHA inspectors that ground conditions were unsafe 

constitutes substantial evidence where the judge determines, as he did here, 

that their testimony is reliable. Inspector Smith testified that, while in 

the mine investigating an accident, he became concerned about conditions in 

the drift because he observed ground conditions different from those in other 

areas he had seen in more than i00 inspections of the mine. At that time, he 

directed the scaling down of several tons of loose material. 14 FMSHEC at 

1469-70. With the assistance of two MSHA specialists, Smith later reinspected the drift and concluded that it was dangerous to miners because of 

the fractured condition of the ground. Tr. 34-36, 42-43. MSHAmining 

engineer Hansen, who joined in the investigation with Smith, testified that he 

saw extensive clay deposits that had filled joints vertically and horizontally 

and had weakened the ground. Tr. 117,123-25, 140-41. MSHA geologist Jerry 

1307 
Davidson testified that he also found that the clay deposits in the drift 

further weakened rock thatwas already fractured due to the fault conditions 

in the drift. Tr. 333-35. Given this testimony, which he found credible, the 

judge reasonably concluded that there was a "lack of stability of the ribs." 

14 FMSHRC at 1481. 

Asarco challenges the judge's credibility determinations, arguing, inter 

alia, that the MSHA inspectors failed to adequately investigate conditions in 

the drift and that Asarco's expert witness was better qualified than the MSHA 

inspectors. As the judge recognized, "The principal credibility issue 

... is 

whether the rock in UQ i is stable." 14 FMSHRC at 1480. In resolving this 

issue, the judge "generally credit[ed] MSHA's evidence." Id. 

The judge acknowledged the conflicting opinions of Hansen and Dr. 

WilliamHustrulid, who testified as an expert for Asarco. The Commission has 

recognized: 

Expert witnesses testify to offer their scientific 

opinions on technical matters to the trier of fact. 

If the opinions of expert witnesses conflict in a 

proceeding, the judge must determine which opinion to 

credit, based on such factors as the credentials of 

the expert and the scientific bases for the expert's 

opinion. 

Asarco, Inc., 14 FMSHRC 941, 949 (June 1992). The judge noted that Hansen's 

 experience in performing rock surveys in other mines qualified him to speak on 

the stability of ribs in the UQ i drift. The judge recounted that Hansen was 

able to scrape out clay from the seams. Dr. Hustrulid confirmed the presence 

of clay in the drift. 14FMSHRC 1480. Further, the judge discounted 

Hustrulid's reliance on the absence of popping noises in the drift, reasoning that such noises are present when working ground is exerting pressure on 

pillars but would not be present withproblems involving small pieces of rock 

falling off the rib. 14 FMSHRC•at 1480-81. Finally, the judge did not find 

that Hansen's credibility was diminished byhis failure to observe a crosscut 

in the drift or because he had limited his inspection to one side of the 

drift. 7 We find no circumstances in this case warranting the unusual step of 

rejecting the judge's determination that the testimony of MSHA's expert 

witnesses should be credited over the testimony of Asarco's expert witness. 

See generally Ranger Fuel Corp,, 12 FMSHRC 363, 374 (March 1990). 

Based on the foregoing, we conclude that substantial evidence supports 

the judge's findings that ground conditions in the UQ 1 drift required ground 

support under section 57.3360, and we affirm the judge's conclusion that 

Asarco violated that section, i 

7 Hansen limited his inspection to one side of the drift because, as the 

evidence indicates, the rock mass was the same on both sides of the drift. Tr. 

174. 

1308 
Asarco's argument to the contrary rests in part on the method of ground 

control required to abate the violation. The regulation is silent on the 

particular means of ground support to be used, stating rather that it be 

"designed, installed, and maintained to control the ground .... 

" 30 C.F.R. 

§ 57.3360. The preamble to the final regulation states: "The standard does 

not specify the type of ground support system to be used, only that it control 

the ground." 51 Fed. Reg. 36192, 36195 (October 8, 1986). Asarco asserts 

that MSHA required, as the means of abatement, rib bolting with wire mesh 

throughout the drift. However, the record is clear that MSHAdid not 

undertake design of an acceptable ground support system for abatement of the 

violation or insist on a particular means of abatement. 14 FMSHRC at 1481; 

Tr. 53-54, 141. In any event, the method of abatement is not before us. As 

we have previously held, "The only question before the Commission is whether 

the particular conditions of the cited area required roof support, not which 

type of roof support." White Pine Copper Div., Copper Range Co,, 5 FMSHRC 

825, 835 n. 19 (May 1983). 

III. 

Conclusion 

For the foregoing reasons, we affirm the judge's findings and his 

conclusion that Asarco violated section 57.3360. Therefore, the dismissal of 

Asarco's contest proceeding was proper. 

Arlene Holen, Chairman 

Richard V. Backley, Commissioner 

J•yce A. Doyle, 

•' 

L. Clair Nelson, Commissioner 

1309 
Distribution 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania Ave., N.W. 

Suite 400 

Washington, D.C. 20037 

Tana M. Adde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge lohn J. Morris 

Federal Mine Safety & Health Review Commission 

280 Federal Building 

1244 Speer Boulevard 

Denver, CO 80204 

1310 
ADMINISTRATIVE LAW JUDGE DECISIONS 

OFFICE OF ADNINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 7 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

QUARTO MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 92-309 

A.C. No. 33-01157-04012 

Powhatan No. 4 Mine 

pECISION 

Appearances: Kenneth Walton, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, OH, for 

Petitioner; 

Daniel E. Rogers, Esq., Pittsburgh, PA, for 

Respondent. 

Before: Judge Fauver 

Petitioner seeks a civil penalty for an alleged a safety 

violation under § 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et sea. 

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 Findings of Fact and 

further findings in the Discussion below: 

FZNDINGS OF FACT 

1. Respondent operates a coal mine known as Powhatan #4 

Mine, which produces coal for sale or use in or substantially 

affecting interstate commerce. 

2. On March 5, 1992, Federal Mine Inspector James Jeffers 

observed a Caterpillar 988 front-end loader in the supply yard of 

the mine. The machine was idling, being warmed up for use. 

Inspector Jeffers asked the equipment operator, Steve Kurko, to 

demonstrate the steering. 

3.. When the steering wheel was turned far right, it locked 

in positlon, forcing the operator to rlse from his meat and 

forcibly use both hands and his weight to turn the wheel back. 

Once the lock was broken by forceful turning, the steering wheel 

would spin very fast, causing a potential loss of control of the 

1311 
vehicle. Kurko stated to Jeffers that the condition was 

intermittent and that he had reported it to shop Foreman Ron 

Adams. 

4. Adams had been aware of the problem as far back as 

October, 1991, when it was discovered that the steering jacks 

were leaking and, after the jacks were repacked, it was 

discovered that the steering problem was still not corrected. 

Adams did not take the machine out of service. 

5. The loader was used in several locations throughout the plant. Shortly after Jeffers' issuance of the citation at issue, the loader was tagged out and repaired. 

DISCUSSION WITH FDRT•E•_R FINDING8 

The standard cited by the inspector, 30 C.F.R. § 77.1606(c), provides that: 

Equipment defects affecting safety shall be corrected 

before equipment is used. 

The front-end loader had an obvious safety defect in that the steering was malfunctioning. When turned to the right, it 

was subject to locking, and the driver would be forced to rise from the seat to brace himself against the wheel and use all the force he could muster to brake the lock on the steering. Once that occurred, the wheel would spin very fast toward center before the operator could regain control of the vehicle. The fact that the problem occurred unexpectedly and intermittently heightened the potential for an injury because the operator could not anticipate when the steering problem would occur. The fact that it was observed only in a standing posltlon did not alter the fact that this was an unexplained, uncorrected and 

p?tentially ve.ry serious safety defect. It presented a serious r•sk of occurrlng in motion as well as in a standing position. 

Any new operator of the machine would be faced with a latent, unknown defect. Respondent, th.rough Adams and others, Kn_ew•at r•.e steerlng was malfunctionlng and that their efforts 

•u address rne problem were unsuccessful. The failure to the c?rrect steering defect or take the loader out of service constltuted 

negllgence of a high degree. Respondent apparently made no }ndependent assessment of whether the malfunction was a hazard 

put instead relaed upon its equipment operators. More was 

requlred once the foreman knew the steerlng was defective. The steerlng defect presented a hazard to the equipment operator, to foot traffic and to other vehicle drivers In the areas where the loader operated. Ind•vaduals on foot and other vehicle drlvers 

of th? d fe t In the steering ,yst 

__•L•yL •a•ure ro c?n•ro÷ rne Loader when someone was in the 

p, un uz une loader was s•gnlflcant and substantial. 

I therefore find that the vlolatlon could slgnlflcantly and sumsrantlally contribute to the cause and effect of a mine safety 

1312 
hazard and that there was a reasonable likelihood that the hazard 

would contribute to or result in a seriousinjury. 

I also find that there was an unwarrantable failure to 

comply with the cited standard. Respondent knew of the defect 

for several months before the inspection, but failed to correct 

the defect or remove the loader from service. This shows a 

serious lack of due care, more than ordinary negligence, and 

Justifies the inspector's finding that there was an unwarrantable 

failure to comply with the standard. 

Considering the criteria for a civil penalty in § 110(i) of 

the Act, I find that a penalty of $800.00 is appropriate. 

CONCLUSIONS OF LAW 

I. The judge has jurisdiction. 

2. Respondent violated 30 C.F.R. § 77.1606(c) as alleged 

in Citation No. 3332171. 

Q_RDER 

WHEREFORE IT IS ORDERED that: 

i. Citation No. 3332171 is AFFIRMED. 

2. Respondent shall pay a civil penalty of $800.00 within 

30 days of this Decision. 

William Fauver 

Administrative Law Judge 

Distribution: 

Kenneth Walton, Esq., Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

Daniel E. Rogers, Esq., Consol Inc., Consol Plaza, 1800 

Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail) 

/fcca 

1313 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WILLIS DIMENSION STONE, 

INCORPORATED, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUt 6 1993 

e 

CIVIL PENALTY PROCEEDING 

Docket No. SE 92-332-M 

A.C. No. 09-00889-05513 

American Blue Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Barbour 

Statement of the Proceeding 

This proceeding concerns proposals for assessment of civil 

penalties filed by the Petitioner against the Respondent pursuant to Section ll0(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for three alleged violations of certain mandatory safety standards found in Part 56, Title 30, Code of Federal Regulations. The 

Respondent filed a timely answer denying the alleged violations. 

The parties now have decided to settle the matter, and they have filed a motion pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, seeking approval of the proposed settlement The citations, initial assessments, and the proposed settlement 

amounts are as follows: 

30 C.F.R. 

Citation No. Date Section Assessment Settlement 

3603281 4/2/92 56.15002 $119 $60 

3603282 4/2/92 56.5003 $157 $79 

3603283 4/2/92 56.12025 $157 $78 

In support of the proposed settlement disposition of this 

case, the parties have submitted information pertaining to the six statutory civil penalty criteria found in Section ll0(i) of the Act, included information regarding Respondent's size, ability to continue in business and history of previous violations. The parties emphasize the violations were due to the Respondent,s moderate negligence and they note the Respondent's small size and good faith abatement 

1314 
CONCLUSION 

After review and consideration of the pleadings, arguments, 

and submissions in support of the motion to approve the proposed 

settlement of this case, I find that approval of the suggested 

reductions in the penalties assessed for the subject violations 

is warranted and that the proposed settlement disposition is 

reasonable and in the public interest. Pursuant to 29 C.F.R. 

§ 2700.30, the motion IS GRANTED, and the settlement is APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the 

settlement amounts shown above in satisfaction of the violations 

in question. Payment is to be made to MSHA within thirty (30) 

days of the date of this proceeding and upon receipt of payment, 

this proceeding is DISMISSED. 

David F. Barbour 

Administrative Law Judge 

(703)756-5232 

Distribution: 

Robert L. Walter, Esq., Office of the Solicitor, 

U.S. Department of Labor, 1371 Peachtree Street, NE, Atlanta, GA 

30367 (Certified Mail) 

T. Dale Willis, President, Willis Dimension Stone, Incorporated, 

P.O. Box 6404, Elberton, GA 30635 (Certified Mail) 

\epy 

1315 
FEDERAL MINE SAFETY AND HEALTH REVIEW COWWrSSION 

OFFICEOFADMINISTRATIVELAW JUDGES 

2 SKYLINE, 10th FLOOR 

• • 

5203 LEESBURG PiKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 7 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

WOODLAND HILLS MINING COMPANY, 

Respondent 

1993 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-712 

A.C. No. 15-16801-03509 

No. 1 Mine 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vl 

BROKEN HILL MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 93-170 

A.C. No. 15-15637-03541 

No. 1 Mine 

DECISION 

Appearances: Mary Sue Taylor, Esq., U.S. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, 

for Petitioner; 

Mr. Hobart W. Anderson, Broken Hill Mining 

Company, and Woodland Hills Mining, Ashland, 

Kentucky for Respondent. 

Before: Judge Weisberger 

These cases are before me upon petitions for assessment of 

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

Health Act of 1977 (the Act). The cases were scheduled for 

hearing on June 16, 1993, in Huntington, West Virginia. At the 

hearing, the parties appeared and advised that they had reached a 

settlement covering the matters at issue. Petitioner made a 

motion to approve settlement agreements and to dismiss these 

cases. A reduction in penalty from $486 to $200 is proposed. I 

have considered the representations and documentation submitted 

in this case, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section ll0(i) of the 

Act. 

1316 
WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay penalty of $486 within 30 

days of this order. 

• •// 

Avram Weisberger 

Administrative Law Judge 

Distribution: 

Mary Sue Taylor, Esq., office of the Solicitor, U. S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (by Fascimile and Regular Mail) 

Mr. Hobart W. Anderson, President, Broken Hill Mining Company, 

and Woodland Hills Mining Company Inc., P.O. Box 989, Ashland, KY 

41105 (by Fascimile and Regular Mail) 

nb 

1317 
FEDERAL NINE SAFETY ANDHEALTHPJEVIEg CONNISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 7 1993 

UNITED MINE WORKERS OF AMERICA, 

ON BEHALF OF GARY PRICE, 

BILLY L. WILKINSON, JR. 

AND ALL SIMILARLY SITUATED 

MINERS, 

Petitioners 

V. 

VALLEY CAMP COAL COMPANY, 

AND SHREWBURY COAL COMPANY 

Respondents 

COMPENSATION PROCEEDING 

Docket No. WEVA 91-1949-C 

V C No. 8 Preparation Plant 

Before: 

ORDER OF DISMTSSA;. 

Judge Weisberger 

It is ORDERED that the Stay Order of June 23, 1992 is hereby lifted. 

The parties previously filed a settlement agreement which I find is a fair disposition of the issues presented in this case. Petitioner's Motion to Dismiss is granted based on 

representations that payments have been made in accordance with the settlement agreement. 

Distribution: 

It is ORDERED that these cases be DISMISSE______D. 

Avr•e•er 

Administrative Law Judge 

David Hardy, Esq., Jackson & Kelly, 1800 Laidley Tower, P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

Pamela Silverman, Esq., Carl C. Charneski, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 (Certified Mail) 

Mary Lu Jordan, Esq., UMWA, 900 15th Street, NW, Washington,DC 20005 (Certified Mail) 

nb 

1318 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 8 ]993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C G & G TRUCKING COMPANY, 

Respondent 

: CIVIL PENALTY PROCEEDING 

: Docket No. KENT 92-574 

: A.C. No. 15-16567-03501 EHB 

: MINE: No. 2 TIPPLE 

DECIBION APPROVING BETTLEMENT 

Before: Judge Amchan 

This case is before me upon petition for assessment of a 

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

Health Act of 1977, 30 U.S.C. S 801 et seq• The parties have 

filed a motion to approve a settlement agreement and to dismiss 

the case. The terms of the settlement are as follows: 

Citation Standard Proposed Penalty Settlement 

3215760 77. 1607 (a) (a) $400 $100- 

*The citation has also been recharacterized as "non-significant 

and substantial." 

I have considered the representations and documentation 

submitted and I conclude that the proffered settlement is 

consistent with the criteria in • ll0(i) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and Respondent shall pay the approved 

penalty of $I00 within 30 days of this decision. Upon such 

payment this case is DISMISSED. 

Administrative Law Judge 

703-756-4572 

1319 
Distribution: 

Darren L. Courtney, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215-2862 (Certified Mail) 

Mr. Curtis Gayheart, C G & G Trucking Company, HCR 60, Box 1810, Pine Top, KY 41843 (Certified Mail) 

ljf 

1320 
FEDEEALHINE SAFETY AND BEALTIIEEVIEWCOHNISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUI_ 8 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

W. J. BOKUS INDUSTRIES, INC. 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. YORK 92-I06-M 

A.C. No. 30-02790-05512 

Docket No. YORK 92-I07-M 

A.C. No. 30-02790-05513 

High Peaks Asphalt 

DECISION 

Appearances: William G. Staton, Esq., U.S. Department of Labor, 

office of the Solicitor, New York, New York, 

for Petitioner; 

W. J. Bokus, President, W. J. Bokus Industries, 

Incorporated, Greenfield Center, New York, 

for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In these consolidated cases the Secretary of Labor, 

(Petitioner) filed petitions for assessment of civil penalty, 

alleging violations by the Operator (Respondent), of various 

mandatory standards set forth in volume 30 of the code of 

Federal Regulations. Pursuant to notice, the cases were 

scheduled and heard on February 16 and 17, 1993, in 

Saratoga Springs, New York. At the hearing, Randall Gadway 

testified for Petitioner. James E. McGee, Patrick Durkin, Laura 

Mace, Thomas W. Barss, and William John Bokus testified for 

Respondent. Subsequent to the hearing, the parties filed posthearing briefs on June 21, 1993. 

On June 16, 1993, the Secretary filed and served Respondent 

with a Motion for Leave to Supplement Memorandum. Respondent did 

not file any reply to this motion and it is granted. The 

Secretary's Supplemental Post-Hearing Memorandum was filed 

June 30, 1993. 

1321 
Findinqs Facts and Discussion 

I. Backqround 

In 1983, William J. Bokus, Respondent's President, purchased 

the subject property consisting of 65 acres, "for the sole 

purpose of having an asphalt plant there" (Tr. 130). A stream 

bisects the property, and a road connects the portion of the 

property on the east side of the river, with that located on the 

west side. 

In 1984, an asphalt plant was erected on the east side of 

the river. The asphalt plant is owned by High Peaks Asphalt ("High Peaks") and is leased to Pallette Stone ("Pallette"). High Peaks and Pallette are corporate entities separate from W.J. 

Bokus Industries. Until 1990, the raw minerals used in the 

production of asphalt at the plant were obtained from mines not 

located on the subject site. 

In October 1991, W. J. Bokus Industries, commenced operating 

a mine on the west side of the property mining sand, and gravel. 

A screen that is located on the east side of the property 

separates gravel from the mine by size. This material is crushed 

by a crusher, which is a non-permanent installation, but on the 

dates in issue, was located on the east side of the property. The crusher also crushes material from other mines. Also on the 

east side of the property are two stockpiles containing sand, 

stone, and "rubble", a by-product of crushed recycled concrete 

and asphalt. Some of these materials were previously mined at 

the subject mine. Approximately 20 to 50 percent of the material 

in these two stockpiles is sold as a final product, and the 

balance goes to the asphalt plant on the subject site. 

In addition, there are two other stockpiles on the east 

side, one of which contains piles of old concrete and asphalt 

returned by Respondent's customers, and the other contains 

processed concrete products. The items in the latter two 

stockpiles are sold to customers. 

Also on the east side of the property is a garage that 

contains electrical services, and repair parts for the asphalt plant. The garage is owned by High Peaks, and is leased to 

Pallette. According to Bokus, the garage is used "primarily for 

the support of the black top (asphalt) plant" (Tr.133). 

(Emphasis Supplied) He said that "its primary purpose was for 

the repair of trucks" (Tr. 196). However, the garage is also 

used as a site for the repair of crusher and screen equipment. 

Stored in the garage are some oxygen and acetylene cylinders 

owned by Respondent. Also Respondent's employees at times work 

in the garage. 

1322 
An office staffed by Respondent's employee is also located 

on the east side of the property. Truck drivers transporting 

material from the subject site weigh their trucks at a weighing 

station, and then report the results to Respondent's employee in 

the office. 

On October 22, 1991, MSHA Inspector Randall Gadway inspected 

the subject site. He issued a number of orders pursuant to 

Section 104(d)(1) of the Federal Mine Safety and Health Act of 

1977, ("the Act",) 1 alleging violative conditions concerning a 

loader which loads sand from a stockpile, equipment located in 

the garage, and a walkway near the office. Essentially, it 

appears to be Respondent's position that the stockpiles and 

equipment located in the garage, are not within Petitioner's 

jurisdiction. 

II. Cylinders in the Garaqe(Order Nos. 3593041 and 3593042) 

Gadway cited a total of seven cylinders 2 in the garage that 

were not secured, in violation of 30 C.F.R. § 56.16005. He also 

cited the same cylinders as lacking covers in violation of 30 

C.F.R. § 56.16006. 

In general, oxygen and acetylene cylinders are used in 

welding. Cylinders such as those cited are used in the garage by 

Respondent's mechanic. Respondent's other employees as part of 

their duties, also work in the garage. Also, repairs to a 

crusher and a screen used in the preparation of gravel, are 

performed in the garage. Both Respondent and Pallette store 

oxygen and acetylene cylinders in the garage. 

Section 3(h)(1) of the Act defines a mine as, inter alia 

"...lands, structures, facilities, equipment, machines, tools, 

...used in, or to be used in, or resulting from, the work of 

extracting such minerals from their natural deposits...or used 

in, or to be used in, the milling of such materials, or the work 

of preparing coal or other minerals, .... 

" The legislative 

history of the Act, as summarized with approval in Donovan v. 

Carolina Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984), indicates a 

clear intent for the Act to be given a broad interpretation. 

Nonetheless, it is manifest, based upon the clear language of 

Section 3(h)(1), supra, that structures, facilities, machines, 

tools, or equipment are considered a mine and within the 

jurisdiction of Petitioner, only if they are used in, or to be 

1prior to the issuance of these orders, a citation prusuant 

to Section 104(d)(1) of the Act, supra, had been issued to 

Respondent on October 22, 1991. 

24 or 5 of the cylinders contain oxygen, and the rest 

contained acetylene. 

1323 
used in, or resulting from, either the extraction, milling, or 

preparation of minerals. 

There is no evidence indicating that the specific oxygen and 

acetylene cylinders that were cited were used in connection with 

the repair or manufacture of tools or equipment specifically used 

in the milling or preparation of the minerals mined at the 

subject site. Further, even if it is inferred that the cylinders 

were so used, and hence were subject to MSHA jurisdiction, there 

is insufficient evidence to conclude that Respondent was an 

operator vis-a-vis the cited cylinders. In this connection, 

Section 3(c) of the Act, defines an operator as an "owner, 

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

coal or other mine .... 

" Hence, in order for Respondent to be 

properly cited for the allegedly violative conditions of the 

specific cylinders cited, it must be established that it either 

was the owner, or lessee of the cylinders, or in some other 

fashion exercised control over them. There is no evidence with 

regard to the ownership of the cylinders in question. The garage 

was used to store cylinders that belong to either Pallette or 

Respondent. To further complicate matters, Pallette's employees 

were allowed to use the cylinders owned by Respondent, and 

Respondent's employees were allowed to use the cylinders owned by 

Pallette. Since Respondent's employees worked at times in the 

garage, and at times used acetylene or oxygen cylinders, it is 

possible that they used or would be using these cylinders. 

However, due to the lack of evidence, I cannot conclude that it 

is more likely than not that the cylinders at issue were either 

used by Respondent's employees, or would be used by them in the 

ordinary course of Respondent's operation. Hence, Order Nos. 

3593041 and 3593042 issued to Respondent concerning violative 

cylinders are to be vacated. 

III. Grinding Machines in the Garage (Order No. 3594752) 

Gadway also cited a grinding machine located in the garage 

that did not have a hood, in violation of 30 C.F.R. § 56.14115. 

In general, Gadway testified with regard to the hazards relating 

to the violative condition. He also testified that James E. 

McGee, an employee of Respondent, told him that he had reported 

to William Bokus the lack of a hood, but Bokus did not do 

anything about it. 

There is no evidence in the record as to the specific use of 

the grinder in question, especially as it pertains to the 

preparation or milling of stone. Since the grinder was located 

in the garage, and Respondent's employees worked there, it is 

possible that it m__i• have been used in the milling or preparing 

of stone. However, I find that Petitioner failed to adduce 

sufficient evidence that would support such a conclusion. In 

other words, due to the lack of adequate evidence, I cannot 

conclude that it was more likely than not that the grinder was 

1324 
used in milling or preparing stone or other mine materials. For 

these reasons, Order No. 3594752 regardingthe grinder is to be 

dismissed. 

IV. Metal Stove in the Garage (Order No. 3594756) 

Gadway also cited exposed wires connected to a fan that was 

mounted on the side of a metal stove in violation of 30 C.F.R. § 

56.12030. Gadway testified to the hazards inherent in this 

condition, but did not adduce any testimony with regard to the 

manner, if any, in which this stove is used in the milling or 

preparation of minerals. Thus, I conclude that it has not been 

established that the stove was subject to the Act, and 

regulations promulgated pursuant to the Act. Accordingly, Order 

No. 3594756 is to be dismissed. For the same reasons, the 

Section 107(a) order (Order No. 3594756) issued by Gadway for an 

alleged imminently dangerous condition regarding the wires 

"feeding" the stove, is to be vacated. 

V. Hole in a Walkwa7 (Order No. 3593043) 

A. Violation of 30 C.F.R. § 56.11012 

On October 22, 1991, Gadway indicated that there was a hole 

measuring 2 feet by 3 feet in wooden planks located in front of 

the scale house (office) entrance. He indicated that the hole 

was 3 feet deep. Essentially, he indicated that the hole was 

within 3 feet of the walkway traversed by truckers when walking 

between the scale where trucks are weighed, and the office where 

the weight of the trucks is recorded. Gadway issued a Section 

104(d) (i) order alleging a violation of 30 C.F.R. § 56.11012. 

As part of its mining operation sand and gravel are loaded 

by Respondent onto its customer's trucks. Thus, I conclude that 

the cited area in question is an integral part of Respondent's 

mining operation. Hence, I find that this area is considered 

mine property. 

Laura Mace, Respondent's employee who works in the office in 

question, estimated the size of the hole as 6 inches by 2 1/2 

feet. She estimated that it was a distance removed from the 

walkway equal to at least her height, which she indicated as 5 

feet 4 inches. I accord more weight to Gadway's testimony 

regarding the dimensions of the hole, inasmuch as it was based 

upon actual measurements that he had taken. Also, based upon my 

observations of the demeanor of the witnesses, I accord more 

weight to the testimony of Gadway with regard to the distance the 

hole was removed from the walkway. 

Section 56.11012 supra, provides, that "openings near 

travelways through which persons or materials may fall shall be 

protected by railings, barriers, or covers. Where it is 

1325 
nature." Cement Division, National Gypsum Co., 

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

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

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, 103-04 (5th Cir. 1988), aff'•, 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 an injury" (U.S. Steel Mininq Co., 6 FMSHRC 

1834, 1836 (August 1984)), and also that the likelihood 

of injury be evaluated in terms of continued normal 

mining operations (U.S. Steel Mininq Co., Inc. 6 FMSHRC 

1573, 1574 (July 1984); see also Halfway, Inc., 8 

FMSHRC 8, 12 (January 1986). 

Southern Ohio, • at 916-917. 

Since Gadway's opinion that the violation herein was 

significant and substantial, was not based upon the proper test 

as set forth in Mathies, supra, and U.S. Steel, su_•_ra, I have not 

accorded it any weight. The only evidence before me on this 

issue is Gadway's opinion that a truck driver could fall into the 

hole. Clearly this hazard did exist. However, considering the 

fact that the hole was not in the travelway, but was 

approximately three feet away, and considering the lack of any 

other evidence on this point, I conclude that it has not been 

established that the hazard contributed to by violation, i.e., a 

person falling into the hole or tripping on it, was reasonably 

likely to have occurred. Hence, I conclude that the violation 

herein was not significant and substantial. 

D. Penalty 

Considering the obvious nature of the hazard presented by 

the violative condition, the fact that the condition could have 

resulted in an injury such as a broken leg or hip, the fact that 

the hole had been in existence for at least a week prior to the 

1326 
time that it was cited, and considering the remaining factors set 

forth in Section ll0(i) of the Act, I conclude that a penalty of 

$450 is appropriate for this violation. 

VI. Loader Loadinq from Stockpiles 

3594754) 

(Order Nos. 3594753 and 

On October 22, 1991, a loader was being used by Respondent's 

employee, Tom Barss, to remove sand from a stock pile on the east 

side of Respondent's property, and load it onto customers' 

trucks. The stockpile contained sand and other minerals mined 

from the west side of the property in question. 

Gadway asked Barss if the horn and back-up alarm were 

functioning, and he indicated that they were not. Gadway did not 

observe them to be functioning. Gadway issued an order alleging 

a violation of 30 C.F.R. § 56.14132, which, as pertinent, 

provides that horns or other audible warning devices on selfpropelled mobile equipment "shall be maintained in functional 

condition." 

Respondent argues that MSHA does not have jurisdiction over 

stockpiles. In this connection, Respondent refers to a statement 

made by an MSHA engineer, John Montgomery, who was one of the 

speakers at an MSHA seminar in Albany, New York, in the fall of 

1992. James McGee, Respondent's employee who was at the seminar, 

testified that Montgomery, in response to a question from the 

audience after he had made his presentation on electrical 

matters, stated that MSHA jurisdiction regarding gravel 

operations did not extend to stockpiles. Clearly this statement 

cannot be considered to be a statement of MSHA policy, but is 

rather a statement of an individual not involved with policy. 

(See, Lancashire Coal Co., 13 FMSHRC 875, 888, (1991). 

I find that the use of the loader in question, loading mined 

stocks onto customer's trucks, was an integral part of 

Respondent's mining operation, and hence the loader was within 

MSHA jurisdiction. Since the horn and backup alarm were not 

working, I find Respondent violated Section 56.14132, supra. 

Gadway opined that as a consequence of this violation, an 

injury was reasonably likely to have occurred, since truck 

drivers in the area could have been hit by the loader when it 

backed up. Should this have occurred, a fatality could have 

resulted. 

Certainly, a person could have been hit and injured by the 

loader when it backed up. Gadway indicated that the operator of 

the loader would not have known that a person was behind the 

loader. However, the record does not indicate the specific 

position of the loader operator on the loader, whether the loader 

had a rear view mirror, whether the operator would have had good 

1327 
visibility Of the area behind the loader, and whether there were 

any blind spots when the operator looked to the rear of the 

loader. Within the framework of this record, I conclude that it 

has not been established that the hazard contributed to by the 

violation herein i.e., the possibility of a person being hit by 

the loader, was reasonably likely to have occurred. I thus 

conclude that it has not been established that the violation 

herein was significant and substantial. 

According to Gadway, Barss indicated to him that the horn 

and alarm were not functioning, and said that the loader in 

question had been brought onto the subject property a week prior 

to the date the Order was issued, "in this condition". (Tr. 

231). Gadway testified that Barss told him that Bokus operated 

the loader, and "he should have known" (Tr. 231). Barss, who 

testified later on at the hearing, did not rebut this testimony, 

nor did Bokus testify in rebuttal to rebut this testimony. 

Hence, since a loader is operated both forward and reverse, and 

since Respondent's employees operated the loader for a week 

knowing the horn or backup alarm did not function, I conclude 

that the violation herein was as a result of more than ordinary 

negligence, and constitued an unwarrantable failure. (See, 

Em_mg_e_e_e_e_e_e_e•, su_•xa) . 

Taking into account the statutory factors in Section 110(i), 

of the Act, and especially noting the degree of Respondent's 

negligence as discussed above, I conclude that a penalty of $500 

is appropriate. 

VII. Order No. 3594754 

On October 22, 1991, Barss informed Gadway that the parking 

brakes on the loader were not working. Gadway had Barss test 

them, and he concluded that the parking brakes were not working. 

Gadway issued a Section 104(d)(1) order alleging a violation of 

30 C.F.R. § 56.14101 which provides, as pertinent, that 

"...parking brakes shall be capable of holding the equipment with 

its typical load on the maximum grade it travels." Based on the 

testimony before me, I conclude that this standard has been 

violated as alleged by Gadway. 

Gadway indicated that there was no engine shut-off, and thus 

an injury, as a consequence of the violation herein, was 

reasonably likely to have occurred. He said that the area where 

the loader loads the trucks is not completely level, but that 

there are "small ups and downs". (Tr. 240) He said that there 

are grades where the loader could roll to the stockpile. There 

is no evidence with regard to the specific terrain in the 

immediate area where the loader would have stopped, and remained 

stopped in its normal operation. Within this framework, I 

conclude that it has not been established that the violation was 

significant and substantial. 

1328 
When Barss was asked by Gadway if the alarm horn and parking 

brake were functioning, Barss indicated, in essence, that the 

loader had been brought on the property a week ago in this 

condition, and everybody had operated it, including Bokus. For 

the reasons set forth above, VI, infra, I conclude that the 

violation herein resulted from more than ordinary negligence and 

constituted an unwarrantable failure. 

Taking into account the factors set forth in Section 110(i) 

of the Act, and considering the degree of Respondent's 

negligence, I find that a penalty of $500 is appropriate. 

VIII. Citation No. 3594758 

Gadway indicated that on October 22, 1991, he had explained 

to Barss that he was issuing an Order requiring that the loader 

not be used until repaired, and that MSHA should be notified by 

the Operator (Respondent) that repairs have been done before the 

Operator would be allowed to use it. 

Subsequent to the issuance of the i04(d)(1) Orders discussed 

above, VI, and VII, infra, Barss ordered parts to repair the 

parking brakes, and replaced the fuses for the horn and back-up 

alarm on October 22. However, MSHAwas not informed. 

On October 23, 1991, at approximately 9:00 a.m., Gadway 

returned to the subject property. He observed the same loader 

that had been cited the day before, loading crushed stone from 

the stockpile, and transporting it to the asphalt bin. According 

to Gadway, he left the premises after Bokus had told him that 

MSHA did not have jurisdiction over the asphalt plant, and the 

stockpiles. Gadway subsequently returned at approximately 

11:40 a.m. At that time, he asked Bokus how many trucks had been 

loaded. Gadway indicated that Bokus informed him that three 

trucks had been loaded with the loader. 

Mace, who works in the office, indicated that she heard all 

of Bokus' conversation on October 23 with Gadway, and that Bokus 

did not say that he loaded three trucks with the loader. In 

rebuttal, Gadway explained that upon his arrival at the site at 

approximately 11:40 a.m., he spoke to Bokus who informed him that 

he had loaded trucks with the loader. Gadway said that this 

conversation took place at the right side of the garage, which is 

not within the line of sight of the office where Mace works. 

Bokus did not contradict this testimony. I therefore accept it. 

On October 23, 1991, Gadway issued a Citation alleging a 

violation of Section 104(d)(1), of the Act which, as pertinent, 

provides that once an Order has been issued under section 

104(d)(1), persons in the affected area shall be withdrawn, and 

be prohibited from entering such area until an authorized 

representative of the Secretary determines that such violation 

1329 
has been abated. 

Within the framework of the above discussed evidence of 

record, I find that the loader in issue was subject to two 

Section i04(d)(1) Orders, and yet Respondent operated it prior to 

a determination by Gadway that the violative conditions had been 

abated. Accordingly, I find that the Citation issued by Gadway 

was properly issued and is to be affirmed. 

The record indicates that Respondent was made aware that the 

loader should not have been operated until it had been repaired, 

and MSHA was notified of that fact. Respondent's belief that 

MSHA had no jurisdiction over the stockpile is insufficient to 

mitigate its non-compliance with the Orders at issue. The proper 

course was to have complied with the Orders, and then to have 

filed a Notice of Contest to challenge the issuance of the 

Orders. Thus, the violation herein resulted from a high degree 

of Respondent's negligence. I find that a penalty of $i,000 is 

appropriate for this violation. 

ORDER 

It is ORDERED that: (i) The following Orders are to be 

vacated and dismissed: Orders No. 3593041, 3593042, 3594752 and 

3594756; (2) The following Orders are to be amended to reflect 

the fact that the violations alleged therein are not significant 

and substantial: Orders No. 3593043, 3594753, and 3594754; and, 

(3) Respondent shall pay, within 30 days of this decision, a 

civil penalty of $2,450 for the viol•ons found herein. 

/ / 

Distribution: 

Administrative Law Judge 

William G. Staton, Esq., Office of the Solicitor, U. S. 

Department of Labor, 201 Varick Street, New York, NY 10014 

(Certified Mail) 

Mr. W. J. Bokus, President, W. J. Bokus Industries, Inc., 30 Mill 

Road, Greenfield Center, NY 12833 (Certified Mail) 

nb 

1330 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1 31993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BROKEN HILL MINING CO., INC., 

Respondent 

: CIVIL PENALTY PROCEEDING 

: Docket No. KENT 92-290 

: A.C. No. 15-15637-03537 

: Mine No. 1 

DECISION 

Appearances: Joseph B. Luckett, Esq., office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

Hobart W. Anderson, President, Broken Hill Mining 

Company, Inc., Ashland, Kentucky, pro se, for the 

Respondent 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the 

petitioner against the respondent pursuant to section ll0(a) of 

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

§ 820(a), seeking civil penalty assessments for six (6) alleged 

violations of certain mandatory safety and health standards found 

in Parts 70 and 75, Title 30, Code of Federal Regulations. The 

respondent filed a timely answer contesting the alleged 

violations and a hearing was held in Pikeville, Kentucky The 

parties were afforded an opportunity to file posthearing briefs 

The petitioner filed a brief, but the respondent did not. I have 

considered the oral argument s made by the parties in the course 

of the hearing, as well as the brief filed by the petitioner, in 

my adjudication of this matter. 

Issues 

The issues presented in this case are (i) whether the 

conditions or practices cited by the inspector constitute 

violations of the cited mandatory safety standards, (2) whether 

several of the alleged violations were "significant and 

substantial" (S&S), and (3) the appropriate civil penalties to be 

assessed for the violations, taking into account the statutory 

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

Act, particularly the respondent's ability to continue in 

1331 
business. Additional issues raised by the parties are disposed of in the course of this decision. 

Applicable Statutory and Requlatory Provision• 

I. The Federal Mine Safety and Health Act of 1977; Pub. L. 

95-164, 30 U.S.C. § 801 e__tt s__@_q. 

2. Section ll0(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 e_•t s_9_q. 

Discussion 

Section 104(a) non-"S&S" Citation No. 9876024, July 16, 1991, cites an alleged violation of mandatory health standard 

30 C.F.R. § 70.207(a), and the cited condition or practice states 

as follows (Exhibit P-l): 

The mine operator did not take five valid respirable dust samples during the bimonthly sampling cycle of May through June on MMV 001-0 for the designated occupation of 036, continuous miner operator, shown in the 

attached advisory number 0001. No valid respirable 

dust samples were received and credited to this 

bimonthly sampling period. 

Section 104(a) non-"S&S" Citation No. 9876034, July 30, 1991, cites an alleged violation of mandatory health 

standard 70.508, and the cited condition or practice states as follows (Exhibit P-2): 

The operator of this mine failed to report and certify 

to MSHA the results of the periodic noise exposure 

survey to which each miner is exposed. This survey was 

due no later than 6-6-91. The last reported survey was 

conducted 12-6-90, which exceeds the intervals of at 

least every six months. 

Section 104(a) "S&S" Citation No. 3807424, August 29, 1991, cites an alleged violation of mandatory health standard 30 C.F.R. § 70.101, and the cited condition or practice states as follows: 

Based on a valid respirable dust sample collected by an 

MSHA inspector on August 28, 1991, the respirable dust 

concentration in the working environment of the 

designated area 901-0 in mechanized mining unit 001-0 

was 3.5 mg/m 3 which exceeded the 1.3 mg/m 3 

standard. 

Management shall make available approved respiratory equipment to affected miners, take corrective action to 

lower the respirable dust, and sample each production 

1332 
shift until five valid respirable dust samples are 

taken and submitted to the Pittsburgh Respirable Dust 

Processing Laboratory. 

Section 104(a) "S&S" Citation No. 3807425, August 29, 1991, 

cites an alleged violation of mandatory health standard 30 C.F.R. 

§ 70.101, and the cited condition or practice states as follows 

(Exhibit P-6) 

Based on 5 valid respirable dust samples collected by 

an MSHA inspector on 8/28/91, the respirable dust 

concentration in the working environment of the 

occupations was (1)036, 3.8 mg m 3, (2) 035, 3.3 mgm 3, 

(3) 073, 14.2 mgm 3, (5) 050, 2.8 mgm 3. The average 

concentration amounted to 5.2 mgm 

3 

on the 001-0 mmu 

which exceeded the 1.2 mgm 

3 standard. Management shall 

take corrective action to lower the respirable dust and 

sample each production shift until five valid samples 

are taken and submitted to the Pittsburgh Respirable 

Dust Processing Laboratory on the (036) designated 

occupation (mmu 001-0). 

Section 104(a) "S&S" Citation No. 3809256, November 15, 

1991, cites an alleged violation of mandatory safety standard 

30 C.F.R. § 75.400, and the cited condition or practice states 

as follows (Exhibit P-8): 

Combustible materials in the form of a unmeasurable 

coat of float coal dust has accumulated over the 

previously rock dusted area of the No. 1 belt entry 

starting at the No. 2 portal and extending inby to the 

No. 2 head drive a distance of approximately 1,800 ft. 

The float coal dust is from gray to dark in color. 

Section 104(a) "S&S" Citation No. 3809258, November 15, 

1991, cites an alleged violation of mandatory safety standard 

30 C.F.R. § 75.400, and the cited condition or practice states as 

follows (Exhibit P-9): 

Combustible material in the form of a thin unmeasurable 

coat of float coal dust has accumulated at numerous 

locations in the No. 2 belt entry, starting at the 

No. 2 head drive and extending inby to the No. 2 tail 

piece a distance of approximately 1,800 ft. The 

combustible material is from gray to dark in color. 

1333 
Petitioner's Testimony and Evidence 

Citation No. 9876024 

MSHA Inspector John C. Smallwood testified that he issued 

the citation after receiving an "Advisory', (Attachment to 

Exhibit P-l), stating that the respondent had not submitted valid 

respirable dust samples for the bi-monthly period May-June 1991. 

He confirmed that he made a finding of non-"S&S" because he 

believed an injury was unlikely, and he terminated the citation 

after the violation was abated by the submission of five valid 

samples (Tr. 28-30). 

Citation No. 9876034 

MSHA Inspector James H. Osborn testified that he issued the 

citation concerning the periodic noise survey because MSHA had 

not received the results of a survey from the respondent. He had 

no knowledge as to whether a survey was actually taken and stated 

that "it was a matter of paper, administrative,,. He confirmed 

his low negligence and non-"S&S" findings and stated that an 

injury was unlikely because of a lack of a prolonged period of 

noise exposure (Tr. 33-38). 

On cross-examination, Mr. Osborn confirmed that the citation 

was served on the respondent by certified mail, but he did not 

know who may have received it and he did not see the return 

postal receipt (Tr. 39, 42-43). 

MSHA Inspector Buster Stewart testified that he issued 

section 104(b) Order No. 3809822 (Exhibit P-3), on November 19, 1991, because MSHA had not received the results of the noise 

survey which prompted Inspector Osborn to issue citation 

No. 9876034. Mr. Stewart stated that he did not know when the 

abatement of the citation was due, and he served the order on 

mine superintendent R.B. Hughes who confirmed that the survey had 

not been taken. Mr. Stewart stated that continuous violative 

noise exposure can lead to hearing loss, and that six months 

elapsed after the first six-months when the survey was due. He 

believed that the respondent had ample time to take the survey, and he modified the order to allow mine production to continue so 

that the survey could be taken. The survey was submitted on 

December 3, 1991, and the citation was not terminated until 

October 30, 1992, because the mine was shut down and he had no 

earlier opportunity to abate the violation (Tr. 46-50). 

On cross-examination, Mr. Stewart could not recall whether 

Mr. Hughes was aware of the citation nor ,•hether he (Hughes) had 

called MSHA's office about the matter (Tr. 50). Mr. Stewart 

confirmed that the results of the noise survey submitted by the 

respondent were acceptable, and at no time during 1991 was there 

any excessive noise exposure (Tr. 51). He confirmed that the 

1334 
survey of valid samples reflected compliance with MSHA's noise 

standards (Tr. 52). 

Citation No. 3807424 

MSHA Inspector Foster I. Justice testified that he issued 

the citation after the respirable dust sample for the designated 

roof bolter operator reflected noncompliance with the acceptable 

standard. He confirmed that the mine had a quartz problem and he 

explained the methodology for computing the acceptable dust 

exposure levels when there is such a problem (Tr. 55-57). He 

stated that the acceptable level of exposure is lower because 

quartz dust exposure causes silicosis. He confirmed that he took 

the sample on which the citation is based, and he indicated that 

the exposure exceeded the 1.3 milligrams per cubic meter of air 

established for the roof bolter. The test results indicated an 

exposure of 3.5 milligrams per cubic meter of air (Tr. 59). 

Mr. Justice confirmed his moderate negligence finding, and 

he stated that he based his "reasonably likely" gravity finding 

on the fact that the dust exposure for the one person exposed was 

twice the amount allowed by the standard. He stated that he 

based his "S&S" finding on the fact that "it has been proven that 

with that high of dust concentration on a sample, that they're 

going to end up permanently disabled in the long run" (Tr. 61). 

Citation No. 3807425 

Inspector Justice stated that he issued the citation after 

the dust sampling which he conducted for the continuous miner 

operator, the offside shuttle car operator, the scoop operator, 

and the standard side shuttle car operator reflected noncompliance with the established 1.2 milligrams per cubic meter of 

air standard which is based on the amount of quartz present in 

the samples. He explained that the sampling was done during the 

regular mining cycle, and he indicated that the standards for the 

tested occupations were different from those established for the 

roof bolter because they are working in different mine strata and 

the standard for compliance for everyone except the roof bolter 

is established at the level allowable for the high risk 

continuous miner occupation (Tr. 62-65). 

Mr. Justice confirmed his moderate negligence finding, and 

he based his "highly likely" gravity finding on the test results 

which showed high levels of dust exposure and because "It's been 

proven that silicosis, black lung, and so forth, can be caused 

with an excessive amount of dust" (Tr. 66). He believed the 

violation was "S&S" because "if it would have kept on 

, 

the dust 

level had kept on at what it is--and it has been proven that, 

definitely, they would have ended up with black lung, silicosis" 

(Tr. 67). 

1335 
Mr. Justice confirmed that he fixed the abatement time for both of the dust citations he issued after considering the fact that ventilation adjustments had to be made to lower the dust 

exposure, further sampling had to be done, and the samples had to be submitted to MSHA's Pittsburgh laboratory for analysis to allow for abatement and termination of the citations (Tr. 61, 67). Mr. Justice explained why he issued separate citations for the roof bolter and the other occupations on the designated mining unit in question (Tr. 67-68). Petitioner's counsel stated that pursuant to the cited standard, the inspector could have issued separate citations for each of the designated occupations that were out of compliance, but that MSHA's policy is to issue 

separate citations for the roof bolter and the rest of the individuals on a working shift (Tr. 70). 

On cross-examination, Mr. Justice agreed that cutting rock in low coal will result in the generation of more dust and 

quartz, and that there is no likelihood of someone contracting black lung in one day rather than over a longer period of time (Tr. 72). Mr. Justice believed that the respondent,s most recent test samples in February still reflected noncompliance with the 

quartz dust standard, and he agreed that the respondent changed its ventilation each time in an attempt to come into compliance and that it is attempting to comply but is experiencing problems with quartz. He further agreed that each time the respondent is in compliance, the standard is lowered to that compliance level, and that it is difficult for the respondent to continually stay in compliance as the standard is adjusted and lowered after each sampling cycle and after ventilation changes are made (Tr. 75-78). 

Mr. Justice further explained the differences for sampling and establishing the acceptable dust exposure levels for the roof bolter and the remaining crew members (Tr. 79-81). He confirmed that the respondent made respirators available to the miners at the mine and the respirators could have been used by the miners working in dusty areas. He also confirmed that he would consider the wearing of respirators when weighing the gravity of a violation if it could be shown that the respirators were "fit tested". He confirmed that the respirators met MSHA's standards, and stated that "I've never seen no fit tested ones over there" (Tr. 82). 

Mr. Justice confirmed that during his two visits to the mine it has been out of compliance with the dust requirements, and the mine bi-monthly sampling has reflected noncompliance. However, he disagreed that it was impossible for the mine to stay in 

compliance because of low coal and rock problems, and he believed that the installation of scrubbers and wetting agents would help bring the mine in compliance even though it would be costly (Tr. 86-87). 

1336 
MSHA Inspector Buster Stewart testified that he issued 

section 104(b) Order No. 3809821, on November 19, 1991, because 

of the respondent's failure to timely abate Citation No. 3807424 

issued by Inspector Justice on August 29, 1991. Mr. Stewart 

stated that he visited MSHA's laboratory and determined that MSHA 

had not received any roof bolter samples from the respondent to 

abate the citation. Mr. Stewart stated that he spoke with mine 

superintendent Hughes about the matter and that Mr. Hughes was 

"in limbo" about taking any samples because "we were having some 

problems with all white centers, and he was, I guess, a little 

bit scared about that" (Tr. 90). 

Mr. Stewart believed that the respondent had ample time to 

take and submit samples to abate the citation, and that it did 

not request any extension of the abatement time. He confirmed 

that the citation was terminated on September 17, 1992, and he 

explained that the mine was down for three or four months and 

that another inspector took over from him. He also indicated 

that the mine was in retreat mining pillars and roof bolters were 

not being used at that time (Tr. 91-92). 

Mr. Stewart confirmed that he also issued section 104(b) 

Order No. 3809260, on November 19, 1991, (Exhibit P-7), because 

of the respondent's failure to timely abate Citation No. 3807425, 

issued by Inspector Justice. He believed that there was a 

continuing quartz exposure hazard, but he did not consider 

extending the abatement time because he believed the respondent 

had ample time to take and submit samples and to make ventilation 

adjustments. He confirmed that he modified the order to allow 

mining to continue so that sampling could be done, and that he 

terminated the violation on August 31, 1992, after the mine had 

been out of production for sometime and after the respondent 

submitted five valid samples (Tr. 93-95). 

On cross-examination, Mr. Stewart confirmed that in his 

prior dealings with the respondent it has always abated citations 

in a timely manner. He acknowledged that superintendent Hughes 

informed him that he was worried about an ongoing respirable dust 

tampering investigation involving other mine operators. 

Mr. Stewart stated that he informed Mr. Hughes that he was still 

required to take samples and suggested that he maintain a log 

detailing each step taken in the sampling process (Tr. 96). 

Mr. Stewart agreed that Mr. Hughes was under some apprehension 

about the "adverse white centers" publicity and investigation 

(Tr. 98). 

Citation Nos. 3809256 and 3809258. 

The respondent stipulated and admitted that the cited coal 

accumulations existed as charged in the two citations and that 

violations of section 75.400 occurred as noted on the face of the 

1337 
citations issued by Inspector Buster Stewart on November 15, 1991 (Tr. 101-102). 

Inspector Stewart confirmed his negligence and gravity findings, and he stated that the accumulations presented a fire hazard and that ignition sources such as belt drives, belt boxes, and numerous electrical sources were present in the cited areas, and that a piece of draw rock falling from the roof or a cable short were potential ignition sources. He based his "S&S" 

findings on his belief that an accident could reasonably be 

expected to happen if the accumulations were allowed to continue. 

He described the extent of the accumulations and indicated that "it was just a thin coat of float dust over the area" which he 

could not measure and that it was "from grey to dark in color". 

He terminated the citations on November 19, 1991, after the 

accumulations were cleaned up and the areas were re-rock dusted. 

Mr. Stewart stated that the affected areas were travelways and he concluded that the foreman and superintendent traveled the belt 

areas and should have been aware of the conditions, but waited for a later time, or possibly an "off shift" to clean the 

accumulations (Tr. 102-106). 

On cross-examination, Mr. Stewart stated that cleanup should be done "as needed", and he agreed that the area had previously been rockdusted. He did not check the belt head drive units and did not know if water was provided to control the dust 

(Tr. 106-108). He also indicated that re-rock dusting can be done to render the coal dust incombustible (Tr. 112). Mr. Stewart did not check all of the electrical components 

present in the cited areas and did not know whether they were out of compliance (Tr. 119). .He did not believe that the 

accumulations had existed for more than two days, and the 

preshift reports which he reviewed did not reflect any of the accumulations that he cited (Tr. 120). 

Respondent's Testimony and Evidence 

•obart W. Anderson, respondent's president, testified that the Broken Hill Mining Company is a wholly owned subsidiary of Hobart Energy Corporation. He stated that although Hobart Energy has owned several other operating coal mines in the past, Broken Hill is the only operating mine at the present time. 

Mr. Anderson asserted that Hobart Energy and Broken Hill are in "severe financial positions", and he produced copies of Federal and state income tax returns filed by Hobart Energy Corporation and Broken Hill Mining Company, financial income statements for Broken Hill, an affidavit concerning the financial condition of Broken Hill and two other mining companies controlled by Hobart 

Energy, a Federal IRS Notice of Levy filed against Broken Hill, and a Broken Hill financial balance sheet, and he explained the information contained in these documents (Exhibits R-I through R-7, Tr. 131-138). 

1338 
Mr. Anderson stated that Broken Hill was at one time a 

contract mining company for Island Creek Coal Company, but that 

Island Creek sold the property to A.T. Massey on January 31, 

1992. Broken Hill lost its contract rights to mine the property, 

and the mine was shut down for brief periods in 1991 because of 

the Island Creek negotiations. However, Broken Hill was able to 

reopen in early July, 1992, but was having problems since 1990 

because of the decreasing mining heights and rock problems. 

These problems resulted in a production decrease of saleable coal 

and an increase in the rejection rate of the mined coal because 

of the rock which had to be removed. At the present time, for 

each i00 tons of raw material mined, Broken Hill is paid for 

approximately 45 tons. Mr. Anderson confirmed that in 1992, A.T. 

Massey contracted with Broken Hill to mine the No. 3 Mine, and he 

stated that this mine "seems to be, so far, and appears to be, a 

good operation". He also indicated that A.T. Massey has also 

subsidized the mine and has contributed $i0,000, since February, 

1993, to compensate Broken Hill for its losses due to the high 

coal rejection rate, and that Broken Hill had to finish mining 

the marginal old mine before contracting to mine the new No. 3 

Mine (Tr. 133-136). 

Mr. Anderson alluded to several outstanding liens on Broken 

Hill's mine equipment, including a $250,000 lien held by the 

First National Bank of Louisville. He also indicated that Broken 

Hill has agreed to pay the IRS $5,000 a month for a tax lien, and 

that Hobart Energy also has liens in excess of $250,000, and 

cannot borrow any more money. He stated that Hobart Energy, 

Inc., "is in a substantially worse state and shape than Broken 

Hill" (Tr. 138). He also confirmed that Broken Hill owes MSHA 

for previous penalty assessments in excess of $i0,000, and has 

agreed to pay MSHA $250 a month over three years as part of a 

consent judgment to satisfy that debt. Mr. Anderson stated that 

because of the financial condition of Broken Hill, he would have 

liked to pay "fifty cents on the dollar" for the penalty 

assessments in this case and could not understand why MSHA has 

rejected any settlement offer, particularly in light of a past 

settlement in July, 1992, concerning Broken Hill which was 

accepted by MSHA and approved by another Commission Judge 

(Tr. 139-140; Exhibit R-8). 

Mr. Anderson stated that in the recent proceedings 

concerning the Spurlock Mining Company and the Sarah Ashley 

Mining Company which were heard in September or October, 1992, 

MSHA submitted a brief taking his testimony out of context and 

contending that all of Hobart Energy mining companies should be 

considered and combined as one whole operation. Mr. Anderson 

stated that each mine had its own operation, with separate 

superintendents, and that he did not intermingle purchases, and 

loans between companies were covered by notes (Tr. 140). He 

stated that "if the court rules it is an aggregate unit, we're 

saying Hobart Energy is in worse financial shape and consolidated 

1339 
than Broken Hill, because Broken Hill was our only operating company" (Tr. 141). He further indicated that Hobart Energy has 

more liabilities and less assets, has no other mining operations, and no sources of income (Tr. 141). He was of the opinion that the petitioner would not agree to settle the instant case 

"because I wouldn't agree to settle Ashley and Spurlock and I 

took them to hearing .... So now, I guess, they've taken the 

posltion that we're going to go to court on every one, which is fine" (Tr. 142). 

Mr. Anderson stated that the IRS has given him until May 15, 1993, to file Broken Hill's 1991 tax return "knowing that there will be a loss" (Tr. 142). He also indicated that Broken Hill 

owes the accounting firm over $50,000, and that Hobart Energy, in the aggregate, owes over $300,000, to the accounting firm. In view of his personal relationship with the CPA firm where he was 

a former partner, the firm has agreed to do his work at reduced 

rates (Tr. 142). 

On cross-examination, Mr. Anderson confirmed that he is 

president of Broken Hill Mining Company, and that one-hundred 

percent of the stock in that company is owned by Hobart Energy Inc. He stated that he owns twenty-five percent of the stock in Hobart Energy, and he identified three individuals who each own twenty-five percent of that company. He further confirmed that he serves as president of the board of directors of Broken Hill, and that seven other individuals serve as officers. He stated that he receives no salary from Broken Hill but is paid $75,000 annually by Hobart Energy which he currently receives regularly (Tr. 152-153). 

Mr. Anderson stated that Broken Hill started operations with 

a capitalization of $5,000, and a $250,000 bank loan personally guaranteed by the four owners of Hobart Energy. Current bank 

loans amount to $250,000 to $300,000, guaranteed by personal 

notes of the owners of Hobart Energy. Broken Hill owns the mining equipment that it uses, and it was purchased from 

equipment venders. Broken Hill does not use any equipment owned by any other corporation (Tr. 154-155). 

Mr. Anderson explained several payments and assets reflected in the financial records he produced (Tr. 156-157). With regard to the 1990 Income Tax return for Hobart Energy, which includes 

an Affiliations Schedule and Schedule of Subsidiary Income and 

Loss, Mr. Anderson confirmed that Hobart Energy owned all of the mining companies listed at that time, but that at the present time, the only company that is in operation is Broken Hill 

(Tr. 158). He stated that although some of the companies listed have mining permits, he considers the permits to be a liability rather than an asset, and he confirmed that none of these 

companies own any coal leases or other property (Tr. 159). 

1340 
Mr. Anderson stated that Summit Processing, Inc., one of the 

companies listed on Hobart Energy's tax return, is in bankruptcy 

and is no longer owned by Hobart, and that Hobart only received 

$5,000 of the $75,000 due from Summit. He confirmed that Broken 

Hill does not own the property that it mines, and that when it is 

mining, it does so as a contract mining company for Island Creek 

and A.T. Massey Mining Companies, the owners of the property. 

Mr. Anderson stated that White Cloud has a judgment in its favor 

for two million dollars as the result of a lawsuit. However, the 

judgment is on appeal, and the matter will go through the 

bankruptcy court, and White Cloud's debts and lawyer's fees would 

have to be paid. Mr. Anderson anticipates that it will take two 

or three years for this litigation to conclude. If the matter is 

settled, he does not anticipate that White Cloud will receive all 

of the two-million dollars (Tr. 161-162). 

Mr. Anderson confirmed that Hobart Energy had income of over 

$4,000,000 million in 1990, but had expenses of $4,650,000, and 

in 1991 its income was less because Broken Hill was the only 

company in operation that year. He explained that Hobart Energy 

contracted with Island Creek to mine under the name of Spurlock 

Mining and Sarah Ashley Mining, and although those ventures were 

profitable at one time, they shut down in 1990, and were not in 

operation in 1991 (Tr. 161). Mr. Anderson confirmed that Hobart 

Energy engages in no activities other than managing the mining 

companies that it owns, but that the only one currently in 

operation is Broken Hill Mining Company (Tr. 161). 

Findinqs and Conclusions 

Fact of Violation 

Citation No. 9876024 

Mr. Anderson did not dispute the fact that the required 

valid respirable dust samples were not submitted as required by 

the cited mandatory health standard (Tr. 30-31). In defense of 

the citation, Mr. Anderson asserted that because of an ongoing 

industry-wide investigation concerning "adverse white centers" 

and industry-wide respirable dust sampling programs the 

individual certified to submit the samples for his mine "was 

afraid he was going to get in trouble even though he had tried to 

do it right" (Tr. 31). 

The respondent's asserted defense is rejected. The 

respondent was obliged to comply with the law and to submit the 

required samples in question. Its failure to do so constitutes a 

violation of the cited standard, and the citation IS AFFIRMED. 

1341 
Citation No. 9876034 

The citation was issued and served on the respondent by 

certified mail because MSHA did not receive the results of the 

periodic noise survey required to be submitted by the cited 

standard. The respondent has not rebutted the presumption that 

the survey was not taken and submitted as required. 

In its answer, and in the course of the hearing, 

Mr. Anderson took issue with the amount of the civil penalty 

assessment of $195 for the violation. Mr. Anderson asserted that 

the assessment "is too high and overstated", and he pointed put 

that the violation was cited as a non-"S&S" violation, with a low 

degree of gravity and negligence. 

In defense of the respondent's untimely abatement of the 

violation, Mr. Anderson asserted that "we probably didn't 

terminate this on time because my mine operation was not aware of 

it" (Tr. 43). He explained that the noncompliance notice was 

probably mailed to his CPA office rather than to the mine, and 

that it did not come to his attention right away (Tr. 43-44). 

Mr. Anderson did not dispute the fact that the valid samples 

were not submitted or received by MSHA. Under the circumstances, 

I conclude and find that the cited violation has been established 

by a preponderance of the evidence. I have considered the 

mitigating circumstances advanced by Mr. Anderson, but I cannot 

conclude that they may serve as a defense to the violation. 

Under the circumstances, the citation IS AFFIRMED. 

Citation Nos. 3807424 and 38007425 

With regard to the respirable dust violations concerning the 

working environment of the cited designated mechanized mining 

unit and the cited individual occupations, the credible 

unrebutted testimony and evidence adduced by the petitioner 

establishes that the results of the samples indicated that the 

unit in question, as well as the individual occupations, were out 

of compliance. Accordingly, I conclude and find that the 

violations have been established, and the citations ARE AFFIRMED. 

In the course of the hearing, and in his answer filed in 

this case, Mr. Anderson took the position that the cited 

violations "are only one violation and should not have been 

written twice". Mr. Anderson's argument is rejected. It seems 

clear to me from the credible testimony of the inspector that 

pursuant to the requirements of the cited standards, the cited 

area and occupations were separate and distinct violations. The 

issue raised by Mr. Anderson has been raised and rejected by the 

Commission. See: E1 Paso Rock Quarries, Inc., 3 FMSHRC 35 40 

(January 1981), and Cyprus Tonopah Mininq Corp., 15 FMSHRC 367, 

378 (March 1993), where the Commission stated in relevant part 

1342 
that "although Cyprus' violations may have emanated from the same 

event, the citations are not duplicative because the two 

standards impose separate and distinct duties upon an operator". 

Citation Nos. 3809256 and 3809258 

The credible testimony of the inspector establishes the 

existence of the cited accumulations of combustible float dust 

over two rather extensive areas in the No. 1 and No. 2 belt 

entries. Indeed, Mr. Anderson did not deny that the cited 

accumulations existed, and he stipulated and admitted that the 

accumulations existed as described by the inspector in his 

citations (Tr. 101-102). Mr. Anderson's dispute lies with "the 

effort or the confusion on dust control" in connection with the 

respondent's abatement efforts (Tr. 21-23). However, these 

matters may not serve as a defense to the existence of the 

violations, and the citations ARE AFFIRMED. 

Siqnificant and Substantial Violations 

A "significant and substantial" violation is described in 

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

as could significantly and substantially contribute to the cause 

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

30 C.F.R. § 814(d) (i). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

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

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

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

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safetycontributed 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 Mininq 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 

1343 
establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mininq Cn., 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 Mininq Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mininq ComDany, 

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. Texasqulf, Inc., i0 FMSHRC 498 

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

(December 1987). Further, any determination of the significant 

nature of a violation must be made in the context of continued 

normal mining operations. National Gypsum, su_•_Ka, 3 FMSHRC at 

825; U.S. Steel Mininq Company, 7 FMSHRC 327, 329 (March 1985). 

Halfway, Incorporate•, 8 FMSHRC 8, (January 1986). 

Citation Nos. 3807424, 3807425. 

Inspector Justice presented credible testimony in support of 

his "S&S" findings with respect to the two respirable dust 

citations that he issued (Citation Nos. 3807424 and 3807425). He 

stated that exposure to excessive levels of respirable dust in 

the presence of quartz rock which is being cut is particularly 

hazardous to miners and exposes them to silicosis (Tr. 58). The 

allowable exposure levels are reduced because of the presence of 

quartz which is more hazardous than coal dust. He believed it 

was reasonably likely that unabated exposure to the levels of 

respirable dust as determined by the samples "would more than 

likely if it kept on at this rate, that at some time or other, 

this man is going to have a problem" (Tr. 60). He pointed out 

that the sampled designated roof bolter was exposed to over twice 

the allowable standard, and he believed that such a high exposure level in any period of time would be permanently disabling 

(Tr. 60-61). 

Inspector Justice reiterated that the excessive levels of 

dust exposure affecting the five miners on the designated MMU, as 

reflected by the samples, exposed the designated miner 

occupations to a silicosis hazard. He stated that the "silicon 

like" quartz dust "cuts your lungs and so forth more than what 

the coal dust does", and that if the conditions are allowed to 

exist, it was highly likely that the individuals exposed to the 

dust would end up with silicosis "somewhere down the road," 

particularly if mining were allowed to continue with the 

conditions unabated (Tr. 71-74). 

1344 
The respondent presented no credible evidence to rebut the 

inspector's "S&S" findings. Indeed, Mr. Anderson conceded that 

even during a "short term", exposure to excessive levels of 

respirable dust, in the presence of quartz rock, made it 

reasonably likely that the affected miners would be exposed to a 

silicosis hazard (Tr. 74). Further, Mr. Anderson conceded that 

the mine has a quartz problem that consistently keeps the mine 

out of compliance even though ventilation changes are made 

periodically (Tr. 77-78). Although respirators were available, 

there is no evidence that they were being used, and Mr. Anderson 

was not aware that a wetting agent was being used to control the 

dust (Tr. 87). 

In Consolidation Coal Co., 8 FMSHRC 890 (June 1986), aff'd 

sub nom. Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071 (D.C. 

Cir. 1987), the Commission held that all respirable dust 

violations exceeding the allowable regulatory limits are 

presumptively "S&S" violations. See also: Consolidation Coal 

Company, 13 FMSHRC 1076 (July 1991), decided by Chief Judge Paul 

Merlin affirming a respirable dust "S&S" violation on the basis 

of the Commission's June 1986 decision, and the recent Commission 

decision of June 22, 1993, in Twenty mile Coal Company, Docket 

No. WEST 91-449, reaffirming its Consolidation Coal Co., holding. 

Under the circumstances, and based on the unrebutted and credible 

testimony of the inspector, I conclude and find that the 

petitioner has established that the two violations in question 

were significant and substantial (S&S), and the findings of the 

inspector ARE AFFIRMED. 

Citation Nos. 3809256 and 3809258 

With regard to the two float coal dust accumulation 

violations, Inspector Stewart testified that the cited areas 

served as travelways and considering the ignition sources which 

were present, and with the belt running, it was reasonably likely 

that a fire would occur through the creation of an arc or a 

grounded out power wire caused by a rock fall along the belt line 

or the belt rubbing against the stand (Tr. 103). Inspector 

Stewart identified the potential ignition sources as the 220 volt 

control lines, electrical belt drives and boxes, and "numerous 

electrical sources" that could be shorted out by draw rock 

falling from the roof (Tr. 104). Mr. Stewart also believed that 

if the float coal dust which was present over previously rock 

dusted areas were placed in suspension, it could result in a coal 

dust explosion that "is probably the most violent explosion there 

are, and if you should have one, then it would affect everybody 

in that mine" (Tr. ii0). He also believed that the cited 

accumulations had existed for at least two days (Tr. 120). 

Mr. Anderson conceded that the cited coal and float coal dust 

accumulations were present over a rather extensive distance of 

1,800 feet (Tr. 112). 

1345 
Inspector Stewart testified that the thin unmeasurable float 

coal dust that he observed was deposited over previously rock 

dusted surfaces and that it was "grey to dark" in color. There 

is no evidence or testimony that any of the dust was deposited on 

any of the potential ignition sources identified by the 

inspector, and his citation simply reflect that the deposits were 

at "numerous locations". The inspector conceded that if the 

cited areas were wet, a violation would still exist, but that an 

accident would have been unlikely (Tr. 117). Although he 

confirmed that the respondent's ventilation plan required that 

water be maintained on the belt drive units to control excessive 

dust, he admitted that he did not inspect the belt drives and did 

not know whether there was any water on the belts (Tr. 108). The 

citations do not reflect whether or not the cited areas were wet 

or dry, and there is no testimony by the inspector in this 

regard, or any evidence that he cited the respondent for a 

violation of its ventilation plan for the lack of water. 

Although Inspector Stewart confirmed the presence of 

potential ignition sources in the cited areas, he admitted that 

he did not inspect any of the electrical components to determine 

whether they were defective or out of compliance (Tr. 119), and 

there is no evidence of any defective belt parts or belt 

conditions that would have sparked a fire had normal mining 

operations continued. Further, although the inspector alluded to 

a piece of falling draw rock sparking a fire, there is no 

evidence that he inspected the roof areas, nor is there any 

evidence of any roof conditions that would have made it likely 

that a piece of rock would fall and spark a fire had normal 

mining operations continued. 

The respondent has admitted that the cited accumulations ~onstituted violations of the cited section 75.400, and I 

conclude and find that the accumulations presented a discrete 

fire hazard. I also conclude and find that it was reasonably 

likely that a mine fire, if one had occurred, would reasonably 

likely result in injuries of a reasonably serious nature. 

However, in order for a fire to occur, with resulting injuriesu 

there must first be an ignition resulting from the cited 

accumulations in question. On the facts of this case, and on the 

basis of the aforementioned testimony of the inspector, I cannot 

conclude that the petitioner has established that the conditions 

at the cited locations presented a reasonable likelihood of an 

ignition that would spark or result in a fire had normal mining 

operations continued. See: Texasgulf, Inc., 10 FMSHRC 498, 501 

(April 1988); Eastern Associated Coal Corporation, 13 FMSHRC 178, 

184 (February 1991). Under the circumstances, I conclude and 

find that the cited conditions did not constitute significant and 

substantial (S&S) violations and the inspector's "S&S" findings 

ARE VACATED. The citations ARE MODIFIED to reflect non- 11S&S11 

violations, and I have taken this into account in the civil 

penalty assessments that I have made for the violations. 

1346 
Size of Business 

Inspector Justice testified that the respondent's mine 

superintendentQ R.B. Hughes, informed him during a dust survey on 

February 24, 1993, that the mine produces 350 tons of coal a 

shift during two working shifts (Tr. 68-69). Mr. Anderson 

testified that the mine had an annual production rate of 80,000 

tons of "clean coal", and that 14 to 15 miners, including a 

superintendent, work at the mine site (Tr. 128). The 

petitionervs counsel stated that MSHA's inspectors consider the 

mine to be a small mining operation (Tr. 127-218). Under all of 

these circumstances, I conclude and find for purposes of civil 

penalty assessments the respondent is a small mine operator, and 

I have taken this into consideration in this case. 

History of Prior Violations 

An MSHA computer print-out reflects that for a two-year 

period beginning August 28, 1989, and ending August 27, 1991, the 

respondent was assessed civil penalties totalling $5,024, for 

thirty (30) violations, and that it paid $1,045.11, for eight of 

the violations and was issued delinquency letters for non-payment 

of the remaining violations. The print-out reflects no prior 

violations of mandatory standards 30 C.F.R. § 70.207(a), 70.508, 

or 70.101, but does show ten (10) prior violations of 

section 75.400. Although I cannot conclude that the respondent 

has a particularly bad history of prior violations, it would 

appear to have a problem with controlling and cleaning up coal 

and coal dust accumulations. I also note the number of 

6lelinguency letter reflecting non-payment of prior penalty clSsessment~. aowever,I consider this a "debt collection" matter 

:mcl :~: asst:!:rne pet:i t.ioner is ·caJdng the necessary steps to 

;,:leek J9aVJ,nent. :<:'rom the respondent" 

Good Faith Compliance 

respirable dust citations issued by 

(Nos" 3807424 and 3807425) u and the noise 

by Inspector Osborn (No. 9876034)u the record 

during a subsequent inspection on November 19, 

Stewart issued three section 104(b} orders 

because respondent 0 s failure to timely abate the 

previously citations. Although the validity of the orders 

are not in this civil penalty proceeding, I agree with 

the petitioneris assertion that the respondent failed to timely 

abate the citations and has not advanced any reasonable evidence 

to rebut Inspector Stewart's credible testimony as to why the 

orders were issued. Further, I find no justifiable mitigating 

circumstances excusing the respondent's failure to timely abate 

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

the respondent failed to demonstrate good faith in timely abating 

the conditions cited by Inspectors Justice and Osborn. With 

1347 
regard to the remaining citations (Nos. 9876024, 3809256, 

3809258), I conclude and find the cited conditions were timely 

abated in good faith by the respondent. 

Neqliqence 

The inspectors found a low degree of negligence associated 

with Citation Nos. 9876024 and 9876034, and a moderate degree of 

negligence with respect to the remaining citations (3807424, 

3807425, 3809256, 3809258). I agree with these negligence 

findings by the inspectors and adopt them as my findings and 

conclusions on this issue. 

Gravity 

Based on the inspector's Non-"S&S" findings with respect to 

Citation Nos. 9876024 and 9876034, I conclude and find that these 

violations were nonserious. Based on my findings and conclusions 

concerning Citation Nos. 3809256 and 3809258), I conclude and 

find they were nonserious. Based on the "S&S" findings made by 

the inspectors regarding Citation Nos. 3807424 and 3807425, I 

conclude and find that these citations were serious. 

The Effect of the Proposed Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

In a contested civil penalty case the presiding judge is not 

bound by the penalty assessment regulations and practices 

followed by MSHA's Office of Assessments in arriving at initial 

proposed penalty assessments. Rather, the amount of the penalty 

to be assessed is a de novo determination by the judge based on 

the six statutory criteria specified in section ll0(i) of the 

Act, 30 U.S.C. § 820(i), and the information relevant thereto 

developed in the course of the adjudicative hearing. Shamrock 

Coal Co., 1 FMSHRC 469 (June 1979); aff'd, 652 F.2d 59 (6th Cir. 

1981); Sellersburq Stone Company; 5 FMSHRC 287, 292 (March 

1983). 

As a general rule, and in the absence of evidence that the 

imposition of civil penalty assessments will adversely affect 

mine operator's ability to continue in business, it is presumed 

that no such adverse affect would occur. Sellersburq Stone 

Company, 5 FMSHRC 287 (March 1983), aff'd 736 F.2d 1147 (7th Cir. 

1984). Conversely, the size and documented financial condition 

of a mine operator is required to be considered in any 

determination as to whether or not the payment of civil penalties 

will adversely impact on a mine operator's ability to continue in 

business. 

In several early decisions pursuant to the 1969 Coal Act, 

the former Interior Board of Mine Operations Appeals held that 

Congress intended a balancing process in arriving at an 

1348 
appropriate civil penalty assessment in any given case, including 

consideration of the size of the mine and the ability of a mine 

operator to stay in business. Se___ee: Robert G. Lawson Coal 

Company, 1 IBMA 115, 117-118 (May 1972), 1 MSHC 1024; Newsome 

Brothers, Inc., 1 IBMA 190 (September 1972), 1 MSHC 1041 1041; 

Hall Coal Company, 1 IBMA 175 (August 1972), 1 MSHC 1037. 

In several cases adjudicated by me pursuant to the 1977 Mine 

Act, I followed and applied the Robert G. Lawson Coal Company, 

line of decisions, su_•p_[a, and concluded that the reductio•'•fthe 

initial penalty assessments were justified because the mine 

operators were small and in serious financial difficulties, and 

that the initial assessments in the aggregate would effectively 

put the operators out of business. See: Fire Creek Coal Company 

of Tennessee, 1 FMSHRC 149 (April 1979), I MSHC 2078; Fire Creek 

Coal Company of Tennessee, 2 FMSHRC 3333 (November 1980); Davis 

Coal Company, 4 FMSHRC 1168, 1192-1196 (June 1982); G & M Coal 

Company, 2 FMSHRC 3327 (November 1980) and 3 FMSHRC 889 (April 

1981); Faith Coal Company, 14 FMSHRC 1907 (November 1992). Se___ee 

also: Davis Coal Company, 2 FMSHRC 619 (March 1980), where he 

Commission reviewed and affirmed several settlement decisions 

approving proposed civil penalty reductions based on the 

detrimental effect that assessment of the originally proposed 

penalties would have had on the mine operators ability to remain 

in business. 

In the course of the hearing in this matter, petitioner's 

counsel took the position that the respondent's ability to pay 

the proposed civil penalty assessments should be based on the 

total assets available to Mr. Anderson, and not simply the assets 

of the respondent Broken Hill Mining Company. Counsel asserted 

that Mr. Anderson's ownership interests in other mining 

companies, including the degree of any interrelationships among 

those companies, including the intermingling of funds and 

equipment, should be considered in any determination as to 

whether or not the payment of the proposed civil penalties in the 

instant case will adversely affect the respondent's ability to 

continue in business (Tr. 17-19). 

Petitioner's counsel cited several prior consolidated civil 

penalty cases heard by Judge Gary Melick on September 4, 1992, 

concerning two other coal companies controlled by Hobard Energies 

Inc., (Spurlock Mining Company, Inc., and Sarah Ashley Mining 

Company, Inc.) and counsel requested that I take judicial notice 

of the testimony by Mr. Anderson in those proceedings, as well as 

the brief filed by the solicitor representing MSHA in those cases 

(Tr. 17; 146). 

The petitioner's counsel offered a copy of the brief filed 

in the prior cases, (Exhibit ALJ-I), and it was accepted "not as 

evidence, but as information and background" (Tr. 143-144). 

Counsel's request that I take notice of the transcript of the 

1349 
prior cases was taken under advisement, and counsel was advised 

to file a motion or further request that I consider the 

transcript, as well as the brief, when he filed his posthearing 

brief in the instant case (Tr. 147-148). 

Mr. Anderson took the position that his testimony in the 

Spurlock and Sarah Ashley cases are not relevant to this case 

involving the Broken Hill Mining Company. He testified that only 

four of the purported 12 or 13 coal companies that MSHA's prior 

counsel argued were under his control were actually operating 

coal companies during the time the prior cases were adjudicated, 

and that the remaining companies "were dormant or very inactive 

companies" (Tr. 147). 

Mr. Anderson stated that he would file a copy of his reply 

brief in the Spurlock and Ashley Mining cases, but he has not 

done so (Tr. 149). Petitioner's counsel stated that he "would 

advise the court if I felt the need to do any further discovery 

regarding the financial situation" (Tr. 166). However, counsel 

has not done so, and his posthearing arguments with respect to 

the respondent's financial ability to pay the proposed civil 

penalty assessments in this case simply repeat his requests made 

during the hearing that I take notice of the transcript of the 

prior proceedings. Counsel also states that he is incorporating 

by reference the arguments advanced in the brief filed in those 

prior cases. 

In the Spurlock and Sarah Ashley cases, the respondents 

conceded that the violations occurred as charged, but contended 

that payment of the proposed civil penalty assessments would 

affect their ability to remain in business. It was established 

that the respondents were subsidiaries of Hobart Energy, Inc., 

and Mr. Anderson was the only witness testifying on behalf of the 

respondents. None of the inspectors who issued the citations 

testified. Judge Melick issued his decisions on April 2, 1993, 

15 FMSHRC 629 (April 1993), and rejected Mr. Anderson's arguments 

concerning the adverse affect of the penalties on the ability of 

Spurlock and Sarah Ashley to remain in business. Judge Melick 

held that since those companies were no longer in business, "the 

proffered excuse is no longer relevant" and that their financial 

condition was "only an issue of collection and while the 

Secretary may have to stand in line with other creditors this is 

no longer an issue under Section ll0(i) of the "Act", 

15 FMSHRC 630-631. 

Judge Melick questioned the reliability of the financial 

evidence presented by Mr. Anderson in support to his claim (state 

and Federal corporate tax returns, unaudited balance sheets, 

notices of tax and other liens, and court pleadings apparently 

involving litigation by creditors against the respondent 

companies and Mr. Anderson personally), and found that this 

evidence was too limited in scope. Judge Melick held that "the 

1350 
equities of this case support piercing the corporate veil" under 

an "alter ego" theory because there was a complete merger of 

ownership and control of the Spurlock an Sarah Ashley companies 

with Mr. Anderson personally. On May 12, 1993, the Commission 

granted Spurlock and Sarah Ashley's petitions for review of Judge 

Melick's decision, and the matters are still pending before the 

Commission for adjudication. 

The petitioner's request that I take notice of the 

transcript of the hearing held in the prior proceedings before 

Judge Melick on September 2, 1992, and the posthearing brief 

filed by the petitioner IS GRANTED, and I have reviewed the 

transcript and the brief in the course of my adjudication of the 

instant case. Mr. Anderson's unrebutted testimony in the prior 

matters reflected that his only compensation was a $75,000, 

salary that the received from Hobart Energies, Inc., the 

controller company in which he has a 25% stock ownership stake 

(Tr 60. 69). Hobart Energies owned all of the equipment used at 

the Sarah Ashley operation, some of the equipment used at the 

Spurlock operation, and equipment was interchanged between the 

two operations as needed (Tr. 64-65). Mr. Anderson confirmed 

that both of these operations mined coal on a contract basis, but 

that they were inactive and no longer in business. However, he 

stated that the equipment was still at the mine sites, and he 

hoped to go back into business at those operations (Tr. 74-75). 

He also indicated that Hobart Energies may lease the equipment to 

other mine operators, but that any lease proceeds will go to the 

IRS to satisfy personal liens against him and Hobart Energies for 

nonpayment of payroll and unemployment taxes (Tr. 78-79). 

In the prior proceeding, Mr. Anderson testified that the 

Broken Hill Mine was opened in late July, 1992, and coal was 

mined on a contract basis for A.T. Massey Coal Company. That 

company purchased some belt equipment from Broken Hill who in 

turn used the proceeds to make payments to the bank that held a 

lien on the equipment (Tr. 84-85). Mr. Anderson confirmed that 

he served as president and chief operating officer of Broken Hill 

Mining Company, as well as several other companies held by Hobart 

Energies, the controller company owning 100% of the stock of 

these companies (Tr. 87-91). Mr. Anderson further testified that 

Broken Hill "had been shut down for six months and just got back 

on its feet. And hopefully it can turn around but to date has 

been losing money" (Tr. 106). He also stated that none of his 

coal mine companies were dong well and that "anything that we 

have to pay is a struggle" (Tr. 106). 

In the posthearing brief filed in the prior proceedings 

(Exhibit ALJ-I), MSHA's counsel took the position that 

Mr. Anderson's "general, unsupported, and self-serving" testimony 

about the financial condition of Sarah Ashley and Spurlock was 

insufficiently probative of those respondents inability to pay 

the assessed penalties without adversely impacting on their 

1351 
ability to remain in business. I take note of the fact that 

during the course of the hearing in the prior proceedings, MSHA's 

counsel offered in evidence the financial data supplied by 

Mr. Anderson with respect to Sarah Ashley and Spurlock, and 

counsel expressed agreement with the information presented, and 

she did not challenge the balance sheets prepared by Mr. Anderson 

or his accountants, the authenticity or the accuracy of the 

information, or the supporting affidavits reflecting the opinions 

of the CPA's who prepared Mr. Anderson's tax returns, and 

Mr. Anderson, who is also a CPA. All of this documentary 

financial evidence was received without objection (Tr. 21-24). 

In the prior proceedings, MSHA's counsel noted that 

Mr. Anderson chose not to submit financial data for ten other 

companies under his management, and since these corporations were 

not dissolved and their assets liquidated, counsel argued that it 

was reasonable to conclude that they were still producing coal 

and that money was coming from somewhere to pay the costs of the 

corporations controlled by Mr. Anderson and to maintain a 

continuing banking relationship with his business lenders. Under 

the circumstances, counsel concluded that Sarah Ashley and 

Spurlock did not establish that payment of the assessed penalties 

would have an adverse affect on the ability of all of the Hobart 

Energies subsidiaries to remain in business, and that Mr. 

Anderson and the corporate entities that he managed should be 

held jointly and severally liable for these penalties. 

After careful review and consideration of the aforementioned 

record in the prior Sarah Ashley and Spurlock cases, I decline to 

adopt the "alter ego" findings and conclusions made by 

Judge Melick, as well as the arguments advanced by MSHA. I 

conclude and find that there is sufficient evidence of a more 

current nature in the instant proceeding to enable me to make a 

decision on the issue of whether or not the payment of the 

penalties proposed by the petitioner, or the payment of the 

penalties which I have assessed for the violations which have 

been affirmed, will adversely affect the respondent Broken Hill 

Mining Company's ability to continue in business. 

Mr. Anderson's unrebutted testimony in this case reflects 

that with the exception of the Broken Hill Mining Company, the 

other corporate mining ventures controlled by Hobart Energy Inc., 

are no longer viable and productive mining operations. Insofar 

as Broken Hill is concerned, Mr. Anderson testified that the 

company was resurrected in July, 1992, and that although one of 

its mines was experiencing problems with rock, which impacted 

adversely on production, the mine was nonetheless producing coal. 

This is consistent with Mr. Anderson's testimony in the prior 

proceedings that Broken Hill "was back on its feet" and was again producing coal, although Mr. Anderson claimed the company was 

losing money and that it "was a struggle" to pay bills. 

1352 
In the instant case, Mr. Anderson further testified that due 

to the high rate of coal rejection at the Broken Hill No. 1 Mine, 

A.T. Massey has paid subsidies to Broken Hill as compensation. 

He also testified that Broken Hill's new No. 3 mine, which 

started coal production in November, 1992, is still producing 

coal and that it is "a good operation" (Tr. 135-136). There is 

no evidence that this operations is troubled, and although the 

mine equipment is secured by a bank lien, which I do not find to 

be particularly unusual, the equipment is owned by Broken Hill 

Mining Company. Further, the evidence in the instant proceeding 

reflects that Mr. Anderson receives a salary of $75,000, a year, 

on a regular basis, from Hobart Energy Inc., Broken Hill's parent 

company, and that Broken Hill has consented to pay MSHA $250 a 

month for past civil penalty assessments, and is paying $5,000 a 

month to the IRS for past tax liens. 

In view of the foregoing, and notwithstanding the testimony 

and evidence presented by Mr. Anderson with respect to the 

financial state of the respondent Broken Hill Mining Company, 

which reflects several liens and other outstanding debts, which I 

have taken into consideration, I am not convinced that the 

payments of the penalties assessed in this proceeding against 

Broken Hill Mining Company will adversely affect its ability to 

continue in business. I conclude and find that if the respondent 

Broken Hill Mining Company can pay $250 a month to MSHA, $5,000 a 

month to the IRS, and at the same time continue to mine coal at 

its newly opened No. 3 mine, producing revenue for Broken Hill, 

and I assume Hobart Energy Inc. as well, which in turn pays 

Mr. Anderson a $75,000 annual salary, it can afford to pay the 

civil penalties assessed in this case. Further, given 

Mr. Anderson's financial acumen, and his CPA background, I am 

confident that the respondent will find the funds to pay the 

penalty assessments. Accordingly, the arguments advanced by the 

respondent that it cannot pay any civil penalties ARE REJECTED, 

and I conclude and find that the respondent has failed to 

establish that payment of the penalties that I have assessed will 

adversely affect its ability to continue in business. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section i10(i) of the Act, I conclude and find that the 

following civil penalty assessments are reasonable and 

appropriate for the violations that I have affirmed: 

30 C.F.R. 

citation No. Date Section Assessment 

9876024 7/16/91 70.207(a) $20 

9876034 7/30/91 70.508 $150 

3807424 8/29/91 70.101 $200 

1353 
3807425 8/29/91 70.i01 $350 

3809256 11/15/91 75.400 $65 

3809258 11/15/91 75.400 $65 

ORDER 

The respondent IS ORDERED to pay civil penalty assessments 

in the amounts shown above for the six (6) violations which have 

been affirmed in this case. Payment shall be made to the 

petitioner (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: 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Mr. Hobart W. Anderson, President, Broken Hill Mining Company, Inc., P.O. Box 989, Ashland, KY 41105-0989 (Certified Mail) 

/ml 

1354 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

V. 

BONANZA MATERIALS INC. 

, 

Respondent 

JUL ] 3 ]993 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 92-505-M 

A.C. No. 26-01488-05532 

Docket No. WEST 92-532-M 

A.C. No. 39-01488-05534 

Docket No. WEST 92-576-M 

A.C. No. 39-01488-05535 

Docket No. WEST 92-602-M 

A.C. No. 39-01488-05536 

Bonanza Materials 

DECISION 

Before: Judge Lasher 

These four penalty proceedings arose upon the filing by Petitioner of four penalty proposals covering a total of i0 citations and Withdrawal Orders pursuant to Section ll0(a) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820 

(herein "the Act"). 

By my Order dated January 15, 1993, the matter was deemed to 

be submitted for decision on the basis of stipulated facts and 

briefs and, the sole issue being one of jurisdiction, it was determined inter alia that should jurisdiction lie the penalties 

proposed byPetitioner would be assessed. 

As set forth in the Joint Response To Preheating Order filed 

herein, Respondent does not contest the factual bases for the 

violations alleged by Petitioner and concedes the substance of 

the said violations. Respondent asserts that MSHA has no jurisdiction over the physical area in which these violations were 

located and defends solely on that basis. 

FINDINGS 

The parties having stipulated to all the relevant facts in 

their Joint Response to Prehearing Order, I find as follows: 

1355 
i. The instant violations, as set forth in Exhibits A to 

the Proposals on file herein, were all located in the mechanic's 

shop at Bonanza Materials Inc. ("Bonanza") in Henderson, Nevada. 

2. The said Proposals were duly filed against the Respondent Bonanza in accordance with the Rules of the Federal Mine 

Safety and Health Review Commission published in Title 29, Code 

of Federal Regulations, Section 1700.27.2, and duly contested by 

Respondent. 

3. Bonanza is a sand and gravel operation which consists 

of an open pit, a sand and gravel plant, cement batch plant, hot 

batch plant, and general construction operations. The mining 

activities conducted by Bonanza include traditional extraction 

and processing of sand and gravel minerals. 

4. The mechanic shop is located on mine property, directly 

between the open pit and the and gravel plant. There are no 

fences or barriers separating the shop from these areas. 

5. The access road which is used to transport materials 

from the pit to the plant is the same road used to access the 

mechanic shop. 

6. The shop is operated by Bonanza employees, which 

particular employees are not considered by the company to be 

miners. 

7. The mechanic shop services and maintains approximately 

295 units of equipment belonging to Bonanza. Approximately 12 of 

these units, or between 3 and 4 percent of this total, are units 

(generators which are used directly by Bonanza in its 

mining operations. These mining vehicles include approximately 

six front-end loaders used in the mine pit. The said mining 

vehicles also include approximately two water trucks which are 

used in mining operations to reduce dust. The balance of the 

units serviced in the shop are not used in any mining activity 

whatsoever. 

8. Work performed on the mining equipment is not performed 

in any physically distinct area of the mechanic shop. 

9. The shop is the equipment-leasing arm of the company 

that maintains equipment for a variety of Bonanza's operations, 

the least significant of which is mining. 

I0. The cement batch plant and the hot batch plant are both 

located adjacent to the mining operations. 

Ii. MSHA has previously cited the operator for violations 

occurring in the said mechanic shop. In these previous instances, 

the Respondent did not contest MSHA's jurisdiction to cite in the 

mechanic shop. 

1356 
12. The Respondent has contested the instant violations on 

the basis of MSHA's alleged lack of jurisdiction over the mechanic shop and sought a formal legal opinion to that effect. 

The office of the Solicitor, on behalf of the Secretary of Labor 

and after consultation with MSHA and a review of the facts of the 

case, issued an opinion that MSHA did have jurisdiction over the 

mechanic shop in the instant case and that the Citations were 

valid. 

13. OSHA is not asserting jurisdiction over the subject 

mechanic shop and has issued no citations regarding same. 

14. Bonanza Materials, Inc., is a mine subject to the Act 

in that its products enter into or affect interstate commerce. 

DISCUSSION 

Upon consideration of the evidence presented and the arguments and briefs submitted by the parties, it is concluded that 

Petitioner's position is meritorious and it is here adopted. 

. The Broad Statutory Definition of Mine Includes Functionally Related Structures, Such As The Subject 

Mechanic Shop 

The mechanic shop is a "facility" or "structure" within 

the meaning of Section 3(h) (i) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 820(a) of the Act, because it is 

directly "used in ... 

the work of extracting ... minerals," and 

is therefore under MSHA jurisdiction. [Section 3(h) (I) (C)]. 

Section 3(h) (i) defines MSHA's jurisdiction expansively, as including not only the actual extraction of minerals, but also 

other peripheral activities which are functionally integrated to 

any degree to the mining and milling operations, as well as 

facilities and structures used therein. Further, as remedial 

legislation, the Act's already wide definition of "mine" must be 

read broadly and inclusively. Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (1979), cert. denied, 444 U.S. 1015, 

i00 S. Ct. 665 (1980); Donovan v. Carolina Stalite Co., 734 F.2d 

1547, 1554 (1984); Cyprus Industrial Minerals Co., (9th Cir. 

1981), 2 MSHC 1554; Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 6 

(January 1982). The subject mechanic shop services mining vehicles such as front-end loaders and pit haulage trucks, which 

are an integral part of Respondent's mining operations. This 

functional integration brings the shop within the broad definitional scope of Section 3(h) (i). 

1357 
2. MSHA's Jurisdiction Over Mechanical Maintenanc. 

Facilities is Clear 

MSHA's jurisdiction over mechanical maintenance facilities has been expressly confirmed in Martin Marietta Aqgreqates 

Central Division, 2 FMSHRC 2163 (ALJ Koutras, Sept. 1980). In 

the latter case, the facility was not even located on the mining 

property, in contrast to the instant case where the mechanic shop is on Bonanza's mining property. Similarly, in the case of W.R. 

Saunders & Sons, 1 FMSHRC 2130 (ALJ Melick, Feb. 1980), a storeroom which held parts, most of which were used in non-mining operations and only a small portion of which were parts used on 

mining vehicles, was held to be a mine under the Act: "(i)t is 

immaterial that some of the equipment and machinery, or even most 

of it, may have been used in areas that may not have been under 

the Secretary's jurisdiction.,, 

3. The Interaqency Aqreement Confirms MSHA's Jurisdictior 

The administrative Interagency Agreement between MSHA 

and OSHA, on which Respondent seeks to rely, takes as its starting point the broad statutory jurisdiction of MSHA, then carves 

out specific areas over which OSHA is given jurisdiction. 

Interaqency Aqreement, Mine Safety and Health Administration, Occupational Safety and Health Administration, Federal Register, Vol. 44, No. 75. Significantly, these exceptions to MSHA juris- diction neither expressly nor impliedly exclude equipment servicing facilities, nor facilities in which the majority of the serv- icing is directed to non-mining operations. Finally, the Interagency Agreement reiterates the congressional mandate that any doubts regarding jurisdiction are to be decided in favor of MSHA 

jurisdiction. For all of these reasons, the said Interagency Agreement does not serve to limit the scope of the Act, as argued by Respondent, so as to render Respondent immune from prosecution 

thereunder. 

4. Respondent's Position is Inconsistent with the Act and 

Case Law 

Respondent argues that the statutory definition of "mine" in the Act does not expressly mention the term "mechanic 

shop." Petitioner submits that the broad wording of Section 

3(h) (i) is sufficiently inclusive on its face to cover the mech- anic shop in issue here. The case law interpreting this definitional and scope section of the Act, as discussed above, has 

consistently mandated that the section be given a broad reading 

as befits the remedial nature of the 1977 Act. Moreover, this 

language, also as noted above, has been interpreted to cover a 

mechanic shop such as Respondent's. 

1358 
Respondent further argues that because only a small percentage of the vehicles worked on in the mechanic shop are used in 

the mining operations they should be ignored in assessing whether 

MSHA has jurisdiction over the shop. However, the Act offers no 

support for such a de minimus argument. To the contrary, as discussed above, the governing jurisprudence has held that any activity which is functionally integrated with the mining activity 

necessitates the imposition of MSHA jurisdiction even where that 

activity is minor or removed from the mining site. 

Respondent also observes that the mechanics working in the 

shop are not considered miners by either themselves or the company, while the practice in nearby sand and gravel operations in 

the vicinity is that mechanic shops have not been inspected by 

MSHA. For these reasons, the Respondent argues, MSHA jurisdicdiction should be avoided here. However, the views of the mechanics as to their own classification as miners as a term of art 

under the Act is irrelevant Similarly, the material facts regarding other operators in the vicinity are unknown and not part 

of the determination here. 

MSHA's jurisdiction to cite violations occurring in the 

mechanic's shop, where mining vehicles are serviced, is AFFIRMED. 

The Citations and proposed assessments are AFFIRMED. 

The following penalties are ASSESSED: 

i. Docket No. WEST 92-505-M 

Citation No. Penalty 

3922399 $903 

 Docket No. WEST 92-532-M 

Citation No. 

3922392 

3922393 

3922395 

3922396 

3922397 

3922398 

3922401 

Penalty 

$903 

$9o3 

$9o3 

$ 5o 

$ 50 

$ 5o 

$ 5o 

 Docket No. WEST 92-576-M 

Citation No. 

3922407 

penalty 

$1,298 

1359 
 Docket No. WEST 92-602-M 

Citation/ 

Order No. 

3922406 

Penalty 

$7,500 

ORDER 

Respondent SHALL PAY to the Secretary of Labor within 40 

days from the date of issuance of this decision the total sum 

of $12,610.00 as and for the civil penalties herein assessed 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, Suite iii0, San Francisco, CA 94105- 

2999 (Certified Mail) 

Mr. John A. Brown, 4613 Alta Drive, Las Vegas, NV 89103 

(Certified Mail) 

ek 

1360 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303} 844-5268 

JUL 9 ]993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vl 

DONALD L. GIACOMO, employed 

by WYOMING FUEL COMPANY, 

Respondent 

UNITED MINE WORKERS OF 

AMERICA, LOCAL 9856, 

DISTRICT 15, 

Intervenor 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-100 

A.C. No. 05-02820-03605 A 

Golden Eagle Mine 

DECISION 

Appearances: 

Before: 

Kristi Floyd, Esq., office of the Solicitor, 

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

for Petitioner; 

William C. Erwin, Esq., ERWIN & DAVIDSON, P.C., 

Raton, New Mexico, 

for Respondent; 

Mike J. Romero, United Mine Workers of America, 

Local 9856, District 15, Trinidad, Colorado, 

for Intervenor. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges Donald L. Giacomo, an employee of Wyoming Fuel Company ("WFC"), with violating the Federal Mine Safety and Health Act of 1977, 30 U.S.C. S 801 et seci= 

(the "Act"). 

Order No. 3240616 was issued on May 14, 1990, under Section 

104 (d)(1) of the Act. The order was issued as a result of activities that had taken place the evening of May I0, 1990, and 

continued into the morning hours of May ii, 1990. 

1361 
The Order states: 

Persons were required by management to operate equipment that was not maintained in safe operation condition, in that based on statements received from both 

labor and management, the Joy continuous miner in NW 

010-0 Headgate was being operated on the 05-11-90 a.m. 

shift by the following methods[:] 

The remote control would not function to raise the 

miner head while mining coal. A man was placed in the 

cab to operate this function while the miner was being 

operated by remote control. This practice was dangerous due to two persons subject to being on opposite 

sides of the operating machine and accidental error. 

Also dangerous due to the fact that neither person had 

complete control at all times. Both the shift foreman 

and safety manager were present and had instructed the 

crew to proceed by this method. This is unwarranted 

action. 

The regulation allegedly violated provides as follows: 

5 75.1725 Machinery and equipment; operation and 

maintenance. 

(a) Mobile and stationary machinery and equipment 

shall be maintained in safe operating condition and 

machinery or equipment in unsafe condition shall be 

removed from service immediately. 

As a threshold matter Respondent contends 75.1725(a) is 

unconstitutionally vague. 

The cited regulation is broadly worded; it requires all 

machinery and equipment to be maintained in a safe operating conditions. The Commission in Ideal Cement Company, Ii FMSHRC 

2409.2416 (November 1990) stated that in interpreting and ap- plying broad-worded standards, the appropriate test as whether a 

reasonably prudent person familiar with the mining industry and 

the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard, citing 9anon Coal Co., 7 FMSHRC 6676, 668 (April 1987), Quinland Coal, Inc., 1614, 1617-1618 (September 1987). 

On the basis of the evidence presented in this case, a 

reasonably prudent person familiar with the mining industry and 

the protective purposes of the standard would have recognized that the Joy miner should be equipped with a functioning solenoid. The non-functioning solenoid prevented the remote control 

operator from operating the cutter heads. (Tr. 46). The general mine foreman recognized the problem and he gave specific instruc- tions not to operate the Joy miner with a man in the cab "due to 

1362 
safety reasons." (Tr. 113). The manufacturer of the Joy miner 

in a service bulletin issued after the fact (September 24, 1991), 

also recognized the hazard here. (Ex. G-8). The manufacturer 

stated as follows: 

D. OPERATION FROM WITHIN THE MACHINE 

Many continuous miners have both remote control and 

on-board controls (i.e., inside the operator's platform). While it may be possible to operate a continuous miner which has on board controls from inside 

the operator's platform using the remote station, Joy 

strongly recommends against this practice. Instead, 

if the machine is to be operated from inside the 

operator's platform, the remote control should be discontinued or de-energized, and the on-board controls 

utilized. Of course, when on-board controls are utilized they must be used in a manner consistent with 

applicable government regulations, e.g., the operator 

must be under a supported roof. 

Respondent contends two expert witnesses testified the 

method of on-board/remote operations was a safe procedure. Contrary to Respondent's view, I credit the statements of the actual 

Joy operators. Garcia, Shannon, and Wakefield were threatened 

with loss of their jobs and they settled for a conference with 

the mine foreman and Mr. Giacomo, the safety director. 

Respondent's claim of vagueness is DENIED. 

There is ample evidence the operator, WFC, knew the Joy 12 

continuous miner was unsafe due to a malfunctioning solenoid and 

a non-functioning deadman switch. Proof of WFC's knowledge was 

clearly indicated when Mr. Steve Salazar, the general miner foreman, gave explicit instructions at the beginning of the shift not 

to operate the Joy Miner from inside the cab. (Tr. 46, 73, 103, 

113). 

However, the pivotal issue is not WFC's knowledge and liability but rather the employee's liability under Section ll0(c) 

of the Act. The relevant portion of the Act provides as follows: 

(c) Whenever a corporate operator violates a mandatory health or safety standard or knowingly violates 

or fails or refuses to comply with any order issued 

under this Act or any order incorporated in a final 

decision issued under this Act, except an order incorporated in a decision issued under subsection (a) or 

section I05(c), any director, officer, or agent of 

such corporation who knowingly authorized, ordered, or 

carried out such violation, failure, or refusal shall 

be subject to the same civil penalties, fines, and 

imprisonment that may be imposed upon a person under 

subsections (a) and (d). 

1363 
The Commission interpreted the term "knowingly" in Section 

ll0(c) as follows: 

"Knowingly," as used in the Act, does not have any 

meaning of bad faith or evil purpose or criminal intent. Its meaning is rather that used in contract 

law, where it means knowing or having reason to know. 

A person has reason to know when he has such information as would lead a person exercising reasonable care 

to acquire knowledge of the fact in question or to infer its existence. 92 F. Supp. at 780. We believe 

this interpretation is consistent with both the statutory language and the remedial nature of the Coal Act. 

If a person in a position to protect employee safety 

and health fails to act on the basis of information 

that gives him knowledge or reason to know of the 

existence of a violative condition, he has acted 

knowingly and in a manner contrary to the remedial 

nature of the statute. 

Secretary v. Richardson, 3 FMSHRC 8, 16 (1981), 689 F.2d 632 (6th 

Cir. 1982), cert. denied, 461 U.S. 928 (1983); Roy Glenn, 6 

FMSHRC 1583 (1984); Warren Steen Construction, et al., 14 FMSHRC 

1125 (July 1992). 

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 the additional findings of fact in the Discussion below: 

FINDINGS OF FACT 

i. On May i0, 1990, prior to the beginning of the shift, 

Mr. Steve Salazar, the general mine foreman, gave a direct order 

that the Joy 12 Miner was not to be operated from inside the cab. 

For safety reasons, the miner had to be run with the remote 

control. (Tr. 46, 73, 113). 

2. On the following shift, Messrs. Jim Sterns (face boss) 

and Wayne Shipe (maintenance) directed miners John Garcia, Eddie 

Shannon, and David Wakefield to operate the Joy 12 in a three-way effort. Garcia was to be in the cab, Shannon was on the remote 

control and Wakefield was to handle the trailing cable. (Tr. 25, 

58, 72, 102). 

3. Shannon, the remote control operator, was unable to 

both lower and raise the cutter heads with the remote control due 

to a malfunctioning solenoid. As a result, Garcia was to raise 

the cutter heads from inside the cab. (Tr. 46). 

1364 
4. In addition, the deadman function had not been operating properly for approximately two weeks. The deadman is a safety feature. When the pedal is depressed, the continuous miner 

will tram and continue forward. (Tr. 45, 46). 

5. Garcia, a mechanic, when inside the cab of the Joy 

Miner was to operate the raising of the cutter heads. Garcia had 

never mined coal before this shift. In addition, he had no task 

training on the machine. (Tr. 24, 25, 29). 

6. Shannon, the continuous miner operator, was placed outside the miner to operate all other functions (except raising the 

cutter head) by remote control. (Tr. 24, 27). 

7. Garcia, Shannon, and Wakefield felt this was unsafe. 

However, when threatened with the loss of their jobs, they did it 

"under protest." They further requested that they be permitted 

to talk to Mr. Pagnotta (superintendent on the graveyard production shift) and Mr. Giacomo (safety manager). (Tr. 68-79, 87- 

88). 

Discussion and Further Findinqs 

Mr. Donald Giacomo is the safety manager referred to in 

Order No. 3240616. Further, he is personally charged with 

knowingly authorizing, ordering, or carrying out an action that 

caused the cited violation. 

I agree with Mr. Giacomo that to prove a violation of Section ll0(c) of the 1977 Act, the Secretary must prove that the 

corporate operator committed a violation of the Act. This factor 

has been established. In fact, in the instant case, much of the 

evidence related to the corporate operator but only a minimal 

amount of this evidence was imputed to Respondent Giacomo. 

The Secretary must further prove that Giacomo was an agent 

of the operator. This facet was established inasmuch as 

Mr. Giacomo indicated he was the WFC safety manager for the 

Golden Eagle Mine. (Tr. 183). 

Finally, in a ll0(c) case, the Secretary must prove the corporate agent knowingly authorized the action. The meaning given 

to the term "knowingly" has been described above. 

The previous seven findings of fact establish the operator's 

violation but such facts are not necessarily imputed to Mr. Giacomo. However, Mr. Giacomo's testimony establishes a violation 

of ll0(c). Specifically, he should have known the miner was 

defective and unsafe because the remote control would not raise 

the cutter heads. The transcript of Mr. Giacomo's testimony 

reads: 

1365 
Q. Did you have any discussion with David Pagnotta during that drive? 

[to the working section] 

A. Yes, I did. 

Well, I asked him what the problem was. He said some of the 

men at the northwest headgate section had a problem with the 

miner, with the way they were instructed to run the miner. 

I said, "What was that?" He said, "Well, the function on 

the head was not working; whereas, they placed the mechanic in the 

cab solely to lift the head back up once he was signaled by the 

operator." (Tr. 190). 

* W * W W 

I said [to David Wakefield], "How are things going?" He 

said, "All right." I said, "What's the problem, Dave?" The first 

words out of his mouth was, "We were told not to operate this 

machine from inside the cab." 

And I said, "Well, what's the problem?" And he said, "Well, 

that's it. We were told not to operate this machine from inside 

the cab." I then proceeded to say, "Dave, you should understand 

why that was." He didn't acknowledge me. 

I said, "The reason for you being told to operate that way 

was simply to get everybody to work together to train--to know how 

to operate the new miners when they come in." That was the main 

purpose for them being told to operate it from the remote control 

position. 

Q. Did you have any further conversation with Mr. Wakefield? 

A. As I was talking to Mr. Wakefield, Dave Pagnotta was a few 

steps behind me. As he approached my side, I noticed that--he 

noticed that Ed Shannon was on the opposite side of the miner, in 

complete disarray of what he had first told me what his positioning was supposed to be. (Tr. 192). 

I said [to John Garcia], "Well, what's the real problem with 

the machine?" Why are they doing this? The function in the head 

would not sheer down with the remote control. And I said, "Well, 

were you instructed by someone where and how to communicate with 

each other?" He said, "I was." 

Q. You said, "Sheer down," is that-- 

A. Well, the remote operator was sheered down, but it was his 

instruction to raise the head back up with signals by the 

operator. 

Q. Okay. Go ahead. What conversation did you have then with 

Garcia? 

A. Well, I asked him what function wasn't working. He told me 

it was the raising back of the head. And then I said, "Well,"--I 

said, "Well, what's the problem?" He said, "Well, we were 

1366 
instructed not to operate this way, not by sitting in the cab." 

(Tr. 195). 

Q. But on May llth, '90, the machine was being operated with 

both the remote and the manual controls because the miner was 

malfunctioning and the remote wouldn't work to raise the cutter 

heads; isn't that correct? 

A. No, it's not [according to Mr. Giacomo]. The machine was 

being run by the remote position and only the head was being 

raised by the man being instructed what to do. 

Q. Okay. So only the cutter head was being operated by the 

man. 

Ao 

Q. 

Yes. 

That's the reason he was inside the cab 

A. 

Q. 

Right. 

Because that was malfunctioning on the machine? 

A. Yes. (Tr. 201). 

Q. But you were aware on May llth that the remote control did 

not function to raise the cutter heads? 

A. When Mr. Pagnotta picked me up and told me. (Tr. 205). 

Q. But you did state on direct that Mr. Garcia told you that he 

had been instructed not to operate the miner from inside the cab. 

A. Yes. 

Q. He told you that a couple times, like. 

A. Yes, I believe it was. 

Q. And he also told you that the remote wouldn't raise the 

cutter head? 

A. Correct. (Tr. 206-207). 

I agree that in the conversations between Messrs. Garcia, 

Shannon, Wakefield, and Pagnotta, no one expressed his concerns 

to Mr. Giacomo in terms of safety. Further, they did not use 

words such as "safety," "safety complaint," or feeling "unsafe 

[while] being inside the cab." 

However, there are no magic words to require action under 

S 75.1725. If equipment is unsafe, it "shall be removed from 

service immediately." 

1567 
Given the circumstances here, Mr. Giacomo should have known 

an unsafe condition existed. Mr. Giacomo knew the cutting head 

was not responding to the remote controls so Mr. Garcia was 

operating the head from inside the cab. The remote control 

operator and Garcia were signaling each other with lights. In 

short, two men were operating the miner with two different sets 

of controls. This was a dangerous method of mining as well as a 

violation of the regulation. 

In addition, Mr. Giacomo, admits he has never seen a Joy miner being operated by the remote and manually at the same time. 

(Tr. 300). 

In failing to remove the equipment from service, Mr. Giacomo 

violated the regulation and the Act. I 

In his post-trial brief, Mr. Giacomo extensively attacks the 

credibility of the Secretary's witnesses, particularly Garcia, 

Shannon, and Wakefield. I find these witnesses basically support 

the Secretary's position. 

The petition herein should be affirmed. 

SIGNIFICANT AND SUBSTANTI•r. 

The order here was designated as "Significant and 

Substantial.,, 

A violation is properly designated as being of an S&S 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." 9ement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission further 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. 

I 

There was no evidence that Mr. Giacomo knew or should have known that the deadman's switch was malfunctioning on the continuous miner. 

1368 
6 FMSHRC at 3-4. See also, Austin power Co. v. Secretary, 861 

F.2d 99, 104-105 (5th Cir. 1988), aff'a 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathies criteria). 

In this case, I credit the testimony of witness Roland 

Phelps. He identified the hazard as two miners operating the Joy 

Miner by remote and manual controls. This results in neither man 

being in full control. Someone could be seriously injured or 

killed. (Tr. iii, 112). 

It is apparent there was an underlying violation of 30 

C.F.R. S 75.1725(a). Further, there was a strong measure of 

danger that contributed to the violation. In addition, it is 

reasonably likely the hazard will result in an injury. Finally, 

the injury could be a fatality or a serious injury. (Tr. 123- 

137). (See Ex. G-7, a fatality involving a miner being crushed 

against a rib by a continuous miner at the Golden Eagle Mine). 

UNWARR/%NTABLE FAILURE 

The special finding of unwarrantable failure, as set forth 

in Section 104(d) of the Mine Act, 30 U.S.C. § 814(d), may be 

made by authorized Secretarial representatives in issuing 

citations and withdrawal orders pursuant to Section 104. In 

Emery Mininq Corp., 9 FMSHRC 1997, 2004 (December 1987), and 

Youqhioqheny & Ohio Coal Company, 9 FMSHRC 2007, 2010 (December 

1987) the Com- mission defined unwarrantable failure as 

"aggravated conduct constituting more than ordinary negligence by 

a mine operator in relation to a violation of the Act." Emery 

examined the meaning of unwarrantable failure and referred to it 

in such terms as "indifference," "willful intent," "serious lack 

of reasonable care," and "knowing violation," 9 FMSHRC at 2003; 

Peabody Coal Co., 14 FMSHRC 1261 (August 1992). 

In the instant case, I conclude the Order was properly 

designated as unwarrantable. Inspector Phelps regarded the Order 

as having high negligence. Mr. Salazar had given specific instructions not to engage in the practice. (Tr. 127). Mr. Giacomo was advised of Mr. Salazar's Order when he arrived in the 

section. Mr. Giacomo was also advised of the condition of the 

miner when he arrived in the section. 

In favor of Mr. Giacomo is the fact that he was primarily 

involved in the positioning of Shannon and Wakefield in the 

section. 

However, I agree with Mr. Phelps designation of this order 

as unwarrantable. 

1369 
CIVIL PENALTY 

At the commencement of the hearing, the Secretary moved to 

amend the amount of the assessed penalty from $900 to $700, the 

same amount charged against Mr. Pagnotta. 

Section ll0(i) of the Act mandates consideration of certain 

criteria in assessing appropriate civil penalties. 

Mr. Giacomo is an individual and the size of the business, 

and the effect on the operator's ability to continue in business 

are not relevant in this case. 

There is no evidence that Mr. Giacomo was cited for any 

previous violations. 

However, Mr. Giacomo was negligent inasmuch as the relevant 

facts were made known to him. The gravity of this violation is 

high since miners Shannon and Wakefield could easily have been 

placed in a hazardous position. 

The violative condition was abated. 

The Secretary reduced this penalty to $700 and I concur that 

such a penalty is appropriate. 

For the above reasons, I enter the following: 

ORDER 

Order No. 3240616 is AFFIRMED and a civil penalty of $700 is 

ASSESSED. 

//•ohn •./ITorris 

6// Admin•Mtrative Law Judge 

Distribution: 

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of 

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

Colorado 80294 (Certified Mail) 

William C. Erwin, Esq., ERWIN & DAVIDSON, P.C., 243 Cook Avenue, 

Post Office Drawer B, Raton, NM 87740-0707 (Certified Mail) 

Mr. Mike Romero, Local President, UMWA, 1804 Linden, Trinidad, CO 

81082 (Certified Mail) 

ek 

1370 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL Z 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DANNY OWENS, EMPLOYED BY 

J & T COAL INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 93-3 

A.C. No. 44-05668-03608-A 

No. 1 Mine 

DECISION 

Appearances: Caryl L. Casden, Esq., Office of the Solicitor, 

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

Petitioner; 

Louis Lee, Esq., McAfee, Bledsoe, Lovell & Lee, 

Norton, Virginia, for Respondent. 

Before: Jerold Feldman 

This proceeding is before me upon a petition for assessment 

of civil penalty under Section ll0(c) of the Federal Mine Safety 

and Health Act of 1977 (the Act). The respondent, Danny Owens, 

is charged, as an agent of the corporate mine operator, with 

"knowingly authorizing, ordering, or carrying out" the actions 

which allegedly resulted in six alleged violations of mandatory 

safety standards. These violations are detailed in the 

Secretary's petition for assessment of civil penalty in which a 

penalty of $2,400 is proposed. 

This matter was called for hearing in Big Stone Gap, 

Virginia, on June 15, 1993. At the hearing, counsel for the 

respondent presented a motion for the approval of settlement 

wherein Owens stipulated to the fact of the violations in issue 

and agreed to pay a total penalty of $1,200. The terms of the 

settlement agreement provide that Owens shall pay $600 

immediately after the approval of settlement and $50 each month 

for twelve months thereafter. In support of this settlement, the 

respondent's counsel indicated that the respondent has recently 

become employed at a modest salary, that he has no liquid assets, 

and, that he must support a wife and several children. Thus, the 

reduction in the proposed penalty is predicated upon the 

respondent's current income and his ability to support his 

family. (Tr. 6). 

1371 
In view of the respondent's stipulation to the fact of 

occurrence of the violations in issue and the information 

provided in support of the reduced civil penalty assessed in this 

matter, I concluded that the proposed settlement was in the 

public interest and granted the settlement motion from the bench. 

(Tr. 7). 

ORDER 

Accordingly, Danny Owens IS ORDERED to pay a civil penalty 

in the amount of $1,200 in full satisfaction for the six 

violations in issue. Payment is to be made in installments. The 

first payment of $600 is due within 30 days of the date of this 

decision. Beginning on September I, 1993, on the first of each 

month, for twelve consecutive months, Owens shall pay $50 until 

the outstanding $600 of the $1,200 penalty is paid. Upon payment 

of the total sum of $1,200, this matter will be dismissed. If 

Owens fails to abide by this settlement decision, this proceeding 

will be reopened, and he will be subject to the full $2,400 

penalty. 

•dma• 

•" Administrative Law Judge 

Distribution: 

Caryl L. Casden, Esq., Office of the Solicitor, U.S. Department 

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

(Certified Mail) 

Louis Lee, Esq., McAfee, Bledsoe, Lovell & Lee, 1033 Virginia 

Avenue, P.O. Box 656, Norton, VA 24273-0656 

(Certified Mail) 

Mr. Danny Owens, P.O. BOX 75, Pennington Gap, VA 24277 

(Certified Mail) 

vmy 

1372 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE, 

FALLS CHURCH, VIRGINIA 22041 

JUL z 2 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ZEIGLER COAL COMPANY, 

Respondent 

: CIVIL PENALTY PROCEEDING 

: Docket No. LAKE 91-636 

: A.C. No. 11-00586-03654 

: Murdock Mine 

REMAND DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

On February 12, 1992, I issued a decision in this case 

affirming a violation of mandatory safety standard 30 C.F.R. 

§ 75.507, as a significant and substantial (S&S) violation, 

14 FMSHRC 304 (February 1992). The respondent appealed my 

decision, and on June 22, 1993, the Commission issued its 

decision affirming my finding of a violation of section 75.507. 

However, the Commission vacated mydetermination that the 

violation was S&S and remanded the matter to me for further 

findings and analysis consistent with its opinion. 

Discussion 

Subsequent to the remand of this case, the petitioner filed 

a motion for my approval of a proposed settlement of the matter. 

The petitioner's trial counsel states that after further 

discussion the parties have agreed that the citation in question 

should be affirmed as a section 104(a) "S&S" violation with a 

penalty of $275 in accordance with my February 12, 1992, 

decision. 

Conclusion 

After due consideration of the motion, and pursuant to 

Commission Rule 31, 29 C.F.R. § 2700.31, the motion IS GRANTED, 

and the proposed settlement disposition of this matter IS 

APPROVED. 

1373 
ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

of $275, for the violation which has been affirmed. 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. 

Administrative Law Judge 

Distribution: 

Susan E. Long, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Rm. 400, Arlington, VA 22203 

(Certified Mail) 

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

Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Thomas Clark, Esq., Zeigler Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

/ml 

1374 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

: CIVIL PENALTY PROCEEDINGS 

: Docket No. WEVA 92-1049 

: A.C. No. 46-01867-03929 

: Blacksville No. 1 

DECISION 

Appearances: Wanda Johnson, Esq., Office of the Solicitor, 

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

the Petitioner; 

Daniel E. Rogers, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section ll0(a) of the Federal 

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

civil penalty assessments for three (3) alleged violations of the 

mandatory accident reporting requirements found in 30 C.F.R. 

§ 50.11(b) (8). The respondent filed a timely answer and contest, 

and in response to a prehearing order, the parties informed me 

that they were unable to agree to a settlement of the contested 

citations and that a hearing would be required. Accordingly, the 

matter was consolidated with several other cases involving these 

same parties, and a hearing was held in Morgantown, West 

Virginia, on June 15, 1993. 

Discussion 

This case concerns three (3) section 104(a) non-"S&S" 

citations (Nos. 3718403, 3718404, 3718405), issued by MSHA 

Inspector Joseph A. Migaiolo on May 12, 1992, charging the 

respondent with alleged violations of mandatory accident, 

injuries, and illness reporting standard 30 C.F.R. § 50.ii(b)(8). 

The citations were issued in the course of an audit of mine 

records conducted by the inspector when he found that three 

accident investigation reports prepared by the respondent 

concerning three lost workday accidents that occurred on 

January 1 and 19, 1989, and September 21, 1989, did not include 

1375 
"a description of steps taken to prevent a similar occurrence in 

the future", as required by the cited section 50.11(b)(8). 

In the course of the hearing the parties informed me that 

after further discussions and negotiations, they proposed to 

settle the disputed citations, and they presented arguments on 

•the record in support of their proposals (Tr. 14-16). 

In support of the proposed settlements, the parties 

incorporated by reference the previously submitted prehearing 

responses which included information concerning the six statutory 

civil penalty criteria found in section ll0(i) of the Act, 

summaries of the testimony of their respective witnesses, 

jurisdictional stipulations, and summaries of the position taken 

by the parties with respect to the alleged violations. 

In further support of the proposed settlement, petitioner's 

counsel agreed that the cited conditions were "technical 

violations" that occurred several years ago, butwere only 

discovered in the course of the audit conducted by the inspector. 

Respondent's counsel pointed out that the required accident 

reports were in fact prepared, but he took the position that due 

to the repetitive nature of the reported injuries, it would have 

been repetitive and unnecessary to make recommendations 

concerning future preventive measures. 

I take note of the fact that section 50.11(b), requires the 

submission of nine (9) items of information concerning each 

reportable occupational injury, and on the facts here presented 

the respondent was cited for failing to include information 

concerning item (8) which requires a description of the steps 

taken by the respondent to prevent similar occurrences. Upon 

review of the citations, and the pretrial submissions by the 

parties, I agree with the petitioner's characterization of the 

violations as "technical in nature", and although the required 

information was not submitted as part of the respondent's 

accident reports, I find the mitigating circumstances advanced by 

the respondent both plausible and reasonable. 

The parties agreed that the citations should be affirmed as 

issued, and they agreed that the initial proposed civil penalty 

assessments of $50 for each of the non-"S&S" citations should be 

modified to $20 for each citation in compliance with the 

applicable MSHA penalty assessment criteria and procedures in 

effect at the time the citations were issued. The respondent 

agreed to pay the modified assessments. 

Findinqs and Conclusion• 

After careful consideration of the pleadings, arguments, and 

submissions in support of the proposed settlement, and pursuant 

to the requirements of Commission Rule 31, 29 C.F.R. § 2700.31, 

1376 
the proposed settlement was approved from the bench, and my 

decision is herein reaffirmed (Tr. 16). 

ORDER 

The respondent IS ORDERED to pay civil penalty assessments 

•in the amount of sixty-dollars ($60), ($20 for each citation), in 

satisfaction of the violations in question. Payment is to be 

made to the petitioner (MSHA) within thirty (30) days of this 

decision and order, and upon receipt of payment, this matter is 

dismissed. 

Administrative Law Judge 

Distribution: 

Wanda Johnson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203 

(Certified Mail) 

Daniel E. Rogers, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified 

Mail) 

/ml 

1377 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

°JUL g 71993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

LYMAN-RICHEY SAND & GRAVEL 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-94-M 

A.C. No. 25-00282-05503 

Plant No. Ii 

DECZBZON 

Appearances: 

Before: 

Kristi Floyd, Esq., Office of the Solicitor, 

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

for Petitioner; 

Steven D. Johnson, Esq., Kennedy, Holland, DeLacy & 

Svoboda of Omaha, Nebraska, for Respondent. 

Judge Barbour 

BTATEHENT OF THE CRS• 

In this proceeding the Secretary of Labor ("Secretary") on 

behalf of the Mine Safety and Health Administration ("MSHA"), 

charges the Respondent, Lyman-Richey Sand & Gravel Company 

("Lyman-Richey") with violating a mandatory safety standard 

promulgated pursuant to the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. §801 et seq., ("Mine Act" or "Act"). The 

violation is cited in Citation No. 2652922, a citation issued 

under section 104(a) of the Act, 30 U.S.C. § 814(a). The 

citation asserts that Lyman-Richey's violation of 30 C.F.R. 

§ 56.12071 resulted in the death of one of the company's miners 

and in the severe injury of another miner when the boom of a 

rubber-tired crane was raised into high-voltage power wires, l 

The citation also sets forth the MSHA inspector's finding that 

! 

Part 56 contains the Secretary's safety and health standards for 

surface metal and nonmetal mines. Section 56.12071 states: 

When equipment must be moved or 

operated near energized high-voltage power 

lines (other than trolley lines} and the 

clearance is less than i0 feet, the lines 

shall be deenergized or other precautionary 

measures shall be taken. 

1378 
the alleged violation was a significant and substantial 

contribution to a mine safety hazard (a "S&S" violation). 

The Secretary, instituting his special assessment procedures 

found at 30 C.F.R. § 100.5, proposed a civil penalty of eight 

thousand dollars ($8,000) for the alleged violation. 2 LymanRichey answered that the citation did not accurately reflect a 

violation of section 56.12071. A hearing on the merits was 

conducted in Omaha, Nebraska. At the close of the hearing, 

counsels presented helpful oral summations of their positions. 

Section 104(a) Citation No. 2652922, 3/7/91, 30 C.F.R. • 56.12071 

The citation states: 

An electrical accident occurred at the plant 

on March 5, 1991, at 1410 hours. The accident 

resulted in one employee being fatally 

injured, and another employee receiving 

serious burns. The injuries were the result 

of the boom of a rubber tired mobile crane 

being raised into bare high voltage 

conductors. The accident occurred at the top 

of inclined roadway leading from the 

stripping area to the main plant. 

The crane, a Link-Belt HC-98A, had been 

disabled due to a problem in the tramming 

engine while moving from the stripping area 

to the upper main plant pond. The two 

injured employees contacted the tramming 

frame of the crane while attempting to gain 

access to the engine compartment. The 

tramming engine compartment was located 

section i00.5 states in pertinent part: 

MSHA may elect to waive the regular assessment 

formula($ 100.3) and the single assessment provision 

($ i00.4) if the Agency determines that conditions 

surrounding the violation warrant a special 

assessment. Although an effective penalty can 

generally be derived by using the regular assessment 

formula and the single assessment provision, some 

types of violations may be of such a nature of 

seriousness that it is not possible to determine an 

appropriate penalty under these provisions. 

Accordingly, the following categories will be 

individually reviewed to determine whether a special 

assessment is appropriate: 

(a) Violations involving fatalities and serious 

injuries[.] 

1379 
directly under the boom of the crane while 

tramming. The crane operator had raised the 

boom to allow access to the tramming engine 

compartment. The boom of the crane contacted 

two phases of an energized three-phase 13.8 

kilowatt circuit, which caused the frame of 

the crane to become energized. 

Awritten company safety procedure had 

been established and was in effect prior to 

the accident. The procedure (policy) 

addressed the safeguards that must be taken 

when operating cranes near over-head power 

lines. 

G. Exh. 7. 

STIPULATIONS 

SEQUESTRATION OF WITNESSRn 

At the commencement of the hearing counsel for the 

Secretary, on behalf of herself and counsel for Lyman-Richey, stated that the parties agreed as follows: 

i. Lyman-Richey is engaged in the mining 

and selling of sand in the United States, and 

its mining operations affect interstate 

commerce; 

2. Lyman-Richey is the owner and operator of 

Pit No. ii, MSHA I.D. No. 25-00282; 

3. Lyman-Richey is subject to the 

jurisdiction of the Mine Act; 

4. The Administrative Law Judge has 

jurisdiction over this matter; 

5. Citation No. 2652922 was properly served 

by a duly authorized representative of the 

Secretary upon an agent of Lyman-Richey on 

the date and place stated therein and may be 

admitted into evidence for the purposes of 

establishing its issuance but not for the 

truthfulness or relevancy of any statements 

asserted therein; 

6. The exhibits to be offered by 

Lyman-Richey and the Secretary are authentic; 

1380 
7. The proposed civil penalty will not 

affect Lyman-Richey's ability to continue in 

business; 

8. Lyman-Richey demonstrated good faith in 

abating the alleged violation; 

9. Lyman-Richey is a medium size operator 

with 215,416 tons of production in 1991; 

i0. The certified copy of the MSHA assessed 

violations reflects the relevant history of 

previous violations at this mine for the two 

years prior to the date of CiZation 

No. 265292. 

Se___ee Tr. 6-7. 

Following the recitation of the stipulations and upon the 

agreement of counsels the witnesses were sequestered. Tr. 15-16. 

THE SECRETARY'S EVIDENCE 

JAMES SKINNER 

James Skinner, the MSHA inspector who issued the subject 

citation, was the Secretary's sole witness. Skinner stated that 

prior to becoming an inspector he had worked for thirteen years 

in hard rock mining and that for eight of those years he was 

assigned to jobs relating to electricity. In addition, he 

testified he had worked for 1 1/2 years as an electrical line man 

for a power company and had three years experience as a 

journeyman electrician for a chemical company. Tr. 17-18. After 

joining MSHA in 1974, Skinner took specialized classes in 

electricity and he has had annual retraining. In his work for 

MSHA, Skinner has specialized in electricity. Tr. 17-19. In 

addition, Skinner is a member of the MSHA team that investigates 

fatal accidents in the agency's Rocky Mountain District. 

Skinner explained that the Lyman-Richey sand and gravel 

operation located at Valley, Nebraska (Plant No. ii) is usually 

inspected out of MSHA's Topeka, Kansas office. 3 However, on 

March 5, 1991, Skinner, whose home office is in Salt Lake city, 

Utah, was notified that an electrocution had occurred at the 

Lyman-Richey operation and that he was to be a member of the MSHA 

investigation team. Skinner stated that although he had been 

3 Skinner stated that the mine produces sand and gravel as the 

result of river bottom dredging. Tr. 20. The sand and gravel is also 

processed by Lyman-Richey. 

1381 
part of MSHA teams that investigated approximately i0 to 12 

fatalities, none of these prior accidents involved cranes and 

overhead power lines. Tr. 95. 

Skinner testified that he arrived at the mine on March 6, 1991, in the company of Eldon Ramage, an MSHA inspector from the Topeka office. Once at the mine, Skinner and Ramage spoke with Walter L. Dryden, the mine superintendent, and Stanley E. Benke, Jr., the mine safety assistant, in order to obtain "a synopsis of the accident." Tr. 22. Then, they proceeded from the office to the accident site, which was located several hundred 

feet from the office. Tr. 22-23. 

The crane involved in the accidentwas still at the site. 

Skinner described it as a "large mobile crane with a large extended boom". Tr. 23. The crane was rubber tied and was diesel powered. The tramming engine was located at the front of 

the crane and the boom house was located at the rear. Id. In 

addition to viewing the crane, Smith stated that he interviewed 

employees of Lyman-Richey, as well as company officials. Tr. 24. 

He also went to the power company supplying electricity to the mine and interviewed power company officials "to get some 

pertinent facts on their substation as a supplier of the power." Id. 

Skinner was shown and identified a copy of the MSHA accident 

report that sets forth the findings of the investigation. 

Tr. 25, G. Exh. i. Skinner explained that he had prepared a 

rough draft of the report with some help from Ramage and that the 

report was then reviewed by his supervisor and the MSHA district 

manager for the Rocky Mountain District before it was issued. 

Tr. 24-25. He also explained that the report was based upon the 

notes, interviews and photographs that he and Ramage had gathered 

as the result of the investigation. Tr. 25. 

Skinner was asked about conclusions he had reached regarding the cause of the accident. He stated that he believed the "direct cause" to be the physical contact of the boom of the 

crane with two phases of the high-voltage overhead power lines. 

The lines together carried approximately 13,800 volts of power or about 7,900 volts singly. Tr. 26-27, 39. According to Skinner, contributing factors included the victims' contact with the frame 

of the crane and damp ground in the area around the crane. 

Tr. 27. At the accident scene Skinner measured the distance from the ground to the power lines and found the lines to be 28 feet above the ground. Tr. 27-28, 29. 4 Skinner stated that when the 

4 

Skinner did not make a direct measurement, but rather determined the height of the lines by a "shadow cast factor." Tr. 99. Nonetheless, he 

was satisfied that a distance of 28 feet was accurate. Id___•. 

1382 
boom was down and the crane was traveling there was more than i0 

feet between the top of the crane and the power lines. Tr. 29. 

Appendix I of the report is a sketch drawn by Skinner 

purporting to depict an overhead view of the accident scene. 

5 

Using Appendix I as a reference, Skinner described how he 

believed the accident had occurred. Skinner explained that the 

crane, which was being trammed from the lower stripping area of 

the mine, had stalled and the miner who would be fatally 

injured in the accident, Earl N. Johnson, was preparing to 

"troubleshoot," that is to find out why the crane had stalled. 

Johnson was standing on the ground on the right hand side of the 

crane (the side opposite the crane operator's tramming cab) about 

half way between the front and back of •he crane. Next to 

Johnson, on Johnson's right as Johnson faced the crane, was 

Harold McGhee, the miner who would be severely shocked in the 

accident. Tr. 31; G. Exh. i, App. I. The crane operator, Frank 

Jirovsky, told Skinner that he had tried to restart the engine 

several times without success. 

Skinner believed that Johnson and McGhee were trying to 

determine whether the crane had stalled due to a malfunction of 

the fuel filter. Tr. 32-33. The fuel filter was accessible from 

where Johnson and McGhee were standing and Jirvosky was not 

required to move any part of the crane to provide the miners 

access to the filter. However, should the problem not be with 

the filter, the miners would have to continue looking for the 

cause of the stall by inspecting the engine. 

In order to access the crane's engine compartment, the boom 

of the crane had to be raised. As Skinner put it, "[the boom] 

sits directly over the engine compartment." Tr. 75. Jirovsky 

began to raise the boom to a point where it would be high enough 

to allow Johnson and McGhee to gain access to the engine 

compartment. Tr. 33, 102, 122. 

As Jirovsky activated the boom it rose toward the high 

voltage power lines that crossed above it and contacted two of 

the lines. Tr. 34. (The lines were strung on poles and there 

were four lines in all. One line was a grounded neutral line, 

and the other three carried power. The boom touched the two 

power carrying lines closest to the crane. Tr. 34-35, se__ee 

. 5 Under voir dire, Skinner stated that the wet areas he depicted on 

Appendix I were not drawn to scale but rather were meant to symbolize that 

"there were wet spots around the area." Tr. 44. Skinner amplified, "[T]he 

whole area was damp . . . and these were just some more . . . pronounced 

water." Id. However, Skinner was not certain whether there had been 

precipitation between the occurrence of the accident and his observation of 

the accident scene. Tr. 48. In addition, he did not know if water had been 

used to attempt to extinguish the fire that resulted when the rubber tires of 

the crane ignited. Tr. 72. 

1383 
G. Exh. I, App. I.) Contact was made about 2 feet from the end 

of the boom. Tr. 77. 

Skinner testified that when the boom contacted the two 

lines, a phase-to-phase short-circuit resulted. Each of the 

lines had fuses providing them with short-circuit protection. 

As the boom touched the lines, one of the fuses functioned as it 

should and the line lost power. However, the other fuse failed. 

It did not open and the line remained energized. Tr. 37. Because 

the circuit for one of the power lines remained in operation, the 

current flowed through the metal frame of the crane seeking a 

ground. Tr. 39. Johnson and McGhee became conductors for part 

of the current. Johnson was electrocuted and McGhee was burned, 

especially on his feet. Tr. 30-41. 

In the meantime, as Skinner recalled, Jirovsky had jumped 

from the cab of the crane. Tr. 54. Almost immediately, a call 

was made to "911" for emergency aid and the power company was 

contacted as well. Power company representatives shut off the 

power, but it was too late. Tr. 65. 

Skinner described the boom's touching of the power lines as 

the direct cause of the accident. Contributing factors were the 

victims being in the area of the crane, the fuse malfunctioning 

and causing one of the power lines to remain energized, and the 

failure to check whether the boom was clear of the power lines 

before it was lifted, even though Lyman-Richey's written policies indicated that this should have been done. Tr. 104-106. 

As a result of the investigation, Skinner issued Citation 

No. 2652922. 6 Skinner stated that he issued the citation as a 

result of the investigation and because "it was apparent that the 

crane had been operated in the vicinity of . . . high voltage lines and the boom was actually moved into contact position with 

the energized high voltage lines." Tr. 20-21. Skinner cited 

Lyman-Richey for a violation of section 56.12071 because he 

believed the standard required that when using equipment around 

high-voltage power lines, if the distance between the equipment 

and the lines was i0 feet or less, the lines had to be 

deenergized or other precautions had to be taken. Tr. 48-49. 

Here, the distance between the equipment and the power lines was 

less than i0 feet. Indeed, it was zero when the boom touched the 

lines. Tr. 52. 

•" According to Skinner, MSHA regarded any line carrying over 

650 volts of current as a "high-voltage power line" and thus the 

6 

Skinner stated that Lyman-Richey personnel were "very cooperative" throughout the course of the investigation. Tr. 98. They were forthcoming with 

information and Skinner could not think of anything he requested that was denied. 

Id. 

1384 
lines contacted by the boom were definitely within that category. 

Tr. 49. The standard specifically applies to equipment that is 

being "moved or operated" and Skinner believed the crane was 

being "operated" in that the boom was being raised. Tr. 50. 

Skinner also stated that raising the boom to a point where it was 

within i0 feet of a high-voltage power line would not have 

violated section 58.12071 provided other precautionary measures 

had been taken. Skinner was asked if using a person to observe 

the relationship of the boom to the wires (a "spotter") would 

have constituted a "precautionary measure?" He indicated that 

when the power wires were overhead, the observer's perspective 

would have made it difficult to judge verticle distance and 

therefore this would not, in his opinion, have been an acceptable 

precautionary measure. Tr. ii0-iii. Skinner was asked his 

opinion as to the types of safety procedures the company could 

have undertaken? He observed that the power company should have 

been called and power should have been deenergized in the lines. 

Tr. 66. 

Skinner stated that he had spoken with the superintendent, 

Walter Dryden, during the investigation and as Skinner recalled, 

Dryden said that he had gone to check on another crew before the 

accident and that he had just returned when the accident 

occurred. Skinner remembered Dryden telling him that immediately 

prior to the accident Johnson had come to Dryden's truck and 

requested a wrench. Tr. 101-102, 103. 

When asked why he found the violation of section 56.12071 to 

be S&S, Skinner essentially responded his finding was based upon 

the fatality and the serious injury. Tr. 52-53. 

With regard to his finding that the violation was due to 

Lyman-Richey's "moderate negligence," Skinner stated that the 

company had established written safety procedures for moving or 

operating equipment around high-voltage power lines, and he 

believed Lyman-Richey deserved credit for that. Specifically, he 

noted that the company safety manual instructed that all overhead 

power lines shall be considered energized unless the owner or 

electrical utility indicated otherwise. Tr. 58-60. However, he 

also believed that the company should have had management 

personnel evaluating the situation after the crane became 

disabled and while it was undergoing troubleshooting and possibly 

prior to moving the crane from the lower to the upper level. 

Tr. 56, 64-65, 114-115. With the exception of Dryden, who 

arrived on the scene just as the accident was about to occur, 

Skinner understood that no supervisory personnel were present. 

Tr. 116-117. Skinner also stated that he did not know whether 

the victims of the accident had been trained in proper procedures 

for operating a crane under energized power lines. Tr. 132. 

1385 
LYMP•-RZCHEYI8 WZTNESSES 

•I%MEB WENDELL HOLMRR 

Holmes, who retired from the company less than one month 

after the accident, had a long history of involvement with 

Lyman-Richey. He began his career as a truck driver and 

dispatcher. He then was promoted to plant foreman, plant superintendent and safety director, the position from which he 

retired. As safety director, Holmes had responsibility for nine 

concrete plantS and ten gravel pits. All of the'gravel pits were similar to the pit at Plant No. ii, the pit where the accident 

occurred, in that all were places where sand and gravel was 

dredged, pumped, screened and shipped. Much, if not all, of the 

aggregate was shipped to the concrete plants. Tr. 138-141. 

Holmes identified the company safety manual. Tr. 146, R. Exh. i. He noted that pages 65-69 of the manual were in 

effect at the time of the accident. Tr. 148. He especially noted the manual provided that all power lines are to be 

considered energized unless someone says otherwise. Tr. 187, R. 

Exh. 1 at 66. Holmes testified that all of the manuals were 

numbered and that when a Lyman-Richey employee received a manual 

and read the part of the manual pertaining to the tasks and 

preventive maintenance for his or her particular job, the 

employee signed a statement to that effect. Tr. 149. (Holmes called it a "receipt." Id. 7) 

Holmes identified several such receipts -- those of Dryden, the plant superintendent; of Jirovsky, the crane operator; of the victims, and of Rex Schmitz and Richard Frye, who were members of the crew at the pit and who were witnesses to many of the events 

connected with the accident. Tr. 150-151, R. Exh. 2. Compliance with the manual was enforced by what Holmes described as 

intermittent observance and monitoring. According to Holmes, in the case of the accident, the persons conducting such observance 

and monitoring were Dryden, and possibly, the deceased victim as well. Tr. 178. 

Holmes also described "task training,, at the mine. 

He stated that before a particular job was undertaken the 

individuals who were going to perform the task met and reviewed 

the procedures required. The meetings were lead by the plant superintendent or a "lead person," usually the plant manager or •ssistant superintendent. Tr. 153-154. Holmes stated "whenever there is a task, there's always a meeting, because we don't want 

7 

The "receipt" states: "I hereby solemnly state that I have read and understand the Lyman-Richey Corporation Safety Manual 

. . . and that I will comply with all regulations as set forth in the manual." Tr. 152, R. Exh. 2. 

1386 
any . . . slip ups." Tr. 154. He described a "task" as "a 

different assignment than your normal routine." Id__•. He agreed 

that moving the crane on the afternoon of the accident was a 

"task." Id. Holmes did not know if task training in the 

movement of the crane had occurred before the accident, but he 

stated that he would be "very surprised" if it had not, because 

movement of the crane under high-voltage power lines was 

"dynamite." Tr. 174, 196. 

He agreed that conversation between Dryden, Jirovsky and the 

deceased should have occurred prior to working on the crane when 

it stalled in the vicinity of the power lines. Tr. 175. He 

stated that he did not know whether such a conversation had 

occurred but that he "assume[d] there was a breakdown in 

communications." Id. He stated that if there had been such a 

conversation, "Maybe this wouldn't have happened." Id. 

Holmes also described safety procedures employed at the pit 

when a crane was moved under power lines. A spotter walked 

beside of the cane and observed clearances, including clearance 

with respect to the power lines. In addition, the crane operator 

was responsible to watch for power line clearance. These 

procedures were set forth in the company safety manual. Tr. 195, 

R. Exh. 1 at 66. 

The spotter and the crane operator communicated orally and 

by hand signals. Tr. 155-156. On the day of the accident, the 

person who acted as both lead person and spotter was the 

deceased, Johnson. Tr. 158. Holmes was not sure if Johnson had 

been assigned the job as spotter. He believed that someone else 

also could have been assigned the job as well. If so, the other 

person would have been assigned by Johnson. Tr. 180. Holmes 

also did not know if someone else took Johnson's place as spotter 

when Johnson went to work on the fuel filter of the crane. Id. 

However, Holmes agreed that the normal policy was to have someone 

checking for clearance every time the boom was operated or the 

crane was moved. Tr. 181-182. 

In addition, Holmes did not know if Johnson had told 

Jirovsky to raise the boom. Only Jirovsky would know that, he 

stated. Tr. 182. Nonetheless, Holmes was sure that employees 

around the crane were aware that they were under high-voltage 

power lines because they had to go under the lines in order to 

reach the place where they were going to repair the dredge and 

because all of those involved had worked at the pit for a long 

time. Tr. 184-185, 187. 

In addition, signs usually were posted both inside the crane 

operator's compartment and on the outside of the crane to warning 

against operating the crane within I0 feet of the power line. 

Holmes assumed, but did not know for sure, that such signs were 

on the crane involved in the accident. Tr. 162. 

1387 
Holmes described training that company crane operators received. The training was conducted with the assistance of 

outside companies who operated large equipment, and the training included safety training. Tr. 163. The company kept records of 

such training and Holmes identified Jirovsky's certificate of training for the operation and maintenance of motorized cranes. 

Tr. 164, R. Exh. 3. 

In addition to its training program, Lyman-Richey had a 

cash incentive program to further safety at its installations. 

Under the program, if a miner was found chargeable with an 

accident, his or her monthly cash bonus was denied. Tr. 159. 

Holmes stated that he did not know whether any miner was found 

chargeable with the subject accident because he resigned shortly after it had occurred. Tr. 159. 

Finally, Holmes testified that in the two years prior to the 

accident Lyman-Richey had been assessed for three violations at 

the pit. Two of these violations were assessed at twenty dollars ($20) and one was assessed at eighty-five dollars ($85). 

Tr. 188-192. He noted that none of the previous violations 

involved injuries. Tr. 192. 

•Y S. Cia•PBELL 

Larry S. Campbell testified that around 1975, when Jirovsky 

was first hired, Campbell was a plant superintendent for Lyman- Richey and around 1978, when Jirovsky was first trained to run a 

crane, Campbell was the general superintendent. Tr. 202. 

Campbell stated that Lyman-Richey has had its present facilities at Plant No. Ii since 1956. The power lines that run 

through the property provide electricity to the dredge, the 

pumps, and the preparation facilities on the property. The power lines are exclusively devoted to the Lyman-Richey operation. According to Campbell, 13,800 volts come into the preparation plant where the voltage is stepped down to make it usable by the equipment at the facility. Tr. 204. The lines are located away from the areas where activity is highest. The company chose to 

employ overhead lines rather than buried lines because it 

believed the overhead lines were safer. Tr. 205. 

Campbell was in charge of deciding where the power lines 

would be located and he also was in charge of determining how high they would be. Campbell stated that he wanted them to be at least 30 feet above the ground. Tr. 209. All newly hired 

employees at the plant were shown where the power lines were 

located and advised that "they are hot." Id. 

In addition, Campbell was on the Lyman-Richey safety committee at the time of the accident and he testified the 

1388 
committee had concluded the accident was chargeable to Jirovsky 

because, "Frank raised the boom of the crane into the wires." 

Tro 206. No other employees were charged. Id. Campbell believed 

that Jirovsky raised the boom so that the victims could get into 

the engine compartment and that Jirovsky simply forgot the wires 

were there. Tr. 210-211. 

STi•'LEY E. BENKE, JR. 

Benke, who succeeded Holmes as safety director for 

Lyman-Richey, stated that he had been with the company about five 

and one-half years. At the time of the accident, Benke was the 

assistant safety director. Benke stated that the company 

initiated its own investigation of the accident immediately after 

it occurred. In addition, the company prepared a report 

(R. Exh. 7) based on information Benke obtained at the accident 

site and in discussions with those involved. Tr. 215. Benke 

also participated in conferences with MSHA concerning the 

accident, including the March 7 closing conference. 

As Benke remembered it, MSHA representatives, including 

Skinner, had told him at the conference that they did not believe 

the penalty for violations connected with the accident would be 

"real severe" because of the company safety program. Tr. 216. 

He agreed, however, that Skinner never had indicated an amount 

that would be assessed. Tr. 222. Benke also mentioned that the 

MSHA officials were impressed by the fact that Lyman-Richey 

offered immediate counseling to employees who had witnessed the 

accident. Tr. 217. 

Benke was asked if, based upon his investigation, he had an 

opinion regarding the cause of the accident? He replied that 

"what it really seems to boil down to is the fact that there was 

a serious breakdown in communication between [Johnson], who was 

acting as a spotter, and [Jirovsky], so that breakdown in 

communications is actually what caused the accident." Tr. 218. 

Benke believed that Jirovsky was looking at Johnson while the 

boom was going up. He stated that Jirovsky noticed an electric 

arc from the crane to Johnson and that Jirovsky thought that 

Johnson had touched an electrical device on the crane itself. 

Benke was of the opinion that Jirovsky should have been 

watching Johnson and have been waiting for a hand signal from 

Johnson indicating that it was alright to raise the boom. 

Tr. 221. Benke speculated that Jirovsky did not realize the boom 

was under the wires dues to the angle of his vision and that he 

raised the boom without communicating with Johnson. He believed 

that the two may have been preoccupied with trying to find out 

what was wrong with the crane. Tr. 221-222. As Benke put it, 

"somewhere something happened in . . . 

that there was no 

1389 
communication." Tr. 222. s Benke was asked if Jirovsky could have 

been looking to Johnson for a signal to stop raising the boom and Benke replied, "That's possible too, but actually he shouldn't be lifting the boom without being so instructed to do so." Id. 

Benke stated that he knew that there were decals inside the cab of the crane warning about the danger of operating within i0 feet of high-voltage power lines. He emphasized that because of obstructed vision a crane operator should never lift materials with the boom without a spotter and that this also applied to raising the boom. Tr. 220. 

Benke was sure that Dryden had instructed everyone about the job they were expected to do in moving the crane. However, from the time the crane had broken down until the time the accident 

occurred, Benke did not believe there had been any instruction or task training. He observed that while the crane wasbeing moved Dryden had gone to another job site to evaluate the work situation at that site Tr. 223-224. Dryden returned to the 

area where the crane had malfunctioned shortly before the accident. Once the crane had broken down Johnson, who had been acting as spotter, ceased functioning in that capacity, because 

as Benke explained, the crane was no longer being moved. For the 

same reason no one replaced Johnson as spotter. Tr. 229. 

As Benke described it, Johnson and Jirovsky had a discussion (Benke did not know what it was about) and following the discussion Johnson went to Dryden's truck to get a wrench and mentioned to Dryden that he and McGhee were going to check the fuel filter. Then, Jonson returned to the crane. Meanwhile, Jirovsky had climbed into the cab of the crane and had begun to lift the boom. Benke stated that he was not certain what Dryden was doing at that time. Tr. 225. 

WALTER L. DRYDEN 

Walter Dryden testified that he has been the superintendent of Plant No. ii for the past twelve years. He stated that he had 

twenty-one years of experience in total with the company. Tr. 231-232. 

Dryden described the safety training that usually preceded a particular job. "We usually get together and talk over how we 

are going to go about doing each job and, of course, then safety is entered into." Tr. 232. He also verified that employees are 

8 

When asked whether he knew if there had been any communication between Jirovsky and Johnson regarding raising the boom Benke replied, "I'm not absolutely sure; and when I talked to [Jirovsky], he was not himself." really sure Tr. 224. Benke speculated that trauma may have caused Jirovsky's imperfect memory. Id___=. 

1390 
trained annually in operating equipment and in this regard 

identified Jirovsky's certificate of training for the crane. 

Tr. 233-234. According to Dryden, the training consists of the 

employee reading literature and training materials and safety 

procedures for the particular piece of equipment involved and of 

Dryden asking the employee if he or she has any suggestions or 

questions. Tr. 235. Dryden stated that the information given 

Jirovsky would have included a discussion of the safe operation 

of cranes around energized power lines. Tr. 236. Jirovsky also 

had on-the-job training in the operation of a crane from an 

already experienced crane operator. Tr. 237-238. 

Dryden was asked about Lyman-Richey's policy regarding the 

safe operation of cranes in the vicinity of power lines. He 

stated that when a crane is being trammed, a "point man" or 

spotter goes ahead of the crane and when a crane is being 

operated the rule is no operation within i0 feet of power lines. 

"In other words," he added, "if we have equipment to work on, we 

don't do it anywhere near power lines." Tr. 239. In addition to 

the spotter, other members of the crew in the vicinity where the 

crane is being moved have a responsibility to watch for, among 

other things, clearance when the crane moves past power lines. 

Tr. 240. In Dryden's opinion, Jirovsky was well aware of the 

policy. Tr. 251. 

Dryden stated that on the morning of the accident he had a 

discussion with the work crew about the jobs to be done that day. 

While he did not specifically recall discussing safety procedures 

to be undertaken in connection with the jobs, he was certain they 

were discussed because "that's just . . . normal procedure." 

Tr. 242. Later in the morning, Dryden discussed moving the crane 

with the victims, Jirovsky and one other employee. Tr. 243. The 

crane was to be moved to another part of the plant to repair some 

pumps. Dryden explained to the crew that he was going to that 

area to determine where to position the crane once it arrived 

and, according to Dryden, Johnson volunteered to act as spotter 

while the crane was moved. Tr. 244. 9 Dryden then left in his 

truck for the other site. (It was located approximately 300 yards 

from where the crane then was located. Tr. 245.) 

After surveying the scene, Dryden returned to where the 

crane had been moved. He saw that the crane had stopped and he 

drove approximately 30 to 40 feet past the crane and parked his 

truck, facing away from the crane. Tr. 246. Johnson walked to 

Dryden's truck and told him the crane had stalled, that Johnson 

thought something might be wrong with the fuel filter and that he 

needed to get a wrench from Dryden's tool box. Dryden responded 

9 Dryden estimated that during the previous four years the crane had 

been moved approximately 20 times under the particular portion of the 

high-voltage power lines involved in the accident. Tr. 252. 

1391 
he would call on the truck radio and try to get a replacement fuel filter for Johnson. The weather was cool and after Dryden finished his discussion with Johnson he left the window down about only 6 inches. At no time did Johnson indicate to Dryden that the boom was going to be raised. Tr. 248. Dryden stated that the crane involved was an older model and that he assumed the fuel filter was in the front part of the crane. He said, that is where most filters are located on the older models. Tr. 248. Dryden understood that the boom would not have to be raised to gain access to the filter. Tr. 249. 

Dryden then called to see if he could obtain a fuel filter and the next thing he heard was Jirovsky yelling. Tr. 249. Dryden estimated that this was two to three minutes after Johnson had talked to him. Tr. 250. He did not see Jirovsky raise the boom. Nor did he caution Johnson that someone needed to act as a spotter if he was going to be working on the fuel filter. 

Tr. 255. Dryden stated, Johnson "was familiar with equipment and motors on equipment and so forth." Tr. 260. 

When Dryden heard Jirovsky yelling he turned. Jirovsky had already jumped from the crane. The boom was in the wires. Dryden could not see McGhee but he could see Johnson. Dryden described what he saw and explained that there was nothing he could do to help Johnson. Tr. 257. 

RICHARD L. FRYR 

Richard Frye is a dispatcher at Plant No. ii. He has worked for Lyman-Richey for twelve years. At the time of the accident Frye was working as a welder and member of the maintenance crew. Frye described the training that he had received as a welder and member of the maintenance crew. Tr. 262-263. He felt that safety was a "very prevalent" part of that training; and he believed the training was ongoing, in that the 

manual company safety was undated periodically, and he had read the updates Tr. 262-263. 

Frye stated that on the morning of the accident he was part of a crew that was lifting parts off of the dredge with the 

crane. The crew knew that the crane would have to be moved to a different job site and there was only one route it could take, the same route it had traveled to reach the dredge. Tr. 266. The route passed under the power lines. Because the crane would have to travel up a 5 to 6 foot rise as it moved away from the dredge, and because the power lines ran above the edge of the rise, the crew knew the crane should be backed up rather than driven forward so that boom would not rise into the air under the lines as the crane traveled up the rise. Tr. 267. Frye believed that he had participated in previously moving the crane under the 

same power lines i0 to 15 times. Tr. 268. 

1392 
As Frye watched, the crane backed away from the dredge area 

and Johnson, acting as spotter, walked next to the crane. The 

crane backed up to level ground •ere it stopped. Frye explained 

that he thought the crane had stopped because it was on level 

ground and Jirovsky and others were going to have more 

discussions about what they were going to do next. Therefore, 

Frye left and went to the welding truck to get some materials he 

needed. He testified that the ne)•t thing that happened was that 

he heard Jirovsky yell. Tr. 269-270. 

HAROLD L. McGHEE 

Harold McGhee stated that he had worked for Lyman-Richey for 

approximately 18 years and that he had started as a laborer. 

About six or seven years ago, h• was assigned to operate a bin 

complex, a job that he has held since. Tr. 272-273. McGhee 

explained that the morning of the accident he was one of a crew 

working at the dredge. The work was concluded around noon after 

which a decision wa& made to move the crane to another work area. 

As the crane moved up the incl]Lne, McGhee stated that he was 

concentrating on io, oking out for any obstacles that would be in 

its way. Tr. 275. He testified that his concern was with things 

on the ground and that he "wasn't even thinking about power 

lines." Tr. 275. At the top ¢,f the incline the crane stalled, 

McGhee did not know why. However, a decision was made to change 

the fuel filter. McGhee testified that he did not approach the 

crane until Johnson started working on the filter. He stated 

that he was there to assist Johnson if he needed any help. 

Tr. 276. McGhee explained that he usually worked with Johnson. 

Tr. 281. 

McGhee was on Johnson's right and he testified that Jirovsky 

was watching Johnson. Tr. 279. McGhee recalled that Johnson was 

holding a wrench with one hand and his other hand was on what 

McGhee thought was the filter. McGhee had his left forearm and 

both hands on the crane. McGhee stated that he heard the crane's 

engine start and he thought "what's he starting the engine for 

when we're taking this filter off[?]" Tr. 277. The electric 

current hit McGhee and then it subsided and he slid backward away 

from the crane. Tr. 277. (McGhee also described what happened to 

Johnson. Id.) 

McGhee testified that except for the sound of the engine 

starting he had no warning that the boom was going to be raised 

•nd that while he was with Johnson he never saw Johnson give a 

hand signal of any kind to Jirovsky. Tr. 278, 283. McGhee was 

airlifted to the hospital where he underwent about three weeks of 

treatment for the burn injuries. Tr. 280. 

•RANK J. JIROVSK¥ 

Jirovsky stated that he had been an employee of 

1393 
Lyman-Richey for seventeen years. Durlng the period he had 

worked repairing, maintaining and operating equipment, including 

cranes. He was initially assigned to operate cranes during his first or second year of employment. He was trained by the then main crane operator and served as a backup operator° 

Tr. 288-289. He described the training he had received as "an apprenticeship,, and stated it included training regarding the operation of cranes in the vi¢•inity of power lines. Tr. 288. When he started working with c•ranes he began by signaling to the main crane operator, an assignment that required him to watch out for power lines. Jirovsky explained that "when he taught me how to run the crane, I was already aware of •power lines and their relationship to of the crane] because I had been watching for him 

as he ran it." Tr. 289. For as long as Jirovsky could recall, all of the equipment at the plar•t that had "height capabilities,, carried stick-on signs stating that the equipment should not be operated within i0 feet of power lines. Tr. 290. 

Jirovsky identified the Lyman-Richey safety manual 

(R. Exh. i) and recalled receiving it. He also identified a receipt he had signed indicating that he had been given possession of the manual and had ]read it. Tr. 292, R. Exh. 2. Moreover, he noted the specific reference to the manual barring the operation and transit of cranes within i0 feet of power lines. Tr. 291. 

In addition, Jirovsky stated •that there usually was a discussion among Dryden and the crew regarding the bigger jobs that had to be done at the plant arid that if there was an obvious hazard involved the discussions would include safety. Tr. 295. He identified the presence of power lines as an obvious hazard. Id___•. 

Jirovsky described the day of the accident, how the crew had been working at the dredge, how the work had been finished after lunch and how the crew began moving •ts equipment, including the 

crane, to a new area to start a different job. Tr. 296. The 

route the crane had to travel passed under the power lines and, according to Jirovsky, they were the very same power lines he had passed under when he brought the cran,• to the dredge area. Tr. 297. He believed that he had tral•med the crane to the dredge area the previous day. Id__•. The crane was taken into the dredge 

area by driving it forward -- that is with the boom pointing ahead of the crane toward the dredge. This was done in order to have clearance under the power lines. Therefore, the crane was also backed out -- with the boom pointing toward the dredge. Again, this was done to ensure clearance under the lines 

Tr. 297-298. 

As the crane began to move away from the dredge area Johnson acted as spotter. Tr. 299. Johnson was walking directly alongside, guiding Jirovsky as he backe,• away from the dredge 

1394 
area. Jirovsky and Johnsol• were in oral and visual contact as 

the crane moved. Tr. 299-7300. Jirovsky also believed that Frye 

was watching from a distanc'e. The crane approached another piece 

of equipment and Johnson ha• Jirovsky stop, drive it forward and 

then resume backing up to c•[ear the equipment. When the crane 

reached level ground, the t•amming motor ceased operation. 

Tr. 300. Jirovsky stated that the power lines were at the edge 

of the level ground and that the crane had traveled "quite a 

ways" after it reached level ground. Tr. 302. Therefore, 

Jirovsky thought that the boo• was clear of the power lines. Id. 

According the Jirovsky, %•en the engine stopped Johnson 

asked what was wrong and Jirowsky said he did not know but that 

it might be the fuel. Johnson then took off the engine's fuel 

cap and checked the fuel level.• He told Jirovsky that there was 

plenty of fuel. Then Johnson n•Dticed the fuel filter and thought 

that it might be plugged so he %•ent to Dryden's truck to get a 

tool to take the filter off. 

Meanwhile, Jirovsky thought•that the problem might be in the 

tramming engine itself, and he cl•imbed back into the crane and 

started the engine that operated •hhe boom. (In order to get into 

the engine compartment the boom h•d to be raised "a short 

distance." Tr. 301.) Jirovsky s;ta•ted: "I was going to raise the 

boom to check . . . 

the engine comigartment, because I figured 

that we would probably have to looi• in there to figure out what 

was going wrong with it; and at the same time Earl was going to 

take the filter off, and at some point in that period of time 

[the boom] came in contact with the •ower lines." Id. 

Jirovsky stated that he knew the lines were there but that 

he believed that the crane was •far enough away from them. 

Tr. 308. "It was," said Jirovsky, "a misjudgment in distance." 

Tr. 302. He estimated that from the tl•.me he started the boom's 

engine until the boom contacted the power lines perhaps fifteen 

to twenty seconds elapsed. Tr. 304. He• did not recall whether 

or not he had looked at the lines prior to raising the boom. 

Tr. 308. 

While the boom was being raised, Jirovsky looked at Johnson. 

He saw a spark fly off the wrench Johnson was holding. Jirovsky 

stated he realized that something had gone terribly wrong and 

that he •0umped from the crane in order to try to help Johnson. 

Tr. 305. 

10 It was difficult for all of the witneese•, especially Jirovsky, 

McGhee, and Dryden, to testify about what had occurre• to Johnson. All had known 

and worked with him for several years. Counsels are commended for their 

sensitivity in questioning the witnesses regarding th.e specifics of the accident. 

1395 
Jirovsky stated that he could not recall having any conversation with Johnson or with anyone else for that matter 

about raising the boom; and that Johnston did not give him a 

signal or speak with him about raising the boom. Tr. 302-303. 

THE VTOL•T.•£ON 

Lyman-RicheY is charged with a violation of section 

56.12071. The standard requires th•it when equipment is operated within less than I0 feet of energiz,ed high-voltage power lines, " 

the lines must be deenergized or other precautionary measures 

must be taken. "High-voltage,, is r•ot defined in Part 56 of the 

regulations. However, Skinner tes•tified that MSHA regards any lines carrying over 650 volts as D,igh-v•itage lines. 

Tr. 26-27, 39. This appears to bf• the general understanding in 

the mining industry as well. n S kinner's testimony that the 

lines carried well over 650 volts; was not disputed and I conclude 

that the power lines in question were high-voltage lines. 

Further, it is clear from the testimony of all of the witnesses 

that Jirovsky raised the crane'• boom into the lines, thus 

operating the crane within less than i0 feet of them. The fact 

that the lines were not deenergized nor other precautionary 

measures taken is all too evident from the events that followed. 

I therefore find that Lyman-Ric•hey violated section 56.12071 as 

charged. 

THE SPECIAL ASSESSMENT 

Following the issuance ,of Citation No. 2652922, the 

Secretary, pursuant to 30 C.F.R. •{ 100.5, specially assessed the 

alleged violation of sectio•n 56.1Z071 at eight thousand dollars ($8,000). Lyman-Richey, re,quested subpoenas be issued to require MSHA's director of the Office of Assessments to appear at the 

hearing along with other c, fficials• of the office in order to 

explain how the proposed •special assessment was determined and to 

provide documentary evide•nce of the basis for the assessment. I issued the subpoenas, bu•a in a letter to counsel for Lyman-Richey stated that if the compa,ny intended to challenge the special 

assessment, the challen, ge would, of necessity, be limited. 

I explained the C•mmission had made clear that under the 

bifurcated nature of the Mine Act's civil penalty scheme the 

Commission and its ju4]ges had authority to assess civil penalties based upon the record developed in an evidentiary hearing and 

that when such a proc•eeding had taken place Commission judges 

were not bound by penalties proposed by the Secretary thought his 

Office of Assessment;s but rather were required to assess a 

II 

"High volt•,ge- is defined as "[t]hat which is greater than 650 volts." U.S. Departme•nt ol the Interior, A Dictionary of Mininq, Mineral and Related Terms (1968) e,t 543. 

1396 
penalty after considering the statutory civil penalty criteria in 

light of the evidence. I further explained that while an 

operator might argue that the Secretary, in proposing a civil 

penalty, had not complied with his own regulations and thus had 

to re-propose the penalty, the operator could prevail only by 

establishing that the Secretary had acted arbitrarily and that a 

remand was appropriate under all of the relevant circumstances of 

the case. Drummond Coal, Inc., 14 FMSHRC 661,690 (May 1992); 

Youqhioqheny & Ohio Coal Co., 9 FMSHRC 673,678 (April 1987). 

Prior to the hearing Lyman-Richey deposed Roderick Breland, 

the MSHA district manager for the Rocky Mountain District. 

Breland was questioned regarding his recommendation that the 

subject citation be specially assessed. However, 

Lyman-Richey did not call Breland to testify at the hearing nor 

did it call MSHA Assessment office officials as witnesses. 

Although there was limited testimony by Skinner regarding his 

recommendation for and knowledge of the special assessment of the 

violation of section 56.12071, Lyman-Richey did not offer 

evidence tending to show that the proposal was arbitrary nor did 

its counsel advocate that position in his closing argument. 

Tr. 317-324. Therefore, in assessing a civil penalty for the 

violation of Section 56.12071, I will only consider the evidence 

of record. 

S&S AND GRAVITY 

Skinner found that the violation was S&S. The Commission 

has held that a violation is "significant and substantial" if, 

based on the particular facts surrounding the violation, there 

exists a "reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious 

nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981). Further, the Commission has offered guidance upon 

the interpretation of its National Gypsum definitionby 

explaining four factors the Secretary must prove in order to 

establish that a violation is S&S. Mathies Coal Co., 6 FMSHRC 1 

(January 1984). 12 I have found a violation of section 56.12071 

12 In Mathies the Commission stated: 

[T]o establish that a violation of a mandatory 

standard is significant and substantial under National 

GVDSUm, the Secretary of Labor must prove: (i) the 

underlying violation of a mandatory safety standard; (2) 

a discrete safety hazard 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. 

Mathies, 6 FMSHRC at 3-4. 

1397 
and given the fact that the violation was the proximate result of 

a fatality and serious injury, I conclude the other three factors 

are established as well. 

In assessing the gravity of the violation both the potential 

hazard to the safety of miners and the likelihood of the hazard 

occurring must be analyzed. Here, the potential hazard was 

extremely serious. What happened to Johnson and McGhee is 

exactly the sort of accident section 56.12071 was designed to 

prevent. Given the violation, the death and injuries that 

resulted were likely to occur. Miners do work in, on or adjacent 

to equipment while it is being moved or operated. When equipment 

is moved or operated within less than i0 feet of energized 

high-voltage power lines and precautions have not been taken to 

prevent contact with the lines, the margin for error is reduced 

to an unacceptable minimum -- especially when a large piece of 

equipment is involved, for then even a proportionally small 

movement of the equipment can lead to contact with the lines and 

resulting disaster to those in its immediate vicinity. 

Therefore, I find that this was a violation of the utmost 

gravity. 

NEGLIGENCE 

Skinner found that Lyman-Richey exhibited a "moderate" 

degree of negligence in allowing the violation to exist. 

G. Exh. 7. In reaching this finding Skinner credited 

Lyman-Richey for the written safety procedures it had prepared 

and given to its employees concerning work under high-voltage 

power lines. Tr. 58-60, 114, 132. Nonetheless, he believed 

Lyman-Richey's management personnel exhibited fault in that they should have evaluated the situation once the crane had become 

disabled. Tr. 64-65. Skinner was of the opinion that someone 

from management should have assessed the situation prior to 

Dryden's arrival and before any action was taken with respect to 

the attempted repair of the crane. Tr. 114-116. He stated, 

"[E]ven though . . . Dryden was not there to make the 

determination, I feel somebody should have been in charge of that 

procedure there, from the company." Tr. 117. What Skinner had 

in mind was the presence of a supervisor to monitor safety 

procedures while repair work was undertaken on the tramming 

engine. 

[T]he central point was the tramming engine and getting 

the tramming engine back into operation; and that's 

where everything was pinpointed . . and that's the 

reason for someone to safety check it 

per se. 

Tr. 119. 

Counsel for the Secretary essentially argued that Skinner's 

assessment was right, that Lyman-Richey's management personnel 

1398 
failed to exercise the care required by the situation, even 

though there were some factors in mitigation of its lack of care. 

Tr. 314-316. On the other hand, counsel for Lyman-Richey argued 

that the employees involved in the accident were adequately 

trained regarding safety procedures and power lines and that the 

accident represented a type of judgmental lapse on Jirovsky's 

part to which all of us are heir and which no amount of training, 

vigilance or care can completely eliminate Tr. 319. Counsel 

emphasized that Dryden was in the area for only a brief period 

before the accident occurred, that he did not know the boom was 

going to be raised and that things happened so quickly there was 

simply no time for him to intervene in the situation. 

Tr. 320-321. Moreover, Dryden had made a perfectly reasonable 

judgement that there was no need for him to intervene: 

He did that based on [Johnson's] description 

to him of what was to be done next; and that 

is, change the fuel filter . . . and in 

 Dryden's understanding, and his correct 

understanding, . . . 

the boom needn't be 

raised in order to access the fuel filter; 

and I think it's fair to say that there [was] 

an evaluation made by him that he need not 

intervene. 

Tr. 234. 

The Commission has afforded its judges extensive guidance in 

evaluating negligence Among other things, it has long held that 

the negligence of a rank-and-file miner is not attributable to 

the operator for civil penalty purposes Southern Ohio Coal 

Company, 4 FMSHRC 1463-1464 (August 1982). Therefore, while I 

accept the statement of Jirovsky that he raised the boom into the 

wires because of a "misjudgment of distance" and conclude that 

he was obviously negligent so doing I do not attribute his lack 

to care to Lyman-Richey. Tr. 302. Rather, I look beyond 

Jirovsky, to acts of commission or omission by Lyman-Richey 

itself. 

Again, the Commission has provided guidance. 

The fact that a violation was committed by a 

non-supervisory employee does not necessarily 

shield an operator from being deemed 

negligent. In this type of case, we look to 

such considerations as the foreseeability of 

the miner's conduct, the risks involved, and 

the operator's supervising, training and 

disciplining of its employees to prevent 

violations of the standard in issue. 

A.H. Smith Stone, 5 FMSHRC 13, 15 (January 1983) 

1399 
Starting with Lyman-Richey's supervision, training and 

disciplining of its employees, I conclude that Skinner properly 

credited the company for its training. As the testimony of 

Skinner and of Lyman-Richey's witnesses makes clear, the company 

had a written training program in place that fully apprised its 

employees of the hazards of moving and operating equipment in the 

vicinity of high-voltage power lines. Moreover, it had a 

disciplinary program to enforce its training, a program relying 

on that most powerful of incentives -- money. I conclude from 

Jirovsky's testimony that he read and understood the company 

safety manual with respect to its prohibition of operating or 

moving the crane within less than i0 feet of power lines. 

Tr. 291-292. I also conclude from the testimony that not only 

was Jirovsky adequately trained regarding the hazards of power 

lines, but that the company had taken the additional precaution 

of placing signs inside the equipment's cab to remind him of such 

hazards. Tr. 220, 290. 

I further find that Lyman-Richey had a policy of discussing 

particular jobs and the safety hazards they entailed prior to 

undertaking the jobs (a policy that was referred to generally as 

"task training" during the testimony) and that this policy was 

usually implemented at the mine, at least with respect to the 

"bigger jobs." Tr. 295. I conclude from Dryden's testimony that 

in response to this policy a general discussion among the crew 

was held prior to the crane being moved and that the discussion 

involved safety, at least to the extent that Johnson volunteered 

to serve as spotter. Tr. 244-245. 

Thus, this is not a situation where the operator can be 

faulted for the training and discipline of its employees to 

prevent violations of the standard in issue. It does not follow, 

however, that I find that Lyman-Richey was fault free. Rather, I 

agree with what seems to have been the essence of Skinner's 

reasoning for finding Lyman-Richey negligent -- that when the 

risks involved are considered together with the circumstances 

under which the crane had broken down, the supervision provided 

by Lyman-Richey fell far short of the standard of care required. 

The risks involved of moving the crane under the energized 

high-voltage power lines were clearly very serious. Holmes 

accurately describe the situation as "dynamite." Tr. 174, 196. 

Lyman-Richey responded to the danger by having the crane back 

away from the dredge. Jirovsky and Frye explained that given the 

length of the boom and the rise in the ground that the crane had 

to negotiate, the decision to back away from dredge was made in 

order to assure clearance under the lines. Tr. 268, 297-288. 

It also responded by having Johnson acted as spotter. 

These steps, while commendable, were not enough, for Dryden 

left the area and in so doing left his miners without 

supervision. Obviously, a foreman cannot be with his crew at all 

1400 
times and I do not fault Dryden for wanting to survey the next 

work area in order to determine where the crane should be 

located. However, so potentially hazardous were the power lines 

to the safety of the crane operator and to those miners in the 

vicinity of the crane that in my view managerial supervision was 

required until the crane was clear of wires. 

The crane's stall triggered a confluence of events that 

on-sitesupervision might well have prevented. As Benke noted, 

once attention shifted to repairing the tramming engine, Johnson 

ceased to act as spotter, and no one was on-hand to ensure he was 

replaced. Tr. 229.13 To argue, as Lyman-Richey does, that once 

Dryden arrived on the scene there was no time within which to 

intervene to prevent the accident misses the point. He or his 

delegate should have been there all along. 

It is appropriate to evaluate the foreman's actions or lack 

thereof in gauging the negligence of the operator. Here, where 

the potential danger to miners dictated a very high standard of 

care, the foreman did not meet that standard. Therefore I find 

that Lyman-Richey was commensurately negligent. 

OTHER CIVIL PENALTY CRITERIA 

The parties stipulated the certified copy of the MSHA 

assessed violations history accurately reflects the violations at 

the mine for the two years prior to March 7, 1991. The copy, 

which was not introduced into evidence, reveals three violations 

cited and assessed during this period. None of the violations 

were of section 56.12071. This is a small history of previous 

violations. The parties also stipulated that Lyman-Richey is a 

medium size operator, that the proposed penalty of eight thousand 

dollars ($8,000) would not affect Lyman-Richey's ability to 

continue in business and that Lyman-Richey demonstrated good 

faith in abating the violation. 

CIVIL PENALTY •SSESSMENT 

In assessing a civil penalty for the violation of section 

56.12071, I have found instructive the case of Warren Steen 

Construction, Inc., 14 FMSHRC 1125 (July 1992). In that case 

Commission Administrative Law Judge James Broderick assessed a 

civil penalty of eight thousand dollars ($8,000) for a violation 

of section 56.12071, a violation that like the one at issue had 

resulted in the electrocution of a miner. 13 FMSHRC 256 

(February 1991)(ALJ Broderick). The company appealed and the 

13 

Dryden recognized the dangers inherent in the situation. 

He acknowledged that if equipment has to be worked on, the work is never 

preformed any where near a power line. Tr. 239 

1401 
Commission affirmed the judge's assessment. 

(August 1992). 

14 FMSHRC 1125 

A comparison of Warren Steen with the present case 

establishes substantial differences in culpability and other 

penalty criteria. In Warren Steen the Commission concurred with 

the judge that Steen, an individual who personally directed the 

operation and the company, acted with a high degree of 

negligence. 14 FMSHRC at 1133. Unlike Dryden and Lyman-Richey, 

Steen and the company purposefully and knowingly placed equipment 

within i0 feet of energized high-voltage power lines. Also 

unlike the present case, the company offered no evidence that it 

disciplined its employees to prevent violations and the company 

did not train the victim to be aware of the hazards involved. 

Moreover, unlike Lyman-Richey the company did not demonstrate 

good faith in attempting to achieve rapid compliance after having 

been notified of the violation. 

The absence here of the factors which the Commission found 

supported an eight thousand dollars ($8,000) assessment, strongly 

suggest that in this matter a lower assessment is warranted. 

Therefore, I conclude that an appropriate penalty for the 

violation is three thousand dollars ($3,000). 

ORDER 

Based on the foregoing it is ORDERED: 

i. Citation No. 2659299 is AFFIRMED. 

2. Lyman-Richey shall, within thirty (30) days of the 

date of this decision, pay to the Secretary three thousand 

dollars ($3,000) for the violation found herein and upon receipt 

of payment, this matter is DISMISSED. 

Distribution: 

David F. Barbour 

Administrative Law Judge 

Kristi Floyd, Esq., Office of the Solicitor, 

U.S. Department of Labor, Room 1585, Federal Building, 1961 Stout 

Street, Denver, CO 80294 (Certified Mail) 

Steven D. Johnson, Esq., Kennedy, Holland, DeLacy & Svoboda, 

1306 Regency Parkway Drive, Omaha, NE 68114 (Certified Mail) 

/epy 

1402 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

J U L 2 71993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COSTAIN COAL INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 92-1073 

A.C. No. 15-13920-03788 

Docket No. KENT 92-1110 

A.C. No. 15-13920-03789 

Docket No. KENT 93-25 

A.C. No. 15-13920-03793 

Docket No. KENT 93-206 

A.C. No. 15-13920-03798 

Docket No. KENT 93-261 

A.C. No. 15-13920-03799 

Pyro #9 Wheatcroft 

Docket No. KENT 93-260 

A.C. No. 15-14492-03626 

Docket No. KENT 92-1049 

A.C. No. 15-14492-3616 R 

Baker Mine 

DECISIONS 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, for the Petitioner; 

Carl B. Boyd, Esq., Henderson, Kentucky, and 

R. Eberley Davis, Esq., Costain Coal Inc., 

Sturgis, Kentucky, for the Respondent. 

Before: Judge Koutras 

Statement of the Proceedinqs 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for 

twenty-two (22) alleged violations of certain mandatory safety 

standards found in Part 75, Title 30, Code of Federal 

Regulations. The respondent filed timely answers and contests, 

1403 
and in response to a prehearing order, the petitioner's counsel 

informed me that the parties proposed to settle most of the 

disputed citations, but were unable to resolve others. Under the 

circumstances, the cases were consolidated with other cases 

involving these same parties, and hearings were held in 

Evansville, Indiana, on June 8, 1993. 

Discussion 

In the course of the hearings, the parties informed me that 

the respondent agreed to pay the full amount of the initial 

proposed civil penalty assessments for sixteen (16) of the 

disputed citations in settlement of the violations. With respect 

to the remaining six (6) disputed citations, the parties informed 

me that after further discussions and negotiations, they proposed 

to settle the violations, and arguments in support of the 

proposed settlements were made and heard on the record (Tr. 5-11; 

137-140). 

Citation No. 3858304. The citation was issued after the 

inspector observed equipment tracks which led him to believe that 

a shuttle car trailing cable had been run over. The petitioner's 

counsel asserted that the evidence reflects that the cable was 

not damaged, and that the facts would not support the inspector's 

"S&S" finding. Under the circumstances, counsel concluded that 

the citation should be modified to a section 104(a) non-"S&S" 

citation, and the respondent agreed to pay the reduced penalty 

assessment. 

Citation Nos. 3857517 and 3857734. With respect to Citation 

No. 3857517, petitioner's counsel stated that the available 

evidence supports a modification of the inspector's gravity 

finding because the number of miners exposed to any potential 

hazard was less than originally believed by the inspector. With 

regard to Citation No. 3857734, petitioner's counsel stated that 

the available evidence reflects a low degree of negligence, 

rather than the moderate negligence finding originally by the 

inspector. Under the circumstances, the parties believed that 

the reduced settlement penalty assessments were reasonable and 

warranted, and the respondent agreed to pay the modified 

penalties in settlement of the violations in question. 

Citation Nos. 3552688, 3552693, and 3553249. The parties 

were in agreement that the available evidence reflects that the 

inspector failed to take any dust samples to support his gravity 

findings with respect to Citation No. 3553688, and the 

petitioner's counsel stated that the citation will be modified to 

1404 
reflect a non-"S&S" violation. Petitioner's counsel further 

stated that the available evidence reflects that the hazard 

exposure associated with Citation No. 3552693, was less than 

originally believed by the inspector, and that the inspector's 

gravity finding will be modified to accurately reflect the number 

of miners exposed to the potential hazard. With respect to 

Citation No. 3553249, petitioner's counsel asserted that the 

available evidence reflects a low degree of negligence rather 

than the moderate negligence finding originally made by the 

inspector, and that the citation will be modified accordingly. 

The parties believed that the reduced penalty amounts for these 

citations were reasonable and warranted, and the respondent 

agreed to pay the modified penalties in settlement of the 

violations in question. 

Findinqs and Conclusions 

In addition to the arguments presented on the record in 

support of the proposed settlements, the parties also presented 

information concerning the six statutory civil penalty criteria 

found in section ll0(i) of the Act. After careful review and 

consideration of the pleadings, arguments, and submissions in 

support of the proposed settlements, and pursuant to Commission 

Rule 31, 29 C.F.R. § 2700.31, I rendered bench decisions 

approving the proposed settlements. Upon further review of the 

entire record, I conclude and find that the settlement 

dispositions which have been approved are reasonable and in the 

public interest, and my bench decisions are herein reaffirmed. 

The citations, initial assessments, and the settlement amounts 

are as follows: 

Docket No. KENT 92-1073 

30 C.F.R. 

Citation No. Date Section Assessment Settlement 

3857393 7/27/92 75.304 $362 $362 

3857397 7/28/92 75.517 $235 $235 

Docket No. KENT 92-1110 

Citation No. Date 

385739o 7/23/92 

30 C.F.R. 

Section Assessment Settlement 

75.202 $987 $987 

1405 
Docket No. KENT 93-25 

Citation No. 

3553192 

3552416 

Date 

7/6192 

7/29/92 

30 C.F.R. 

Section 

75.400 

75.402 

Assessment 

$2,301 

$506 

Settlement 

$2,301 

$506 

pocket No. 93-206 

Citation No. Date 

3859297 10/8/92 

30 C.F.R. 

Section 

75. 516-2 (b) 

Assessment 

$5O 

Settlement 

$5O 

Docket No. KENT 93-261 

Citation No. Date 

30 C.F.R. 

Section 

3552688 10/6/92 75.316 

3552693 10/8/92 75.400 

3552694 10/8/92 75.402 

3859298 10/8/92 75.316 

3857489 10/26/92 75.316 

3553249 11/23/92 75.400 

Assessment 

$235 

$506 

$506 

$288 

$235 

$690 

Settlement 

$5O 

$362 

$506 

$288 

$235 

$309 

pocket No. KENT 93-260 

Citation No. Date 

30 C.F.R. 

Section 

3857517 10/14/92 75.400 

3859147 10/23/92 75.517 

3857734 11/4/92 75.316 

Assessment 

$506 

$204 

$204 

Settlement 

$362 

$204 

$154 

Docket No. KENT 92-1049 

Citation No. Date 

30 C.F.R. 

Section 

3858304 8/29/91 75.606 

3858307 8/30/91 75.400 

3858308 •9/16/91 75.400 

3546628 10/21/91 75.400 

3858168 10/22/91 75.400 

3546381 10/30/91 75.400 

3546389 11/26/91 75.400 

Assessment 

$147 

$157 

$206 

$227 

$227 

$147 

$206 

Settlement 

$5O 

$157 

$206 

$227 

$227 

$147 

$206 

1406 
ORDER 

The respondent IS ORDERED to pay civil penalties in the 

settlement amounts shown above in satisfaction of the violations 

in question. Payment is to be made to MSHA within thirty (30) 

days of the date of these decisions and order, and upon receipt 

of payment, these proceedings are dismissed. 

Admlnlstratlve Law Judge 

Distribution: 

Mary Sue Taylor, Esq., office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Carl B. Boyd, Esq., 223 First Street, Henderson, KY 

(Certified Mail) 

42420 

R. Eberley Davis, Legal Affairs Manager, Costain Coal Inc., P.O. 

Box 289, Sturgis, KY 42459 (Certified Mail) 

Mr. Clifford D. Burden, Director, Loss Prevention, Costain Coal 

Incorporated, P.O. Box 289, Sturgis, KY 42459 (Certified Mail) 

/ml 

1407 
OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH. VIRGINIA 22041 

JU,t. 2 7 993 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. PENN 93-231-R 

Order No. 3658846; 2/18/93 

Dilworth Mine 

Mine ID 36-04281 

Appearances: Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & 

Crltchfield, Morgantown, West Virginia for 

Contestant; 

Anita Eve Wright, Esq., U.S. Department of Labor 

Office of the Solicitor, Philadelphia, 

Pennsylvania for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

On March 18, 1993, the Operator, Consolidation Coal Company, (Contestant) filed a Notice of Contest challenging the issuance 

of Order No. 3658846 which alleges a violation of 30 C.F.R. § 

75.364. Also, Contestant filed a Motion to Expedite. The issues 

raised by the pleadings were generally discussed with counsel for 

both parties in a telephone conference call on March 19, 1993, 

and again on March 22, 1993, at which time, based on representations of counsel, this case was scheduled for a one-day 

hearing on April 15, 1993. At the hearing held on that date in 

Washington, Pennsylvania, Robert W. Newhouse, Robert G. Santee, 

James S. Conrad Jr., and Eugene Zvolenski testified for the 

Secretary (Respondent). The hearing was continued on 

May 13, 1993, in Morgantown, West Virginia, at which time 

Louis Barletta Jr., Patrick N. Wise, James E. Hunyady and 

Gary J. Klinefelter testified for Contestant. At the conclusion 

of the hearing, the parties requested an opportunity to summit 

written briefs, and were so granted this right. Contestant filed 

its Post Hearina Brief on June 15, 1993. Respondent filed 

Findings of Fact, Concluslons of •w and Brief in •uDDort on 

June 17, 1993. 

1408 
Stipulations 

i. Consolidation Coal Company is the owner and operator of the 

Dilworth Mine, which is the subject of this proceeding. 

2. Consolidation Coal Company and the Dilworth Mine are subject 

to the Jurisdiction of the Federal Mine Safety and Health Act of 

1977, as amended, 30 U.S.C. § 801, et seq. 

3. The Administrative Law Judge has Jurisdiction over this 

matter pursuant to Section 105 of the Act. 

4. The subject order, number 3658846, was issued pursuant to 

section 104(d)(2) of the Act, and was •roperly served by Robert 

Santee, a duly authorized representative of the Secretary of 

Labor, upon an agent of the Respondent, Pat Wise, on February 18, 

1993, at the DilworthMine. 

5. The assessment of a civil penalty in this proceeding will 

not affect the Operator's ability to continue in business. 

6. Abatement of the condition cited and listed in the Order was 

timely. 

7. A copy of the subject Order is authentic and may be admitted 

into evidence for the purpose of establishing issuance, but not 

for the purpose of establishing the truthfulness or relevancy of 

any of the statements asserted therein. 

8. Order No. 3658846 states in pertinent part: 

There was water present ranging up to 11 inches deep 

for the width of the entry beginning [sic] Just inby 

survey spad 73+50 (between the No. 46 and the No. 47 

crosscut) and continuing inby for a distance of 

approximately 50 feet, exact distance could not be 

measured at this time, in the 9-D (023) longwall 

section No. 4 intake entry (future 10-D tailgate 

entry). The presence of such water presents a very 

possible slipping and/or tripping hazard due to the 

possibility of debris consisting of crib blocks, cement 

blocks, rock, loose coal, mud etc., under such water 

accumulations. This entry is required to be examined 

weekly by a certified mine examiner, who is anacting 

agent of the operator, and the last date observed, 

outby this area, was 02-17-93 JLF 8:22 p.m. There was 

1 violation issued during the last inspection period 

from 10-01-92 to 12-31-92 of 30 C.F.R. § 75.364(d). 

9. Order No. 3658846 alleges a violation of 30 C.F.R. | 75.364. 

1409 
I. Findlnqs of Fact 

i. Contestant's Dilworth Mine experiences, on a regular basis, 

accumulations of water on the mine floor. To control this 

problem, Contestant installed a series of pneumatic pumps to pump the water out of the mine. 

2. On February 18, 1993, the bleeder entry (the future tailgate 

entry) for the 10-D longwall panel in the 9-D East Section 

extended 8,000 feet, and was approximately 16 feet wide. 

3. On February i0, 1993 the longwall face in the 9-D East 

Section was located at spad 31+50. 

4. On February 18, 1993, the bleeder entry outby the face was 

designated an escapeway. The working section did not extend inby the face, and the bleeder entry was not designated an escapeway inby the face. 

5. The bleeder entry inby the face is traveled weekly by miners 

to fire-boss. Also miners travel there regularly to service and 

repair the pumps. 

II. Further Findinqs of Fact and Discussion 

Robert G. Santee, an MSHA inspector, testified that on 

February i0, 1993, he inspected the 9-D East Section at 

Contestant's Dilworth Mine. Between the 19th and 20th crosscuts 

in the No. 4 intake entry (bleeder entry) he observed water up to 

14 inches deep. He indicated that he was unable to see the 

bottom of the water as it was muddy. He also observed a 4 inch 

drainage line, and a 3 inch air line going under the water. He 

said that he also suspected the presence of other material in the 

water as, while travelling up the entry (inby) to the point in 

question, he had observed crib blocks, old pipeline, loose rock, and coal. He issued a citation, alleging a violation of 

30 C.F.R. § 75.364, and informed Contestant's representatives 

that he would allow until 8:00 a.m., February 12, for the 

violation to be abated. 

Santee did not return until February 17. He indicated that 

when he returned there was more water present. He told 

Contestant's representatives that he was going to issue a Section 

104(b) order. Kenny Boyle, the longwall coordinator, and J.J. 

Pohira, the pumper foreman, informed him that on February 12, 

water had been pumped out. Santee then terminated the original citation, and issued a Section 104(b) order because Contestant 

had allowed the water to return. Upon discussion with his 

mupervisor, Santee voided the Section 104(b) order, and extended 

the abatement of the original citation until February 18. 

According to Santee, when he returned on February 18, he observed 

2 or 3 miners pumping water in the area between the 19th and 20th 

1410 
crosscuts. He also observed that crib blocks were being removed 

from the water inby. 

According to Santee, at spad 73+50 he observed an 

accumulation of water that he indicated was "almost identical" 

(Tr. 69) to that to which he had previously observed between 

crosscuts 19 and 20. He indicated that the water went from rib 

to rib. and extended 50 feet. He indicated that the water was 

muddy, 1 and he could not see through the water. When he entered 

the water he went as far as he felt safe. He put a ruler in the 

water until it hit the mud on the bottom, and noted that the 

depth was ii inches. He took only one measurement. 

Santee also observed footprints on the floor at the outby 

side of the water accumulation. He also indicated that there was 

a swag at Spad 72+10, 140 feet outby, and at a lower elevation 

than the water accumulation. According to Santee, the presence 

of a pump in the swag indicated that water had been pumped out of 

the swag. 

At spad 73+50, two pipes led into the water accumulation. 

One pipe was four inches in diameter, and the other was three 

inches in diameter. These pipes ran the entire length of the 

entry, and were placed on the right side of the entry inby. 

Aside from these items, nothing was protruding from the water, 

nor were there any cement blocks, crib blocks, loose coal, or 

rocks observed. Santee stated that he believed that there were 

objects under the water, as he had observed crib blocks and 

cement blocks at various locations when he had walked the entry 

inby earlier that day. According to Santee, there were 

"numerous" crib blocks, 6 inches by 6 inches by 30 inches in 

length throughout the entry. (Tr. 86). Also, according to 

Santee, he saw aluminum and steel pipeline Joints, 3 to 4 inches 

in diameter, and I0 to 15 inches in length, around the pump in 

the swag outby spad 73+50. •antee said that the area of water 

between crosscuts 19 and 20, contained steel bands that were 

3/4 inch wide 16th of an inch thick, and between 4 and 6 feet in 

length. He said that it is very easy to trip on such items. 

Santee opined that if a person had entered water at Spad 

73+50 he could have been injured by slipping or tripping on 

submerged objects such as pipes, crib blocks, cement blocks, 

loose rock or mud. 

1Eugene P. Zvolenski a miner who accompanied Santee on his 

inspection described the water at 73+50 as cloudy, and said that 

he could not see where he was walking. 

2The area at crosscuts 19 and 20 is approximately 4,300 feet 

from Spad 73+50. 

1411 
Santee issued a Section 104(d) order alleging a violation of 

30 C.F.R. § 75.3643 . Section 75.364, • as pertinent, 

provides that at least every 7 days an examination shall be made, and that hazardous conditions "shall be corrected immediately.,, 

III. 

A. Violation of 30 C.F.R. § 75.364 

The key issue for resolution is whether, on the date of 

Santee's inspection, the accumulation of water in the cited area 

constituted a hazardous condition which had not been corrected 

immediately. 

Contestant did not impeach the testimony of Santee regarding his observations of the water accumulation. Patrick M. Wise, who 

accompanied Santee in his capacity as Contestant,s Safety 

Inspector, did not contradict Santee's testimony with regard to 

the depth, and extent of the accumulation. Nor did he contradict 

the testimony of Respondent's witnesses that the water was cloudy 

or muddy, which prevented the bottom from being seen. 

According to Santee he concluded that the accumulation was 

present for some time because the area between the swags was dry, and crusted, and because he had observed a water-discoloration 

line 36 inches high, approximately 20 feet inby spad 73+50. On 

the other hand, Louis Barletta, who was the superintendent of the mine during the period in issue, indicated that it is not 

possible to tell the age of an accumulation of water soley by looking at a water-discoloration line. He opined that water can 

accumulate quite quickly. 

The record does not contain any testimony from any person having personal knowledqe of the length of time the accumulation 

of water had existed prior to Santee's inspection. Resort thus is made to an analysis of the documentary evidence. The 

documentary evidence indicates, prior to Santee's inspection, the 

presence of water close to the cited area. In an Examinations of 

ers 

•ncludinq Tests for Methane, ("Weekly Examination Book"), on 

February 17, 1993 at the 10-D tailgate, "15 xc to backend" it is 

noted as follows under the heading "hazards noted": "H20 73+80". 

The following is set forth under the heading "action taken": 

"reported". (Contestant,s Exhibit C). The pumper's Report 

(Contestant,s Exhibit D), wherein pumpers note the condition of 

pumps, and the water level in the area of various pumps, 

3The pertinent language, set forth in Section 75.364, 

was previously found at 30 C*F.R. § 75.305, and had been revised 

effective August 16, 1992, 57 F.R. 20914 (March 15, 1992)). 

1412 
indicates that, on February 15, 1993, at the pumps located at 

spad 72+20 the water was "at strainer" (sic). Barletta explained 

that this indicates a water depth of approximately 2 to 3 inches. 

The same comments are found in the reports for the midnight to 

8:00 a.m. shift on February 17, 1993. In the next shift, at the 

pump location 72+20 the water level is noted as 12" at 57+20 it 

is noted as I0", and at 36+90, 20 xc, the water level "noted as 

"strainer" (sic). Also, the Pumper's Report for this shift 

contains the following remarks "told E.B. that pumps needs to 

start pump inbyin 10-D tail for 12/18/93" (sic). 

Considering the depth of the water, the fact that it was 

cloudy or muddy, the extent of the accumulation, the presence of 

two pipes in the water, and the fact that mud and rocks, occur 

naturally on the floor of mines, I conclude that the accumulation 

of water cited by Santee constituted a hazardous condition that 

should have been reported. 

Within the framework of the above evidence I conclude that 

the hazardous water accumulation had not been corrected by 

Contestant prior to the time it was noted by Santee. I thus 

conclude that Contestant herein did violate Section 75.364, 

u•_•_ra. 

B. Siqnificant and Substantial 

Santee characterized the violation he cited as significant 

and substantial. He defined "significant and substantial" as a 

condition which would cause a serious injury before it could be 

corrected. He opined that in the situation presented herein, an 

injury was reasonably likely to have occurred, taking into 

account the presence of water, and the likelihood that it 

contained debris. This conclusion was based upon his observation 

of debris in the area of crosscuts 19 and 20, which was 4,300 

feet outby the area cited. 

On the other hand, Barletta indicated that he was not aware 

of any slipping or tripping injuries in water up to 12 inches 

that occurred from January 1988 to February 1993. Patrick M. 

Wise, who was Contestant's Safety inspector during the period in 

issue, testified to the same effect. He also opined that the 

accumulation at issue did not constitute a hazard, as it was 

possible to travel in the cited area without slipping. He said 

that he had travelled there in the past without slipping. 

Barletta indicated, in essence, that miners are aware of the need 

to walk carefully in water that is muddy or cloudy, and miners 

are aware of the placement of pipes in the water and their 

location. He also indicated that by using a stick as a guide, it 

is possible to safely traverse water that can not been seen 

through. 

1413 
In evaluating whether the violation herein was significant 

and substantial, I disregard the erroneous definition proffered 

by Santee, and instead refer to established case law. 

In analyzing whether the facts herein establish that the 

vlolation is significant and substantial, I take note of the 

recent Decision of the Commission in Southern Ohio •oal Company, 13 FMSHRC 912, (1991), wherein the Commission reiterated the 

elements required to establish a significant and substantial 

vlolation as follows: 

We also affirm the Judge's conclusion that the 

violation was of a significant and substantial nature. 

A vlolation is properly designated as significant and 

substantial "if, based on the particular facts 

surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious 

nature." Cement Division, Natlonal GTpsnm Co., 

3 FMSHRC 822, 825 (April 1981). In Mathles Coal Co., 6 

FMSHRC 1, 3-4 (January 1984), the Commission 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. SecretarT, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathles criteria). The 

third element of the • formula "requires that the 

Secretary establish a reasonable likelihood that the 

hazard contributed to will result in an event in which 

there is an injury" (U.S. Steel Mininq Co., 6 FMSHRC 

1834, 1836 (August 1984)), and also that the likelihood 

of injury be evaluated in terms of continued normal 

mining operations (•.S. Steel Mininq Co.. Inc. 6 FMSHRC 

1573, 1574 (July 1984); See: also Halfway. Inc., 8 

FMSHRC 8, 12 (January 1986). 

(Southern Ohi o, • at 916-917). 

I have already found that Contestant did violate 

Section 75.364, su_•_Ea, and that, in essence, the vlolatlon herein 

1414 
did contribute to the hazard of slipping or tripping. In 

evaluating the third element of the Mathies formula, I take 

cognizance of the following facts: the depth of the water;the 

fact that the bottom could not be seen through the water; the 

presence of 2 pipes in the water; the uncontradicted testimony of 

James Samuel Conrad Jr., an MSHA Inspector who inspected the site 

on February 7, 1993, and observed, in the area cited, planks and 

crib blocks lying on the floor in the center of the entry on the 

right side; 4 and Conrad's uncontradicted testimony that within 

20 feet inby of Spad 73+50 he had observed a canvas lying on the 

floor covered with mud which made it extremely slippery when wet. 

Within the above framework, I conclude that it has been 

established that an injury producing event i.e., slipping or 

tripping, was reasonably likely to have occurred. I also 

conclude, due to the nature of the items in water, that should a 

person have tripped or slipped, there was a reasonable likelihood 

of an injury of a reasonably serious nature. Thus, I conclude 

that it has been established that a violation herein was 

significant and substantial. 5 

C. Unwarrantable Failure 

According to Santee, the violation herein resulted from 

Contestant's unwarrantable failure. Santee defined 

"unwarrantable failure" as a situation where an operator knew or 

should have known of a violative condition, and did not take 

corrective action. In this connection, he referred to the 

similar accumulation which he had cited on February i0, in an 

area outby, and concluded that accordingly, Contestant should 

have been made aware of hazardous water conditions. Also, he 

indicated that an outby swag at a higher elevation had been 

pumped out. In this connection, reference is made to the entry 

in the Pumper's Report of the second shift on February 17, 1993 

as follows: "Told E.B. that pumpe needs to start pumps inby 10-D 

tail for 2/18/93." (sic) 

In making a de Dovo determination whether the record 

establishes unwarrantable failure on the part of Contestant, I 

4Conrad said that he observed 5 crib blocks, and 7 planks 

approximately 20 feet inby Spad 73+50. 

5The issue for resolution is not whether Santee,s 

determination that the violation was significant and substantial 

finds support in the factors he took into account, but rather a 

decision on the issue of significant and substantial must be 

based upon all the evidence presented at a de novo hearing on 

this issue. Accordingly, the observations of Conrad, although 

not known to Santee when he made his determination, constitute 

important evidence to be taken into account in analyzing the 

issue of significant and substantial. 

1415 
consider the following facts: the depth and extent of the 

accumulation observed by Santee; the fact that a similar 

accumulation had been cited on February i0; the lack of 

evidence indicating that the accumulation at issue had occurred 

at a point of time close to Santee's inspection which would not 

have allowed Contestant sufficient time to have pumped it out 

before Santee's inspection; 6 and the lack of any evidence on 

Contestant part explaining why the area in question has not been 

pumped out. Within the context of these facts, I conclude that 

it has been established that the violation herein was as a result 

of aggravated conduct on the part of Contestant and, hence 

constituted an unwarrantable failure (See Emery Mininq Corp., 

9 FMSHRC 1997, 2004 (1987)). 7 

ORDER 

It is ORDERED that the Notice of Contest be DISMISSED, and 

the ORDER be affirmed as written. 

/•/•vram Weisberger 

Administrative Law Judge 

6I find that Barletta's opinion that such an accumulation 

can occur quickly is of little probative valve in establishing how long the accumulation observed by Santee had actually existed. 

7It appears to be part of Contestant's argument that, prior 

to October 1992, MSHA had an unwritten policy that an 

accumulation of water would not be cited in bleeders unless the 

water exceeded hip boot height; in the return entries unless the 

water exceeded knee height; and in intake entries unless the 

water was higher than 15 1/2 inch boots. Hunyady indicated that 

he was told of such a policy by various inspectors when they came 

across water accumulations when he accompanied them on 

inspections subsequent to 1986 or 1987. I do not find much merit 

to this argument. First of a11, there is no evidence that 

Contestant,s personnel in charge of pumping water accumulations 

were aware of such MSHA "policy". Nor there is any evidence that 

such persons measured or walked into the water accumulation at 

issue and decided, in reliance upon past MSHA "policy", not to 

pump the accumulations, as being below the level of hip boots. 

1416 
Distribution: 

Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & critchfield, 5000 

Hampton Center, Suite 4, Morgantown, West Virginia 26505 

(Certified Mail) 

Anita Eve Wright, Esq., Office of the Solicitor, U. S. 

of Labor, 3535 Market Street, 14480 Gateway Building, 

Philadelphia, PA 19104 (Certified Mail) 

Department 

nb 

1417 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582. 

(303) 844-5266/FAX (303) 844-5268 

JUL 2 7 993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Va 

MOUNTAIN CEMENT COMPANY, 

a Wyoming Partnership, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-III-M 

A.C. No. 48-00007-05562 

Mountain Cement Company 

DECISION 

Appearances: 

BEFORE: 

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

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

for Petitioner; 

Philip Nicholas, Esq., NICHOLAS LAW OFFICE, 

Laramie, Wyoming, 

for Respondent. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and Health Administration ("MSHA") charges Respondent Mountain Cement Company ("MCC") with violating a safety regulation promulgated under the Federal Mine Safety and Health Act 30 U.S.C. § 801, et (the "Act"). 

' 

-- 

A hearing on the merits was held in Laramie, Wyoming, on September i, 1993. The parties submitted their respective cases 

on oral argument. 

1418 
Citation No. 3635856, issued under Section 104(d) of the 

Act, alleges MCC violated 30 C.F.R. S 56.12017.* The citation 

reads as follows: 

The high voltage dc circuit to the "B" field 

of the electrostatic precipitator was not deenergized while two employees were attempting 

to repair the "A" field. Energized components from both fields were located in the 

same compartment. The circuit powering the 

"A" field was de-energized and locked out. 

One individual climbed into the compartment 

to retrieve a conductor connection that had 

been dropped earlier. He contacted the energized "B" field component and was electrocuted. The accident occurred at 2:55 p.m. on 

March i, 1991. The victim was the working 

electrical foreman and was reportedly very 

familiar with the system. This practice was 

an unwarrantable failure. 

STIPULATION 

The parties stipulated as follows: 

i. MCC is engaged in mining and selling of limestone in 

the United States, and its mining operations affect interstate 

commerce. 

The cited regulation provides: 

S 56.12017 Work on power circuits. 

Power circuits shall be de-energized before 

work is done on such circuits unless hot-line 

tools are used. Suitable warning signs shall 

be posted by the individuals who are to do 

the work. Switches shall be locked out or 

other measures taken which shall prevent the 

power circuits from being energized without 

the knowledge of the individuals working on 

them. Such locks, signs, or preventive devices shall be removed only by the person who 

installed them or by authorized personnel. 

1419 
2. MCC is the owner and operator of Mountain Cement 

Company Mill, MSHA I.D. No. 48-00007. 

3. MCC is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. SS 801 et se_9_q• (the "Act"). 

. 

matter. 

The Administrative Law Judge has jurisdiction in this 

5. The subject citation was properly served by a duly authorized representative of the Secretary upon an agent of 

Respondent on the date and place stated therein, and may be 

admitted into evidence for the purpose of establishing its 

issuance, and not for the truthfulness or relevancy of any statements asserted therein. 

6. The exhibits to be offered by Respondent and the 

Secretary are stipulated to be authentic but no stipulation is 

made as to their relevance or the truth of the matters asserted 

therein. 

7. The proposed penalty will not affect Respondent's ability to continue business. 

8. The operator demonstrated good faith in abating the violation. 

. 

in 1990. 

MCC is a large mine operator with 568,861 hours worked 

i0. The certified copy of the MSHA Assessed Violations 

History accurately reflects the History of this mine for the two 

years prior to the date of the Citation. 

THE EVIDENCE 

MSHA's accident investigation report encapsulates the basic facts as well as the technical aspects of the case. The parties have stipulated to the facts in the report. (Tr. I0). It states in part that the MCC mill was located at 5 Sand Creek Road in the southwest part of Laramie, Albany County, Wyoming. The mill was 

operated three shifts per day, seven days a week. The mill em- ployed 107 people. Limestone, shale, and gypsum, which was mined 

at other locations and hauled to the mill, were processed into 

several types of Portland cement. Production at the mill averaged 400,000 tons a year. 

A cement mill had been located at the site since 1927. MCC had purchased the facility in 1986 and had remodeled and upgraded 

1420 
the operation in 1987. The mill was equipped with one dry-feed 

kiln. A two-stage preheater was used to heat the material to 

more than 1500 degrees F before entering the kiln. Dust generated within the kiln and preheater system was removed with a 

high voltage electrostatic precipitator located between the kiln 

and the emissions stack. 

On March i, 1991, LeRoy A. Robarge, victim, reported for 

work at MCC at 7 a.m., his normal starting time. Robarge, the 

working electrical foreman, initially received work assignments 

from James Lupton, chief electrician, and his immediate supervisor. Robarge also carried a company pager, through which he was 

notified of electrical problems and their priority as they occurred during the shift. 

From 7 a.m. until approximately II a.m., Robarge had been 

working on miscellaneous jobs around the plant. At ii a.m., 

Robarge was assigned by Lupton to troubleshoot an ongoing problem 

with one of the electrostatic precipitators. The kiln was temporarily down at this time while a trunnion was being repaired and 

the precipitator power could be shut off without causing the 

plant to be in violation of EPA stack emissions. 

Greg Morrissey, a newly hired electrician, was contacted by 

Robarge to assist with the task of determining why A-field in the 

precipitator was not producing the dc voltage as it was designed 

to produce. Morrissey had been working with Robarge on several 

electrical jobs the past two weeks and was being trained by Robarge. The men went to the motor control center #4 where Robarge 

explained to Morrissey the control switches and disconnects for 

the four precipitator units. The A-field circuit breaker was 

switched off and locked out and they proceeded to the top floor 

of the nearby precipitator building where the transformer/rectifier units were located. Robarge began troubleshooting by draining the oil from the A-field transformer. The transformer was 

then dismantled and the transformer coils tested for possible 

damage. When it was concluded that the problem was not in this 

area, the transformer was reassembled and the oil replaced. 

The high voltage power conductors for the A-field were 

located inside a 14-inch diameter isolating (air insulating) 

container tube. The tube was provided with an inspection cover 

located on the east horizontal section leading from the transformer. The cover was removed so the internal conductors could 

be visually inspected. Because the vertical conductor appeared 

to be misaligned and entered the bushings at an angle, they 

decided to correct this by extending the horizontal conductor 

approximately 1/2 to 3/4 inch by the addition of a nipple. 

Morrissey, working through the inspection cover, disconnected the connection between the vertical and horizontal con1421 
ductors. At this time, the vertical section slipped and dropped inside the precipitator compartment. 

Because Of the time which was 2:15 p.m. (break time), and 

the need to get an extension nipple, the two men left the area by the south exit door and went to the electrical shop. After a 

short coffee break, the men returned with the nipple to the pre- cipitator floor. 

Robarge went to the west side of the unit and opened the 

access hatch. It could not be determined whether Robarge entered 

the compartment head first or feet first but while trying to 

reach the fallen conductor, he contacted the energized B-field 

conductor. 2 

Morrissey, working on the east side, heard the arcing caused 

by Robarge's contact with approximately 50,000 volts of dc current. He went around the compartment where he could see arcing and knew that he could not help Robarge until the power had been 

turned off. Going to the east side door he shouted for help. 

Joe Bigelow, electrician, working one floor below the accident 

scene responded. Bigelow ran down the stairs to the motor control center where he shut off the power to all four precipitator units. He then went back outside and shouted to Morrissey that 

all power was off and secured. 

Ken Keirn, Stan Vialpondo, and Gary Cook, all mechanics, 

also responded to the calls for help. They assisted with removing Robarge from the interior of the precipitator unit. Robarge's jacket was on fire and they removed it. His shirt was 

also burning and the fire was put out. Vital signs could not be 

detected at this time and CPR was immediately initiated and con- tinued until the arrival of emergency personnel from the Laramie 

Fire Brigade, County Sheriff's office, and three Emergency Med- ical Technicians with the Ivinson Memorial Hospital ambulance. 

Robarge was placed on a back board and carried down the 

outside east stairway. CPR was continued at the different 

stairway landings on the way down. 

The victim, under the care of EMTs, was transported to 

Ivinson Memorial Hospital where he was pronounced dead by the 

emergency room physician at 4:24 p.m. Cause of death was cardiac 

arrest caused by electrocution. 

2 

The west side of the compartment is shown in Exhibit M-I. The 22-inch access door is shown in Exhibit G-9 (if Robarge entered the comcompartment head first he would move in the direction shown by the worker in Exhibit G-8). (Tr. 52). 

1422 
PHYSICAL FACTORS XNVOLVED 

The accident occurred on the upper level of the electrostatic precipitator inside a compartment that contained electrical 

components that were fed from two different power resources. The 

precipitator was a dust-collecting device located between the 

kilns and the emissions stack. The precipitator utilized groups 

of suspended wire electrodes charged with a positive polarity 

50,000-volt direct current charge to attract dust and particulates generated in the kiln. These groups of suspendedwire 

electrodes were called "fields." Periodically the electrodes 

were subjected to mechanically applied vibrations to shake down 

the attracted dust into hoppers located beneath the electrodes. 

The collected dust was then hauled away for disposal. 

Exhibit G-12 shows the energized tube on the B field and 

insulated portions in the compartment. They are marked "energized" and "insulator." Burns on Robarge indicated his head 

touched the energized portion. (Tr. 37-40). 

The electrostatic precipitator was approximately 80 feet 

high, 30 feet wide and 40 feet long. The upper level of the 

precipitator was covered with a gable-roofed metal building. 

Access to the upper level of the precipitator was provided by 

two outside stairways located on the east and south sides of 

the precipitator. 

The electrode fields in the precipitator were divided into 

four groups. These groups were identified as A, B, C, and D 

fields. Each field was powered from a separate high voltage 

transformer/rectifier unit. 

Three rows of compartments with four compartments in each 

row were located in the metal building on top of the precipitator. These compartments were used to enclose the electrical 

connections and parts of the suspension system for the fields. 

The A and B fields were located at the kiln end of the precipitator where the dust was the heaviest. Consequently, these 

fields required more power and less space. Both A and B fields 

were installed in the first (south) row of compartments. 

C and D fields were suspended and connected individually in 

the next two rows of compartments. This nonstandard arrangement 

may have confused the victim and contributed to the accident. 

The twelve compartments atop the precipitator were all constructed similarly. They were approximately 8' 6" long, 4' high 

and 2' 8" wide. Access to the interior of the compartment was 

through 22" diameter round hatches that extended 8" from the long 

side of the compartments near floor level. The access hatch to 

the compartment where the accident occurred was on the west side 

1423 
of the compartment located at the southeast corner of the 

precipitator. 

Two support insulators were located in the compartments one 

at each end. The insulators were constructed of fiberglass tubing approximately 14" in diameter and approximately 18" high. A 

.25" thick steel plate was bolted to the top of each insulator. 

A 2" diameter threaded steel rod extended upward from the top of 

the insulator. The steel plates and threaded rods were energized 

when the fields were energized. At the time of the accident the 

B-field was mistakenly left energized and the victim contacted 

the energized rod or plate while inside the compartment. 

The primary power for the four precipitator fields was fed 

from motor control center #4 located in a ground level building 

on the west side of the precipitator. The primary power was 480 

volts ac, single phase. The controllers for the fields were fed 

from circuit breakers mounted in the panel located in the center 

of the building. The controllers were located along the west 

wall of the building. Each controller was equipped with a disconnect and instruments to monitor voltages and currents of the 

fields. 

The transformer/rectifier units for the fields were located 

between the compartments on the top of the precipitators. The 

transformer/rectifier units were equipped with tap changing rotary switches. The tap changers had five positions which could 

be set to isolate and ground the fields or could be set to change the intensity of the dc charges on the field. Other than the tap changers there was no way to disconnect the transformer/rectifier units on the upper level. Electricians stated that the primary 

power had to be deenergized before the tap changers could be 

operated to prevent damage to the transformer/rectifier unit. 

The rotary tap changers were equipped with key operated interlocks that were designed to prevent persons from gaining 

access to the interior of the compartments or to the interior of 

the precipitator whilethe system was energized. Witnesses and 

others interviewed during the investigation stated that the lock 

to the compartment where the accident occurred had been disassembled and the interlocking system, was bypassed. No one knew 

or would say when the lock was disassembled. Further investi- gation found that the interlocking system required some maintenance and alignment but would operate. The system would have 

prevented access to energized components had the lock not been disassembled. 3 

3 

Exhibit G-9. 

The lock is shown on the access door at approximately 2 o'clock An 

1424 
The victim, who was the• working electrical foreman, and his 

assistant were engaged in t•oubleshooting the A-field components. 

They were attempting to locate the cause of an ongoing low output 

voltage problem. The assistant who had only worked two weeks at 

the operation stated that he knew very little about the precipitator and was following irlstructions of the victim. The circuit 

to the A-field transformer/rectifier unit was opened and locked 

out in the control house at ground level. The originally planned 

work did not require either of the two electricians to enter the 

compartments or the prec•ipitator so probably no thought was given 

to the need to deenergize the B-field. As the trouble,shooting 

continued, the A-field conductor was uncoupled and part of the 

conductor and a piece .of the coupling fell into the compartment. 

In attempting to retrieve the conductor and coupling part, the 

victim entered the coTapartment and was electrocuted. 

A shorting stick with a clamp and 6' long conductor was 

available at the compartment to test for current and to discharge 

static from the components within the compartments. Evidently 

the stick was not used prior to the accident. The victim may 

have failed to use the shorting stic• because he was in a rush 

to get the precipitator on line. 

DISCUSSION AND FURTHER FINDINGS 

The cited regulation 30 C.F.R. S 56.12017 requires that 

power circuits "shall be deenergized before work is done on such 

circuits unless hot-line tools are used." 

The Commission in Ideal Cement Company, ii FMSHRC 2409, 2416 

(November 1990) stated that in interpreting and applying broadworded standards, the appropriate test as whether a reasonably 

prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific 

prohibition or requirement of the standard, citing Canon Coal 

Co., 7 FMSHRC 6676, 6678 (April 1987), Quinland Coal, •nc., 1614, 

1617-1618 (September 1987). 

In this situation, the electrical foreman who was Very 

knowledgeable about the electrical circuits, entered the compartment containing energized and deenergized circuits. There were 

multiple ways to shut off the power but these were ignored as was 

the by-passed lockout system. 

The shorting fltick is shown in Exhibit G-14. 

1425 
It is common knowledge that if a person is in close proximity to energized circuits of 50,000 volts, he runs the risk of 

electrocution. 

In support of his position, the Se•cretary cites Amax Coal 

Company 8 FMSHRC 1975 (August 1981) wherein Judge Joseph B. 

Kennedy considered a similar regulation, S 77.500, to the one in 

contest here. I agree with Judge Kenned• when he stated that: 

Even if Mr. Morris [electrician] did not intend to 

work on the upper energized circuits, he was in 

violation of Section 77.500. The MSHA Inspector's 

Manual states: 

"[w]hen work is performed in close physi•cal proximity 

to exposed electrical circuits or parts, they shall be 

deenergized .... All circuits within an electrical 

enclosure shall be deenergized before worl' is 

performed within the enclosure unless such energized 

circuits are guarded by suitable physical guards or 

adequate physical separation. 3 FMSHRC at 1982, 1983. 

In the instant cases, both the energized and deenergized 

circuits were located in the same compartment. The very hazard 

presented by entering such compartments is the danger of 

contacting such circuits. 

In addition, the Secretary's interpretation of his regulation is entitled to due deference; Secretary of Labor, o.b.o. 

Bushnell v. Cannelton Industries, Inc., 867 F.2d 1432 (D.C. Cir. 

1989) . 

MCC contends its foreman was working on the "A" field. As a 

result, there was no violation because he was not working in the 

energized "B" field. I disagree. Once a situation of close 

proximity exists, a violation has occurred. 

MCC further argues the standard should be interpreted as 

written. (Tr. 29). In short, the only evidence of work being done at the time was the foreman's efforts at retrieving the 

tools. Therefore, no "work" was being done "on such circuits." 

The record here illustrates that no work was being done on any circuit. However, if I accept MCC's argument to its ultimate 

conclusion, then no circuit would be deenergized merely to retrieve tools in the energized compartment. Such an interpreta- tion of S 56.12017 would hardly promote the safety and health of 

miners. 

The citation should be AFFIRMED. 

1426 
•GNIF•CANT AND SUBSTANTIAL 

A violation is properly designated as being "Significant and 

Substantial" ("S&S") if, based on tl•e particular facts surrounding the violation, there exists a re•asonable 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 (January 1984.), the Commission explained: 

In order to establish that a v•tolation of a mandatory standard is significant an•d substantial under 

•ational Gypsum the Secretary must prove: (i) the 

underlying Violation of a mandato:ry 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 tlhe injury in 

question will be of a reasonably sG•rious nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-104 (5th 

Cir. 1988), aff'q, 9 FMSHRC 2015, 2021 •[December 1987) (approving 

Mathies criteria). The question of whether any specific violation is S&S must be based on the particular facts surrounding the 

violation. Texasqulf, Inc., i0 FMSHRC 498, 500-501 (April 1988); 

Youqhioqheny and Ohio Coal Co., 9 FMSHRC 2007, 2011-2012 

(December 1987). 

The evidence establishes that a violation of S 56.12017 

occurred. A measure of danger to •afety was contributed to by 

the violation. Since the hazard contributed to the fatality, the 

third and fourth formulations of Mathies were established. 

The special allegations of S&S should be AFFIRMED. 

UNWARRANTED P AILURE 

The Secretary contends this violation was due to the unwarrantable failure of MCC to comply with the regulation. 

The special finding of unwarrantmble failure, as set forth 

in Section 104(d) of the Mine Act, 30 ,U.S.C. S 814(d), may be 

made by authorized Secretarial representatives in issuing citations and withdrawal orders pursuant re) Section 104. In •mery 

Mininq Corp., 9 FMSHRC 1997, 2004 (Dec•mber 1987), and youqhioqheny and Ohio Coal Company, 9 FMSHRC 2007, 2010 (December 1987), 

The Commission defined unwarrantable fa•tlure as "aggravated conduct constituting more than ordinary neg'ligence by a mine operator in relation to a violation of the Act." Emery examined the 

meaning of unwarrantable failure and tel,erred to it in such terms 

1427 
as "indifference," "willful intent," "serious lack of reasonable 

care," and "knowing violation." 9 FMSHRC 15 2003. 

In this case, there were n•o written instructions posted for 

employees to review explaining !the deenergizing and locking out 

of the circuits. In addition, no warning signs were posted on 

the compartment to show the ci•rcuits were fed by two different 

power sources. Further, a shorting stick was not used to check 

the current. Additionally, the interlock system was rendered 

ineffective and by-passed. An effective system would have prevented the accident. Finally, the working electrical foreman 

failed to insure that the B-field was deenergized before he 

worked in close proximity to it. 

These factors establish high negligence and unwarrantability 

on the part of MCC. 

CIVIL P•,%FALTIES 

Section ll0(i) of the Act mandates consideration of certain 

criteria in assessing civil penalties. 

MCC is a large operator with 568,861 hours worked in 1990. 

(Stipulation). 

The proposed penalty will n,st affect the operator's ability 

to continue in business. (Stipulation). 

The operator's prior history consisted of 67 assessed 

violations for the two-year period ending March 26, 1990. 

(Ex. G-l). 

The operator's negligence lwas such that the violative condition could have been easily prevented. 

The gravity was apparent. MCC abated the violation and is 

entitled to statutory good faith. 

In this case, the SecreteLry proposes a civil penalty of 

$30,000. Based on the record, I concur in this assessment. 

For the foregoing reasorls, I enter the following: 

ORDER 

Citation No. 3635856 i•; AFFIRMED and civil penalty of 

$30,000 is ASSESSED. 

/Admini•trative Law Judge 

1428 
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) 

Philip Nicholas, Esq., NICHOLAS LAW OFFICE, 221 Ivanson, P.O. Box 

928, Laramie, WY 82070 (Certified Mail) 

ek 

1429 
FI•ERALHIHK SAFETY ANDWZaTTHRKVZEUCOH•SSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH. VIRGINIA 22041 

JUL 7 ]993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA) , 

on behalf of 

RICHARD E. GLOVER, 

Complainant 

v. 

U.S. STEEL MINING COMPANY, INC. : 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 92-172-D 

HOPE CD 92-11 

Shawnee Mine 

SECRETARY OF LABOR, 

MINE SAFETY ANDHEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

U. S. STEEL MINING COMPANY, INC.: 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 93-13 

A. C. No. 46-05907-03657 

Shawnee Mine 

DZCISION 

Appearances: Tina C. Mullins, Esq., U.S. Department of Labor, 

Office of the Solicltor, Arlington, Virginia, 

for Petitioner; 

Billy M. Tennant, Esq., U.S. Steel Mining Company, 

Pittsburgh, Pennsylvania for Respondent. 

Before: Judge Welsberger 

Statement of the CasA 

In these consolidated cases, the Secretary (Petitioner) on 

behalf of Richard Glover, filed a Complaint pursuant to 

Section I05(c) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815(c) ("the Act,"). The Complaint alleges that 

Glover was discriminated against by U.S. Steel (Respondent), who 

did not compensate him for newly employed experienced miner 

training it provided him. The Secretary also seeks a civil 

penalty, alleging a vlolatlon of 30 C.F.R. § 48.10 which requires 

that miners attending such training shall be compensated. At 

issue in both cases is whether Glover was a miner. 

1430 
Pursuant to notice, the cases were heard on April 27, 1993, 

in Charleston, West Virginia. At the hearing, Richard E. Glover, 

Fred A. Tucker, and James F. Bowman testified for Petitioner. 

Respondent did not call any witnesses to testify. The parties 

filed post-hearing briefs on June 18, 1993. 

I. Tindinqs of Fact 

1. Richard E. Glover has been employed by the United Mine 

Workers of America ("UMWA") as an international representative 

assigned to health and safety since 1984. 

2. An UMWA representative, Glover conducts safety 

inspections and investigates accidents at coal mines. He spends 

approximately 1/3 of his time in underground mines. 

3. Glover worked for U.S. Steel Mining Company, Inc. 

("USM") from 1972 until he was laid off in 1983 because USM's No. 

36 Mine closed. 

4. In October 1989, Glover placed his name on the recall 

panel at U.S. Steel's Shawnee Mine. 

5. Glover intended to work only one day at USM's Shawnee 

Mine to obtain employee status there pursuant to the USM-UMWA 

collective bargaining agreement. 

6. After working one day with USM to establish a seniority 

date for Job protection under the USM-UMWA collective bargaining 

agreement, Glover intended to continue his employment with the 

UMWA. 

7. On July 1, 1992, Respondent notified Glover of his 

opportunity to be recalled as a mechanic at its Shawnee Mine. 

On July 3, 1992, Glover advised Respondent that he accepted the 

mechanic's position. 

8. In July 1992, Glover was recalled to USM's Shawnee Mine 

as a mechanic. 

9. Glover accepted the recall, was tested for a Job as a 

mechanic, took a physical examination, and was administratively 

processed for benefits purposes. 

i0. 

1992. 

USM assigned an employee number to Glover on July 15, 

11. 

1992. 

USM did not pay Glover for his activities on July 15, 

12. On July 20, 1992, USM provided Glover with eight hours 

of newly employed experienced miner training required under 30 

1431 
C.F.R. Part 48. Respondent's agents told Glover when to take a 

break, when to go to lunch, and when to return from lunch. 

13. On July 20, 1992, Glover did not go underground at 

Shawnee Mine, and he was not involved in the extraction or 

production of coal. 

14. USM did not issue Glover safety equipment on July 20'i/ 

1992, and did not assign him any duties associated with the 

mechanic's job. 

15. Glover was an employee of UMWA on July 20, 1992, and 

received his UMWA wages that day. 

16. USM scheduled Glover to commence work on July 21, 1992. 

17. Glover did not report for work as scheduled on July 21, 

1992. Glover considered UMWA to be his employer on July 21, 

1992, and chose not to be employed by USM on that day. 

18. Fred Tucker, UMWA representative, spoke to Glover the 

night before he was to start work at the Shawnee Mine, and 

advised Glover that he would be required to attend to an union 

business the next day. Tucker explained that a union 

representative was needed to investigate a fatality that had 

occurred at Sharples Coal, and that a union representative also 

was needed to teach a training class at the Mine Academy. Glover 

advised Tucker that he would cover the training course because it 

was closer to his home, and would only take one day, and that 

Charlie Johnson, an international representative, would cover the 

investigation, which was closer to his home, and which would take 

three to four days. 

19. On July 21, 1992, Glover remained on the payroll of the 

UMWA and was paid by the UMWA. 

20. On the morning of July 21, 1992, Tucker spoke to U.S. 

Steel's Labor Relations Representative, David Cook, because Labor 

Relations Manager Les Morgan was not in. He advised Cook that 

Glover was requesting a leave of absence in order to perform his 

union duties, and he faxed a leave of absence request from UMWA 

President Richard Trumka to Respondent at approximately 2:30 that 

afternoon. Cook stated that he knew nothing about the details of 

Glover's situation, and that Tucker would have to speak toMorgan 

when he returned. 

21. When Morgan returned to the office on Thursday, 

. July 23, 1992, he advised Tucker that U.S. Steel was thinklng of 

discharging Glover. He later called back and stated that Glover 

had refused his recall and was no longer on the panel at the 

Shawnee Mine. Subsequently, Glover called Morgan to apologize 

for the mix-up and to explain what had happened. Morgan refused 

1432 
to pay for the training, because Glover had rendered no services 

to U.S. Steel. 

22. On August 13, 1992, Glover filed a Section I05(c) 

discrimination complaint with MSHA, based on Respondent's failure 

to pay him for the newly employed experienced miner training. On 

August 18, 1992, MSHA Inspector James F. Bowman issued a 104(a) 

citation based on the Respondent's refusal to pay Glover for the 

training, which he alleged was required under 30 C.F.R. § 

4S. 10 (a). 

23. After MSHA issued a citation to USM for an alleged 

violation of § 48.30(a) (later modified to § 48.10(a)), USM 

abated the citation by paying Glover under protest for the day of 

training. 

24. Payment was made by a check in the amount of $116.75, 

and dated August 24, 1992. 

25. USM recalled Glover again, and he worked on February 

ii, 1993, relying on the training he had received in July, 1992. 

26. Throughout 1992, Glover was never involved in the 

extraction or production of coal at USM's Shawnee Mine, nor was 

he regularly exposed to mine hazards there. 

27. As an UMWA representative, Glover has never been 

involved in safety activities at Shawnee Mines his involvement 

there has been limited to his attempts to establish a seniority 

date. 

28. As an UMWA employee, Glover did not receive annual 

refresher training under Part 48, and could not work at Shawnee 

Mine until he received training required by Part 48. 

II. Discussion 

A. Docket No. WEVA •3-172-D 

(V•olat•on O• Section 105(c) of the Act) 

In order for the Secretary to prevail in this case it must 

first be established that Glover is entitled to the protection of 

Section 105(c) of the Act. Section 105(c)(1) of the Act as 

pertinent, provides as follows: 

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 .... (Emphasis added) 

1433 
Whether Complainant was a Miner 

section (3)(g) of the Act defines "miner" as "...any 

individual working in a coal or other mine;". The word 

"working", is not defined in the Act. Webster's Third •ew 

International Dictionary, (1986 edition), defines "work", when 

used as an intransitive verb, as follows: "...(c): to perform 

work or fulfill duties regularly for wages or salary". 

The record indicates, that on July 20, 1992, Glover took 

newly employed experience miner training, at the request of 

Respondent. The training was provided to Glover after he had 

already accepted a notice of recall, demonstrated his 

qualifications for a particular opening, and completed a preemployment physical examination and all of the required paper 

work. On July 20, 1992, Glover did not perform any activities at 

the mine. Indeed, Glover could not legally perform any 

production or any extraction activities at the mine without first 

receiving newly employed experience miner training. 

Hence, since Glover did not perform any work at the mine on 

July 20, he cannot be considered to have been "working" at the 

mine as that word is commonly used (See, Websters, supra). 1 

The 10th Circuit, the D.C. Circuit, and the Commission, have 

previously examined the term "miner" in the context of training 

rights under section 115 of the Act, and have held, pursuant to 

the definition of the term "miner" in Section 3(g) su_•_Eaof the 

Act that job applicants, and former miners on layoff did not 

qualify as "miners", under the Act, and hence were not entitled 

to training rights under Section 115 of the Act (Emery Mininq 

Co_• v. Secretary of Labor, 783 F.2d 155 (10th Circuit) (1986) 

(job applicants); •rock v. peabody Coal Company, 822 F.2d 1134 

(D.C. Cir. 1987) (individuals on layoff); and Westmoreland Coal 

1Although Glover underwent training on July 20, at the 

direction of Respondent, there was no agreement beforehand that 

he receive any salary or wages for fullfilling this obligation. 

It is significant to note that on day of the training although 

Respondent's agents told Glover when to take a break, when to go 

to lunch, and when to return from lunch, he was still an employee 

of the UMWA on that date, and was paid for that day by UMWA. 

Also, it is significant to note that when Glover responded to the 

recall for the Shawnee Mine, he intended to work only one day to 

preserve his seniority rights. Further, although Glover had been 

directed to report for work July 21, he did not report to work on 

that date, and did not advise Respondent at any time on July 20, 

or 21 that he was not going to report to work on July 21. Thus, 

his activities on July 20, undergoing training, do not fall 

within the scope of fulfilling "duties • for wages or 

salary" (Webster's, L•P_•). 

1434 
Company, 11 FMSHRC 960 (June 1989) (individuals on layoff). 

In Cyprus Empire Corporation, 15 FMSHRC i0 (1993), the 

Commission noted the holdings of •_9__ry, supra, Peabody, supra, 

and Westmoreland supra, and held that striking employees were not 

miners for purposes of being entitled to have their previously 

designated walk-around representative accompany an MSHA inspector 

during an inspection. The Commission, after reviewing the 

definition of the term "miner" as set forth in Section 3(g) 

muDra, concluded as follows: "Thus, a person's status as a miner 

is determined not by the fact that he is employed by an operator, 

but rather by whether, as the statute provides, he works in a 

mine." (Cyprus supra at 13). I conclude, that in general, this 

reasoning is applicable to the case at bar. Hence, considering 

all the above, I conclude that inasmuch as Glover on July 20, had 

not yet reported for work, and was not yet working in the mine, 

he was not a miner. 2 

Accordingly, for all the above reasons, I conclude that 

Glover is not entitled to the protection of Section i05(c) of the 

Act. Hence, Complaint filed under Section 105 of the Act, is to 

2petitioner also argues, in essence, that inasmuch as Glover 

was an International Representative of the UMWA, he qualifies as 

a "representative of miners", and he is entitled to the 

protection of Section 105(c)(1) supra. Also, Petitioner argues 

that since Glover was on Respondent's recall panel, applied for 

employment, accepted the notice of recall, and underwent the 

requisite procedures to qualify for a position as a mechanic, he 

should be considered an "applicant for employment" and thus 

entitled to the protection of Section 105(c)(1) supra, of the 

Act. However, under the terms of Section 105(c)(1), supra, an 

"applicant for employment" or "representative of miners" comes 

within the purview of that section only if there has been 

interference "...with the exercise of the statutory rights of any 

... representative of miners or applicant for employment .... 

" 

Accordlng to Petitioner the statutory right that was allegedly 

interfered with herein was Glover's right to receive and to be 

compensated for newly employed experience miner training. 

Specifically, it is alleged that Respondent interfered with 

Glover's right to receive compensation for training pursuant to 

30 C.F.R. § 48.10 supra. Section 48.10 supra, provides, as 

pertinent, that "...miners attending such training shall receive 

the rate of pay as provided in Section 48.2(d)...". (emphasis 

added) Accordingly, pursuant to the terms of Section 48.10 

•P•E•, the right to receive compensation for training is limited 

to those persons who fall within the category of being a "miner". 

Although Glover may be construed to have been a representative of 

miners or an applicant for employment, in these capacities, 

Glover did not have a right to receive compensation for training. 

1435 
be dismissed. 3 

B. Docket No. WEVA 93-•3 (Violation of 30 C.F.R. § 48.10(a)) 

At issue herein is the validity of Citation No. 2736770 

issued by MSHA inspector James F. Bowman, on August 18, 1992, 

alleging a violation by Respondent of 30 C.F.R. § 48.10(a), 

which, as pertinent, provides that "miners", shall receive 

 ompensation for training. OnJuly 20, 1992, Respondent required 

Glover to receive newly employed experienced miners training and 

he received such trainingon that date. The critical question is 

whether Glover qualifies as a "miner" as defined in 30 C.F.R. § 

48.2(a)(i). Section 48.2(a)(i), E•/_•, defines a miner as 

"...any person working in an underground mine and who is engaged 

in the extraction and production process, or who is regularly 

exposed to mine hazards, or who is a maintenance or service 

worker employed by the operator or a maintenance or service 

worker contracted by the operator to work at the mine for 

frequent or extended periods". Clearly, on July 20, 1992, Glover 

was not working in any underground mine, as explained above, 

II(A) infra, as he was not engaged in the extraction and 

production process. Glover had been employed as an underground 

miner on the effective date of the regulations, October 13, 1978, 

and, accordingly, was an "experienced miner", as opposed to a 

"new miner" (See, 30 C.F.R. i§ 48.2(b) and (c)). However, on 

July 20, 1992 he was not engaged inthe extraction or production 

process. Hence he was not a "miner" at that term is defined in 

Section 48.2(a)(1) su_•_ra. 

4 At best, he can be considered a 

"former miner", (See Cyprus Empire Corp, u•_•_ra, at 13). As such, 

his status on July 20, 1992 was comparable to the experienced 

miner who was in a layoff status and who was found by the 

Commission in Westmoreland, supra, to have no right to be 

compensated for training that he took during the period of his 

3Additionally, I note that in order for Petitioner to 

prevail under Section 105(c) supra, it must first be established 

that Glover was involved in protected activity (Secretary on 

behalf of pasula v. Consolidation oal Co., 2 FMSHRC 2786, 2797- 

2800 (1980), rev'd on other qrounds, sub nom. onsolldation Coal 

Company v. Marshall 633 F.2d 1211 (3rd Cir. 1981)); Secretary on 

behalf of Robinette v. United Castle •oal Co., 3 FMSHRC 817-818 

(1981)). In this connection, in essence, it is Petitioner's 

argument that the protected activity herein was Glover's right to 

receive, and be compensated for newly employed experience miner 

training. There is no merit to this contention for the reasons 

set forth above, II(A). Hence, I conclude that the record fails 

to establish that Glover was engaged in any protected activity. 

4No argument was made by the Petitioner, that Glover was 

either a maintenance or service worker, or that he was 

"regularly" exposed to mine hazards. 

1436 
layoff, as he was not considered a miner at that time. 

I find therefore that since Glover was not a "miner", 

Respondent did not have any obligation, pursuant to Section 48.10 

supra, to compensate him for the training it provided. As such, 

Respondent did not violate Section 48.10, supra, and the Citation 

at issue shall be DISMISSED. 

ORDER 

It is hereby ORDERED that, 

cases be DISMISSED. 

Distribution: 

i the above reasons, 

•vram Weisberger 

Administrative Law Judge 

(703) 56-6215 

these 

Tina C. Mullins, Esq., Office of the Solicitor, U.S. Department 

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

(Certified Mail) 

Billy M. Tennant, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15219-4776 (Certified Mail) 

nb 

1437 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2. 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), ON 

BEHALF OF DANNY SHEPHERD, 

Complainant 

V. 

ADENA FUELS, INCORPORATED, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 93-219-D 

BARB CD 92-35 

Diamond No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Barbour 

STATEMENT OF THE PROCEEDING 

This proceeding concerns a complaint of discrimination filed 

by the Secretary of Labor ("Secretary") on behalf of Danny 

Shepherd and against Adena Fuels, Incorporated ("Adena Fuels") 

pursuant to section i05(c) (2) of the Federal Mine Safety and 

Health Act, 30 U.S.C. § 815(c)(2). In addition, through counsel, 

Shepherd has intervened on his own behalf. 

Following the filing of the complaint and Shepherd's 

intervention, the parties engaged in extensive pre-trial 

discovery and the proceeding was scheduled to be heard on July 7, 

1993. However, on July 1, 1993, the parties orally advised me 

they had settled all aspects of the proceeding and that they 

intended to file a joint motion requesting approval of their 

settlement and dismissal of the proceeding. 

The joint motion was received on July 14, 1993. The motion 

states that the parties have reached a full and final settlement 

of this litigation, including the payment by Adena of a civil 

penalty of one hundred dollars ($i00) to the Mine Safety and 

Health Administration. The motion further discloses other 

confidential monetary aspects of the agreement. Danny Shepherd 

has signed the motion, as has Adena's president, Charles Yates. 

Mindful of the Commission's statement that "Oversight of 

proposed settlements is an important aspect of the Commission's 

adjudicative responsibilities . . and is, in general, committed 

to the Commission's sound discretion[,]" I have fully reviewed 

the settlement agreement and have concluded it is reasonable 

1438 
and in the public interest, citing Birchfield Mininq Co., ii 

FMSHRC 1428, 1430 (August 1989); UMWA v. Utah Power and 

Liqht Co., 12 FMSHRC 1548, 1554 (August 1990). Therefore I will 

approve the settlement and will dismiss this matter. 

In addition, to honor the parties desire for 

confidentiality, I will order the settlement motion to be placed 

under seal in the record• where it will be subject to review by 

the Commission or an appellate judicial body only. 

ORDER 

The parties are ORDERED to comply with all aspects of the 

settlement, including the payment of a civil penalty to MSHA in 

the settlement amount stated above, within thirty (30) days of 

the date of this decision. The Joint Motion to Approve 

Settlement IS ORDERED SEALED and upon reciept of payment this 

proceeding is DISMISSED. 

David F. Barbour 

Administrative Law Judge 

(703) 756-5232 

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) 

Tony Oppegard, Esq., Mine Safety Project of the Appalachian 

Research & Defense Fund of Kentucky Inc., 630 Maxwelton Court, 

Lexington, KY 40508 (Certified Mail) 

Jerry Wayne Slone, Esq., Weinberg, Campbell & Slone, PSC, Adena 

Fuels, Inc., P.O. Box 727, Hindman, KY 41822 (Certified Mail) 

/epy 

1439 
FEDER]t3, M.T.NB B]kl•]kND]•,]kLTH]RII•IC•O]d]•ZBBZON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 9 ]993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-1292 

A.C. No. 46-01455-03941 

Osage No. 3 Mine 

DECISION 

Appearances: 

Before: 

Heather Bupp-Habuda, Esq., Office of the Solicitor, 

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

Petitioner; 

Daniel E. Rogers, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Respondent. 

Judge Feldman 

The above captioned proceeding is before me as a result of 

a petition for civil penalty 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. § 801, e t s__eq., (the Act). This case was 

called for hearing on June 22, 1993, in Washington, Pennsylvania. 

The parties' stipulations concerning my jurisdiction to hear this 

matter and the pertinent facts associated with the civil penalty criteria contained in section ll0(i) of the Act are of record. 

This single citation proceeding concerns Section 104(d) (2) 

Order N ° . 3121636, which was issued to the respondent by 

Inspector Michael G. Kalich, at 10:30 a.m., on June 25, 1992. 

The subject order was issued for an alleged impermissible 

accumulation of combustible coal dust in violation of the 

mandatory health and safety standard contained in section 75.400, 

30 C.F.R. § 75.400. I At the hearing, the respondent stipulated 

to the fact of the occurrence of the violation. (Tr. 7). 

Therefore, the remaining issues for resolution are whether the 

I Section 75.400 provides as follows: 

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

shall be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein (emphasis added)." 

1440 
violation was properly designated as significant and substantial 

and whether the violation occurred as a result of the 

respondent's unwarrantable failure. As noted below, after 

hearing a significant portion of Inspector Kalich's testimony, I 

expressed my reservations about the sustainability of the 

unwarrantable failure allegation. The parties subsequently 

conferred and reached a settlement in this matter. 

The dispositive facts are not in dispute. On June 24, 1992, 

at approximately 1:15 p.m., Inspector Kalich issued 104(a) 

Citation No. 3121633 for violation of section 75.400. This 

citation, which is not a subject of this proceeding, noted 

excessive accumulations of combustible materials, fine coal, coal 

dust, lumps of coal and oil in the vicinity of the continuous 

miner in the one left section at the respondent's Osage No. 3 

Mine. Inspector Kalich established at termination deadline for 

removing the accumulations as 6:00 p.m., on June 24, 1992. 

Kalich returned to the respondent's Osage No. 3 Mine the 

following morning on June 25, 1992. He returned to the one left 

section where he observed what he believed to be the same 

accumulations around the continuous miner that he had observed 

the previous day. (Tr. 39). However, for reasons best explained 

by Kalich, he issued Order No. 3121636, the subject of this 

proceeding, as a i04(d)(2) order for new accumulations rather 

than a 104(b) order for failure to timely abate the accumulations 

he had observed the previous day that were noted in Citation 

No. 3121633. In explaining his action in this regard Kalich 

stated: 

I informed Mr. Renner at 10:30 a.m., on the 

25th, that I was going to issue a (b) order, a 

104(b) order, which is for failure to terminate 

and which would have been the appropriate piece of 

paper to issue in this case, since I believed that 

it was the same accumulations that were on the 

miner. But during the course of the day and in 

subsequent discussions with management personnel 

at the mine---and they basically begged me not to 

issue a (b) order because it's a lot more serious, 

you know, Consol takes a (b) order a lot more 

serious than a (d) order because it's [a] failure 

of someone, you know, to abate a citation. And 

they brought forth the afternoon section foreman 

that was basically going to say that, you know, 

that they had cleaned it up. So based on, you 

know, the story that I heard about, that it was 

cleaned up and that it reoccurred again, I 

terminated the citation and changed my mind and 

issued a (d) order on the 25th, instead of the (b) 

order that I originally told them that I was going 

to issue. (Tr. 40-41). 

1441 
 I physically did not observe the miner 

cleaned, so I was basing the termination on the 

afternoon boss' statement that they had cleaned it 

up and that the accumulation had reoccurred. And 

based on that, that's why I changed my mind and 

issued a (d) order instead of a (b) order that I 

had originally told them I was going to issue on 

the 25th at 10:30 in the morning. . . (Tr. 41). 

I believe [the accumulations observed on 

June 24 and June 25] to be the same accumulations. I still believe it was the same 

accumulations. But based on what the company 

told me, and you know, they're asking me not 

to write a (b) order, I issued a (d) order 

instead. (Tr. 44). 

Kalich testified that he terminated both Citation No. 3121633 and 

Order No. 3121636 at I:00 p.m., on June 25, 1992. However, he 

stated that Citation No. 3121633 was actually terminated at 

6:00 p.m., on June 24, based on his decision to accept "the 

foreman's word" that the accumulations had been cleaned. 

(Tr. 43). 

In order to prevail on the issue of unwarrantable failure, 

the Secretary must establish that the respondent's conduct 

constituted "aggravated conduct" characterized by conduct that 

was "not justifiable" or behavior that is "inexcusable" Se__ee 

Rushton Mininq Company, i0 FMSHRC 249 (March 1988); Emery Mininq 

Corporation, 9 FMSHRC 1977 (December 1987); Youghioqheny and Ohio 

Coal Company, 9 FMSHRC 2007 (December 1987). In the case at bar, 

by issuing a i04(d)(2) order rather than a 104(b) order, Kalich, 

in effect, elected to credit the respondent with cleaning the 

accumulations observed on June 24, 1992. Having given the 

respondent credit for cleaning these accumulations, it cannot be 

said that the accumulations observed the following morning at the 

same location are attributable to aggravated conduct on the part 

of the respondent. 

During a bench conference I expressed the above noted 

concerns and urged the parties to consider a settlement of this 

case. 

2 They conferred and informed me that settlement had been 

reached. A motion for approval of settlement was proffered on 

the record. The substance of the settlement agreement is that 

the Secretary has agreed to modify the i04(d)(2) order to a 

104(a) citation thus reducing the underlying degree of negligence 

2 During this bench conference, counsel for the Secretary 

requested that I modify the I04(d)(2) order in issue to a 104(b) 

order. Counsel's request was denied as such a modification would 

be prejudicial to the respondent. 

1442 
from high to moderately high. As such, the unwarrantable failure 

designation is removed. The characterization of the violation of 

Section 75.400 remains as significant and substantial. The 

respondent has agreed to pay a civil penalty of $1,300 for the 

citation in issue. Given the serious gravity associated with the 

underlying combustible dust accumulation violation and the civil 

penalty criteria contained in Section ll0(i) of the Act, I 

concluded that the parties' proposed settlement of this matter 

was appropriate. Consequently, the motion for the approval of 

settlement was granted on the record. (Tr 63-65). 

ORDER 

Accordingly, Order No. 3121636 is modified to a 104(a) 

citation that is properly designated as significant and substantial. The respondent Is ORDERED to pay a civil penalty of $1,300 

in satisfaction of the violation in issue. Payment is to be made 

within 30 days of the date of this Decision, and, upon receipt of 

payment, this matter is DISMISSED. 

•S•• Law Judge 

Distribution: 

Heather Bupp-Habuda, Esq., Robert S. Wilson, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Room 516, Arlington, VA 22203 (Certified Mail) 

Daniel E. Rogers, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail) 

vmy 

1443 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA. 22041 

JUL 9 }993 

UNITED MINE WORKERS of 

AMERICA on Behalf of 

CHARLES MARK ROSEN, et al., 

Complainants 

v. 

SAGINAW MINING COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 93-89-D 

MORG CD 92-15 

Saginaw Mine 

DECISION APPROVING SETTLEMENT 

This case is before me based upon a discrimination complaint filed pursuant to Section i05(c) (3) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815(c) (3) (the Act). The 

parties now seek my approval of their joint motion for settlement 

of this matter. The substance of their proposed resolution is 

that the respondent, without admitting that any discriminatory 

act has occurred, has agreed to pay the total sum of $200 to 

District 6 and Local Union 9695, which will be distributed 

appropriately to the complainants on behalf of whom this action 

was brought. 

I have considered the information provided in support of the 

parties' motion and I conclude that the proffered settlement 

should be approved. Accordingly, the motion for the approval of 

settlement IS GRANTED and IT IS ORDERED that the respondent make 

payment of the sum noted above within 30 days of the date of this 

order. IT IS FURTHER ORDERED that, upon receipt of payment, the 

subject complaint in this proceeding IS DISMISSED WITH PREJUDICE. 

•e I• 

Administrative Law Judge 

1444 
Distribution: 

Thomas M. Myers, General Counsel, District 6 UMWA, 56000 Dilles 

Bottom, Shadyside, OH 43947 (Certified Mail) 

George Basara, Esq., Polito, and Smock, P.C., Suite 400, Four 

Gateway Center, Pittsburgh, PA 15222 (Certified Mail) 

John Dubiel, Mine Manager, Saginaw Mining Co., P.O. Box 218, 

St. Clairsville, OH 43950 (Certified Mail) 

Carol Feinberg, Esq., office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

vmy 

1445 
I•D•L••vgTYAND•TH••SSION 

OFFICE OF ADMINISTRATIVELAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.JUL 3 9 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

LEVEL LAND MINING CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 92-1038 

A.C. No. 46-04383-03501KZV 

Docket No. WEVA 92-1058 

A.C. No. 46-04383-03502KZV 

Docket No. WEVA 92-1063 

A.C. No. 46-04383-03503KZV 

No. 4 Strip 

DECISION APPROVING SETTT.•mfRNT 

Before: Judge Weisberger 

These cases are before me upon petitions for assessment of civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Petitioner has filed a motion to 

approve settlement agreements and to dismiss these cases. A 

reduction in penalty from $317 to $250 is proposed. I have 

considered the representations and documentation submitted in 

this case, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section 110(i) of the 

Act. 

.WHEREFORE, the motion for approval of settlement is GRANTED, and it is ORDEP•D that Respondent pay pg•alty of $250 wlthin 30 

days of thls order. 

• 

/Avram Weisberger 

Distribution: 

Administrative Law Judge 

Tina C. Mullins, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Mr. Timothy A. Keeney, Level Land Mining Corporation, P.O. Box 

1181, Charleston, WV 25324-1181 (Certified Mail) 

nb 

1446 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1993 

JIM WALTER RESOURCES, INC., 

Contestant 

Ve 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

CONTEST PROCEEDINGS 

Docket No. SE 93-335-R 

Citation 3007642; 6/2/93 

Docket No. SE 93-336-R 

Citation 3007641; 6/2/93 

Mine No. 3 

PARTIAL DECISION GRANTING THE 

CONTESTANT eS CONTEST IN PART 

AN__•D 

ORDER REINSTATING DUST CONTROL PLANS 

Appearances: R. Stanley Morrow, Esq., Jim Walter Resources 

Inc., and David M. Smith, Esq., Maynard, 

Cooper, Frierson & Gale, Birmingham, Alabama for 

Contestant; 

William Lawson, Esq., office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, for 

Respondent. 

Before: Judge Feldman 

These proceedings concern Notices of Contest filed by the 

contestant pursuant to Section 105 of the Federal Mine Safety and 

Health Act of 1977, (the Act) challenging the validity of two 

citations issued on June 2, 1993, at the contestant's No. 3 Mine. 

The citations were issued for alleged violations of Sections 

75.370(a) (i), 30 C.F.R. § 75.370 (a) (i), for longwall and 

continuous mining operations without an approved dust control 

plan. An expedited hearing was conducted in Birmingham, Alabama, 

on June 18, 1993. At the hearing, the parties agreed that my 

decision in Citation No. 3007641 concerning the contestant's 

longwall operations would also apply to Citation No. 3007642 

concerning the contestant's continuous mining operations. 

At the hearing, the parties identified the two central 

issues which must be resolved in order to determine the propriety 

of the Mine Safety and Health Administration's (MSHA's) attempt 

to rescind the subject dust control plans in effect at the 

contestant's No. 3 Mine. These issues are: (i) whether a 

citation issued for a violative dust concentration condition, 

which is promptly corrected, in the absence of any reoccurrence, 

provides a basis for rescission and modification of the dust 

1447 
control plan under Section 303(o) of the Act, 30 U.S.C. § 863(o), 

or Section 75.370(a) (i) of the regulations; I and (2) in the 

absence of any evidence of repeated or continuing dust 

concentration violations, whether an operator's unilateral 

decision to increase the air velocity at the working face and the 

water pressure of the sprays in excess of the minimum 

requirements in the existing dust control plan, in recognition of increased production output, provides a basis for modifying the 

existing dust control plan to reflect higher minimum air velocity 

and water pressure standards. 

At the hearing, the parties stipulated to the fact that 

there is a positive correlation between the amount of coal 

extracted and the amount of coal dust that is generated as a 

result of the extraction process. As a general proposition, the 

contestant agreed that an increase in the volume of air 

ventilation and an increase in the volume of water sprayed at the 

working face tends to dilute the dust and reduce the 

concentration.(Tr. 146-150). 

The approved dust control plan in effect as of January 20, 

1993, required 48,134 C.F.M. (cubic feet per minute) of air 

velocity at the tailgate, water pressure of 50 P.S.I. (pounds per 

square inch) at the stage loader and on the external sprays, and 

35 P.S.I. on the drum sprays. A single shift sample obtained on 

March i0, 1993, as a result of MSHA's "CBE" spot inspection 

program for the shearer operator designated occupation 044-0 

revealed a dust concentration level of 2.8 mg/m3 (milligrams per cubic meter) which exceeds the allowable limit of 2.0 mg/m3 

contained in Section 70.100(a). At the time of the March I0, 

1993, inspection the contestant was mining 3,600 tons of coal per day, ventilating the tailgate with 63,600 C.F.M., and using 150, 

i00 and 48 P.S.I. of water pressure on the stage loader, external 

sprays and drums sprays, respectively. As a result of this 

I The focal point of this proceeding with respect to the 

contestant's longwall dust control plan is a violative respirable dust concentration exposure by a single occupation (the longwall shearer operator on March i0, 1993) out of approximately 8 to 

i0 occupations at the longwall, which was promptly corrected. As 

a result of this violation of the respirable dust concentration 

standard in Section 70.100(a), 30 C.F.R. 70.100(a), MSHA 

rescinded the dust control plan for the contestant's longwall 

operations (Tr. 177). There is no evidence of subsequent 

violations of Section 70.100(a). 

1448 
single shift sample, on March 26, 1993, MSHA notified the 

contestant that its existing dust control plan for the longwall 

was no longer adequate. 2 (Gov. Ex.2). 

Subsequent respirable dust samples submitted by the 

contestant during the period March 25 through March 27, 1993, 

reflected average dust concentration levels between 1.0 and 1.3 

mg/m3. These dust concentration results were achieved with air 

velocity of approximately 52,000 C.F.M. at the tailgate and air 

spray pressure of between 50 and 60 P.S.I. at the stage loader 

and on the external sprays, and, water pressure of approximately 

45 P.S.I. on the drums sprays. These compliant dust 

concentration levels were achieved when production was 

approximately 2,100 tons of coal per day. There is no evidence 

of any violative dust concentration levels since the March I0, 

1993 inspection. 

The statutory language of Section 303(o) of the Mine Act, as 

well as Commission and Court of Appeals case authority 

interpreting this statutory provision, require that mine 

ventilation or dust control plan provisions must address the 

specific conditions of a particular mine. See Carbon County Coal 

Company, 7 FMSHRC 1367 (September 1985); Zeiqler Coal Co. v. 

Kleppe, 536 F.2d, 398, 406-07 (D.C. Cir. 1976). See also S. Rep. 

No. 181, 95th Cong., ist Sess. 25 (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 613 (1978). 

While MSHA may consider conditions which are common to a 

number of mines, MSHA is prohibited from imposing general rules 

applicable to all mines in the plan approval process. See 

Peabody Coal Company, 15 FMSHRC 381, 386, (March 1993) citinq 

UMWA v. Dole, 870 F.2d 662, 669-72 (D.C. Cir. 1989). Such 

universal application of mandatory standards to all mines must be 

accomplished through the mandatory safety and health standards 

2 The Secretary's single shift sampling procedure was 

invalidated by Judge Weisberger on December 7, 1992. Keystone 

Coal Mininq Corp., 14 FMSHRC 2017, appeal pendinq. Although the 

Secretary has appealed, the Secretary's continued use of the 

single sample procedure after this procedure has been determined 

to be invalid is inappropriate. Continued use of this procedure 

should be held in abeyance until resolution of the Secretary's 

appeal. At trial, the contestant requested that I address the 

important issues raised in this matter despite the impropriety of 

the single shift sample. Moreover, the continuous mining dust 

control plan in this proceeding was rescinded by MSHA as a result 

of a violation of the respirable dust concentration standard 

measured by the traditional five shift sample average. 

1449 
promulgated through the rulemaking process. Carbon County, 7 FMSHRC at 1370. In this regard, the Secretary's attempt to 

routinely rescind dust control plans whenever a violation of the 

respirable dust standard in Section 70.100(a) is detected is not mine specific and contravenes the statutory language and 

congressional intent of Section 303(0) of the Act. 3 

In view of the above considerations, I issued the following bench decision partially granting the contestant,s contest with 

regard to this first issue. The parties will continue to 

negotiate the resolution of the remaining issue concerning whether the dust control plan should be modified to reflect 

increased minimum air velocity and water pressure standards. The following is the transcript of the bench decision which is edited 

with non-substantive changes: 

The issue in these contest proceedings is whether a 

violative dust concentration condition, or several 

violative dust concentrations, which are promptly 

corrected, in the absence of any reoccurrence, provide 

a basis for rescission and modification of a dust 

control plan under Section 303(o) of the Mine Act or 

Section 75.370(a)(I) of the regulations. 

I believe that the Commission's decision in Carbon 

County Coal Company, •, and the D.C. Circuit Court 

of Appeals decision in Zeiqler Coal Company v. Kleppe, 

supra, is controlling on this issue. 

In Carbon County, relying on the Zeiqler case, the 

Commissionconcluded that mandatory safety standards 

should be established through the rulemaking procedure 

as they are applicable to the industry at large. 

However, Section 303(o) and its counterpart in 30 

C.F.R. § 75.370(a)(i), which are the applicable 

statutory and regulatory provisions in these 

proceedings, are intended to address unique conditions 

that are peculiar to a particular mine. Therefore, 

absent unique circumstances that have a causal 

relationship to continuing violative dust concentration 

levels, an excessive dust concentration, alone, does 

not provide a basis for rescission or modification of a 

dust control plan under Section 303(o) of the Act or 

Section 75.370(a)(I). 

3 MSHA Inspector Randy Kline testified that MSHA routinely rescinds dust control plans when a violative respirable dust 

concentration is detected. (Tr. 174-177). 

1450 
I feel that sanctions imposable under Section 70.100(a) 

of the regulations and Sections 104(b) and 104(d) of 

the Act provide an adequate incentive to achieve 

operator compliance with the dust concentration 

standards. 

If the Secretary desires automatic rescission of the 

dust control plan for violation of the dust 

concentration standard, he should pursue such an 

approach through a rulemaking proceeding. Whether or 

not the secretary is precluded from such an approach by 

the statutory language of Section 303(o) is beyond the 

scope of this proceeding. 

As a further matter, there are minimum air velocity 

standards and water pressure standards provided in dust 

control plans as are provided in the instant plans. If 

the operator takes it upon itself to operate with air 

velocity and water pressure in excess of those minimum 

standards provided in the dust concentration plan, then 

it is still in compliance with the plan, since it is 

using air velocity and water pressure in excess of the 

minimum levels. Operators should not be discouraged 

from using more than the minimum levels. After all, 

the ultimate goal is preventing over exposure to dust 

concentrations. If, for whatever reason, the minimum 

standards, or, the additional standards the operator 

chooses to apply, do not adequately protect the miner, 

then there may be a basis for rescission of the dust 

control plan under Section 303(o) if there are peculiar 

circumstances in the mine which call for such a 

revision. 

Consequently, I am issuing a bench decision granting in 

a limited fashion the contestant's contest in that I 

have concluded that a violative dust concentration 

level that has been corrected, in the absence of 

subsequent dust concentration violations, does not 

provide a basis for rescission of a dust control plan. 

There are remaining issues with regard to the operation 

at Jim Walter's No. 3 Mine which may very well provide 

a basis for rescission. However, the Secretary has not 

yet completed his direct case. 

The Secretary has provided a significant amount of 

testimony that indicates that there has been an 

increase in the amount of tonnage that is being 

produced at the contestant's mine. The contestant has 

apparently taken it upon itself to increase the air 

velocity and water pressure of the sprays. Whether or 

1451 
not these circumstances, when viewed in the context of 

the statutory language, provide a basis under the 

Commission's decision in Carbon County to rescind the 

dust plan remains to be seen since we haven't completed testimony on this issue. 

I have discussed this matter with the parties and they have expressed an inclination to continue to discuss 

this matter in an effort to reach a satisfactory 

agreement on a modification of the existing dust 

control plan. As the parties have indicated that they 

are going to attempt to reach settlement on the 

remaining issue, I am issuing an order reinstating the 

dust control plan that was in effect prior to the 

rescission. Thus, the dust control plan in effect for 

the contestant's continuous mining and longwall 

operations in its No. 3 Mine immediately prior to the 

issuance of the citations in issue shall be reinstated. 

I also have a stipulation that I have confirmed on the 

record that the dust control plan that is currently in 

effect in the contestant's No. 7 Mine shall also remain 

in effect as the issues in these proceedings also apply 

to the continuing validity of that dust control plan. 

The dust control plan in the No. 3 and No. 7 Mines 

shall remain in effect for 14 days after the date of 

the release of my decision formalizing this matter. 

The parties are requested to inform me within 14 days of the release of a written decision in this matter as 

to whether or not they have been able to reach 

settlement on the remaining issue. If settlement is 

reached, I will request that the contestant withdraw 

its contest in these matters and I will issue a 

decision dismissing these proceedings. If settlement 

cannot be reached, we will reconvene as expeditiously 

as possible. 

ORDER 

Consistent with the above decision Jim Walter Resources, Incorporated's contest of Citation Nos. 3007641 and 3007642 XS 

G•ED XN PART. The parties ARE ORDERED to inform me 

within 14 days of the date of this decision whether the remaining issues in this contest proceeding have been settled. The parties 

are reminded that they must negotiate in good faith if it is 

apparent that the minimum dust control remedies in the subject 

1452 
plans are inadequate due to specific conditions at the 

contestant's mines. If settlement is not reached, the parties 

should inform me of suitable hearing dates for reconvening this 

matter. 

•Feldma• 

Administrative Law Judge 

Distribution: 

R. Stanley Morrow, Esq., Jim Walter Resources, P.O. Box 133, 

Brookwood, Alabama 35444 (Certified Mail) 

Maynard, Cooper, Frierson & Gale, David M. Smith, Esq., & Mark 

Strength, Esq., 2400 AmSouth/Harbert Plaza, 1901 6th Avenue 

North, Birmingham, Alabama 35203 (Certified Mail) 

William Lawson, Esq., U.S. Department of Labor, office of the 

Solicitor, Suite 201, 2015 2nd Avenue North, Birmingham, Alabama 

35203 (Certified Mail) 

vmy 

1453 
FEDERAL MINE SAFETY AND II•TII REVIEW COIILIBBION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 0 1993' 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

FARCO MINING OF TEXAS INC., 

Respondent 

: CIVIL PENALTY PROCEEDINGS 

: Docket No. CENT 93-24 

: A.C. No. 41-02803-03552 

: Docket No. CENT 93-48 

: A.C. No. 41-02803-03553 

: Palafox Mine 

ORDER DISAPPROVING SETTLEMENTS 

ORDER TO SUBMIT INFORMATION 

Before: Judge Feldman 

These cases are before me upon petitions for assessment of 

civil penalties under Section 105(d) of the Federal Mine and 

Safety and Health Act of 1977. The parties have filed Joint 

Motions to Approve Settlements of the seven alleged violations 

involved in these cases. The parties seek approval of reductions 

in the proposed civil penalty assessments as follows: 

CENT 93-24 $8,630 to $3,335 

CENT 93-48 $7,000 to $3,400 

The parties request me to consider the premises presented in 

their Joint Motion to support their request for my approval of 

their agreement. However, the premises presented are superficial 

and do not address the specific rationale for the reduction in 

penalties or for the removal of the pertinent significant and 

substantial designations or unwarrantable failure findings. 

Section ll0(k), 30 U.S.C. § 820(k), requires Commission approval 

of any settlement agreement in these matters. The Commission 

must consider whether the terms of the proposed settlement are 

consistent with the six statutory criteria set forth in Section 

ll0(i) of the Act, 30 U.S.C. § 820(i). See Sellersburq Stone 

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

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

Based upon the absence of supporting information in the 

parties' motion, I am unable to conclude that the recommended 

penalty reductions are appropriate. Accordingly, it IS ORDERED 

that the motions for approval of settlement ARE DENIED. IT IS 

FURTHER ORDERED that the parties shall provide additional 

information specific to each citation in issue supporting their 

motions for reductions in civil penalties and for the 

1454 
modifications of the pertinent citations. This information 

should be provided within 30 days of the date of this order. 

Failure to timely provide the requested information will result 

in the scheduling of these cases for hearing. 

•d 

Feldman 

Administrative Law Judge 

Distribution: 

Robert A. Goldberg, Esq., Office of the Solicitor, U.S. 

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

75202 (Certified Mail) 

Thomas J. McGeady, Esq., Logan & Lowry, P.O. Box 558, Vinita, OK 

74301-0558 (Certified Mail) 

vmy 

1455 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 0 1993 

IN RE: CONTESTS OF RESPIRABLE ) 

DUST SAMPLE ALTERATION ) 

CITATIONS ) 

Master Docket No. 91-1 

DECISION ON COMMON ISSUES TRI)T. 

Appearances: For the Secretary of Labor: Douglas N. White, 

Esq., Carl C. Charneski, Esq., James B. Crawford, 

Esq., L. Denise Galambos, Esq., Richard L. Gilman, 

Esq., Page H. Jackson, Esq., Mark R. Malecki, 

Esq., and Patrick M. Zohn, Esq., Arlington, 

Virginia; 

For the Lead Defense Counsel Committee: Laura E. 

Beverage, Esq., Henry Chajet, Esq., and L. Anthony 

George, Esq., Charleston, West Virginia; 

Timothy M. Biddle, Esq., and R. Timothy McCrum, 

Esq., Washington, D.C.; Michael T. Heenan, Esq., 

and William I. Althen, Esq., Washington, D.C.; 

R. Henry Moore, Esq., Pittsburgh, Pennsylvania; 

John C. Palmer IV, Esq., and Edward L. Kropp, 

Esq., Charleston, West Virginia; and H. Thomas 

Wells, Esq., and J. Alan Truitt, Jr., Esq., 

Birmingham, Alabama; 

For the United Mine Workers of America: 

Jordan, Esq., Washington, D.C. 

Mary Lu 

Before: Judge Broderick 

STATEMENT OF THE CASR 

Each of the cases consolidated in the master docket involves 

an allegation that the mine operator altered the weight of the 

filter cassette used to sample the concentration of respirable 

dust to which its miners were exposed. Following extensive 

discovery, a common issues trial was commenced on December 1, 

1992, and concluded on February 22, 1993. The Secretary of Labor 

(Secretary) and the Lead Defense Counsel Committee (LDCC) each 

filed a posthearing brief on April 30, 1993, and a reply brief on 

May 28, 1993. I have considered the entire record and the 

contentions of the parties, including the proposed findings of 

fact, in reaching this decision. To the extent that the proposed 

findings and conclusions are not incorporated in this decision, 

they are rejected. (The Secretary proposed 701 findings and 

1456 
conclusions, and 13 ultimate findings and conclusions; LDCC 

proposed 79 findings of fact, and two u!timate and nine 

subordinate conclusions of law.) ' • 

• 

I. FACTUAL AND PROCEDURAL BACKGROUND 

A. RESPIRABLE DUST SAMPLING PROGRAM 

Section 202 of the Federal Mine Safety and Health Act of 

1977 (Mine Act), 30 U.S.C. S 801, 842, requires coal mine 

operators to take accurate samples in a manner prescribed by the 

Secretary of the respirable dust to which miners are exposed in 

the mine atmosphere. Title 30 C.F.R. SS 70.201-220 (for 

underground mines), 71.201-220 (for surface mines), and 

90.201-220 (for Part 90 miners) set forth the sampling 

requirements and procedures to which the mine operators must 

conform. Dust samples are taken by the use of an MSA sampling 

train unit containing a pump, a hose, a cyclone assembly, and a 

filter cassette. If properly calibrated, the pump draws 2 liters 

of air per minute into the cyclone assembly which is designed to 

separate out the larger particles of dust which fall into what is 

called the "grit pot." The air with the smaller (respirable) 

dust particles is direc£ed into the filter cassette. Inside the 

cassette is a capsule consisting of an aluminum cone, a filter, 

and a backing pad. The particles enter the capsule and are 

deposited on the filter face and the air goes through the filter 

and the backing pad into the hose and back to the pump. At the 

conclusion of each sampling shift, the filter cassettes are sent 

to the Mine S•fety and Health Administration (MSHA) (usually by 

mail) for weighing. The cassettes with their dust data cards 

attached are sent in cardboard mailing boxes. At MSHA's 

Pittsburgh Health Technology Center (PHTC), lab technicians 

remove the filter cassettes and•dust data cards from the boxes 

and place them on carrying trays.•Using forceps, the lab 

technicians open the cassettes, remove the filter capsules, and 

place the capsules on processing trays for weighing. The filter 

capsules are desiccated to remove any moisture that may be 

present and then stored before weighing to ensure stability of 

weight. PHTC weighs about 90 percent of its samples using a 

robotic weighing system. The remainder are weighed manually. 

Section 209(b) of 30 C.F.R. Parts 70, 71, and 90 provides in 

identical language: "The operator shall not open or tamper with 

the seal of any filter cassette or alter the weight of any filter 

cassette before or after it is used to fulfill the requirements 

of this part." 

B. CHRONOLOGY OF THE AWC LITIGATION 

Robert A. Thaxton, currently a supervisory industrial 

hygienist for MSHA, worked as an industrial hygienist in MSHA 

District 4 at Mt. Hope, West Virginia, in 1983. At the direction 

1457 
of his supervisor, Thaxton examined the dust sampling equipment 

to determine the potential for removal of dust by tampering. 

After some preliminary consideration of the alteration of the 

internal workings of the pump and misalignment of the filter 

cassette in the assembly, Thaxton concluded that removal of dust 

from the filter itself could be accomplished without being 

readily detected, especially since of the approximately i00,000 

samples submitted annually, less than 1 percent were opened to be 

examined for oversize particles. He subjected 25 to 50 filters 

to reverse air flow tests, using the pump, blowing by mouth into 

the cassette outlet, and directing a jet of air into the outlet. 

Thaxton noted the results: white, circular areas in the center 

of the filters in direct alignment with the cassette inlets, and 

varying amounts of weight loss. 

In February 1989, a laboratory technician in'the MSHA 

Mt. Hope office, when weighing an abatement sample, discovered 

the filter protruding into the opening of the aluminum foil 

capsule. When the foil was removed, a raised, white area in the 

center of the filter was observed. The filter was submitted to 

Thaxton who determined that it resembled the reverse air 

experimental filters he had created in 1983. When similar 

filters were observed from the same mine operator (Peabody Coal 

Company), PHTC, which receives bi-monthly respirable dust 

compliance samples, was instructed to examine other filters from 

the same mine for similar appearances. The matter was referred 

to the U.S. Attorney's Office for criminal investigation. PHTC 

was instructed to examine all Peabody filters from southern 

West Virginia, and later all Peabody filters nationwide. In 

August 1989, PHTC was directed to examine all filters submitted 

by all coal mine operators in the United States for abnormalities 

which might indicate tampering. 

Thaxton performed additional tests attempting to replicate 

the abnormal patterns on the examined filters. He subjected dust 

laden filters to reverse air flow by various means, including 

altering the pumps and using compressed air, methane, and vacuum 

sources; he inserted cotton swabs, pipe cleaners, and liquids 

into the filter cassettes; and he dropped cassettes from varying heights and threw them against a wall. Two formal studies were 

conducted, one by PHTC, one by the Department of Industrial 

Engineering at West Virginia University, which are said to have 

confirmed Thaxton's conclusion that normal sample collection 

procedures would not cause the filter appearances. 

In April or May 1989, PHTC began referring filters suspected 

of having an abnormal white center (AWC) to Thaxton. At PHTC, 

after the filter capsules are weighed, the capsules are 

collected, opened, and examined for abnormal appearances. Except 

for 1 week in late August 1989 when he was assisted by an 

analytical branch employee and until October 1989, the only 

person who performed the examination and referred suspected AWC 

1458 
filters to Thaxton was Lewis D. Raymond, head of the weighing 

laboratory. In October 1989, Raymond trained two weighing lab 

technicians to prescreen suspected AWC filters for his review. 

No written instructions were provided, but Raymond showed them 

filters he considered normal and those he considered suspected 

AWCs. In November 1990, Raymond trained another weighing lab 

technician to replace a retiring technician. The training for 

thenew technician included showing her photographs of filters. 

Raymond in turn referred the filters he considered abnormal to 

Thaxton. Prior to March 19, 1990, whenever Raymond had doubts as 

to whether a filter should be selected as an AWC he "sent it 

along and let Mr. Thaxton decide." Tr. 1477. After that date 

Raymond did not forward such filters to Thaxton even though he 

felt they were abnormal in some way. This change did not affect 

"95 percent or so of . . . the samples that got voided for AWC." 

Tr. 1475. Those deemed by Raymond to be normal, later termed 

"non-voids," were discarded until some time in the summer of 1991 

when, at the mine operators' request, PHTC began retaining them. 

Over time, cassette halves, compartment trays, and petri dishes 

have been used to transport suspected AWC filters to Thaxton. 

However, none of the cited filters submitted to PHTC were 

transported to Thaxton inside cassette halves. Tr. 348-49. 

Thaxton also used cassette halves and petri dishes for storage of 

the AWC filters. 

On many occasions between February or March of 1989 and 

September 1992, Thaxton reviewed the PHTC referrals of suspected 

AWC filters and was satisfied that they were properly referring 

suspected filters to him. Between February 1989 and October 1990 

Thaxton examined 6600 Peabody filters, 6100 of which PHTC 

concluded exhibited normal appearances. In June 1991, he 

reviewed 1200 to 1600 filters at PHTC to compare the filters he 

would expect to be referred to him with those actually selected. 

In September 1992, he reviewed 5100 filters at PHTC for the same 

purpose. Thaxton concluded that only two filters of the 5100 

should have been referred to him and that he would have issued a 

citation for one of them. Thaxton met with Raymond on numerous 

occasions during this period and compared suspected AWC filters. 

During the entire time Thaxton found only i0 or 12 filters that 

were not referred to him which he believed should have been. 

When cross-examined at trial concerning compliance filters 

he had previously seen at PHTC, Raymond was able to identify the 

ultimate status of only nine of 16 filters. Three others which 

at trial he considered void were determined to be no-calls by 

Thaxton, and one which he stated he would send to Thaxton to 

decide was ultimately cited. 

The Secretary argues that "Thaxton's consistency in 

identifying tampered filters has been nothing short of 

remarkable" and that "[a]s a result of their numerous 

communications regarding filters with AWC characteristics, 

1459 
Thaxton and Raymond developed an extraordinary consistency in the 

criteria which they both used to identify AWC's." Secty. Br. 5, 

34. The LDCC states that "Thaxton's AWC determinations are 

incomprehensible,, and it points to "Inconsistencies Between 

Thaxton's and [PHTC's] AWC Criteria." LDCC Br. 12, 16 (underline 

omitted). As will appear in this decision, I find the facts to 

be somewhere between these hyperbolic claims. 

On March 19, 1990, MSHA began voiding all samples exhibiting 

AWCs. The AWC void code takes precedence over all other void 

codes, such as those for oversize particles, low tonnage, etc. 

After the initiation of the AWC void code, field laboratories 

began examining filters for AWCs and forwarding suspected filters 

to PHTC, where they were reviewed and referred to Thaxton if PHTC 

considered them suspected AWCs. 

On April 4, 1991, MSHA issued nearly 5000 citations to 

approximately 800 mines followed by proposed civil penalty 

assessments totalling about $6.5 million. Each citation charges 

the mine operator with violating the provisions of Section 209(b) 

of 30 C.F.R. Part 70, 71, or 90, and alleges that "the weight of 

the respirable dust cassette . . . has been altered while the 

cassette was being submitted to fulfill the sampling requirements 

.... 

" Although the citations were issued by MSHA Inspectors 

James H. Wills and William D. McKinney, the determination whether 

the filters should be cited for AWCs was made solely by Thaxton. 

The filters referred to Thaxton'which he decided should not 

be cited are termed "no-calls." Those he decided should be cited 

were classified in one of 10."tamper codes." The bases for his 

determinations were the physlcal appearances of the filters and 

what he believed caused those appearances. Generally, cited AWC 

filters exhibit a lighter (in color), circular area in the center 

of the filter, approximately 6 millimeters in diameter in direct 

alignment with the cassette inlet. Tamper codes 1 through 4 were 

conceived during the Peabody investigation and prior to August 

1989, when the examination of all coal mine operators' filters 

began. Tamper codes 5 through 9 originated within 30 to 60 days 

after August 1989, and tamper code 10, which applies only to 

filters from one geographic area, was initiated after the void 

code was instituted on March 19, 1990. Thaxton assigned a tamper 

code to each of the filters prior to the issuance of the 

citations. However, physical damage in the central portion of a 

filter could preclude it from being cited. Thaxton also 

considered any pertinent information on the dust data cards 

submitted by the mine operators, and the number of AWC filters 

submitted by the same mine or the same contractor within a short 

period of time. Thaxton did not prepare or follow a written 

protocol describing his criteria for determining which filters 

were to be cited. He described the filter appearances under each 

of the tamper codes at the trial, showing examples of the cited 

filters. 

1460 
Filters classified under tamper code i, termed "light 

cleaned," contain a white ring in the center of the filter 

approximately 6 millimeters in diameter in direct alignment with 

the cassette inlet where the degree of dust removal in the center 

portion is not significantly different than that immediately 

outside. Thaxton testified that tamper code 1 appearances result 

from reverse air flow. 

Filters classified under tamper code 2, "cleaned," exhibit a 

circular area approximately 6 millimeters in diameter in direct 

alignment with the cassette inlet with a markedly lighter dust 

deposition within the circular area. Thaxton testified that 

tamper code 2 appearances result from reverse air flow. 

Filters classified under tamper code 3, "cleaned and coned," 

are similar to those classified under tamper code 2, with the 

addition of a slight rise or cone in the center of the 

6-millimeter, circular area. Thaxton testified that tamper 

code 3 appearances result from reverse air flow. 

Filters classified under tamper code 4, "torn (ruptured)," 

show a tear in the 6-millimeter, central portion of the filter in 

alignment with the cassette inlet. "There does not have to be a 

drastic change in the dust deposition [in the center of the 

filter], . . . but there typically is a lighter area of some type 

that goes along with the tear." Tr. 216. Thaxton testified that 

tamper code 4 appearances result from an object being inserted 

through the cassette inlet to contact the filter or from reverse 

air flow. 

Filters classified under tamper code 5, "wiped (clean 

wiped)," exhibit in the center portion of the filter "rough marks 

that look like scratch marks . . [giving] the appearance of 

physically something coming in contact with the filter face and 

wiping across the dust to remove it." Tr. 224. The center area 

is greater than 6 millimeters in diameter. Thaxton testified 

that tamper code 5 appearances result from inserting a brush or 

cotton swab into the cassette inlet and twisting it to wipe dust 

from the filter. A few of the tamper code 5 cited filters 

exhibit characteristics similar to those resulting from dropped 

experimental filters. 

None of the filters involved in this proceeding were 

classified under tamper code 6. 

Filters classified under tamper code 7, "clean tool," 

exhibit a 6-millimeter area with a very light ring and 

rectangular area attached to the ring on one side and jutting 

into the interior of the ring, with a darker area filling the 

balance of the ring. Thaxton was unable to replicate this 

appearance in his laboratory. Later, "[t]hrough varying degrees 

1461 
of reverse air flow it has been found that you can create this 

type of appearance." Tr. 256. 

Filters classified under tamper code 8, "clean face," show a 

wide area of dust disturbance encompassing the greater part of 

the filter with a slightly darker, circular center in direct 

alignment with the cassette inlet. Thaxton testified that tamper 

code 8 appearances result from an object being inserted through 

the cassette inlet and being twisted to wipe dust from the 

filter. 

Filters classified under tamper code 9, "clean touch," show 

a disturbance area in the center of the filter in direct 

alignment with the cassette inlet, which is much lighter than the 

surrounding area. There is a darker deposition immediately 

outside the lighter central area. The central area is smaller 

than 6 millimeters in diameter. Thaxton testified that tamper 

code 9 appearances result from an object being inserted through 

the cassette inlet and touching the filter. 

Filters classified under tamper code i0, "clean ring," show 

a slightly darker, circular center less than 6 millimeters in 

diameter surrounded by a broad, lighter ring larger than 

6 millimeters, shaped like a donut. Thaxton was not able to ..... 

replicate this appearance in his laboratory. 

Of the approximately 5000 filters cited, more than 4800 or 

97 percent were originally classified under tamper codes i, 2, 

and 3. In March 1992, Thaxton reexamined the cited filters with 

the filter media and backing pad being separated, and changed the 

tamper codes for 464 of the cited filters. The greatest change 

involved tamper code 3, which increased from 36 filters to 440 

filters. More than 95 percent of the cited filters remain in the 

first three tamper codes. 

Concurrent with the operator sample investigation, a large 

number of respirable dust samples taken in mines by MSHA 

inspectors were found to exhibit AWC characteristics. Thaxton 

characterized them under his tamper codes as he did the mine 

operators' samples. Most, but not all, of the inspector samples 

were classified under one of the reverse air flow tamper codes. 

The Office of Inspector General (OIG) of the Labor Department 

conducted an investigation to determine whether the inspectors 

who submitted these filter samples were guilty of misconduct. 

The investigation was closed, and misconduct was not found, based 

apparently on the finding that AWC appearances can result from 

snapping together the two parts of a-dust laden filter cassette. 

This finding resulted from a chance discovery by MSHA Inspector Wills at the Mt. Hope laboratory in approximately November 1991. 

Thaxton testified that MSHA inspector samples are processed 

differently than operator compliance or abatement samples. In 

the former case, the MSHA field laboratory separates the cassette 

1462 
to examine it for oversize particles. If the oversize particle 

criteria are not met, the capsule is not removed, and the 

cassette halves are replaced and the entire cassette is mailed to 

PHTC. In the latter case, operator samples are stripped of the 

aluminum foil in the field labs and examined for AWC 

characteristics. Filters suspected of having characteristics 

like AWCs are forwarded to PHTC. MSHA and apparently the OIG 

concluded that the snapping together of the cassette halves was a 

reasonable technical explanation for the MSHA inspector AWCs. 

And all of the experts agree that snapping together the cassette 

halves on a dust laden filter can cause a reverse air dust 

dislodgment. Thaxton testified that the inspector AWCs 

classified under tamper codes other than those thought to result 

from reverse air are explained by the fact that the inspector is 

not present at the sample site during the entire sampling period, 

and operator tampering could occur during his absence. 

The citations were contested, and the contest and penalty 

cases were assigned to me. On June 28, 1991, I adopted a Plan 

and Schedule of Discovery which distinguished joint discovery 

under the generic caption and master docket number from casespecific discovery under individual docket numbers. The 

discovery plan was amended on five different occasions and the 

time was extended for completing various stages of discovery. 

Throughout the joint discovery period, many issues involving 

evidentiary privileges and other procedural matters were decided. 

On May 22, 1992, I denied motions of certain contestants to 

vacate the contested citations on thegrounds that the Secretary 

failed to issue the citations with the "reasonable promptness" 

required by Section 104(a) of the Mine Act. 

On August 13, 1992, I ordered consolidation of all pending 

cases for trial of the common issues to commence on December i, 

1992. I appointed the LDCC and directed the completion of expert 

witness discovery and filing of witness and exhibit lists. Casespecific discovery was stayed. 

II. ISSUES 

I. What is an AWC? I 

 Does an AWC on a cited filter establish that the 

mine operator intentionally altered the weight of 

the filter? 

The Secretary has the burden of proof on these issues The 

burden requires that the Secretary show by a preponderance of 

l Appendix A is a conceptual diagram of an AWC on a filter 

prepared by Dr. Andrew R. McFarland. R-I032. 

1463 
evidence that (i) the term "AWC" has a coherent meaning and was 

consistently applied; (2) the cited AWCs can only have resulted 

from intentional acts; and (3) the AWCs resulted in weight losses 

in the cited filters. 

There is no direct evidence of tampering in the record. I 

have excluded from this proceeding evidence concerning minespecific handling practices or other mine-specific circumstances 

which may be relevant to the ultimate disposition of these 

proceedings. I am not considering any such evidence which may 

have been admitted into the record. 

III. ARE THAXTON'S CLASSIFICATIONS OF CITABLE AWCs 

COHERENT AND CONSISTENT? 

Although %hese cases have been consolidated for purposes of 

discovery and the common issues trial, it is important to keep in 

mind that they involve approximately 5000 individual citations to 

more than 800 mines, each alleging that the mine operator 

tampered with a dust sample by altering the weight of the filter 

cassette. This is not a conspiracy trial. It is not analogous 

to an employment discrimination case where the Government may 

introduce statistical evidence to establish or support 

allegations of racial, gender, or age discrimination. See, e.g., 

International Brotherhood of Teamsters v. United States, 431 U.S. 

324 (1977); Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir. 

1992); Palmer v. Schultz, 815 F.2d 84 (D.C. Cir. 1987); Capaci v. 

Katz and Besthoff, Inc., 711 F.2d 647 (Sth Cir. 1983). Nor is it 

analogous to a mass tort proceeding where a large number of 

plaintiffs were injured in a common accident, or allege exposure 

to a toxic substance. See, e.g., Schneider v. Lockheed Aircraft 

CORD., 658 F.2d 835 (D.C. Cir. 1981), 9ert. denied, 455 U.S. 994 

(1982); In re Bendectin Litiqation, 857 F.2d 290 (6th Cir. 1988), 

cert. denied, 488 U.S. 1006 (1989). The cases before me involve 

charges of individual violations by a number of different mine 

operators. The purpose of this common issues trial is to decide 

questions on which essentially the same evidence probably would 

be presented. At this stage of the cases, I reject the LDCC's 

contention that "[t]he Secretary must satisfy [his] burden of 

proof on each and every citation individually." LDCC Reply 

Br. 3. 

The basic issue to be determined in the common issues trial 

is whether an AWC on a cited filter establishes per se that the 

mine operator intentionally altered the weight of the filter. 

Before I resolve that issue, I have first to determine what an 

AWC is, and whether the criteria for an AWC were coherently and 

consistently applied. 

The term "AWC" purports to describe an appearance on the 

filter face. Thaxton defined it as "a filter that exhibits an 

1464 
unusual dust disturbance in the central portion of the filter 

.... Unusual in that it exhibits characteristics or patterns 

that are not consistent with what I've seen as far as normal 

filters." Tr. 127. 

[A cited AWC] indicates that there is a lighter area in 

the center of the filter as contrasted to the dust 

immediately around -- outside that circular area that's 

in the center of the filter. Basically, it's a lighter 

area that's approximately 6 milliliters [sic] in 

diameter that comports to the inlet diameter in the 

foil and in direct alignment with it. 

Tr. 138-39 ("milliliters" should read "millimeters"). The first 

of these definitions is very general and vague. The second 

obviously does not fit all the cited filters: some have dust 

dislodgments of more and some of less than 6 millimeters; some 

have tears in the filter center; and in some the central area is 

essentially the same color as that outside the 6-millimeter ring. 

Therefore, because I can't use the general definition of an AWC 

in deciding whether the term is coherently and consistently 

applied, I will look to the criteria followed by Thaxton in 

assigning tamper codes to the cited filters. Were those criteria 

coherently and consistently applied? In answering these 

questions, I am mindful that in a few instances filters having a 

light, circular area in the center were not cited because of 

explanations submitted by operators with the dust data cards that 

accompany filter samples. 

In determining the coherence or intelligibility of the term 

"AWC," some of the changes in the tamper codes following the 

March 1992 review are troubling. The changes from codes i and 2 

to code 3 were adequately explained by the fact that Thaxton 

separated the filter and backing pad and viewed the back side of 

the filter. This enabled him to see coning or dimpling on the 

filter which had not been evident previously. Thaxton also 

testified to changes in certain filter appearances resulting from 

oil contamination and dust removal on the petri dish cover. 

However, many changes were not explained and some seem 

inexplicable. 

Examples taken from trial exhibit G-270 include filters 

319277, 359820, 383847, and 391652 which were changed from code 2 

(cleaned) to code 4 (torn, ruptured). Were these tears present 

but not observed when the citations were issued? If they 

occurred later, what caused them? Filters 110049, 206387, 

206988, 206992, and 354041 were changed from code 2 to code 5 

(wiped, clean wiped). Filter 295546 was changed from code i to 

code 5. Did the filters change or did Thaxton's observation 

change? Filters 268052 and 274427 were changed from code 7 

(clean tool) to code 3 (cleaned and coned). Filters 191096, 

266732, 266778, and 295891 were changed from code 2 to code 8 

1465 
(clean face). Did the wide area of dust disturbance occur after 

the citations were issued? If so, what caused it? Filters 

287392, 311203, 320678, 385801, 416001, 416495, and 416725 were 

changed from code 2 to code 9 (clean touch). Filter 338072 was 

changed from code 1 to code i0 (clean ring). Filters 451650, 

452515, 491440, and 491828 were changed from code 2 to code i0. 

Filters 347935 and 355890 were changed from code 2 to code ii. 

Filter 194755 was changed from code 5 to code ii. Thaxton 

testified that filter 355890 had been coated with oil following 

Thaxton's examination in 1990, and that filter 194755 was changed 

because of contact with the petri dish cover. 

The Secretary states in his brief that the determinations 

made after Thaxton's second review 

were based solely on the filters as they appeared in 

March of 1992. While some filters were assigned a 

different tamper code during the second review, because 

this review was based solely upon the appearance of the 

filters as of that time. The March, 1992, review did 

not replace the tamper codes initially assigned. 

Secty. Br. 38-39 (emphasis in original). I don't know whether 

this means that the filter appearances changed; if it does, no 

explanation for the changes is suggested. Appendix A-4 of 

Dr. Richard J. Lee's February 6, 1992, report, trial exhibit 

R-1001, contains photographs of 15 filters all of which were 

cited under tamper code 2. According to his own system, Lee 

classified three of them as type I, three as type 2, three as 

type 3, three as type 4, and five as type 5. In March 1992, 

Thaxton reclassified the three Lee classified as type 5 to tamper 

codes ii, 8, and 8. He reclassified one of Lee's type 4 to 

tamper code 5. I have compared the photographs in Lee's report 

to the photographs of the same filters taken by MSHA in May or 

June 1992 and find no differences. Did Thaxton's 

reclassification result from Lee's report? 

The reclassification of cited filters in March 1992 thus 

raises substantial questions as to the coherence of the criteria 

followed by Thaxton in determining whether to cite the filters 

involved here, especially those classified under codes 4 

through i0. 

Thaxton testified that the "no-call" filters (those referred 

to him by PHTC which he did not cite) "do not exhibit that degree 

of dust removal that I would feel comfortable in saying that 

there is a citation to be issued." Tr. 139. This carries 

subjectivity to an extreme: the "degree" of dust removal must be 

such that Thaxton would feel comfortable in issuing a citation. 

The 4700 citations issued on April 4, 1991, and the 

additional citations issued in April, May, and June 1991 were 

1466 
based on Thaxton's review of the filters at some time between 

1989 and the date of the citations and his assigning a tamper 

code to each. Therefore, whether a filter exhibited evidence of 

tampering must be judged as of the time Thaxton made his original 

determination. Thaxton's reclassification following his second 

review in March 1992 cannot be used in deciding whether his AWC 

criteria were intelligible and consistent. The citations were 

issued based on Thaxton's observation and judgment at or prior to 

the time of their issuance. Further, except for the 

reclassification of filters from tamper codes 1 and 2 to tamper 

code 3, the record does not explain the rationale for the 

changes. 

During his testimony, Thaxton displayed 2 and described cited 

filters represented as typical under each of the relevant tamper 

codes. Photographs of the cited filters have been admitted into 

evidence as exhibits with the designation "G" followed by the 

filter number. 

I viewed the filters described by Thaxton at the hearing, 

and have reviewed the photographs of the cited filters which were 

introduced as exhibits. The filters cited within each of the 

tamper codes, while similar in many respects, exhibit a wide 

spectrum of appearances. This fact as well as the problems 

related to the reclassification referred to above creates some 

doubt as to the coherence of Thaxton's tamper code 

classification. Nevertheless, considering the filter appearances 

and Thaxton's explanation of the tamper codes, I find that the 

classification of citable AWCs under the tamper codes is, for the 

purposes of the common issues trial, intelligible and coherent. 

The LDCC challenges the consistency of Thaxton's calls based 

in part on a comparison of some of the filters cited under one of 

the tamper codes with filters deemed to be "no-calls" (tamper 

code Ii). It also compares Thaxton's judgments on the 

experimental filters of Dr. Lee with the cited filters. A 

consideration of Dr. Lee's experimental filters will appear later 

in this decision. 

Exhibit R-1643 contains photographs of a number of 

filters -- including cited, no-call, and experimental. Filters 

462514 and 323857 are displayed next to one another on page I0 of 

the exhibit. Both have a sharply defined, central ring 

approximately 6 millimeters in diameter with what Lee calls a 

"keyhole." The dust within the ring appears to be similar to 

2 Many of the filters and other exhibits discussed during 

the trial were displayed using the Elmo Visual Presenter which 

projected images of the objects on television screens in the 

courtroom. The instrument was commonly and affectionately 

referred to in the transcript as "Elmo." See Commission Ex. i. 

1467 
that outside the ring. Filter 462514 was cited under tamper 

code 2; filter 323857 was a no-call. In reviewing the filters at 

the trial, Thaxton concurred with his previous determination that 

filter 462514 was citable under tamper code 2. With respect to 

filter 323857 he testified: 

if there was any other information available with the 

dust data card that was submitted that would also be 

looked at . . . at this time . . . I would say that it 

is a code II .... The image . . . on . . . [the] TV 

screen is sort of washed out compared to the actual 

filter. If you look at the actual filter, it's much 

plainer to see but the light area that's in the center 

with the ring . . . has basically the same deposition 

as that immediately outside. And in that case on this 

type of filters [sic], I did not believe that was 

definitive enough to give the benefit of any doubt to 

the operator. 

Tr. 773-74. I viewed the actual filters as well as the 

photographs and find no significant differences in the appearance 

of the filters considering the criteria in Thaxton's tamper 

codes. 

Photographs of filters 285344 and 510557 are displayed on 

page 9 of R-1643. Both have a very faint ring approximately 

6 millimeters in diameter in the center of the filter. The area 

within the ring is slightly lighter than the area outside. 

Filter 285344 was cited under tamper code 2, filter 510557 was a 

no-call. Thaxton reviewed the filters at the hearing and 

testified: 

The filter on the right [285344] does exhibit what I 

would class as a code 2 type appearance .... The 

filter on the left, 510557, to be able to tell you 

 . . why it's a code 11 there is insufficient 

information being given to me with just the filter to 

tell me whythat was coded as an 11. 

Tr. 770 The dust data card for no-call filter 323857, R-1461A, 

was shown to Thaxton who found "nothing [on] here that indicates 

anything other than a normal dust sample that I can tell at this 

time." Tr. 784. I viewed the filters and the photographs and 

find no significant differences in the appearance of the filters 

considering the criteria in Thaxton's tamper codes. 

Photographs of filters 462514 and 406735 are displayed on 

pages i0 and ii of R-1643. Both were cited under tamper code 2. 

Filters 323857, 305291, and 268680, also photographed in R-1643, 

were no-calls. In my judgment, there are no significant 

differences in terms of Thaxton's tamper code criteria in these 

filters. 

1468 
Filter 325301 was cited under tamper code 7; filter 324931 

was a no-call. See photographs on page 12 of R-1643. The 

appearances are not significantly different in terms of Thaxton's 

tamper code criteria. Filter 305727 was cited under tamper code 

2; filter 327749 was a no-call. See photographs on pages 12 and 

13 of R-1643. Again the appearances are not significantly 

different in terms of Thaxton's tamper code criteria. 

Thaxton reviewed thousands of filters. He determined that 

approximately 5000 should be cited and that thousands more should 

not be cited. I have reviewed photographs of the cited filters, 

the no-calls, and the normal compliance filters. I have 

considered his testimony concerning the filters cited under the 

different tamper codes. The above discussion shows that Thaxton 

was not i00 percent consistent in the application of his tamper 

code criteria. However, for the purposes of a decision on the 

common issues trial, perfect consistency is not required or 

expected. I find that Thaxton's determinations as to whether a 

filter should be cited under his tamper code criteria were 

sufficiently consistent so that I must consider whether an AWC 

establishes a violation. 

IV. THAXTON TAMPER CODES vs. SCIENTIFIC EXPERT 

CLASSIFICATIONS 

A. THAXTON TAMPER CODES vs. MARPLE DUST DISLODGMENT PATTERNS 

Dr. Virgil A. Marple, working with Dr. Kenneth L. Rubow, 

both of the University of Minnesota, subjected dust laden filters 

to various experiments and classified them into various types 

according to their dust dislodgment patterns. Dr. Marple was not 

aware of Thaxton's tamper codes at the time he classified his 

experimental filters. 

Marple's types A-l, A-2, and A-3 resulted from air flow 

through the filter in the reverse direction (through the outlet). 

Marple's type A-I is described as having a sharply defined ring 

6 millimeters in diameter with a center lighter than the outer 

portion of the filter and a white "dagger" extending from the 

perimeter of the 6-millimeter ring to the center of the filter. 

Types A-2 and A-3 are variations of type A-I. The descriptions 

and the experimental filters so classified resemble Thaxton's 

tamper codes i, 2, and 7 (and 3 if a cone is shown). Marple did 

not address tearing in the central part of the filter and has no 

type analogous to Thaxton's tamper code 4. 

Marple's types B-I and B-2 were created by directing air 

into the inlet of the cassette. Type B-I is described as a 

white, circular spot in the center of the filter of irregular 

diameter and often an area within the white spot containing a 

darker deposit. Type B-2 shows a circular, white spot of a more 

uniform diameter with no darker deposit within the spot. Type 

1469 
B-I resembles Thaxton's tamper code 8; type B-2 looks most like 

Thaxton's tamper code 5. 

Marple's type C was created by a vacuum applied to the 

cassette inlet. The resultant pattern resembles type A-2 but has 

a more uniform gray value in the light center. Type C resembles 

tamper codes 1 and 2 (and 3 if a cone is present). 

Marple's type D was created by inserting a cotton swab into 

the cassette inlet and touching the filter face. The pattern is 

described as showing particles removed from the center of the 

filter in an area generally smaller than the inlet. In some 

cases swirl marks are seen on the filter. Type D resembles 

Thaxton's tamper code 9. 

Marple's types E-I, E-2, and F were created by randomly 

dropping the cassettes. Type E-I is described as larger in 

diameter and less sharply defined than type A patterns. Type E-2 

is described as smaller in diameter with a less diffuse boundary 

than type E-I, and has a diffuse dagger in the center. Type F 

exhibits a thin, white ring 6 millimeters in diameter. Type E-I 

may resemble tamper code i0. Type E-2 may resemble tamper code 7 

and type F may resemble tamper code i, but these resemblances are 

tenuous. 

B. THAXTON TAMPER CODES vs. LEE TYPES AND FEATURE CODES 

Dr. Richard J. Lee, President of the R. J. Lee Group, 

examined more than 1450 cited filters and videotapes of more than 

1240 additional cited filters. Lee stated that he grouped the 

cited AWCs into five major types based on three variables: (i) a 

6-millimeter ring resulting from contact between the filter and 

the 6-millimeter inlet ring on the aluminum foil; (2) a "keyhole" 

-- a wedge-shaped or circular-shaped, lighter area within the 

6 millimeter, circular zone in the center of the filter; and (3) 

a diffuse zone -- a generally circular zone with dust dislodgment 

which can be within or extend beyond the 6-millimeter ring. Each 

feature appears with various degrees of intensity. Thus, AWCs 

could be considered, according to Lee, to represent a continuum. 

Lee's type 1 exhibits a white ring with a nominal 

6-millimeter diameter in the center of the filter. The remnant 

deposit of dust within the ring has a color and density similar 

to the dust outside the ring. The center deposit has a white, 

wedge-shapedor circular-shaped, lighter area termed a keyhole. 

Type I resembles Thaxton's tamper code i. 

Lee's type 2 shows a white ring with a 6-millimeter diameter 

in the center of the filter. The dust deposit enclosed by the 

ring has the same color but is significantly lighter in density 

than the dust outside the ring. The keyhole is often less 

1470 
distinct and sometimes appears irregular. Type 2 resembles 

Thaxton's tamper code 2. 

Lee's type 3 has a circular, white center with a diameter of 

about 6 millimeters Any remaining dust in the center is so 

light that characteristics, such as a keyhole, are difficult to 

discern. Type 3 is most like Thaxton's tamper code 2. 

Lee's type 4 has a circular, light center about 

6 millimeters in diameter, but the transition between the dust 

outside the center and that within is generally more irregular 

than types I, 2, and 3. The particulate in the center is evenly 

distributed but usually shows a stippled or mottled texture. 

Type 3 most resembles Thaxton's tamper code 2. 

Lee's type 5 shows some features of types 1 through 4, but 

is unique in some way 

-- water spots, white centers greater than 

6 millimeters or some other irregularity. Type 5 is a catch-all 

category with a variety of appearances which cannot be 

characterized The filter shown in R-1001 as a Lee type 5 was 

cited by Thaxton under tamper code 8. 

Lee also characterized filters according to "feature codes" 

which he described as follows: 

i. 6 = a distinct 6-millimeter ring 

2. 9 = a distinct 9-millimeter segmented ring 

 K =.keyhole (a wedge-shaped, lighter area) inside the 

6-millimeter ring 

. R = a ring or series of resonance rings beyond the 

9-millimeter area in the center of the filter 

. F = a partial, faint, or fuzzy feature combined with 

any of the above 

. B = spots, smears, or undefined dislodgment of large 

amounts of dust (a blotch) 

7. O = other features 

Co 

8. X = no discernible dust dislodgment 

THAXTON TAMPER CODES vs. CORN CENTRAL DISCOLORATION 

Dr. Morton Corn, Professor of Environmental Health 

Engineering at Johns Hopkins University, viewed about I00 cited 

filters of some 300 such filters selected by Thaxton at the 

Mt. Hope MSHA laboratory. Thaxton told Corn that the 300 filters 

represented the spectrum of AWCs. A consultant hygienist 

. 14 71 
accompanied Corn and looked at a number of the filters. 

Photographs were taken of these filters. 

Corn testified that he saw a wide range of features on the 

cited filters -- dark centers, partial dark centers, light 

centers, patterns in centers, patterns elsewhere, billowing 

patterns outside the center, artifacts of the handling process, 

etc. Corn concluded that the array defied confident 

classification by visual means. He considered categories and 

combinations of pattern, linear dimension, and depth of 

coloration, but concluded that it was not possible to visually 

classify AWCs. 

D. THAXTON TAMPER CODES vs. McFARLAND CDC PATTERNS 

Dr. Andrew R. McFarland, Professor of Mechanical Engineering 

at Texas A&M University, viewed the U.S. Steel Mining Co. cited 

filters -- 43 in all, in Arlington. Forty-two were cited under 

tamper codes 1 and 2, and one was cited under tamper code 9. 

They had four basic characteristics, though not all had all four, 

and on some the characteristics are not as fully defined as on 

others: 

i. A 6-millimeter ring lighter than the average color on 

the rest of the filter. 

 The region in the 6-millimeter center is lighter than 

the average on the rest of the filter. 

 A dagger pattern within the 6-millimeter ring, lighter 

in color than any other portion of the filter. 

. Many filters had indentations or cuts or embossed areas 

in the ring where the filter had contacted the aluminum 

shroud. The cuts often can only be seen under a 

microscope. 

After Thaxton's March 1992 reclassification McFarland 

studied the coning phenomenon His report refers to patterns 

which have cones, dimples, or cuts as "CDC" patterns. McFarland 

examined the U.S. Steel filters which had been reclassified -- 

five were reclassified to tamper code 3, "cleaned and coned." 

McFarland concluded that three exhibited cones, one did not have 

a cone but had a cut, and one had a faint cone. One filter which 

was not reclassified had a cone and many others had cuts. 

E. THAXTON TAMPER CODES vs. GRAYSON "Y,, AND "N" CATEGORIES 

Dr. R. Larry Grays.n, Dean of the College of Mineral and 

Energy Resources at West Virginia University, examined more than 

400 cited AWC filters of mine operator clients of Crowell & 

Moring. He also attended Thaxton's deposition. Grayson 

1472 
performed experiments on more than 740 compliance samples from 34 

different mines operated by Crowell & Moring clients and 

classified the results as "Y" - probably a citable AWC, "Y?" - 

possibly a citable AWC, and "N" - not a citable AWC. He 

testified that his "Y" and "Y?" categories reflect the full range 

of AWCs that he observed in the cited filters. 

Grayson subjected the experimental filters to sampling 

assembly impact tests and hose impact tests. He described the 

resulting "Y" and "Y?" filters as having a nominal, 6-millimeter 

diameter ring with a dust dislodgment pattern inside the ring, 

and dust loading outside the ring. He compared his experimental 

filters with cited filters and testified he did not see a 

substantial difference between the general features of his "Y" 

and "Y?" filters and the cited filters. The cited filters to 

which he compared his experimental filters were cited under 

tamper codes i, 2, 3, and 9. Certain of the experimental and 

cited filters were compared at the hearing, and the filters in 

fact were not substantially different. 

V. DOES AN AWC ESTABLISH TAMPERING? 

A. THE SECRETARY'S EVIDENCE 

i. THAXTON 

Robert Thaxton, an MSHA Industrial Hygienist, has a 

bachelor's degree in analytical chemistry and a master of science 

degree in occupational health and safety engineering. He has 

been employed as an industrial hygienist for about 16 years. 

Thaxton was accepted as an expert witness in respirable dust 

sampling and in determining normal and abnormal dust patterns on 

respirable dust filters. However, since the accuracy of his 

determination of citable tampering is the precise issue in this 

proceeding, his expert opinion is not disinterested, and must be 

evaluated with that fact in mind. 

Thaxton's judgments that certain dust dislodgment patterns 

establish tampering are based in part on the reverse air 

experiments he performed in 1983 when 25 to 50 filters were 

subjected to different kinds of reverse air flow tests, and on 

various tests he performed beginning in February 1989 and 

continuing until the fall of 1990. During this period, he 

subjected dust laden filters to various experiments described 

previously herein. The tests were non-systematic and not 

conducted with any scientific rigor. Consequently, Thaxton's 

expert opinions are of diminished weight. The two formal 

studies, one conducted by the PHTC and the other at West Virginia 

University at MSHA's request, though reported, were not offered 

in evidence. A further problem with Thaxton's determinations is 

his failure to note in his classification of cited AWC filters 

the phenomenon described by other witnesses as a "dagger" or 

1473 
"keyhole" -- 

a white area within the central 6-millimeter area 

enclosed by a white ring. Thaxton noted such a condition only in 

the filters classified under tamper code 7 (63 filters were so classified). A review of the cited filters classified under 

tamper codes i, 2, and 3 (4849 in all) shows that the vast 

majority display such a condition. 

2. MARPLE/RUBOW 

Dr. Virgii A. Marple is a Professor of Mechanical 

Engineering at the University of Minnesota and a participant in 

the Generic Mineral Technology Center for Respirable Dust, a 

consortium composed of Pennsylvania State University, West Virginia University, University of Minnesota, Massachusetts 

Institute of Technology, and Michigan Technological University, and funded in part by the United States Bureau of Mines. He has 

a Ph.D. in mechanical engineering from the University of 

Minnesota, specializing in aerosol particle technology. He was 

accepted as an expert witness in the fields of mechanical 

engineering, aerosol physics, particle technology, and coal dust 

research. Dr. Kenneth L. Rubow is a Research Associate and 

Manager of the Particle Technology Laboratory and Associate Director of the Center for Filtration Research at the University of Minnesota Department of Mechanical Engineering. He has a Ph.D. in mechanical engineering from the University of Minnesota, specializing in aerosol science and particle technology. Dr. Rubow was accepted as an expert witness in the fields of 

mechanical engineering, aerosol physics, particle technology, coal dust research, and filtration research. The work and 

reports of Drs. Marple and Rubow were reviewed and critiqued (orally) by Dr. James Vincent of the University of Minnesota and Dr. Dale Lundgren of the University of Florida. Because neither 

Dr. Vincent nor Dr. Lundgren participated in the experiments of Drs. Marple and Rubow, because they did not submit any written 

reports, and because they did not testify at the trial, the hearsay evidence as to their opinions is of very limited value. 

a. Preliminary Studies 

Initially, Drs. Marple and Rubow examined the relative 

"pressure drops" (the difference in pressure between two points in an air flow) through the various elements of the personal dust sampler with an air flow rate of 2 liters per minute. They concluded after testing randomly selected samplers that the highest pressure drop element in the sampling system is the filter. This was confirmed by monodisperse particle deposition studies and polydisperse particle deposition studies. From these studies they concluded that dust is normally deposited uniformly 

on the filter with a slight tendency for larger particles to 

concentrate near the center. Therefore, normal dust sampling in 

a coal mine using the MSA sampler will not result in a white 

center on the filter. 

1474 
In their particle dislodgment studies Marple and Rubow 

determined that a jet of air directed through the filter cassette 

from the outlet ("reverse air") causes the filter to move toward 

the inlet because the pressure drop through the filter causes the 

air to flow uniformly. Just before the filter contacts the lip 

of the foil near the inlet, the air flows radially inward over 

the filter and out through the inlet. This causes removal of 

dust particles and a white ring in the center. The ring is the 

same dimension as the inlet diameter, approximately 

6 millimeters. Where the filter is pressed tightly against the 

foil lip, an opening must be formed for the air to escape. This 

in turn produces a high velocity jet of air which dislodges 

particles in a white dagger shape inside the white ring. The 

amount of air movement required to remove particles from the 

center of the filter is quite small if the movement is in the 

form of a pulse. The same effect can result from introducing a 

vacuum source into the cassette inlet. Air directed into the 

inlet also causes dislodgment but the white center is much larger 

and may include the entire center area of the filter. 

Marple and Rubow impacted filter cassettes by hand on a 

table top, with the plugs removed; this resulted in the removal 

of a thin, round ring of dust particles where the filter had 

touched the foil. Ordinarily the ring was more diffuse and wider 

than that caused by reverse air flow. 

Marple and Rubow were of the opinion that the "threshold 

velocity" (the velocity required to remove particles from the 

filter) is the overriding parameter in determining dust 

dislodgment. The threshold velocity is a property of the dust 

particles on the filter and varies from filter to filter. When 

the tangential air flow through the cassette becomes larger than 

the threshold velocity, dust dislodgment occurs. Threshold 

velocity can vary from mine to mine and from location to location 

within the same mine. 

Marple and Rubow attempted to characterize the patterns of 

dust dislodgment in an objective way. They took video images of 

the filters with a camera attached to a TV screen and a computer. 

Each filter was digitized into 153,000 pixels 3 and a grayness 

value of between 1 and 256 was assigned to each pixel. The 

computer printed out a graph and a digital image which they 

called a fingerprint. Dr. Marple testified that the fingerprint 

combined with a visual inspection of the filter provided a 

powerful and accurate tool in identifying the pattern of particle 

dislodgment. Subsequent witnesses who used digital analysis 

3 A pixel is defined as a picture element. The video 

camera creates a digitized image consisting of a number of small 

elements of equal area. Each of these areas is a pixel. 

1475 
criticized Marple's fingerprint because it had only two values 

and because he used inferior equipment. I find that for 

Dr. Marple's purposes it was adequate, and it provided 

intelligible data to the court. 

b. Systematic Dust Dislodqment Studie• 

Drs. Marple and Rubow conducted a series of systematic 

studies of particle dislodgment (Pitt-i and Pitt-2) at the PHTC 

in approximately September and December 1991. Seven hundred and 

forty filters taken from MSHA's compliance program from i0 MSHA 

districts throughout the United States were subjected to various 

tests. The tests were performed in two sets, approximately 

3 months apart, with 435 filters in the first set and 305 in the 

second. The filters used in the tests were visually examined for 

particle dislodgment and those exhibiting such dislodgment were 

not tested. The capsules had been weighed by MSHA and were again weighed by Marple before testing. After testing they were again weighed, photographed, and transported to Marple's laboratory for 

digitizing and classification by Marple. Twenty filters from the 

first set and 60 from the second set were selected as control 

filters and not subjected to testing. 

Sixty-four filter cassettes were subjected to reverse air 

flow tests -- air was blown by mouth through a tube inserted into 

the cassette outlet; air was introduced by pressure through a 

valve and into the outlet; and a vacuum was introduced into the 

inlet. In all cases the pressure drop and flow rate were 

measured, the cassette was opened, the capsule weighed, the 

filter examined, placed in a petri dish, and photographed. 

Marple types A-I, A-2, and A-3 were found on 45, five, and six 

respectively. There were five type F patterns and three showed 

no effect. 

Ten filter cassettes were subjected to air flow through the 

cassette inlet, either through a tube inserted into the inlet or 

from i inch away. Type B was found in four of five when the tube 

was inserted into the inlet; type B-2 was found in five of five 

when the tube was i inch away. Twenty filters were subjected to 

a rapid decrease in air pressure, i0 in containers and i0 without 

containers. The pressure was equivalent to the pressure decrease 

at 49,000 feet. No dust dislodgment patterns resulted. 

Seventy filters were subjected to tests involving disconnecting the air line at the pump or from the cassette 

outlet with the pump on, and a finger on the cyclone inlet. The finger was withdrawn to let the air rush back in. No reverse air 

flow patterns resulted. Only two type E-I patterns were found. 

Two hundred and ten filter cassettes were subjected to 

random drop tests from 3 feet and 6 feet to an asphalt tile 

covered concrete floor. They were dropped in various 

1476 
configurations: with all plugs in; with all plugs out; with 

inlet plugged and outlet open; with outletplugged and inlet 

open; with inlet down; with outlet down; and with side down. A 

type E pattern resulted in 35 cassettes; type E-2 in two 

cassettes, type F in three cassettes. The dislodgment pattern 

was quite different than the reverse air flow patterns in that it 

was larger in diameter and less sharply defined. In a second set 

of drop tests, 70 cassettes were dropped with the inlet down from 

a height of 5 feet. Dust dislodgment patterns resulted in 55 

cassettes: 43 Were type El, one was type E-2, Ii were classified 

as other. 

Twenty tests were performed dropping the entire sampling 

assembly from heights ranging from 3 to 6 feet. A type E-I 

pattern was found in ii of them. 

Ten filter cassettes were tested by touching the filter with 

a cotton swab inserted into the cassette inlet and moving the 

swab over the filter surface. A type D pattern resulted in each 

of the filters. 

Twenty filters were tested with a combination reverse air 

flow and impact test. The cassette was impacted on a table top 

or with a screwdriver handle while air was flowing in the reverse 

direction through the cassette. Fifteen had particle dislodgment 

patterns; seven were type A-l, one type A-2, three type E-I, two 

type F, and two other. 

Twenty filters were tested by removing the pump inlet and 

outlet valves and the dampener and attaching the cassette to the 

tampered-with pump and allowing it to run for 30 seconds. No 

dislodgment patterns resulted. 

Twenty cassette filters were subjected to a snap cassette 

closed test which had been suggested by MSHA. Reverse air 

dislodgment patterns were found on seven filters. 

c. Coal Mine Dust vs. Laboratory Dust 

As I stated earlier, Marple and Rubow believe that the 

threshold velocity of the dust was of overriding importance in 

their testing. They have worked with wind tunnels and dust 

chambers and believed that they could not duplicate in a tunnel 

or chamber the kind of dust found in coal mines. For this reason 

they used filters from the compliance program 

-- from a number of 

different mines from all I0 MSHA districts. Marple and Rubow 

measured and compared the threshold velocity of particles on 

filter surfaces containing coal mine generated dust and 

laboratory generated dust. The coal mine generated dust was 

collected on filters by MSHA field offices -- 388 such filters 

were returned to PHTC and were called special test filters. 

Thirty were used in the threshold velocity tests. They were 

1477 
compared with 18 laboratory loaded filters from Drs. Lee, 

McFarland, and Yao (Shell). The velocities required to create 

particle dislodgment from the mine-generated samples varied from 

30 to 140 centimeters per second. The velocity required to 

create particle dislodgment with the lab-generated samples was 

consistently about 30 centimeters per second. Dr. Marple 

concluded on the basis of these tests that in general 

dislodgments were easier to create on laboratory prepared dust 

samples than on mine prepared dust samples. Lab-generated dust 

samples do not provide the mix of threshold velocities required 

to simulate mine samples. 

d. Marple Classification of Dust Dislodqment Pattern• 

Following his threshold velocity studies, his digitized fingerprints of filters, and his Pitt-I and Pitt-2 experiments, 

Dr. Marple classified dust dislodgment patterns into six major 

types, some of which had subordinate categories. 

Type A patterns resulted predominately from reverse air flow 

tests. In type A, type A-I was the most common. Marple classified as type A-I patterns those with a 6-millimeter, white 

ring in the center of the filter, some type of dagger formation 

within the ring, with the dust inside the ring of a lighter color 

than that outside the ring. He classified as type A-2 patterns those exhibiting a 6-millimeter, central dislodgment with a 

fairly uniform coloring across the center. Neither the white 

ring nor the dagger formation were "predominate,,, but the ring 

was very sharp and there appeared to be a "V" through the central 

portion of the dislodgment. He classified as type A-3 patterns those exhibiting a very light but sharp, 6-millimeter, narrow ring around the outside, and a dagger formation inside the ring. The color inside and outside the ring was the same. 

Type B patterns resulted from blowing air into the inlet of the cassette. The type B-I pattern exhibited a rather large, diffuse area in the center, "not extremely circular," where the 

particles have been removed. The type B-2 pattern also had a 

very diffuse, white center somewhat smaller than B-I, and was fairly uniform in color. 

The type C pattern resulted from introducing a vacuum source by way of a tube inserted into the inlet. The pattern was quite circular with sharp, crisp edges and a uniform gray value across the bottom not unlike the type A-2 pattern. 

The type D pattern resulted from inserting a cotton swab into the cassette inlet and twisting it. Spiral lines were 

caused if the swab was twirled. The dislodgment was generally less than 6 millimeters in diameter. 

1478 
The type E pattern resulted from the dropping experiments, 

both random and controlled. The type E-I pattern was rather 

diffuse, and donut-shaped with diffuse outer and inner surfaces. 

There was a wide variety of E-I patterns. The type E-2 pattern 

showed a dagger in the center going across the internal section 

of the dislodgment. It was more diffuse than the type A 

patterns. 

The type F pattern, also resulting from the drop tests, 

exhibited a very thin, white ring with a little dip in the 

fingerprint. 

e. Dust Dislodqment and Weiqht Loss 

The filters exhibiting dust dislodgment patterns as a result 

of the Marple/Rubow experiments (sets 1 and 2) generally showed a 

weight loss. See G-280, tables 5.1 and 5.2. The average 

percentage loss varied from 0.7 percent, for the test involving 

disconnecting the air line from the cassette outlet with the pump 

on and a finger over the cyclone inlet, to 23.6 percent, for the 

test involving air blown into the inlet through a tube. The 

control filters used in set 1 showed a 1.3 percent weight loss 

and those used in set 2 showed a 0.9 percent weight gain. 

Filters used in the test involving removal of the pump inlet 

valve and flow dampener using the Model G pump showed a 

1.5 percent weight gain. Filters used in the test involving a 

rapid decrease in air pressure surrounding the cassette in a 

container, in the test involving a 3-foot control drop with all 

plugs out, and in the test involving the air line disconnect with 

the pump on and a finger on the cyclone inlet, all showed no loss 

or gain in weight. Of the 700 test filters used by Marple and 

Rubow in their experiments, about 250 showed a dust dislodgment 

pattern. Of this number approximately 220 showed a weight loss, 

20 a weight gain, and i0 no change. Of the approximately 75 type 

A dislodgment patterns, about 70 had a weight loss, two a weight 

gain, and three no change. Of the approximately ii0 to 115 

type E patterns, i00 had a weight loss, about I0 to 12 a weight 

gain, and one no change. Dr. Marple explained the weight gain on 

the filters with dislodgment patterns as due to "uncertainty in 

the measurements of the weight." Tr. 3070. The A-I patterns 

showed an average weight loss of 13.4 percent; A-2, 16.3 percent; 

A-3, 0.6 percent; E-l, 10 percent; E-2, 6.3 percent; F, 

0.2 percent gain; others, 13.2 percent loss. 

f. Filter-to-Foil Distance and Filter Floppiness 

Drs. Marple and Rubow directly measured the filter-to-foil 

distance of about 1040 unused filters from MSHA field offices. 

The filters were manufactured in 1988, 1990, 1991, and 1992. 

None were available from 1989. They were measured with a laser 

measuring device and measurements were taken (I) "out of the 

box;" (2) when 2 liters of air was pulled through the filter; 

1479 
(3) with a Small amount of pressure on the back side; and (4) when the pressure was released. The filter-to-foil distance for 

31 1988 filters averaged 1.57 millimeters; for 280 1990 filters, 1.13 millimeters; for 439 1991 filters, 1.29 millimeters; and for 

274 1992 filters, 0.87 millimeters. The 31 1988 filters were 

largely manufactured on the same day, June 9, 1988. Marple and Rubow conclude that the filter-to-foil distance has not increased with time for the examined filters having manufacturing dates in 

1988, 1990, 1991, and 1992. But see exhibits G-253A, 255A, 257A, 259A, 260A, 261A, 262A, 263A, 265A, 266A, and R-I068, 1069, 1070, and 1071 which indicate a tendency for larger filter-to-foil 

distances over time between April 1988 and May 1992. 

The floppiness of the filters was determined by measuring the difference in filter distances between when the filter was 

pressurized in reverse direction by 1 inch water and when 2 

liters per minute was pulled in the correct direction through the 

cassette. The floppiness has not decreased over time and there is some indication that it has increased. 

Of the 1040 filters which were measured, 400 were sent to have dust collected from mines; 388 were returned. These are 

referred to as special test filters. In one group the filter-to- foil distance before and after loading are in good correlation. 

In the other group, filters have a larger filter-to-foil distance 

after sampling than before. This indicates to Marple that large filter-to-foil distances after loading do not indicate the extent of the filter-to-foil distance before loading. 

The special test filters were subjected to certain 

systematic studies (Pitt-3 experiments). In the hose step tests, 

a 230-pound individual wearing size 10-1/2D mining boots walked in a normal walking pattern on a hose. No dislodgment resulted. When the same individual stepped on the hose with maximum 

stomping force with the toes pointed toward the filter, dislodgments resulted as they did when he stepped on a hose in a heavy manner with his toes directed toward the filter. When a 30-pound tool box was dropped on a hose from a height of 

6 inches, only one dislodgment occurred on 20 cassettes tested. When an individual sat on a hose as hard as he could, seven of 25 

cassettes tested showed A-3 patterns; 17 showed no dislodgment. No effect resulted from the same individual leanina back a,a•,=e 

a wall wlth the hose wrapped around him. Marple also perf =ormed 

...... 

two desiccator tests, using 40 capsules in each. Only two filters showed any dislodgment patterns and they were unlike any in Marple's classificatlon. Wrapping the hose around the pump and throwing the pump on a table from 6 feet caused dislodgment patterns in only two of 60 cassettes tested. 

Marple and Rubow performed additional threshold velocity tests, using the special test filters, lab filters from Lee, McFarland, and Yao, and filters from the compliance program. The 

1480 
I00 lab dust filters had a threshold velocity of from 0 to 40. 

Thirty of the mine dust filters had threshold velocities of from 

0 to 40; 24 of from 40 to 80; 33 of from 80 to 120; and 12 of 

over 120. 

g. MSA Documents 

Dr. Rubow reviewed certain documents from MSA, particularly 

R-If00 to i191• in which manufacturing defects and problems were 

disclosed and discussed. In Dr. Rubow's opinion, changes in the 

filter and backing pad pressure drops would not render the filter 

susceptible to the formation of dust dislodgment patterns in the 

center of the filter under reverse air flow or reverse air pulse 

situations Dr. Rubow conceded that a sustained reverse air flow 

on a filter with higher resistance would tend to cause the filter 

to flex, but this is not the case, in his opinion, with a reverse 

pulse 

h. Marple/Rubow Conclusions 

i Dust dislodgment patterns on filters cannot occur 

naturally in the operation of a personal dust sampler 

in a coal mine environment. 

 The primary mechanism for removing dust from a filter 

is the tangential air flow being larger than the 

threshold velocity of the dust on the filter. 

 The most probable cause of type A patterns of dust 

dislodgment on filters is reverse air flow. 

 The easiest method for producing reverse air flow to 

create an type A pattern is blowing through the filter 

outlet. 

. Type A patterns most probably result from deliberate 

mishandling 

o The most probable cause of type E patterns of dust 

dislodgment on filters is impact. 

o Type E patterns most probably result from accidental 

mishandling of sampling equipment. 

o The operation of the desiccator at PHTC is not a source 

of dust dislodgment patterns. 

 The shipment of compliance samples by airplane is not a 

probable cause of dust dislodgment patterns on filters. 

i0. Cone formations on filters are probably caused by 

reverse air flow. 

1481 
ii. 

12. 

13. 

14. 

15. 

Impacts to the hose on MSA sampling units most probably do not create dust dislodgment patterns. However, Marple's Pitt-3 tests showed that 28 out of 119 filters 

subjected to hose impact tests resulted in dust 

dislodgment patterns. See G-282, table i. 

Snapping a cassette shut is not a probable cause of dust dislodgment patterns on filters. However, Marple's Pitt-2 study reported that snapping the 

cassette closed can create a dislodgment pattern on the filter. Twenty cassettes were tested in this manner 

and reverse air flow dislodgment patterns were found in 

seven filters. 

A dust dislodgment pattern on a filter indicates that 

there has been a weight loss on the filter. But see 

page 24, su_up_ra, on which it is indicated that in some instances no weight loss occurs; in fact some filters 

show a weight gain after a dust dislodgment. 

Mine dust is preferable to lab dust in studying the 

problem of dust dislodgment patterns on filters. 

Manufacturing variables such as filter-to-foil distance 

and floppiness are not probably contributing factors to dust dislodgment patterns. But see Marple's testimony at Tr. 2803-04. 

Q .... [Y]ou found a wide range in 

response among the filters in how they 

flexed in response to the reverse 

airflow; is that right? 

A. I would say not probably on how they 

flexed, but when they touched the 

inlet, how high they got up, yes. 

Q. And you believe that it's the 

variation between different filters 

which produces these differences, isn't 

that right . . . ? 

A. I would say this is related back to 

the floppiness of the filter 

.... 

Q. 

: 

. You believe that its 

variatlons between different filters 

 . in how they respond to the reverse 

airflow? 

A. I think it would be variations in 

the floppiness. 

1482 
Dr• Marple also testified that floppiness, and the 

distance between the filter and foil could be 

influential in the formation of cones on a filter. 

Tr. 2821-42. 

A. So I still believe that that would 

be a factor, that floppiness should be a 

factor. 

Q• And then I asked should be a factor 

in influencing dust dislodgement? 

A. Correct. 

Q. And then I asked "and that a more 

floppy filter would be more prone to 

forming a dust dislodgement pattern" and 

you answered -- 

A. That's right. 

3. McCAWLEY 

Dr. Michael A. McCawley, employed as Team Leader, Research 

Team, Environmental Investigations Branch, National Institute of 

Occupational Safety and Health (NIOSH), testified as a rebuttal 

witness for the Secretary. Dr. McCawley has a master's degree in 

air pollution engineering from West Virginia University, and a 

Ph.D. in environmental health from New York University. He 

teaches courses in air pollution and aerosol science at 

West Virginia University as an adjunct professor. His work 

includes taking and processing samples of particulate matter 

including coal dust. He was accepted as an expert witness in the 

fields of aerosol sampling and respirable coal dust sampling and 

processing for NIOSH. 

Dr. McCawley was involved in the preparation of a report, 

including tables and a chart, responding to a request from 

Senator Arlen Specter. Senator Specter requested, inter alia, 

that NIOSH determine the amount of dust that could be removed 

from a filter sample by tampering, and whether others had 

performed tests on tampered samples to determine the amount of 

dust that could be removed. 

Dr. McCawley and others at NIOSH performed two tests 

involving 20 filters which had been loaded with coal dust in a 

dust chamber. The dust had been collected as an airborne sample 

from a coal mine in the Pittsburgh coal seam some years 

previously. The PHTC studyand theWest Virginia University 

study of Dr. Myers were referenced in NIOSH's report to Senator 

Specter, but were not relied upon. Eight filter cassettes were 

used in the first test. Each loaded cassette was tapped two or 

1483 
three times on the side of a table. Then with both caps off 

McCawley (and his co-worker Frank J. Hearl) "blew about as hard 

as you would blow to blow up a balloon" into the cassette outlet. Tr. 8933. This produced a puff of dust out of the inlet. The 

cassettes were weighed before and after sampling and again after the "tampering" (testing). Some of the test filters were lightly loaded (sampled for 6 hours); some were heavily loaded (sampled for 12 hours). Eight additional cassettes were used in the 

second test. They were tapped two or three times on a desk and then an MSA sampling pump was attached to the inlet to suction 

off dust. The person conducting the test placed his thumb over 

the outlet "and pulsed the air through two to three times 

" 8933. On his estima•'to cross-examination, Dr. McCawley changed 

four times. The loading and weighing processes 

were the same as in the first test. There were also four filter 

cassettes used as controls. 

The dust removed as a result of the two tests varied from 

0.08 milligrams (over 5 percent) to 1.12 milligrams 

(34.25 percent). The control filters showed essentially no 

change in weight. In Dr. McCawley's opinion, the weight loss due 

to the tests is statistically significant. The average weight loss for the filters subjected to the first test was 

10.27 percent, and for the filters in the second test, 16 percent. According to the series numbers the filters used 

appear to have been manufactured in 1988. 

4. MILLER 

Dr. John J. Miller is an Associate Professor in the 

Department of Applied and Engineering Statistics at George Mason University. He has a Ph.D. in statistics from Stanford 

University. He was accepted as an expert witness in the field of statistics. 4 

Miller used as his database, MSHA's Denver database 

including a record of all dust samples processed between 

August 8, 1989, and March 31, 1992, Thaxton's database including 

4 The LDCC argues that statistical evidence has no 

probative value in this case. I answered this contention in part in my order denying Contestants, motion to exclude the testimony of Dr. Miller. Statistical evidence alone obviously cannot prove causal relationships. "Even when the correlation is very strong and predictions are firm, we cannot use that fact to prove that 

one variable causes the other . . •" Derek Rowntree, Statistics Without Tears 188 (1981). Nevertheless, statistical evidence can be helpful in explaining probable relationships between variables, and it has long been accepted as probative in the federal courts. Hazelwood School District v. Pnited States, 433 U.S. 299 (1977). 

1484 
all filter samples submitted to Thaxton with the tamper code 

assigned to each by Thaxton, all mines in the Denver database 

from the MSHA Norton subdistrict, all Peabody mine IDs, all mine 

IDs of companies (or officers of companies) which pled guilty to 

criminal charges of submitting fraudulent samples, all abatement 

samples, and records from MSA Corporation showing the date of 

manufacture of the filter cassettes. With this database, Miller 

performed certain statistical tests. He created three variables 

for his subsequent analyses, each of which had three possible 

values: "before," "after," or "missing." Before-A version was 

"before" if the sample date or the processing date was on or 

before March 19, 1990. If the dates were known and were not on 

or before March 19, 1990, before-A was "after." If both dates 

were missing, before-A was "missing." Before-B version was 

defined in the same way except the cutoff date was March 31, 

1990. Before-C version was used to delete the observation of 

sample dates between March 19, 1990, and March 31, 1990. 

a. Whether the Rate of Cited AWCs was Random 

First, Dr. Miller performed a chi-square (X 2) analysis of 

cited rates to determine whether the rate of cited AWCs was 

random as between mines. For purposes of the analysis, the null 

hypothesis 5 is that the rate of AWCs is the same at each mine. 

The test shows a P-value of 1 x i0 -n which is overwhelming 

evidence against the null hypothesis. • The conclusion is that 

the phenomena generating cited cassettes are not random or the 

likelihood of cited cassette generation is very heterogenous, 

with some mines much more prone to generate cited cassettes than 

others. Similar tests involving only cassettes whose sample date 

is before March 20, 1990, and before April i, 1990, and tests 

excluding mines in the Norton subdistrict and excluding abatement 

samples all result in overwhelming rejection of the null 

hypothesis. 

In Dr. Miller's opinion, the results of these tests exclude 

mailing as a cause of the cited AWCs, assuming that the Post 

office handles the cassettes mailed to MSHA in essentially the 

5 "The hypothesis being tested is called the null 

hypothesis . 

If the condition specified under the null 

hypothesis Is rejected by the test, the condition is assumed to 

be false." Wayne C. Curtis, Statistical Concepts For Attorneys 

119 (1983). 

The "P" stands for probability. The P-value is the 

statistical measure of the consistency between the null 

hypothesis and the observed data: P-values are always numbers 

between 0 and i. P-values close to zero are not consistent with 

the null hypothesis. 

1485 
same manner. The results also rule out handling in the PHTC as the cause of AWCs assuming it does not handle cassettes from different mines in a different manner. 

b. Tests for Sample Date vs. Cited Rate 

Miller then performed a number of analyses of sample date 

vs. cited rate. The purpose of these analyses was to determine whether there was any inhomogeneity through time in the rate of cited cassettes, and, more particularly, whether there was any change in the cited rate occurring on or about March 19, 1990, when the AWC void code was instituted. The results show a Z-score 7 of over 80. This is overwhelming evidence that the null hypothesis (no difference in the before and after cited rates) is 

not correct. 

Dr. Miller concluded that (i) there seems to be a trend to decreasing cited rates over time; and (2) there seems to be a marked decrease in the cited rate on or about March 19, 1990. This could be due to a behavior modification at the mines leading to a decrease in the cited rate or to a systematic change in the 

cassettes over time. The data are not consistent with a hypothesis of randomness with homogeneous rate over time. 

c. Cassette Manufacture Date 

Dr. Miller then did an analysis of sample date vs. cited 

rate adjusting for cassette manufacture date. The adjustment assumed that cassettes manufactured on the same date or on temporally close days would exhibit similar properties. He used 

a statistical test called the sign test, and used both the 

analysis data set and the reduced analysis data set in versions A, B, and C. In all cases the results were extremely small P-values and, thus, an overwhelming rejection of the null hypothesis. Dr. Miller thus concluded that there is overwhelming evidence of a definitive change in the cited rate between "before" and "after" even after adjustment for manufacture date. Because of potential bias resulting from the fact that there is a difference in the number of samples in the before and after period for any individual date of manufacture, Dr. Miller did a bootstrap analysis. 8 The analysis did disclose such a bias, but it is a small one. The null hypothesis (that date of manufacture 

A Z-score of more than 2 or 5 translates into an extremely small P-value. The P-value corresponding to a Z-score of 80 is less than 1.0 x i0 -n. 

s A test using hypothetical data enforcing the null hypothesis to be true. The test is designed to determine the effect of potential bias resulting from unequal variables. 

1486 
makes a difference) is still not consistent with the data. 

Therefore, adjustment for manufacture datedoes not explain the 

large differences in cited rates before and after March 19, 1990, 

or March 31, 1990. 

Dr. Miller did a test to determine whether the difference in 

cited rates is explained by whether the cassettes were 

manufactured before or after January i, 1990. The null 

hypothesis is that the hypothetical rate of citations for 

cassettes manufactured before January i, 1990, is the same as the 

hypothetical rate for cassettes manufactured January I, 1990, and 

after. Following a bootstrap analysis to enforce the null 

hypothesis, he concluded that there is little or no evidence that 

holding the sample date constant, there is no difference in 

before and after January i, 1990, in terms of manufacture date 

and cited rate. Therefore, the date of manufacture does not 

explain the observed difference when analyzing sample date before 

and after March 19, 1990, or March 31, 1990. The observed 

difference in cited rate for cassettes manufactured before and 

those manufactured after January i, 1990, is explained by an 

adjustment for sample date. 

d. Filter-to-Foil Distance and Floppiness 

For Dr. Marple's Pitt-3 experiments, Dr. Miller allocated 

400 filters by (i) year of manufacture (there were none from 

1989); (2) filter-to-foil distance, as measured by Marple; and 

(3) floppiness as measured by Marple; to be sent to the MSHA 

district offices for dust loading. After the Pitt-3 experiments, 

Miller did a logistic regression to determine whether the 

possibility of citable dislodgment (using Thaxton's calls) could 

be predicted using the type of experiment and either the filterto-foil distance or floppiness, or both. The results failed to 

show any statistically or marginally statistically significant 

relationship between filter-to-foil distance or floppiness and 

citable AWC formation. However, the piston test data did show a 

significant effect of both filter-to-foil distance and floppiness 

on dust dislodgment: larger filter-to-foil distance was 

associated with larger probability of dislodgment, and larger 

floppiness was associated with larger probability of dislodgment. 

The strength of the floppiness relation was much greater than 

that of the filter-to-foil distance. (This conclusion of Miller 

refers to Marp!e's calls on dislodgment, not Thaxton's calls on 

citable AWCs). 

e. AWCs and Weiqht Loss 

Miller did a formal statistical analysis to determine 

whether a weight loss was associated with reverse air AWC 

formation. He studied compliance filters (including operator 

filters and inspector filters), and special filters separately. 

The statistical null hypothesis is that the average weight change 

1487 
in the control group is the same as in the experimental group. The statistical analysis is an analysis of variance. Because the 

four groups had unequal numbers of filters, Dr. Miller did a 

least squares means analysis: an estimate of the mean that the 

group would have had if the sample sizes in all the groups were 

the same. Least squares means are the statistically appropriate things to compare if averages are being compared as here. The 

analysis took into consideration the fact that the filter weights differed: some were lightly loaded; some heavily loaded. The 

conclusion is a rejection of the null hypothesis: there is a 

greater weight loss for the experimental group. Some filters do 

not show a weight loss with an AWC, but the likelihood that an 

AWC filter will have a weight loss is greater than the likelihood 

that it won't 

f. Miller Conclusions 

I. The cited AWC phenomenon is not a random occurrence. 

 A mechanism or event which is equally likely to occur 

at all mines is not responsible for the observed 

pattern of cited AWCs. 

 There was a decrease in the rate of cited AWCs at about 

the time of the initiation of the void code in March 

1990. 

 The observed drop-off in the rate of the cited AWCs is 

not due to a change in the quality of the cassettes 

over time. 

 Any potential mine-specific explanation for the 

occurrence of AWCs is not constant over time. 

. When filter cassettes have air blown through them in 

the reverse direction there is the likelihood of a 

weight loss. 

B. •HE MINE OPERATORS' EVIDENCE 

i. LEE 

Dr. Richard J. Lee is President of the R. J. Lee Group, an independent testing and research laboratory which, inter alia, 

engages in materials characterization. Dr. Lee has a Ph.D. in 

solid state physics from Colorado State University. He was 

accepted as an expert witness in physics, materials 

characterization and analyses, and environmental monitoring. I 

previously stated that Dr. Lee examlned and evaluated more than 

1450 cited filters and examined videotapes of more than 1240 

additional cited filters. He classified them into five types previously identified in this decision. Approximately 34 percent 

1488 
were type i, 46 percent were type 2, 6 percent were type 3, 

7 percent were type 4, and 6 percent were type 5. 

When Lee was cross-examined at trial with respect to filters 

he had previously classified, his trial classification agreed 

with his prior classification in only i0 of 35 filters, not an 

impressive batting average. 

a. Systematic Dust Dislodqment Studies 

For use in his experiments, Lee generated over 3100 dust 

samples in the R. J. Lee Group dust tunnel. The coal used was 

from various coal seams and included high-vol, medium-vol, and 

low-vol coal. Samples included particle sizes within the same 

range as those from coal mines, and were of similar shape and 

aerodynamic diameter. Samples were collected under controlled 

temperature and humidity. In addition to the laboratory samples, 

Lee obtained over 650 dust samples from coal mines across the 

country. For each sample tested, Lee measured the filter-to-foil 

distance with a stereo optical microscope. For laboratory 

samples, these measurements were taken prior to testing both 

before and after dust loading. The tests were designed to 

simulate sample collection, handling, and processing. 

Lee first conducted a series of cassette and cyclone impact 

tests. Cassettes were dropped from heights ranging from 3 inches 

to 4 feet; with caps in and with caps out; with secondary impact 

and without secondary impact. When cassettes were dropped from 

4 feet with caps in and with secondary impact, AWC appearances 

indistinguishable from cited AWCs occurred in 33 percent of the 

samples with a filter-to-foil separation of less than 

1 millimeter. When the filter-to-foil separation was greater 

than 3 millimeters, AWC appearances resulted in only 4 percent of 

the samples. Sampling heads (including cyclone and filter 

cassette) were dropped from heights ranging from 3 inches to 

3 feet, some with secondary impact. When dropped from 2 feet 

with secondary impact, AWC appearances indistinguishable from 

cited AWCs occurred in 40 percent of the samples with a filterto-foil distance of less than i millimeter. They occurred in 

only 8 percent of the samples when the filter-to-foil separation 

was greater than 3 millimeters. 

Hose impact tests were performed using hoses that were soft, 

medium, and hard. AWC appearances occurred more frequently with 

soft hoses during the initial tests. Weights ranging from 

1/2 pound to i0 pounds were dropped from heights ranging from 

1 inch to 8 inches onto a sampler hose. When hoses were impacted 

by a 1-pound weight dropped from 3 inches to 1 foot onto a 1-inch 

length of hose, AWC appearances occurred in 67 percent of samples 

with a filter-to-foil separation of less than 1 millimeter. AWC 

appearances resulted in only i0 percent of the samples when the 

separation was greater than 3 millimeters. Filter-to-foil 

1489 
distance was the dominant factor affecting AWC formation. 

Capsules with a filter-to-foil distance of 1 millimeter or less 

were extremely susceptible to AWC formation. Potentially citable 

AWCs occurred both with the pump on and off. However, with the 

pump on and running at 2 liters per minute, impacts were less 

likely to produce AWCs. An important factor in the hose impact 

tests was the abruptness of the impact. Heavy tread on a hose 

with the foot perpendicular to the hose caused AWCs. Lighter 

treads were not capable of doing so. When the hose waswrapped 

around the pump and the pump placed down firmly on a countertop, it resulted in potentially citable AWCs when the pump was off and 

the filter-to-foil distance was small. 

b. PHTC Handlinq and AWC Formation 

Lee viewed an MSHA videotape, G-170, on PHTC procedures, and 

he inspected and videotaped procedures in the PHTC laboratory. 

He then designed tests to simulate the MSHA laboratory handling 

practices. Lee measured the rates of evacuation and 

recompression in MSHA's desiccator. He then performed a series 

of tests in his own desiccator using the same evacuation and 

recompression rates. In Lee's opinion, AWCs occurred when the 

capsule was close to the recompression port and at recompression 

rates possible in the MSHA desiccator. Subsequently, eight dust 

laden filter capsules were placed on a carrying tray from which 

they were picked up, stacked, and chucked into a cardboard box. 

This resulted in some cases in the formation of AWCs. Lee also 

conducted tests to simulate the rapid disassembly of the filter 

capsules at the PHTC lab. AWCs were formed as a result of these 

tests and considerable damage was done to the aluminum foils. 

Dr. Lee evaluated about 700 cited filters to determine the 

percentage that resulted from MSHA handling. It was his opinion 

that 5 to 15 percent were caused and 20 to 50 percent were 

contributed to by MSHA handling. 

c. AWCs and Weiqht Loss 

Forty-seven filters used in the hose impact tests which 

resulted in AWC formation were weighed before and after testing. 

Lee followed the MSHAweighing and calculation protocol. 

Twenty-eight of the filters showed no weight loss; i0 showed a 

weight loss, and nine showed weight gains. On the average no 

weight loss was recorded. Lee concluded that the formation of an 

AWC does not necessarily result in a reduction in filter weight. 

d. Filter-to-Foil Distancp 

Lee measured the filter-to-foil distance on over 3000 

filters newly purchased from MSA. The distances varied from 

about 0.i millimeter to almost 5 millimeters. The measurements 

were made using a microscope with a computerized 3 axis state. 

The measurement is accurate to within 0.i millimeter. After dust 

1490 
was deposited on the filters, the filter-to-foil distance was 

• 

again measured. Two populations were found: one had a generally 

large filter-to-foil distance (about 3.7 millimeters), while the 

other measured about 1 millimeter. In some groups of filters, 

the measurement before loading was similar to that after loading; 

in another group, the measurement before was much smaller than 

the measurement after -- the latter were floppy filters. 

Exhibits R-I068, 1069, 1070, and 1071 show the filter-tofoil distances in the experimental filters of Lee, Grayson, and 

Marple manufactured from April 3, 1988, to February 13, 1990, 

from February 20, 1988, to April 3, 1989, from February 13, 1990, 

to October 25, 1990, and from February 15, 1992, to May 28, 1992. 

See the reference to these exhibits in the Marple discussion, 

supra. There is a significant difference in the filter-to-foil 

distance after the 300,000 series (those manufactured from 

April 3, 1989, to February 13, 1990). Lee testified that the 

cited filters (from the 200,000 and 300,000 series) had shorter 

filter-to-foil distances than those he used in his experiments. 

e. Filter-to-Foil Distance and Dust Dislodgment 

In the 4-foot cassette drop test with secondary impact and 

caps in, 33 percent of 30 filters with a filter-to-foil distance 

of 0 to 1 millimeter were found to have potentially citable AWCs 

(Lee's type and feature 1 6K); 27 percent of 129 filters with a 

filter-to-foil distance of 1 to 2 millimeters were found to have 

potentially citable AWCs; none of 43 filters with a distance of 2 

to 3 millimeters, 4 percent of 52 filters with a distance of 3 to 

4 millimeters, and none of 5 with a distance of 4 to 

5 millimeters were found to have potentially citable AWCs. 

In the hose impact test using a 1-pound weight, with 1 inch 

of hose impacted and the pump off, 66 percent of 30 filters with 

a filter-to-foil distance of 0 to 1 millimeter, 12 percent of 

8 filters with a distance of 1 to 2 millimeters; none of three 

filters with a distance of 2 to 3 millimeters, 12 percent of 

30 filters with a distance of 3 to 4 millimeters; and none of 

nine filters with a distance of 4 to 5 millimeters were found to 

have potentially citable AWCs. 

Lee concluded that cassettes with a short filter-to-foil 

distance have a higher degree of susceptibility to formation of 

AWCs either by reverse air pulses or mechanical impacts. In 

Lee's opinion, the filter-to-foil distance is the strongest 

factor in increasing susceptibility to AWC formation. Filters 

with short filter-to-foil distances before or after loading are 

more susceptible to AWC formation with small impacts or air 

pulses than filters with large filter-to-foil distances before 

and after loading. Filters with variable filter-to-foil 

distances, in that pre-loading and post-loading distances differ, 

are less susceptible to reverse air pulse AWCs than those with 

1491 
small distances. Lee is uncertain of the situation involving 

mechanical impacts. Filters with a larger filter-to-foil 

distance have a greater incidence of 9-millimeter standoff rings. 

Twenty to 24 percent of the filters tested by Lee (field and dust 

tunnel samples) had 9-millimeter standoff rings. One percent or 

less., of the cited filters, and about 1 percent of the Peabody ...... 

fllters had such rings. 

Lee examined the no-call filter population, some of the 

non-void filters, and some of the 5109 normal filters and 

concluded that some of the filters in each category were 

physically indistinguishable from the cited filters. 

f. Lee Second Set of Experiments 

One hundred and thirteen samples from various underground 

coal mines and 82 samples previously collected in the R. J. Lee 

dust tunnel were subjected to three different types of 

experiments. A weight of 1 or 2 pounds was dropped from heights 

ranging from 3 inches to 2 feet onto a known length of hose 

attached to a pump and cyclone. Of 31 filters tested, 18 

exhibited AWCs. Pumps were dropped from heights of 4 inches to 

1.5 feet onto a hose. The pumps weighed about 1.71 pounds. All 

the hoses were soft. Of the 20 filters tested, 14 exhibited 

AWCs. A hose was left hanging out of a cabinet door or drawer 

and the door or drawer was closed on the hose. Of the six 

filters tested, five exhibited AWCs. A person sat on a hose 

which was attached to the pump and cyclone. Of the 13 filters 

tested, 4 exhibited AWCs. The hose was wrapped around the pump 

and then impacted on a table. Of the five filters tested, five 

exhibited AWCs. 

Hoses of soft, medium, and hard pliability were tested using 

filters with similar filter-to-foil distances. Of 17 filters 

tested, four used a soft hose, six a medium hose, and seven a 

hard hose. AWCs occurred on all of the filters using the soft 

hose, two using the medium hose, and none using the hard hose. 

All the samples were taken from the dust tunnel and used mid-vol 

coal from the Pocahontas No. 4 coal seam. 

Lee concluded that hose softness or toughness is a 

significant factor in susceptibility to AWC formation on hose 

impacts. 

Lee performed cassette snap tests: the cassette was snapped 

closed while the outlet was plugged or covered with a thumb. 

Thirty-four of the filters were still in the capsule. 

Twenty-five of them exhibited AWCs. Forty-five filters were 

removed from the capsule and put in the cassette before it was 

snapped closed. Thirty-two exhibited AWCs. 

1492 
In another test, the hose was impacted to create a reverse 

air pulse with a thin, plastic sheet inserted between the capsule 

and the cassette outlet to prevent the flow of air through the 

filter. Of 24 filters tested, 17 exhibited AWCs. 

g. •ee Coning Report 

After Thaxton reclassified many of the cited filters in his 

tamper codes including 425 said to have evidence of cones, Lee 

examined 266 of the filters for coning. In some there was no 

discernible evidence of coning, including some with a dust 

disturbance in the 6-millimeter, central region. When dust has 

been partially removed from the front surface of the filter and 

the filter is wrinkled through the center, there may be an 

optical illusion of a cone. Manufacturing variabilities or 

mishandling during disassembly may contribute to coning. Cones 

were found on some of the inspector samples examined by Dr. Lee. 

h. Lee Analysis of Marple Filter-to-Foil Study 

Dr. Lee examined and analyzed photographs of the filters 

used in Dr. Marple's piston studies, groups i and 2, using the 

filter-to-foil measurements supplied by MSHA. Sixty-one filters 

were included, but Lee's analysis was limited to 57 because the 

others had no information regarding filter-to-foil distance after 

dust loading. With respect to group i, including Marple's piston 

tests l, 2, and 3, filters with a short (less than 

1.6 millimeters) filter-to-foil distance pre-dust loading and 

post-dust loading (14 in all) exhibited AWCs in 50 percent of the 

cases. Filters with a shorter initial filter-to-foil distance 

and longer filter-to-foil distance after loading (I0 filters) 

exhibited AWC characteristics in i0 percent of the cases. 

Filters with a long filter-to-foil distance before and after 

loading (three filters) did not exhibit any AWCs. Lee used his 

type codes to determine which filters exhibited AWC 

characteristics. With respect to group 2, Marple's test 4, 

filters with a short filter-to-foil distance before and after 

loading (13 filters) exhibited AWCs 50 percent of the time. 

Those with a short pre-loading distance and a long post-loading 

distance (14) exhibited AWCs 46.7 percent of the time. Those 

with a long distance before and after loading (three) exhibited 

AWCs 33.3 percent of the time. Combining the two groups: where 

the filter-to-foil distance was small before and after dust 

loading, AWCs resulted 50 percent of the time. Where it was 

small pre-loading and large after loading, AWCs resulted 

32 percent of the time. Where it was large before and after 

loading, they resulted 16.7 percent of the time. 

i. The 5109 Filters 

Lee examined several thousand of the 5109 normal filters 

identified by MSHA. There were complete, identifiable, 

1493 
6-millimeter rings on about 20 percent of those examined, and 

about 50 percent had indications of a partial ring. This would 

indicate that the filters come in contact with the foil on a 

regular basis and thus are "halfways on the way to being AWCs." 

Tr. 6276. 

j. Awc and Weiqht Loss 

Lee took apart a series of filters after dust had been 

deposited on them, weighed them, reassembled them, subjected them 

to tests, and reweighed them. He followed the formula prescribed 

by MSHA, which means the second decimal is truncated, e.g., a 

weight of 19.23 milligrams is recorded as 19.2 milligrams Lee 

found that some filters showed a weight gain, some a weight loss, 

and some no change Of the 47 filters measured, Lee found no 

weight loss on average. 

Lee did an analysis of the dust weights reported for the 

4900 cited filters recorded in MSHA document 405. The existence 

of gaps in the number of samples for each frequency interval 

results from MSHA's truncation process Thus, in the 1 to 

2 milligram range there will be about a "5 percent or greater intrinsic uncertainty in the dust concentration determination " 

Tr. 6306. Therefore, unless there is a weight change of more 

than 5 percent, one can't be certain that in fact there was a 

weight change. 

k. Lee Conclusions 

 The primary mechanism for causing AWCs is not air flow 

through a filter, but a tympanic or mechanical wave. 

The impact of the filter at the foil causes a pulse 

through the filter resulting in "different effects and 

different amounts of dust dislodgement and different 

patterns." Tr. 6285-86. Tangential air flow may be a 

competing factor depending on the nature of the dust, 

the humidity, etc. 

 There are cited filters which can be directly 

attributed to MSHA's handling in the PHTC or other 

facilities where filters are disassembled. 

 Manufacturing variables, especially filter-to-foil 

distance, increase the susceptibility of filters to the 

AWC formation seen on the cited filters. A shorter 

filter-to-foil distance was seen on the cited filters 

than on those manufactured more recently 

 Manufacturing variability continues to change. In the 

cassettes recently purchased and used for tests, there 

appear to be more filters with a filter-to-foil 

distance that varies substantially before and after 

1494 
loading. There is also a higher incidence of 

9-millimeter rings after loading. 

 Hose pliability is an important factor affecting the 

occurrence of AWCs. 

 MSHA's definition of what constitutes a citable AWC is 

subjective and inconsistent. (Tr. 6536 "consistent" 

should read "inconsistent.") 

. The appearance of a lighter area in the central region 

of the filter does not necessarily imply that there has 

been a reduction in the weight or the concentration 

pursuant to MSHA's method of calculation. 

 The presence of a 9-millimeter, segmented ring 

generally indicates a larger filter-to-foil distance 

and vice-versa. 

 AWCs can occur by dropping the pump on the hose from a 

height of 6 inches, closing a door or a drawer on the 

hose, sitting on the hose, or wrapping the hose around 

the pump and impacting the assembly on a table. 

i0. AWCs can be caused by snapping the cassette halves shut 

with or without the aluminum foil cone. 

i. Miscellaneous 

Graphs created from R. J. Lee data (G-217, 219; See also 

G-221, 223) indicating the percentage of potentially citable AWCs 

(Lee's 1 6K) vs. filter-to-foil distances show: 

. The 4-foot cassette drop test with secondary impact, 

caps out, where the filter-to-foil distance was 0 to 

1 millimeter, 12-1/2 percent of 32 filters exhibited 

AWCs; where the distance was 1 to 2 millimeters (118 

filters), 30 percent; where the distance was 2 to 

3 millimeters (61 filters), 16 percent; where the 

distance was 4 to 5 millimeters (12 filters), 

25 percent. 

. The 4-foot cassette drop test with no secondary impact, 

caps in, where the filter-to-foil distance was 0 to 

1 millimeter (36 filters), 14 percent showed AWCs; 

where the distance was i to 2 millimeters (77 filters), 

26 percent; where the distance was 2 to 3 millimeters 

(56 filters), 2 percent; where it was 3 to 

4 millimeters (49 filters), 2 percent; where it was 4 

to 5 millimeters (7 filters), 0 percent 

1495 
 The 4-foot cassette drop test, no secondary impact, 

caps out, where the filter-to-foil distance was 0 to 

1 millimeter (36 filters), 27 percent showed AWCs; 

where the distance was 1 to 2 millimeters (78 filters), 

22 percent; where it was 2 to 3 millimeters 

(35 filters), 15 percent; where it was 3 to 

4 millimeters (48 filters), 12.5 percent; where it was 

4 to 5 millimeters, 16 percent. 

 The 2-foot cyclone drop with no secondary impact, where 

the filter-to-foil distance was 0 to 1 millimeter, 

36 percent of i0 filters showed AWCs; where the 

distance was 1 to 2 millimeters (96 filters), 

47 percent; where the distance was 2 to 3 millimeters 

(52 filters), 35 percent; where the distance was 3 to 

4 millimeters (49 filters), I0 percent; where the 

distance was 4 to 5 millimeters (ii filters), 

0 percent. 

The data in the Lee report shows that 60 percent of the 

field samples (5 filters) vs. 37.5 percent of the dust tunnel 

samples (48 filters) with 0 to 1 millimeter filter-to-foil 

distance had 6K features; where the distance was 1 to 

2 millimeters, 27.9 percent of the field samples (43 filters) and 

39 percent of the dust tunnel samples had 6K features; where the 

distance was 2 to 3 millimeters, 0 percent of the 21 field 

samples and 39.4 percent of the dust tunnel samples had 6K 

features; in the 3 to 4 millimeter range, 0 percent of the 21 

field samples and 10.2 percent of the 33 dust tunnel samples had 

6K features; in the 4 to 5 millimeter range, 0 percent of the two 

field samples and 10.5 percent of the 19 dust tunnel samples 

showed 6K features 

The Lee experimental filters reviewed by Thaxton included 

about 40 filters classified by Thaxton as citable which resulted 

from cassette drops, cyclone drops, hose impacts, hose wrap and 

impact, and vacuum desiccator. About twice as many of these 

filters had short filter-to-foil distances. 

2. CORN 

Dr. Morton Corn is Professor and Division Director, 

Department of Environmental Health Sciences, School of Hygiene 

and Public Health, the Johns Hopkins University. He has a Ph.D. 

in industrial hygiene and sanitary engineering from Harvard 

University. He was a Professor in the Department of Industrial 

Environmental Health Sciences at the University of Pittsburgh, 

and was Assistant Secretary of Labor for Occupational Safety and 

Health from December 1975 to January 1977. Corn was accepted as 

an expert witness in the fields of industrial hygiene and 

exposure assessment; aerosol and particle physics; coal mine dust 

sampling technology; design and management of research and 

1496 
investigation of projects that involve exposure assessment, 

aerosol and particle physics, and samplingtechnology; and 

federal occupational safety and health regulation and enforcement 

systems. 

Corn cooperated with the R. J. Lee Group in the experiments 

on dust samples simulating events expected from MSHA compliance 

sampling, handling, and analysis. He reviewed and photographed 

300 filters from MSHA's Mt. Hope office, visited the PHTC, and 

visually inspected and videotaped 1248 cited filters in 

Arlington. He also examined AWCs identified as MSHA inspector 

samples and more than 200 no-call filters. He then performed an 

image analysis of the central discolorations of the cited 

filters. The image analysis will be discussed later in this 

decision. 

Corn visually examined the Lee experimental filters produced 

in Lee's supplemental study. Based on his subjective visual 

observation, Corn concluded that the Lee tests caused central 

discolorations indistinguishable to the human eye from cited 

AWCs. It is Corn's opinion that image analysis of the 

experimental filters would produce a significant number of 

filters with characterizing parameters matching those of cited 

AWCs. Corn's conclusion is that commonplace events associated 

with collection, handling, and analysis, in compliance with MSHA 

regulations and procedures, are a more plausible explanation for 

central discolorations than the tampering alleged by MSHA. 

3. GRAYSON 

Dr. R. Larry Grayson is Dean of the College of Mineral and 

Energy Resources, West Virginia University. He has a Ph.D. in 

mining engineering from West Virginia University and was accepted 

as an expert witness in the fields of respirable coal dust 

research and mining engineering. 

a. Sampler Assembly Drop Tests 

At Dr. Grayson's request, nine operator clients of Crowell & 

Moring submitted approximately 20 samples each, taken in a normal 

compliance manner, for a total of more than 740 samples from 34 

different mines across the country. The cassettes were opened 

and weighed to the nearest 0.01 milligram and divided into five 

groups according to their weight. They varied from 

0.35 milligram to more than 2 milligrams. Before testing they 

were examined and none was found to have AWC appearances. 

It was originally planned to drop the sampler assembly 

including the dust laden cassette from heights of 1.5, 2.5, and 

3.5 feet onto a corrugated cardboard on the floor. Because many 

cassettes cracked during the 3.5 foot drop, the test was modified 

and the assemblies were dropped from 1.5, 2, and 2.5 feet. After 

1497 
the assembly was dropped from the designated height, the filter 

was inspected. If the dust was disturbed or the cassette 

cracked, testing was stopped. If not, the procedure was 

repeated. A maximum of three drops were performed. The capsules 

were removed and reweighed, and the filters were examined for 

AWCs. Grayson's determination that a dust disturbance was 

equivalent to an AWC was based on Thaxton's deposition testimony 

and on Grayson's examination of more than 400 cited AWC filters. 

Of the 744 filters tested, ii were found to have distinct, 

6-millimeter AWCs (1.5 percent); 159 were found to have probably 

citable or possibly citable AWCs (21.4 percent). Later, 

Dr. Grayson went to a Utah mine and performed assembly drop tests 

on 36 filters. Eight were found to have AWCs (six had distinct, 

6- millimeter AWCs; two had probable or possible AWCs). The 

assemblies were each dropped once on a concrete floor. Grayson 

believes that the greater number of AWCs from the Utah mine is 

related to differences in coal seam properties, humidity, 

mineralology, etc. 

b. Filter-to-Foil Distance 

Of the samples received from the mines, 178 were measured 

for filter-to-foil distance. Two had distances of 0 millimeter; 

seven of 0.5 millimeter; 23 of 1 millimeter; 20 of 

1.5 millimeters; 26 of 2 millimeters; 30 of 2.5 millimeters; 30 

of 3 millimeters; 31 of 3.5 millimeters; and nine of 

4 millimeters. Thus, 29.2 percent had a 1.5 millimeter or 

smaller filter-to-foil distance. The measurements were taken by 

inserting a millimeter scale into the cassette inlet and barely 

touching the filter. No microscopewas used. Ninety-four were 

drop tested and 84 were not tested but examined for AWCs. No 

AWCs were found The two cassettes with a filter-to-foil 

distance of 0 millimeter when tested were found to have probable 

or possible AWCs; 50 percent of those with a distance of 

0.5 millimeter, 66.7 percent of those with a distance of i, 

40 percent of those with 1.5, 21.4 percent of those with 2, 

18.8 percent of those with 2.5, 20 percent of those with 3, and 

none of those with 3.5 or 4 were found to have probable or 

possible AWCs. 

c. Grayson Conclusions 

 Mailing the filter cassettes is not a factor in causing 

AWCs. 

 The fact that the samples mailed to Grayson did not 

show AWCs indicated that no accidental dropping had 

occurred. This was "probably for good reason. The 

sensitivities in the industry were such that they would 

take special handling at this point in time .... 

" 

Tr. 5744. 

1498 
 AWCs result from the striking of the shroud on the 

surface which imparts a vibration to the filter causing 

varying degrees of dislodgment. 

 AWCs can result from sampler assembly drops and 

impacts, and from hose impacts. 

. Filter cassettes with a lower range of filter-to-foil 

distances (below 2 millimeters) have a greater 

likelihood of developing AWCs. 

d. Further Tests 

In November 1992, Grayson examined 13 filters which were 

reclassified by Thaxton to tamper code 3. In Grayson's opinion 

seven of the filters did not show evidence of a three-dimensional 

effect but were the result of optical illusions. Four filters 

had a very slight three-dimensional effect and only two had a 

clear three-dimensional character. The filters were examined 

with an unlighted magnifying glass. 

Grayson also participated with the R. J. Lee Group involving 

the dropping of weights from a specified height onto a hose 

connected to a pump and cyclone. A 10-pound weight was dropped 

impacting a 6-inch length of hose. Three-dimensional effects 

were found "in many of the post-test filters." R-1014A at 2. A 

2-pound weight was dropped from 2 feet impacting a 6-inch length 

of hose. Many of the resulting filters exhibited threedimensional effects substantially identical to, and often more 

pronounced than, those observed in the reclassified filters. 

4. McFARLAND 

Dr. Andrew R. McFarland is a Professor of Mechanical 

Engineering at Texas A&M University. He has a Ph.D. in 

mechanical engineering from the University of Minnesota. His 

thesis was on the grinding of fine particles. He was accepted as 

an expert witness in the fields of aerosol mechanics, fluid 

mechanics, thermodynamics, aerosol filtration, and engineering 

statistics. 

a. McFarland Experiments 

For all his experiments, Dr. McFarland used coal dust 

obtained from U.S. Steel Mining Company (USSMC) mines. He 

crushed and ground the coal and size-classified it by a process 

described as fluidized bed/flow duct, and loaded it onto the 

filters. Most of the experiments were conducted with dust 

weights of about 1.5 milligrams which is the equivalent of 

1.8 milligrams per meter squared -- the average concentration on 

the cited AWCs. However, some of the experiments were conducted 

with weights of 0.05 to 0.8 milligram of dust on the filter. A 

1499 
steady back flow of air was directed through the dust laden 

filter cassettes. When the flow was greater than about 4 liters 

per minute, light areas in the center of the filters were noted. 

This resulted from the filter touching the inlet part of the 

aluminum shroud. Thereupon, the air predominately flowed through 

the small region of the port opening rather than through the 

entire filter. As a consequence the velocity is higher at the 

port region and there is a greater tendency for dust to be 

removed from the filter in that area. 

When a back pulse is introduced from the hose to the filter, 

the filter is pushed up toward the aperture and a jet of air is 

directed across to the center of the filter causing a dagger 

formation. The air flows radially to the center of the filter. 

Dr. Marple called it tangential air flow. The velocity of the 

air flow is on the order of tens of meters per second, 

considerably higher than the normal velocity of air passing 

through the filter, which would be a fraction of a meter per 

second. The keyhole and the white ring are formed by the air as 

it is escaping through the filter before the filter contacts the 

foil. It is possible to produce AWCs with radial flow alone but 

not with normal flow alone. However, it is easier to create AWCs 

when both normal flow and radial flow are present. 

A vacuum pump was connected to the inlet side of dust laden 

cassettes. In some cases, the vacuum was applied gradually and 

in some cases as a pulse. Typically, a light, gray center was 

produced with a gradually applied vacuum. For the pulsed vacuum, 

a sharp, white ring was also noted. 

A student assistant stepped on the hose connecting the 

cassette to the pump and created a pressure pulse sufficient to 

generate an AWC pattern. A pulse, as distinguished from an air 

flow, is of short duration, less than 0.i second, but the 

patterns produced on the filters by reverse air flow and reverse 

air pulse are virtually indistinguishable. 

McFarland set up an apparatus (a piezoelectric crystal 

transducer) to measure the pressure associated with an air pulse 

and to record the pressure on a computer. It was used 

extensively by Dr. McFarland for producing AWC-type patterns in 

his laboratory. A smaller version of the apparatus was set up in 

the courtroom on January 13, 1993. A bottle of nitrogen gas 

under pressure was used to inject 3 cubic centimeters of air into 

the piston cylinder and the air in front of the cylinder was 

displaced and travelled through the MSA hose to the back side of 

the filter. The filter showed a very distinct, 6-millimeter ring 

with a dagger formation in the center. An AWC pattern was 

apparent. About 30 inches water pressure was generated. A 

second courtroom demonstration was presented in which a pulse was 

applied with a pressure reading of 23 inches water at its peak. 

An AWC pattern resulted. The 6-millimeter ring was somewhat 

1500 
thicker on one side with a dagger-type pattern and a difference 

in coloration between the outer region of the filter and the 

6-millimeter center. McFarland performed more than i00 

experiments, using reverse air flow, pressure pulses, stepping on 

the hose, dropping the pump, wrapping the hose, snapping the 

cassettes, tool box drop, hose in cabinet, using different coal 

types, varying filter-to-foil gaps, and flexible and non flexible 

filters. On all tests, he recorded what he considered to be AWC 

formations. He recorded the results in computergenerated 

graphs. See R-I035. 

Stepping on a hose with the pump running and:the foot 

oriented in the lengthwise direction caused AWC patterns with 

pressure on the order of 20 to 30 inches water. Higher pressures 

are required to create AWCs when the pump is running than with 

the pump off. Stepping on the hose with the pump off created AWC 

formations at pressures of ii, 22.5, and 34 inches water. Pump 

drops of 8 inches on a hose and drops of a pump with a hose 

wrapped around it produced AWCs on both mine-run and laboratory 

samples at pressures of from 9.2 to 17.5 inches water. Shutting 

a door or drawer on a hose can cause pressure pulses as high as 

22 inches water. The average pressure pulse needed to create an 

AWC is about i0 inches water. AWCs were created on seven filters 

by shutting a cabinet door or drawer on a hose. AWCs were formed 

by snapping the cassette halves together using both mine-run and 

lab samples. Snapping the cassette can cause pressure pulses of 

3.75 to ii inches water. 

McFarland presented a videotape attempt to capture on film 

the actual formation of an AWC. See R-I029. The time required 

for the formation of an AWC is very small, on the order of 

0.01 second. No AWC resulted from a pressure of 3 inches water, 

but an AWC patten was seen after 9.6 inches water was applied. 

He demonstrated, by squeezing a hose which was attached to a 

cassette from which the inlet nipple was machined off, that the 

filter rises and falls, moving in the direction of the foil when 

squeezed and dropping back when relaxed. 

b. McFarland Review of Cited Filters 

McFarland examined the 43 USSMC cited filters in the MSHA 

Arlington offices. They were cited under tamper codes i and 2, 

with one filter cited under tamper code 9. The filters had four 

basic characteristics, though not all filters had all four and on 

some the characteristics were not as fully defined as on others. 

The characteristics were: 

I. A dagger pattern within the confines of the 

6-millimeter ring, lighter in color than any other 

portion of the filter; 

1501 
 A 6-millimeter ring also lighter than the average color 

of the rest of the filter; 

 The region within the 6-millimeter ring is lighter than 

the average on the rest of the filter; 

 Many filters had indentations or cuts or embossed areas 

in the ring where the filter had contacted the aluminum 

shroud The cuts can often only be seen under a 

microscope. 

c. Filter-to-Foil Distance 

McFarland set up an apparatus to measure the distance 

between the filter surface and the aluminum shroud of the filter 

cassette. A microscope was focussed on the filter and then on 

the cassette inlet and a deal micrometer was used to measure the 

distance between the two points. The MSA patent application 

drawing indicates the distance at 0.125 inch. McFarland measured 

several hundred cassettes The filter-to-foil distance varied 

from 0.002 to 0.142 inch. Filters with gaps larger than 

0.07 inch were loaded with dust and a pulse volume of 1.5 cubic 

centimeters was applied. Of six filters tested, only three 

showed AWC patterns. Increasing the pressure volume to 3 cubic 

centimeters caused AWC patterns on the three filters. Eleven 

filters were dust loaded in a USSMC mine. Seven were rigid 

filters and four had large gaps. One and one-half cubic 

centimeters air volume was applied using the piston cylinder 

apparatus. No AWCs resulted on two of the seven rigid filters. 

One AWC was produced on the four large gap filters AWCs were 

produced on all the six close gap mine-run filters. The initial 

gaps of Ii0 filters were measured and recorded. The mean gap was 

0.061 inch. The range was from 0.014 to 0.147 inch. One-fourth 

of the filters had a gap of less than 0.05 inch. The average 

pressure which caused contact of the filter with the aperture was 

5 inches water with a standard deviation of 1.3 inches water. 

Twelve percent of the filters strike the aperture with an applied 

pressure of less than 4 inches water. In Dr. McFarland's opinion 

the initial gap is an important factor in susceptibility to AWCs. 

The floppiness of the filter is also of consequence. However, 

some filters were found to be too floppy to form AWCs. Only one 

of 30 had a gap of 0.125 inch or larger. Some had a zero gap. 

The vast majority lie in the range of about 0.06 inch. 

d. Other Tests 

An individual sat on a hose placed on a bench. The hose was 

laid straight and then in a coiled arrangement. The pump was not 

running. The uncoiled hose was sat on 25 times and created a 

mean pressure of 11.4 inches water with a maximum pressure of 

19.5 inches water. No AWCs resulted. An individual sat on a 

coiled hose 11 times and created a mean pressure of 25.8 inches 

1502 
water and a maximum pressure of 56 inches water. 

cuts but no dimple or cone resulted. 

An AWC with 

A tool box weighing 40 pounds loaded was dropped on a 

straight hose and on a coiled hose. In some tests the pump was 

operating and some not. Pressure pulses of 25 to 128 inches 

water were generated. Only one filter was used. After the 

second test (involving a pressure pulse of 119 inches water), a 

cone could be clearly viewed through the opening of the aluminum 

shroud. 

On January 14, 1993, McFarland conducted a tool box drop 

demonstration in the courtroom. The tool box was 6 inches by 

19.5 inches and weighed 31 pounds. It was dropped from a height 

of 6 inches onto a towel-covered table. The pressure pulse was 

72 inches. An AWC pattern resulted with a 6-millimeter ring and 

a dagger in the center, with a difference in coloration between 

the region inside the ring and that outside. The filter had been 

loaded with laboratory dust. A second demonstration was 

conducted with a filter loaded with 2.32 milligrams of mine-run 

dust. The filter-to-foil distance was 0.055 inch. The tool box 

was dropped from 6 inches and a pressure peak of 42 inches water 

was recorded. An AWC pattern resulted with a 6-millimeter ring, 

diffuse rather than clear cut, a resemblance of a dagger pattern, 

and a difference in coloration between the area inside and that 

outside the 6-millimeter zone. 

e. Mine Dust vs. Laboratory Dust 

McFarland did tests with laboratory samples and mine-run 

samples from three mines in three different States. Back pulses 

were delivered to filter cassettes. Fifteen cubic centimeters of 

air created AWCs. The mean pressure at which AWCs were formed 

using mine-run coal was 9.72 inches water. The mean pressure for 

laboratory loaded samples was 9.82 inches water. Statistically 

there was no difference in the ease of AWC formation using minerun or laboratory loaded samples. By using laboratory dust, 

Dr. McFarland was better able to control variables such as dust 

weight, dust type, particle size, humidity, etc. McFarland had 

CCI Technologies make a determination of the size distribution of 

dust collected on filters. There is little difference in the 

median particle sizes of the lab dust and the mine dust, though 

the lab dust is slightly smaller. The similarity of the median 

sizes results from the cyclones stripping the largest particles 

from the dust prior to its being deposited on the filter. The 

dust concentration on the USSMC cited filters averaged about 

1.9 mg/m 3. The average concentration on non-cited filters of 

USSMC was about 0.5 mg/m 3. Cited filters have higher dust 

loadings because (1) it is easier to recognize an AWC on a filter 

with a higher dust loading in that the optical contrast is 

1503 
better; and (2) it is more difficult to form AWCs on lightly 

loaded filters. 

f. McFarland Cone Studies 

McFarland refers to patterns which have cones, dimples, or 

cuts as CDC patterns. Dr. McFarland's studies show that CDC 

patterns can be produced at pressures considerably lower than 

those reported by MSHA expert Dr. Marple. Thaxton reviewed 67 

filters used by Dr. McFarland in his experiments and concluded 

that 44 of them exhibited AWC characteristics that would be 

citable and eight were coned or dimpled. The maximum pressures 

recorded for three of the eight were 7.5 inches water, 8.4 inches 

water, and 16 inches water. McFarland did not find cones or 

dimples on two of the eight. He believes that Thaxton, who did 

not use a microscope, confounded the cuts with dimples or cones. 

McFarland examined the USSMC cited filters which were 

reclassified by Thaxton. Three had cones, one a faint cone, and 

one a cut. He found one not reclassified which had a cone and 

many with cuts. All the filters reclassified to tamper code 3 

were floppy Floppiness not only enhances AWC formation but also 

could enhance CDC formation. McFarland measured floppiness by a 

pressure to touch method. A wide range of pressure to touch 

values was found, ranging from 3 inches water to about I0 inches 

water. In his lab tests, Dr. McFarland produced CDC patterns 

with pressures of 34 inches water or more. Tests established 

that filters do not fatigue and cause a CDC at abnormally low 

pressure levels when subjected to repeated pulses provided the 

pulses do not cause the filter to exceed its elastic limit. 

g. McFarland Conclusions re CDCs 

i A CDC pattern can be produced by removal of the 

sampling hose from the pump. 

 CDCs can be created at pressures as low as 7.5 inches 

water. 

 A pressure of 47 inches water can result when air is 

squeezed from as little as 2.5 inches of hose. 

 Pressures as high as 40 inches water were created when 

an individual duck-walked on a hose. 

. A CDC can be produced by stepping heavily on a coiled 

hose and generating pressures no larger than 44 inches 

water. 

. A pressure of 56 inches water can be created by sitting 

on a coiled hose placed on an 8-inch high bench with an 

inoperative pump. 

1504 
no 

. 

 

CDC patterns can be produced on dust loaded filters 

subjected to pressure pulses of about 20 inches water. 

There are great variations in the susceptibility of 

filters to forming AWCs and CDCs. A pressure of about 

20 inches water caused an AWC and CDC on a floppy 

filter. 

McFarland Conclusions 

 At least a portion of the filters cited under tamper 

codes i, 2, and 3 have the same characteristics as the 

AWCs McFarland obtained by reverse air flows or pulses 

. The AWC patterns obtained by reverse air flow and those 

obtained by reverse air pulse have the same 

characteristics. 

 When reverse air comes into a cassette it pushes the 

filter toward the aperture of the aluminum shroud 

This causes air that is trapped between the upper 

surface of the filter and the inner surface of the 

shroud to be squeezed through the annular region at the 

6-millimeter ring and sweep away the dust from the 

surface and produce an AWC pattern 

. 

. 

. 

. 

The filter-to-foil distance is a factor in the 

production of an AWC pattern. If the distance is less 

than 0.125 inch, an AWC is more likely to result. 

Filter-to-foil distance varies from filter to filter in 

all those examined by McFarland. The majority have a 

gap of less than 0.125 inch. 

Floppiness of the filter is an important factor in 

susceptibility to AWC formation. 

The minimum volume of air needed to form an AWC pattern 

is 0.5 to I cubic centimeter. The minimum pressure is 

about 4 inches water in the form of a back pulse. But 

a pressure of i0 inches water will not always produce 

an AWC. "There are no absolutes." E.g., Tr. 5026, 

5057. 

o 

. 

It is possible to apply pressure pulses sufficient to 

create AWC patterns by squeezing the hose attached to 

the sampling unit. 

Any of the following can cause sufficient pressures and 

sufficient volumes of air to cause an AWC pattern on a 

filter: 

1505 
a. Dropping an object such as a pump on the hose from 

a distance of 8 inches. 

Do Shutting a drawer or door on a hose while the 

sampling head assembly is attached. 

Co Dropping an object 6-inches wide and 30 pounds in 

weight on a sampling hose. 

de Sitting on a hose to which the sampling assembly is attached. 

e. Stepping on a hose to which the sampling assembly is attached. 

f. Removing the hose from the pump at the completion 

of the sampling period in accordance with the 

instructions contained in the MSA instruction 

manual. 

I0. There is no difference between mine-run samples and 

laboratory samples with respect to AWC formation, or 

with respect to threshold velocity, or dislodgment 

patterns associated with threshold velocity 

experiments. 

Ii. Variables such as water during or after the sampling 

process, the presence of diesel equipment, and other 

factors can influence the manner in which dust is 

deposited on a filter. 

12. The most influential factors in the AWC formation 

process with respect to tamper codes i, 2, and 3 are 

the filter-to-foil distance and filter floppiness. 

13. The next most influential factor is the condition of 

the hose. 

14. The presence of an AWC-type pattern on a filter does 

not indicate that the weight of the filter was 

intentionally altered. 

5. ROT____HH 

Dr. H. Daniel Roth is President and founder of Roth 

Associates, Inc., a statistical consulting firm. He has a Ph.D. 

in mathematics (probability theory)from the State University of 

New York at Stony Brook. He was accepted as an expert witness in 

the field of statistics. 

1506 
a. Analysis of AWC Citation Rate Over Time 

Using the same data as Dr. Miller, Dr. Roth plotted the 

weekly rates of AWC citations from August 1989 to March 1992. 

The plot shows a strong trend of declining AWC rates over 

virtually the entire period. After a brief initial period of 

apparently increasing AWC rates in August and September 1989, the 

rate of cited AWCs continuously decreased through the rest of the 

period. 

The rate of decline was significantly steeper before the 

March 1990 void code notification than after that event. Roth 

did a regression analysis which showed that the slope of weekly 

AWC rates before March 19, 1990, was -0.ii (P-value 0.0001). The 

difference is highly significant and is inconsistent with the 

claim that the March 19, 1990, void code notification caused a 

decline in the AWC rate. In fact, the decline in the cited rate 

is monotonical throughout the entire period. 

b. Analysis of Sample Date vs. Cited Rate 

Dr. Miller's conclusion that there is a marked decrease in 

the cited rate on or about March 19, 1990, has a fundamental 

flaw: he fails to recognize that the rate of AWCs is 

statistically significantly higher before virtually any cutoff 

date in the study period than it is after that date. Roth 

prepared a chart comparing the cited rates before and after the 

15th of each month from August 1989 to April 1991. In every case 

the cited rate after was statistically significantly lower than 

the cited rate before. Roth was provided with data on the MSHA 

inspector sample AWCs from July 1989 to October 1991. From 

January 1990 the number of inspector AWC samples (not the rate) 

is declining. 

c. Analysis of AWC Rates Between Mines 

Dr. Roth did a chi-square analysis comparing AWC rates 

between all mines, replicating Dr. Miller's chi-square analysis. 

Roth states that Miller didn't go far enough in that he did not 

do an analysis to see if there was a variation in rates between 

mines after March 19, 1990. Roth did such an analysis testing 

the homogeneity of AWC rates after March 19, 1990, and March 31, 

1990, using the same data set as Miller with 2377 different mine 

IDs. The result showed a non-randomness in AWC rates after these 

periods. In fact there was a wide disparity in the AWC rates 

between the mines. 

Further, Miller's data set did not include data in the 

before period for 762 mines because there was no information, but 

they were considered in the after period. Three hundred 

additional mine IDs were only considered in the before period, 

not in the after. Therefore, more than I000 mines out of a total 

1507 
of 2677 weren't used in both analyses. So the entire difference in cited rates could be explained by differences between mines 

having nothing to do with cutoff dates. 

d. Analysis of Date of Manufacturp 

Of the cassettes manufactured before 1990, 4337 filters were cited, 95,246 were not cited. Thus, the cited rate was 

4.36 percent. Of the cassettes manufactured in 1990 and after, 482 were cited, 122,590 were not cited. The cited rate was 

0.392 percent. Roth performed a sign test of cited rates after 

January 19, 1990, March 19, 1990, and May 19, 1990, using Miller's adjustment for manufacture date. They show that the 

rates were declining throughout the period, and using different 

cutoff dates the result was the same: the rates were higher before. "[T]here is nothing magic about the March 19th, 1990 

date." Tr. 3994. Roth prepared a plot of a trend analysis of 

the monthly AWC rates by date of manufacture. He concluded that 

the decline in cited rates seems to be nicely correlated with 

manufacturing date. In Roth's opinion, Miller's analysis of the differences in cited rates for cassettes manufactured before 

January i, 1990, and after December 31, 1989, was "totally contaminated.,, The sign test was inappropriate because Miller eliminated 44,000 cassettes manufactured in 1989 or before. 

Miller also strung out the analysis to 1992 by which time all the 

cassettes manufactured before 1990 would have been used up. The sign test does not have any power and the bootstrap doesn't 

correct it. 

e. Weiqht Loss Analysis 

Dr. Roth did a weight loss analysis using four variables: 

type, condition, MSHA load (the weight of the compliance filter 

over the initial manufacturer,s weight), and the Marple load (the load on the filter before the experiment), and the interaction between these variables. Miller used only the type and condition variables. Using the four variables, Roth did not find the 

experimental condition (reverse air flow AWC) to be a 

statistically significant explainer of weight loss. Roth agrees that for the compliance filters in the Miller/Marple analyses of weight loss/gain, the reverse air AWCs had a mean weight loss, and the control filters had a mean weight gain. In Roth's 

opinion this is not explained by whether the filter was a reverse air AWC or not, but by the MSHA load and the compliance weight, mainly by the compliance weight. The Marple load is not a 

statistically significant explainer of weight loss. 

f. •oth Conclusions 

. If beginning in October 1989, the PHTC lab technicians 

began for the first time to make initial screening of 

filters prior to Raymond's seeing them to determine 

1508 
which ones would be sent to Thaxton, this could have an 

effect on the rate of AWCs thereafter. 

o If beginning in March 1990, Raymond first began looking 

at filters under magnification, this could affect the 

rate of AWCs thereafter. 

 

If between March and June 1990, photographs of examples 

of AWCs were posted for PHTC technicians to use in 

prescreening, and if Raymond developed a written 

protocol for the technicians to follow, and filters not 

meeting the criteria in the protocol were not further 

reviewed, this could affect the AWC rate thereafter. 

 If the dust collected on filters differs from mine to 

mine, some being more difficult to dislodge, this could 

affect the differences in AWC rates in different mines 

and could explain the chi-square distribution among 

mines. 

 If the dust collected on filters differs from mine to 

mine, some being more difficult to dislodge, the Post 

Office or PHTC handling of the filters could result in 

different AWC distributions. 

o If the dust collected on filters differs from mine to 

mine, some being more difficult to dislodge, and 

handling practices at all mines are identical, the 

difference in susceptibility to dust dislodgment could 

explain the chi-square results. 

C. IMAGE ANALYSIS EVIDENCE 

The testimony of three expert witnesses was largely devoted 

to image analysis evidence: Dr. Morton Corn, Dr. John C. Russ, 

and John C. Holm. 

Dr. Corn, whose expertise is set out earlier in this 

decision (he is not an expert in image analysis), viewed about 

i00 cited AWC filters through a stereo microscope at the Mt. Hope 

MSHA facility. The array of filters which he examined defied 

confident classification by visual means Because he believed it 

impossibleto visually classify the cited AWCs which showed such 

a spectrum of features, Corn concluded that a more objective 

method of classification was required. 

Corn chose the Ponca City laboratory of Con co to do image 

analysis of the cited filter central discolorations and a 

comparison with other filters discussed hereafter (Corn uses 

the term "central discoloration" or "CD" rather than the MSHA 

term "AWC.") The image analyst, Page Johnson, a graduate chemist 

who had worked at Con co for 2 years, with a specialization in 

1509 
optical imaging, performed the analysis under Corn's general direction. Corn had 1248 cited filters videotaped and a Zeiss image analysis system was used to measure 884 for diameter, area, perimeter, circularity, and similar morphological parameters of the central discoloration. He found that the CDs varied in 

roundness, diameter, image clarity, and internal shape. Corn's "gold standard,, was determined by the cited AWC filters. 

No-calls, R. J. Lee experimental filters, and MSHA inspector AWC filters were measured and compared with the gold standard in six linear parameters of 

minimum 

shape: average diameter, maximum diameter, diameter, aspect ratio (ratio of minimum diameter to maximum diameter), internal shapes (PI/P2: ratio of perimeters of exterior edge and any keyholes to exterior edge only), and circularity (comparison with the area of a circle). Corn 

considered CDs indistinguishable if the CD parameters fell within the following ranges of Corn's six parameters: 

5 mm < average diameter < i0 mm 

5.5 mm < maximum diameter < 11.8 mm 

4 mm < minimum diameter < i0 mm 

perimeter ratio PI/P2 (internal shapes) < 2.25 

circularity > 0.2 

aspect ratio > 0.65 

These parameters obviously do not take into account all the features of cited AWCs, including changes in grayness levels inside or outside the 6-millimeter ring, three-dimensional 

changes (e.g., cones), tears in the filter, scratch marks, and the position of the CD on the filter face (i.e., in alignment with the cassette inlet). 

Using the optical imaging system, Corn had 65 of 265 no-call filters measured. Forty-seven were found to be indistinguishable from cited AWC filters. Two hundred and fifty-five of 438 R. J. Lee experimental filters with CDs were measured and 213 were found to be indistinguishable from cited AWCs. One hundred and eleven of 193 MSHA inspector AWC filters were measured and 99 

were found to be indistinguishable from cited AWCs. Corn 

concluded that MSHA's allegations of tampering based on visual examination of the AWC filters are subjective and inconsistent. 

In Corn's opinion, characterizing parameters of cited AWCs are variable when measured objectively by image analysis techniques. Corn concluded that MSHA's tamper codes indicating causes of AWCs 

are not supported by image analysis techniques. 

Corn did a supplemental analysis involving a reproducibility study of Dr. Lee's February 6 report. Sixty-five Lee 

experimental filters were randomly selected and measured using the Zeiss imaging system. Thereafter, 60 filters were remeasured 

once and five were remeasured seven times. Corn concluded that the reproducibility study indicated that the Lee experimental filters, the no-call filters, and the MSHA inspector filters 

1510 
match the "AWC acceptability criteria," i.e., are consistent with 

Lee's February 6 report findings, although "a small number of 

filters might be affected in their match to cited AWCs" -- 

filters "at the fringes of the acceptability criteria." R-I037 

at 4. In Corn's opinion his image analysis used high quality 

data, he obtained good reproducibility, and his conclusions are 

accurate. He conceded that his database had transmission, 

typographical, and reanalysis errors. He did not check Page 

Johnson's decisions that some filters could not be analyzed 

(because she saw no CD or the image required enhancement). 

Johnson was not offered as a witness at trial. Prior to this 

case, Corn had never worked with computer-assisted image 

analysis. 

Dr. John C. Russ, a Research Associate and visiting 

Associate Professor in the Materials Science and Engineering 

Department, North Carolina State University received his Ph.D. in 

engineering from California Coast University. He was accepted as 

an expert witness in image analysis and statistical analysis of 

image analysis results. 

Dr. Russ reviewed Dr. Corn's report and concluded that it 

was consistent with standard practice for applying computer-based 

image analysis methods. In Russ' opinion, Corn's conclusions 

that the cited AWC filters are not distinguishable from inspector 

filters, no-call filters, and R. J. Lee experimental filters are 

logical and supported by the data. Russ concluded that Corn's 

supplemental analysis on reproducibility shows that there was no 

operator bias and that the measurement parameters are 

reproducible with sufficient accuracy. Russ did a statistical 

analysis of Corn's study which showed that it was not possible to 

distinguish cited AWC filters from non-cited filters. Russ 

concluded that there is no characteristic or combination of 

characteristics which would permit distinguishing such filters 

with confidence. Dr. Russ criticized John Holm's critique of 

Corn's report as flawed, irrelevant, inconsequential, or 

misinformed. Russ' opinion is based on viewing Corn's images of 

cited AWC filters only, not experimental, inspector, or no-call 

filters. 

John C. Holm is employed as Network Manager, Department of 

Radiology at the University of Minnesota. He previously was 

employed by Kontron Elektronik in the areas of development, 

sales, and support. He has a B.S. in medical technology from 

Michigan Technological University and is pursuing a master's 

degree in biophysical sciences at the University of Minnesota. 

His research topic involves image analysis using a Kontron 

system. He was accepted as an expert witness in the field of 

image analysis. 

Holm reviewed Corn's initial analysis and concluded that it 

had significant defects which call into question the results 

1511 
claimed. He is of the opinion that Corn's use of a color CCD video camera was inappropriate because the object of interest is in shades of gray. In Holm's opinion, Corn's choice of video lens and magnification factor was inappropriate as was his use of videotape rather than direct video camera input. Holm asserts that Corn's database is compiled from an unknown source and is 

unreliable and undermines Corn's digital analyses and 

conclusions. In Holm's opinion, Corn's definition of what 

constitutes an AWC is too broad to compare filter populations because the ranges include almost all of the measurements -- the boundary points are not based on any statistical or percentile test. Holm testified that almost all of the experimental filters fall within Corn's ranges. Holm criticized Corn for selecting only experimental filters that resembled cited AWCs (i.e., the least distinguishable) for comparison to cited AWCs. 

Holm performed measurements and analysis using a Kontron 

system and concluded that many of the R. J. Lee experimental filters (drop filters) which Corn found indistinguishable from 

the cited AWC filters are distinguishable on the basis of area alone. Holm found that the filters subjected to des•a• 

e 

' - - ....... --- 

xperlments are distinguishable from the cited filters on the basis of area or on observable differences in the off-center position of the CD. In Holm's opinion, choosing appropriate image acquisition techniques, feature measures, and 

classification scheme would have enabled classification of a 

greater number of filters and distinguished between cited AWC filters and the non-cited and R. J. Lee experimental filters. Holm performed a courtroom demonstration in which, inter alia, he 

measured and analyzed cited and experimental filters that were considered not analyzable or unmeasurable by Johnson, and 

excluded from Corn's study. Holm found that there were differences between the experimental and cited filter populations in area size, perimeter, maximum diameter, and minimum diameter. Circularity, shape factor, PI/P2 ratio, and roughness were similar in the two populations. 

Although the measurements are processed objectively by the 

computer, the decision of which digitized shape to measure is made subjectively by the operator. Johnson apparently measured CDs approximately 6 millimeters in diameter, but there is no record of the measurements (threshold values) with which she defined the CDs, making verification of the precision of her 

measurements difficult. Holm's measurements included much larger shapes where the dust dislodgment continued outside the 

6 millimeter, central area. Clearly, the image analysts defined the shapes they measured differently. 

The reports and testimony on image analysis of the filters 

are complex, confusing, and contradictory. The image analysis experts are attempting to objectify and quantify what is basically a subjective and qualitative judgment of an experienced 

1512 
government technical expert. If such a task is possible, it has 

not in my judgment been accomplished in this case. I have 

carefully considered the reports and testimony of Dr. Corn, 

Dr. Russ, and Mr. Holm concerning image analysis, but I am not 

relying on their conclusions in this decision. 

FINDINGS OF FACT 

I. AWCs IN GENERAL 

A. The term "AWC" has a coherent, intelligible meaning. 

refers to an abnormal filter appearance in a dust sample 

consisting of dust dislodgment from the central portion of the 

filter. 

It 

B. The classification of AWCs by Thaxton under his tamper 

codes was consistently applied to the cited filters. 

II. REVERSE AIR AWCs 

A. More than 95 percent of the cited filters were 

classified by Thaxton under tamper codes 1 (light cleaned), 2 

(cleaned), and 3 (cleaned and coned). Thaxton concluded that the 

dust dislodgment patterns on these filters resulted from reverse 

air flow through the filter cassette. He later came to believe 

that filters cited under tamper code 7 (clean tool) also resulted 

from reverse air flow. 

B. The dust dislodgment patterns on the cited filters 

classified under tamper codes i, 2, 3, and 7 can have resulted 

from intentional acts: blowing by mouth through the cassette 

outlet, otherwise directing a jet or pulse of air into the 

cassette outlet, or introducing a vacuum source into the cassette 

inlet. This finding is supported by all the expert testimony 

C. The dust dislodgment patterns on the cited filters 

classified under tamper codes i, 2, 3, and 7 can have resulted 

from: 

1. impacts to the cassette from dropping or striking it; 

 impacts to the hose from stepping on it, dropping an 

object on it, striking it against a wall while the hose 

was wrapped around the sampling assembly, closing a 

door or drawer on it, or sitting on it; 

 snapping together the two halves of the filter 

cassette 

Although the expert witnesses for the Secretary and the mine 

operators differ as to the likelihood that a dust dislodgment 

pattern similar to the cited AWCs would result from incidents 

1513 
described in numbers 1 and 2 above, the experiments all show that at least sometimes they do occur. Many of the filters subjected to tests such as those described exhibit dust dislodgment patterns indistinguishable from cited AWCs. All the witnesses expert 

agree that snapping together the two halves of the filter cassette can cause an AWC pattern on a dust loaded filter. 

D. The dust dislodgment patterns on the cited filters classified under tamper codes i, 2 3, and 7 cannot have resulted from: 

. 

. 

a rapid decrease in air pressure such as might occur when the cassettes were transferred by airplane, or the handling of the cassettes by the Post Office. The results of Dr. Marple's rapid decrease in air pressure experiment and the experience of Dr. Grayson who 

received a number of dust laden filters by air and postal delivery establish that air transport and Post Office handling do not cause AWC patterns on filters. 

desiccation of the filter capsules in the PHTC weighing laboratory. Dr. Lee's desiccator tests which produced what he termed AWCs are of limited evidentiary value 

MSHA 

because of the differences in the desiccator used by and that used by Lee. Moreover, most of the photographs of the filters which underwent the test do not show dust dislodgment patterns similar to cited AWCs. Dr. Marple's experiment using the MSHA desiccator establishes that proper operation of the desiccator (and there is no evidence that it was not used properly by MSHA) does not cause dust particle dislodgment. 

 handling of the cassettes and capsules in the PHTC. Dr. Lee was of the.opinion based on his observation of the handling practlces in the PHTC and on the results of his stack •ndchuck tests and rapid disassembly tests that 5 o 15 percent of the cited AWCs resulted from PHTC handling and 30 to 50 percent were 

contributed to by PHTC handling He did not provide the rationale for these percentage estimates. The photographs of the filters after the stack and chuck and rapid disassembly tests for the most part do not resemble the cited filters Based upon my consideration of G-170 showing the operation of the PHTC and of the various tests and experiments which produced AWC-like dust dislodgment patterns, I conclude that the PHTC handling, including the stack and chuck procedures and the rapid disassembly procedures, did 

not cause the cited AWCs. 

1514 
E. I am not considering in this decision the effect, if 

any, on the cited cassettes of the handling of the sampling 

assemblies, including the cassettes, at the mines, nor any 

factors peculiar to any specific mine or mines I have excluded 

evidence of such mine-specific matters from this proceeding. 

F. Sampling assembly variables 

. Filter-to-foil distance in the MSA cassettes used for 

dust sampling in the time period pertinent to this 

proceeding, and in the experiments performed by the 

expert witnesses varied from filter to filter. 

 Floppiness or tautness of the filters used for dust 

sampling in the time period pertinent to this 

proceeding, and in the experiments performed by the 

expert witnesses varied from filter to filter 

 A filter cassette with a smaller filter-to-foil 

distance is more prone to an AWC dust dislodgment 

pattern than one with a larger filter-to-foil distance. 

With respect to this issue I am accepting the opinions 

and conclusions of Drs. Lee, Corn, Grays.n, and 

McFarland over the contrary opinions and conclusions of 

Drs. Marple and Rubow (and the statistical conclusion 

of Dr. Miller). If a reverse air flow or reverse air 

pulse creates an AWC by causing the filter to move 

toward the inlet, resulting in the removal of particles 

close to the foil lip (Dr. Marple), it is reasonable to 

conclude that the closer the filter is to the foil, the 

easier it is to cause the movement and resulting 

dislodgment. 

 , 

. 

A floppy filter is more prone to an AWC dust 

dislodgment pattern than a more taut filter Although 

there is some ambiguity in the opinions of Drs. Marple 

and Rub.w, I conclude that all of the expert witnesses 

ultimately agree to this finding. 

The cited filters had a shorter filter,to-foil distance 

thanthose manufactured subsequently and specifically 

than those used in the experiments performedby the 

expert witnesses. Dr. Lee testified that 1400 to 1500 

of the cited filters were from the MSA 200,000 series, 

which were manufactured between April 20, 1988, and 

April 3, 1989. He further testified that about 2800 of 

the cited filters were from the 300,000 series which 

were manufactured betweenApril 3, 1989, and 

February 13, 1990. The Secretary did not controvert 

this evidence. Thus between 4200 and 4300• or more 

than 80 percent, of the approximately 5000 cited 

filters were manufactured between April 20, 1988, and 

1515 
. 

February 13, 1990. The filter-to-foil distance on the 

cited filters was not measuredbefore the citations 

were issued, and is, of course, not recoverable now 

since the cassettes were disassembled and the foils 

discarded. Exhibits G-253A, 255A, 257A, 259A, 260A, 261A, 262A, 263A, 265A, 266A, and R-I068, 1069, 1070, and 1071 referred to su_up_r_a at page 25, consist of 

graphs prepared by the Government which show the 

filter-to-foil distances on experimental filters 

manufactured from April 20, 1988, until after May 28, 1992. The pre-loading measurements show a slight tendency toward an increase over time in the percentage of filters with filter-to-foil distances of more than 

2 millimeters. Ninety-five percent of those in the 

200,000 series and I00 percent of those in the 300,000 series had filter-to-foil measurements of 2 millimeters 

or less; 97 percent of those in the 400,000 series 

(manufactured from February 13, 1990, to October 25, 1990), and 72 percent of those in the 500,000 series 

(manufactured from October 25, 1990, to August 5, 1991) had such measurements. The post-loading measurements 

show a somewhat greater increase over time in the 

percentage of filters with larger filter-to-foil 

distances. Eighty percent of those in the 200,000 series and 95 percent of those in the 300,000 series 

had filter-to-foil measurements of 2 millimeters or less; 45 percent of the 400,000 series and 50 percent of the 500,000 series had such measurements. Dr. Rubow injected two cautionary notes with respect to these 

graphs: the number of filters measured from each 

series varied considerably. In the pre-loading 

measurements, 32 filters were from the 200,000 series, 24 from the 300,000 series, 259 from the 400,000 series, and 1684 from the 500,000 series. In the post- loading measurements, 69 filters were from the 200,000 series, 24 from the 300,000 series, 156 from the 

400,000 series, and 1591 from the 500,000 series. With 

respect to some of the series, only Marple's 

measurements are included; with respect to others the 

measurements of Marple and McFarland; Lee, Marple, ¥ao, and McFarland; Lee, Grays.n, and Marple; and Lee, Grays.n, Marple, and McFarland are included. 

Furthermore, Lee, Grays.n, Marple, and McFarland all followed different methods in measuring the filter-tofoil distance. Nevertheless, keeping these cautions in mind, the graphs provide the best evidence on an important issue, and they indicate and I find, that the cited filters had a shorter filter-to-foil distance 

than those manufactured subsequently. 

The firmness or softness of the sampling assembly hose 

may be related to the formation of an AWC. A softer 

1516 
hose is more prone to an AWC dust dislodgment. Dr. Lee 

was of the opinion that AWCs occurred more frequently 

in his experiments when he used soft hoses than when he 

used medium or hard ones. He concluded that hose 

softness or toughness is a significant factor in 

susceptibility to AWC formation on hose impact. 

Dr. McFarland concurred and demonstrated that it is 

possible to apply pressure pulses sufficient to create 

AWC patterns by squeezing the hose. Both Dr. Marple 

and Dr. RUbow stated that a softer hose is more 

susceptible to a reverse air pulse. 

G. Dust variables 

i. Susceptibility to AWC dust dislodgment patterns varies 

with: 

Ho 

i. 

. 

a. type of coal; Dr. Marple and Dr. Grayson both 

indicated that the type of coal may be influential 

in the formation of dust dislodgment patterns. 

Do 

Co 

humidity in the mine environment; humidity, of 

course, affects the weight and adhesion of the 

dust on the filter. It was believed to be a 

factor in dust dislodgment by Dr. Marple, 

Dr. Grays.n, and Dr. McFarland. 

weight of dust on the filter; the weight of dust 

on the filter was stated to be an important factor 

by Dr. Lee and Dr. Grayson. Dr. Grayson testified 

that a lightly loaded filter is less susceptible 

to dust dislodgment than a heavier one. 

do 

eo 

size and shape of the dust particles; Dr. Corn 

stated that the size and shape of the dust 

particles could be a factor in dust dislodgment 

patterns. 

amount of rock dust or diesel dust, if any, on the 

filter; these factors were believed to be 

important by Dr. Marple and Dr. McFarland. 

Weight Loss 

Not all cited AWC dust dislodgment patterns result in a 

weight loss. Some show a weight gain. 

However, reverse air AWC filters with dust dislodgment 

patterns show on the average a weight loss. 

1517 
III. AWCs CITED UNDER OTHER TAMPER CODES 

A. Thaxton speculated that with respect to tamper code 4 (torn, ruptured) the tear resulted from something contacting the filter face, tearing it, and pulling it toward the inlet when it 

was removed. Dust dislodgment patterns on the cited filters 

classified under tamper code 4 can have resulted from someone intentionally inserting an object into the cassette inlet and contacting and tearing the filter media. They also can have 

resulted from reverse air flow or reverse air pulses 

B. Thaxton testified that filters classified under tamper code 5 (wiped, clean wiped) give the appearance of something contacting the filter face and being rubbed or twisted to try to 

remove dust from the filter. 

. Dust dislodgment patterns on the cited filters 

classified under tamper code 5 can have resulted from 

someone inserting a cotton swab into the cassette inlet 

and rubbing or twisting it on the filter. 

 Dust dislodgment patterns on the cited filters 

classified under tamper code 5 can have resulted from 

dropping the filter cassettes 

C. Thaxton concluded that tamper code 8 (clean face) resulted from inserting an object through the cassette inlet, possibly wetted with some liquid such as water, alcohol, etc. A review of the four filters originally cited under this tamper code, 206368, 262147, 264160, and 326966, discloses rather marked differences in appearances. The first two listed do not appear to have a lighter deposition encompassing the greater part of the filter. In fact they closely resemble many filters cited under 

tamper codes 1 and 2. 

D. Thaxton testified that tamper code 9 (clean touch) filters were caused by inserting an object into the inlet. The dust dislodgment patterns on the cited filters classified under 

tamper code 9 can have resulted from someone intentionally inserting something in the cassette inlet. 

E. There is no evidence in the record from which I could find or infer that the dust dislodgment patterns on the cited filters classified under tamper code i0 (clean ring) can have 

resulted from intentional acts; Thaxton was unable to reproduce this pattern in his laboratory. 

1518 
IV. STATISTICAL EVIDENCE 

A. RANDOMNESS OF CITED AWCs 

Dr. Miller stated that his chi-square analysis resulted in 

overwhelming evidence that the rate of AWCs was not random as 

between mines either when he used the entire data set or when he 

used only cassettes whose sample date was before March 20, 1990, 

and before April i, 1990, or when he eliminated the mines in the 

MSHA Norton subdistrict and the compliance samples. The results 

of these tests provide cogent evidence that Post office handling 

and PHTC handling were not causes of the cited AWC patterns. 

However, because there are many other variables between mines, I 

do not find that it is persuasive evidence of intentional 

tampering of the dust samples. Dr. Roth's chi-square analysis 

using the same data set as Dr. Miller shows a wide disparity in 

AWC rates between mines after March 19, 1990, and after March 31, 

1990, which tends to show that there was no change in randomness 

of cited AWCs after the void code was instituted. 

B. SAMPLE DATE vs. CITED RATE 

Whether the data show a significant change in the rate of 

cited AWCs on or about March 19, 1990, when the AWC void code was 

instituted, is sharply disputed by Dr. Miller and Dr. Roth. They 

agree that there was a general decline in cited rates during the 

period from August i, 1989, to March 31, 1992. Dr. Miller did a 

chi-square analysis of the data and concluded that the evidence 

pointed to a significant change in the cited rate on or about 

March 19, 1990. Dr. Roth, using the same data as Dr. Miller, 

concluded that after a brief initial period of apparently 

increasing AWC rates in August and September 1989, the rate of 

AWCs continuously decreased through the rest of the period. He 

states that the rate of decline was significantly steeper before 

the March 1990 void code notification than after that event. 

Dr. Roth also noted that the number of MSHA inspector filters 

with AWCs declined at about the same rate during the relevant 

periods. I am including as Appendix B to this decision a copy of 

a graph prepared by Dr. Miller (attachment 4, G-454) showing the 

cited AWC rate by week from August i, 1989, to March 31, 1992. 

The graph clearly shows a steep decline in cited rates beginning 

about March 19, 1990, followed by ups and downs, mostly downs, 

through the remainder of the period. However, it also shows 

other sharp declines, although not so steep, beginning about 

October 1989, about November 1989, about January 1990, and about 

February 1990. The Secretary argues that the steep decline 

beginning about March 19, 1990, can only be construed as showing 

intentional misconduct which ceasedwhen the operators became 

aware of the void code. I am unable to make the suggested leap 

from the fact of a declining rate to a conclusion that it shows 

intentional tampering followed by a cessation of intentional 

tampering. The fact that AWC citations continued, albeit in 

1519 
reduced numbers, long after the initiation of the void code, after the publicity concerning the criminal investigation including guilty pleas and jail sentences, and after the issuance of the citations which are the subject of these proceedings would 

argue to the contrary. I find that the statistical evidence does not establish that AWes resulted from intentional tampering which ceased when the void code was instituted. 

C. CASSETTE MANUFACTURE DATE 

Dr. Miller did a sign analysis of sample date vs. cited rate adjusted for cassette manufacture date, using G-342 listing the 

cassette numbers of cassettes manufactured on certain dates 

between June 22, 1987, and February 26, 1990 (cassettes made 

after the latter date obviously were not used in sampling by March 19, 1990). He found that there is a definite change in cited rate occurring on or about March 19, 1990, even after adjusting for date of manufacture. The marked decrease in cited 

rate cannot be explained by a time trend in the quality of the 

cassettes. Dr. Roth disagreed with Miller's analysis and 

concluded that the date of manufacture of the cassettes is a plausible explanation of the decline in rates of cited AWCs. The evidence shows that cassettes manufactured before January I, 1990, had a much higher rate of AWC citation than those 

manufactured later. This does not establish that the decline 

resulted from changes in the cassettes over time, but may point to variables in the cassettes uncovered by the scientists. 

D. STATISTICAL RELATIONSHIP BETWEEN FILTER-TO-FOIL DISTANCE OR FLOPPINESS AND AWC CITED RATES 

Dr. Miller did a logistic regression test 9 using 400 special filters to determine the relationship between citable dust dislodgment and filter-to-foil distance or floppiness. He found 

no statistically significant relationship for the special filters 

measured by Dr. Marple and deemed citable by Thaxton. This statistical conclusion does not 

overcome the weight of the scientific evidence that shows that fllters with a shorter filter-to-foil distance or which are floppy are more susceptible to reverse air AWC formation. 

E. WEIGHT LOSS 

Miller and Roth agree that of the 200 reverse air AWC 

•empliance filters drawn at random from Thaxton's database for miller/Marple analyses, the AWC filters had a mean welght loss and the control filters a mean weight gain. They dlsagree on whether the weight loss is explained by whether the filter was 

9 Regression is a technique for estimating the mathematical relationship between factors on the basis of numerical data. 

1520 
a reverse air AWC or not. I previously found that reverse air 

AWC filters with dust dislodgment patterns show on the average a 

weight loss. The statistical evidence does not affect that 

finding. 

CONCLUSIONS OF LAW 

Based on the above findings of fact and the entire record in 

the common issues trial, I conclude: 

i. The Secretary has failed to carry his burden of proving 

by a preponderance of the evidence that an AWC on a 

cited filter establishes that the mine operator 

intentionally altered the weight of the filter 

 The Secretary has failed to carry his burden of proving 

by a preponderance of the evidence that deliberate 

conduct on the part of the cited mine operators is the 

only reasonable explanation for the cited AWCs. 

I noted earlier that there is no direct evidence in the 

record that the mine operators intentionally altered the weight 

of the cited filters. To prove his case, the Secretary relies on 

circumstantial evidence: the appearances of the cited filters, 

expert opinion as to the causes of these appearances, and 

statistical conclusions related to the time period during which 

the filter appearances occurred, and the time when the 

appearances "declined dramatically." Tr. 33. Findings of Fact 

II.C.I, 2, and 3 indicate that the appearances of the filters 

cited under tamper codes I, 2, 3, and 7 can have resulted from 

many different incidents or accidents unrelated to intentional 

tampering. Drs. Marple and Rubow are of the opinion that type A 

patterns of dust dislodgment (similar to cited AWC patterns) most 

probably result from deliberate mishandling. The opinions of 

Drs. Lee, Grays.n, McFarland, and Corn are to the contrary. 

Weighing the conflicting opinions and considering all the 

evidence of record especially the systematic studies of the 

experts, I conclude that the evidence does not establish that the 

AWCs resulted from deliberate mishandling. 

The susceptibility of a filter to a dust dislodgment pattern 

similar to those on the cited filters depends in large part on 

filter variables (filter-to-foil distance and floppiness), on the 

firmness or softness of the sampling assembly hose, and on the 

dust variables listed in Findings of Fact II.G.l.a, b, c, d, and 

e. These conditions vary from filter to filter, from sampling 

assembly to sampling assembly, from mine to mine, from section to 

section within each mine, and even from day to day. Dr. Miller's 

statistical analyses did not adequately take all these variables 

into account. His conclusions do not establish that the cited 

AWCs are not the result of accidental occurrences or 

manufacturing variables. The record contains relatively little 

1521 
expert evidence concerning the filters cited under the other 

tamper codes, and I conclude that it does not establish that they resulted from intentional weight alteration. In summary, the 

record shows too many other potential causes for the dust dislodgment patterns on the cited AWCs for me to accept the Secretary,s circumstantial evidence as sufficient to carry his burden of proof that the mine operators intentionally altered the weight on the cited filters. 

FURTHER PROCEEDINGS 

I excluded from the common issues trial evidence proffered by the Secretary and LDCC concerning the dust sampling practices in individual coal mines. Therefore, the record in the 

consolidated cases is not complete, and it is not appropriate for 

me to consider the proposal in the LDCC's reply brief that the citations be vacated. Nor does it seem to me to be conducive to "as prompt and economical a resolution as possible', of these 

cases to refer them back to the Chief Judge for general assignment to Commission Administrative Law Judges as the LDCC's original posthearing brief proposes. The Secretary suggests a case-specific trial covering all the citations issued to either Consolidation Coal Company (20 mines, 396 violations) or Rochester & Pittsburgh Coal Company (15 mines, 646 violations). In my judgment such a case-specific trial would be unwieldy. As 

an alternative, I am selecting a single mine, Urling No. 1 Mine of the Keystone Coal Mining Corp. for a mine-specific trial. The mine is located in Indiana County, Pennsylvania, and has a total of 75 violations cited under four different tamper codes. 

The trial will be limited to evidence of dust sampling and handling practices at the Urling No. 1 Mine, and evidence concerning the specific filters covered by the citations issued to the mine. I will not receive or consider any further evidence 

on the matters covered in the common issues trial, including scientific or experimental evidence concerning the causes of 

AWCs,.nor will I consider further evidence concerning the effect of malling of cassettes from the mlnes to MSHA facilities or the handling of the cassettes in the MSHA offices. The findings and conclusions in thls decision will be incorporated in any decision following the mine-specific trial. Following the mine-specific trial I will render a final decision with respect to the citations issued to the Urling No. 1 Mine. 

The.issue in the mine-specific trial is whether the weight of the f11ters cited as AWCs from the Urling No. 1 Mine was intentionally altered by the mine operator, considering the findings made as a result of the common Issues trial, and the evidence which may be introduced concerning the dust sampling and handling practices at the mine. The burden of proof remalns with the Secretary. 

1522 
Therefore, IT IS ORDERED 

. 

 

Proceedings in all the pending cases except with 

respect to the citations issued to Keystone Coal Mining 

Corp. for the Urling No. 1 Mine are STAYED. 

Counsel for the Secretary and for Keystone Coal Mining 

Corp. shall appear at a prehearing conference in the 

Commission Hearing Room, 5203 Leesburg Pike, 

Suite i000, Falls Church, Virginia, on Tuesday, 

August i0, 1993, at i0:00 a.m., for the purposes of 

discussing discovery proceedings and a trial date for 

the case-specific trial referred to above. 

J James A. Broderick 

Administrative Law Judge 

Distribution: 

Douglas N. White, Esq., office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

(Certified Mail) 

Laura E. Beverage, Esq., Jackson and Kelly, P.O. Box 553, 

Charleston, WV 25322 (Certified Mail) 

Timothy M. Biddle, Esq., Crowell and Moring, i001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004 (Certified Mail) 

Michael T. Heenan, Esq., Smith, Heenan and Althen, iii0 Vermont 

Avenue, N.W., Washington, D.C. 20005 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 58th 

Floor, Pittsburgh, PA 15219 (Certified Mail) 

John C. Palmer, IV, Esq., Robinson and McElwee, P.O. Box 1791, 

Charleston, WV 25326 (Certified Mail) 

H. Thomas Wells, Esq., Maynard, Cooper, Frierson and Gale, 1901 

6th Avenue, North, Suite 2400, Amsouth/Harbert Plaza, Birmingham, 

AL 35203 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

All others by regular mail. 

/fcca/fb 

Appendices A and B 

1523 
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