JUNE 

Commission Decisions 

06-20-86 

06-20-86 

06-25-86 

Z.B. Houser v. Northwestern Resources Co. 

Consolidation Coal Company 

Sec./Donald Hale v. 4-A Coal Company 

Administrative Law Judge Decisions 

06-02-86 

06-05-86 

06-05-86 

06-05-86 

06-09-86 

06-10-86 

06-10-86 

06-11-86 

06-12-86 

06-13-86 

06-13-86 

06-16-86 

06-17-86 

06-17-86 

06-17-86 

06-18-86 

06-18-86 

06-18-86 

06-19-86 

06-20-86 

06-20-86 

06-20-86 

06-23-86 

06-25-86 

06-30-86 

06-30-86 

06-30-86 

06-30-86 

Joline, Inc. 

Karst Robbins Coal Co., Inc. 

Emerald Mines Company 

Pittsburg & Midway Coal Mining Co. 

White County Coal Corporation 

Bon Trucking Company, Inc. 

Emery Mining Corporation 

Greenwich Collieries 

Greenwich Collieries 

Youghiogheny & Ohio Coal Co. 

Ronald McKinney v. Eastern Assoc. Coal 

Quarto Mining Company 

Odell Maggard v. Chaney Creek Coal Corp. 

Drummond Company, Inc. 

Pollard Sand Company 

Youghiogheny & Ohio Coal Co. 

Ann Riley Owens v. Monterey Coal Co. 

Consolidation Coal Company 

Sec./Earl Kennedy, Larry Collins v. Raven 

Red Ash Coal Corporation 

Cobblestone, Ltd. 

Cobblestone, Ltd. 

Thompson Coal & Construction Inc. 

William Shell, et al. v. Harlan-Bell Coal, 

and Reece Lemar 

Johnnie Lee Jackson v. Turner Brothers, Inc. 

White County Coal Corporation 

Coal Company 

C. D. Livingston 

Climax Molybdenum Company 

WEST 83-101-D 

WEVA 82-209-R 

VA 85-19-D 

KENT 85-82 

KENT 85-190 

PENN 86-133-R 

WEST 86-11 

LAKE 86-58-R 

KENT 85-34-R 

WEST 86-35-R 

PENN 85-307 

PENN 86-51 

LAKE 86-56 

WEVA 86-92-D 

LAKE 85-72-R 

KENT 86-1-D 

SE 86-24 

SE 85-1-M 

LAKE 86-4-R 

LAKE 86-33-D 

WEVA 86-80-R 

VA 85-32-D 

WEST 86-52-M 

WEST 86-55-M 

WEVA 85-119 

KENT 85-144-D 

CENT 86-36-D 

LAKE 86-58-R 

PENN 85-260 

WEST 85-55-M 

WEST 85-96-RM 

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Pg. 992 

Pg. 994 

Pg. 999 

Pg. 1006 

Pg. 1021 

JUNE 

Review was granted in the following case during the month of June: 

Gary Goff v. Youghiogheny & Ohio Coal Company, Docket No. LAKE 84-86-D. 

(Judge Melick, May 6, 1986) 

Review was denied in the following cases during the month of June: 

Secretary of Labor, MSHA v. D & D Coal Company, Docket No. PENN 85-55. 

(Default Decision of Judge Merlin, April 29, 1986) 

Kerr-McGee Chemical Corporation v. Secretary of Labor, MSHA, Docket No. 

CENT 81-134-RM. (Interlocutory Review of Judge Morris' May 21, 1986 Order) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

Z.B. HOUSER 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 20, 1986 

Docket No. WEST 83-101-D 

NORTHWESTERN RESOURCES COMPANY 

BEFORE: Hackley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding involves a discrimination complaint brought by the 

Secretary of Labor on behalf of Zimmie B. Houser. The complaint alleges 

that Northwestern Resources Company ("Northwestern") violated section 

lOS(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(c)(l982), when it failed to recall Houser to work after he had 

been laid off due to a production shutdown of the mine. Northwestern 

contends that Houser was not recalled because of his unsatisfactory work 

performance. Following a hearing on the merits, a Commission administrative law judge concluded that Northwestern did not violate section 

lOS(c) of the Mine Act, and the judge dismissed the discrimination 

complaint. 6 FMSHRC 1798 (July 1984)(ALJ). For the reasons stated 

below, we affirm this result. 

On October 1, 1981, Northwestern hired Mr. Houser to work as a 

crusher operator at its Grass Creek Mine, a surface coal mine located at 

Grass Creek, Wyoming. The Grass Creek Mine was managed for Northwestern 

by Monte Steffans. Roger Sprague was employed as the working foreman. 

Effective January 1, 1982, Houser was transferred from Grass Creek 

to Northwestern's small load-out facility at Kirby, Wyoming, approximately 

60 miles from Grass Creek. (Only one employee worked at the Kirby 

facility.) Coal from the mine was trucked to the load-out facility 

where it was dumped, stockpiled, and loaded into railroad cars. The 

facility was located about 400 yards from Rouser's home. At Kirby, 

Houser was responsible for keeping the dump area clean so that trucks 

could unload. Houser was responsible also for loading the coal into 

waiting railroad cars for shipment to Northwestern's customers. 

883 
In March 1982, Houser was transferred back to the Grass Creek Mine. 

He was replaced at Kirby by another miner from Grass Creek who needed 

the lighter work available at the load-out facility. Prior to the 

transfer, Sprague had received complaints about Rouser's job performance 

at Kirby. Sprague testified that several truckers complained that they 

had to wait for Houser to come to the load-out site in order to unload 

their coal. Sprague also testified that Houser overloaded the railroad 

cars and did not maintain satisfactorily the front-end loader that he 

operated. When Houser returned to Grass Creek, he was assigned to the 

night shift. Approximately one month later, the night shift was suspended 

and Houser was transferred to the day shift. With this transfer, the 

day shift consisted of Houser, four other miners, and the foreman, 

Sprague. 

During the spring of 1982, Houser made various complaints to Sprague 

about the health and safety conditions at Grass Creek. Houser complained 

about the amount of dust in the pit, that the windows on the front-end 

loader that he operated were too small, and that coal dust was entering 

the cab through a broken windshield. Houser told Sprague that he was 

afraid of contracting pneumoconiosis or some other disease because of 

the amount of dust that he was inhaling. He testified that on some days 

there was as much dust inside the cab as there was outside the cab. 

Houser also complained to Sprague about the safety of the steering 

mechanism on the front-end loader. Sprague agreed that the steering 

mechanism was defective and he had it repaired. 

In May 1982, as a result of dust samples taken during the course of 

a regular inspection, Northwestern was issued a citation alleging that 

respirable dust in Rouser's designated occupation exceeded the applicable 

limits. 

During June 1982, as a result of losing one of its major customers, 

Northwestern laid-off miners at Grass Creek and Kirby. On June 11, 

1982, Mine Manager Steffans announced that four miners, including Houser, 

would be laid off. In ranking the four miners who were laid off Steffans 

determined that Houser was third best. The four miners were given their 

final pay checks and termination notices signed by Steffans and Sprague. 

Rouser's notice stated that his job knowledge exceeded requirements and 

that the quality and quantity of his work, and Rouser's personal relationships on the job, met requirements. However, it also noted that Rouser's 

initiative could show improvement. Finally, the notice stated that 

Houser was recomm~nded for rehire. 

Approximately two weeks after he was laid off, Houser met Steffans 

and during the course of their conversation, Steffans indicated that the 

Grass Creek Mine would soon reopen. On July 19, 1982, the two miners 

whom Steffans had rated higher than Houser were recalled to work at 

Grass Creek.. Near the end of July 1982, when Houser found out about 

their recall, he telephoned Steffans and asked why he had not been 

recalled. Steffans explained that he was not recalled because Sprague 

did not want him back. 

884 
During August 1982, the miner whom Steffans had rated below Houser 

was recalled. Houser contacted his union representative and complained 

that he had been by-passed. The representative's inquiry as to why 

Houser had not been recalled was referred to Steffans. In a memorandum 

dated August 23, 1982, Steffans stated that Houser was not recalled 

because during the course of his employment: (1) he did not maintain 

his equipment properly; (2) he was frequently absent from the job site 

at Kirby; (3) he did not keep the Kirby facility clean; and (4) he did 

not obey Sprague's orders concerning the manner in which he loaded coal. 

The Secretary of Labor filed a discrimination complaint with the 

Commission on Rouser's behalf. After an evidentiary hearing, the judge 

found that Rouser's complaints regarding the coal dust in the pit and 

the steering mechanism on the front-end loader were protected by the 

Mine Act. 6 FMSHRC at 1806. The judge further concluded that Houser 

was not recalled to work in part because of his protected activities. 

Id. at 1809. Turning to Northwestern's argument that it did not recall 

Houser because of his overall poor job performance, the judge stated 

that when an operator produces evidence that a failure to rehire is 

based upon a legitimate business purpose, the burden is upon the complainant to establish that he would have been rehired "but for" his 

protected activity. 6 FMSHRC at 1809-10, quoting text from Wayne 

Boich d.b.a. W.B. Coal Co. v. FMSHRC, 704 F.2d 275, 284 (6th Cir. 1983). 

The judge found that Houser did not establish that he would have been 

rehired "but for" his protected activity because Rouser's job performance was, in fact, unsatisfactory. 6 FMSHRC at 1810. 

On review, Houser argues that the judge did not apply the proper 

legal test to determine whether he was the victim of unlawful discrimination. He also argues that the judge's findings of fact and the judge's 

conclusions are not supported by substantial evidence. 

Upon reviewing the analytical framework of the judge 1 s decision, we 

conclude that it is deficient in some respects. Nevertheless, we have 

reviewed the record as a whole carefully, and conclude that, with certain 

clarifications, the judge 1 s ultimate determination that Northwestern 1 s 

failure to recall Houser did not violate the Mine Act is supported by 

substantial evidence and consistent with properly applied precedent. 

See Secretary of Labor on behalf of Sedgmer et al. v. Consolidation Coal Co., 

8 FMSHRC 303, 306 (March 1986); Gravely v. Ranger Fuel Corp., 6 FMSHRC 

799 (April 1984), aff'd sub. nom. Gravely v. Ranger Fuel Corp. & FMSHRC, 

765 F.2d 138 (4th Cir. 1985). 

To establish a prima facie case of discrimination a complaining 

miner bears the burden of production and proof to show (1) that he 

engaged in protected activity, and (2) that the adverse action complained 

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

v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev'd on other grounds sub. nom. Consolidated Coal Co. v. Marshall, 663 

F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. United 

Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may 

885 
rebut the prima facie case by showing either that no protected activity 

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

protected activity. If the operator cannot rebut the prima facie case 

in this manner, it nevertheless may defend affirmatively by proving (1) 

that it was also motivated by the miner's unprotected activity, and (2) 

that it would have taken the adverse action in any event for the unprotected activity alone. The operator bears the burden of proof with 

regard to this affirmative defense, Haro v. Magma Copper Co., 4 FMHRC 

1935, 1936-38 (November 19&2), but the ultimate burden of persuasion 

does not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. 

See also Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 

(D.C. Cir. 1984) and Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 

1983)(both cases specifically approving the Commission's Pasula-Robinette 

test). 

With respect to the first element of the prima facie case, the 

judge's finding that during the spring of 1982 Houser made several 

complaints to Sprague about the dust at Grass Creek, the condition of 

the windows and the windshield of the cab of the front-end loader, and 

the steering mechanism of the front-end loader are supported by substantial 

evidence. We agree with the judge that these complaints constitute 

protected activity under the Mine Act. 6 FMSHRC at 1807. 

The judge's finding that the second element of the prima facie case 

was established is also supported by substantial evidence. The record 

indicates that Houser was the most vocal of the miners concerning health 

and safety matters. Also, MSHA's citation of Northwestern for excessive 

respirable dust came at about the same time as Rouser's complaints to 

mine management about the dust. Further, there is testimony that after 

failing to recall Houser, Sprague told one of the other miners that 

Houser was a "troublemaker." As the judge correctly noted, inferences 

of an operator's motivation may be drawn from such circumstantial evidence. 

6 FMSHRC at 1809. 

However, a crucial issue remains -- the adequacy of Northwestern's 

affirmativP. defense. In reciting the test to be applied for determining 

whether a violation of section 105(c) of the Mine Act occurs when an 

operator is motivated in any part by the exercise of protected activity, 

the judge stated the law incorrectly. The judge quoted and appeared to 

in part rely upon the Sixth Circuit's decision in Wayne Boich d.h.a. W.B. 

Coal Co., v. FMSHRC, 704 F.2d 275 (6th Cir. 1983), in which the Court 

had declined to approve the Commission's test regarding the manner in 

which an operator may affirmatively defend against a prima facie case. 

The judge, however, apparently was unaware that on reconsideration, the 

Sixth Circuit reversed itself and approved the Commission's test. 

Boich, 719 F.2d at 195-96. Thus, the correct inquiry is whether Northwestern would have refused to rehire Houser, in any event, for his 

unprotected activity alone. The judge's decision also provides his 

answer to this question. In his conclusion of law number 3 the judge 

stated: 11Northwestern proved by a preponderance of the evidence that 

Houser was not rehired for reasons of unsatisfactory job performance." 

6 FMSHRC at 1814. This finding is supported by substantial evidence as 

discussed below. 

886 
It is clear that Sprague and others had numerous problems with 

Hauser's work. Sprague testified that Houser was absent frequently from 

the Kirby load-out facility. He testified that in response to complaints 

from the truckers he had gone to Kirby on several occasions to check on 

Rouser's attendance and that on some occasions he had to wait at least 

45 minutes during normal work hours for Houser to arrive. Further, 

Houser was insubordinate from time to time. Sprague testified that 

during January 1982 the front-end loader that Houser usually operated at 

Kirby was not working and that a smaller substitute loader had to be 

used. Although Houser did not question the safety of using the smaller 

loader, he nonetheless refused to load the stockpiled coal into the 

waiting railroad cars. Because of his work refusal on that occasion, 

Houser was sent home and Sprague was forced to load the coal himself. 

Sprague testified that the next day he informed Steffans that Houser had 

refused to load the railroad cars and recommended that he be discharged. 

Sprague had received other complaints about Hauser's work at Kirby. He 

testified that Houser frequently overloaded railroad cars and, as a 

result, the company was forced to expend funds to send two men 80 miles 

to the railroad yard to shovel excess coal out of the cars. After 

Houser was replaced at Kirby, Sprague testified that the railroad cars 

were seldom overloaded and that complaints about the work at Kirby were 

"almost nonexistent." 

Two coal truck drivers who were familiar with Hauser's work at 

Kirby also testified as to his poor job performance. Carl Bechtold 

testified that Houser did not keep the load-out facility clear so that 

coal could be dumped from his truck. Bechtold stated that frequently he 

had to wait for the area to be cleared; in fact, he said, this happened 

about twice a week during December 1982. He also complained that 

frequently Houser was not present at the load-out facility when he 

arrived to dump his coaL Bechtold testified that he brought Rouser's 

absences to the attention of Sprague and Steffans. Thomas Anderson, 

whose trucks transported coal from Grass Creek to Kirby, estimated that 

he had contact with Houser on a daily basis. He testified that he and 

his men often had to wait for Houser to arrive at the facility in order 

to unload their trucks, even though Rouser's home was only 400 yards 

away. Anderson also testified that Houser did not maintain properly the 

load-out facility. On some occasions the trucks could not be unloaded 

because the area was not levelled off and there was no room to dump the 

coal. Mr. Anderson testified further that he complained about Houser to 

Sprague and Steffans. 

Moreover, Sprague testified that Houser did not properly maintain 

the equipment that he operated. Sprague testified that Northwestern 

instructs each employee to monitor equipment constantly for missing or 

broken parts and that each employee is also responsible for the routine 

maintenance .of equipment. Sprague testified that Houser was lax in 

replacing fittings and headlights and in maintaining pins on the frontend loader. Further, Sprague testified that the windows on the 

equipment that Houser operated had to be repeatedly replaced due to 

Rouser's failure to latch the door. 

887 
The judge found the foregoing testimony of Northwestern's witnesses 

with respect to the multiple instances of Rouser's unsatisfactory job 

performance to be credible. 6 FMSHRC at 1812. The judge acknowledged 

that several of Hauser's fellow employees testified that he was a good 

worker. The judge, however, found that the statements of these witnesses 

were general in nature, as opposed to the more detailed and specific 

testimony of Steffans and the truckers. Moreover, none of the miners 

who testified on Hauser's behalf had immediate knowledge of Hauser's job 

performance at Kirby. Given the particularized nature of the testimony 

of Northwestern's witnesses and the judge's first-hand observation of 

the witnesses at the hearing, we find no reason for overturning the 

judge's credibility determinations and his resolutions of conflicting 

testimony. See, e.g., Ribel v. Eastern Associated Coal Corp., 7 FMSHRC 

2015, 2021 (December 1985), petitions for review filed, Nos. 86-3832(L) 

& 86-3833 (4th Cir. March 31, 1986). ];_/ 

Accordingly, we conclude that the record and the judge's findings 

establish that Northwestern would not have recalled Houser to work in 

any event due to his poor work performance. Thus, we hold that the 

discrimination complaint was properly dismissed and affirm the judge's 

decision on the bases discussed above. 2/ 

ames A. 

L. 

~ Clair Nelson, Commissioner 

1/ Rouser's termination notice, which indicated that he was recommended 

for rehire, was accorded little weight by the judge and is contrary to 

the substantial evidence recited above concerning his job performance. 

2/ Chairman Ford did not participate in the consideration or disposition 

of this case. 

888 
Distribution 

George G. Christiansen, Esq. 

Christiansen, Kavanaugh & Sanford 

1535 Grant St., Suite 280 

Denver, Colorado 80203 

Edward F. Bartlett, Esq. 

Northwestern Resources, Co. 

40 East Broadway 

Butte, Montana 59701 

889 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

CONSOLIDATION COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CONSOLIDATION COAL COMPAI'l1, 

UNITED MINE WORKERS OF AMERICA, 

Intervenor 

June 20, 1986 

Docket No. WEVA 82-209-R 

Docket No. WEVA 82-245 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMl~ISSION: 

This case presents a question of major importance in the enforcement of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et~· (1982), concerning overexposure to respirable dust in coal 

mines: What are the appropriate criteria for determining whether a 

violation of 30 C.F.R. § 70.lOO(a), based upon designated occupation 

sampling results obtained pursuant to 30 C.F.R. § 70.207, is of such 

nature as could significantly and substantially contribute to the cause 

890 
and effect of a mine health hazard. l/ In the hearing on the merits 

before Commission Administrative Law Judge James A. Broderick, Consolidation Coal Company ("Consol") admitted that it violated the 

standard, but denied that the violation was significant and substantial 

within the meaning of section 104(d)(l) of the Mine Act. 30 U.S.C. 

§ 814(d)(l). Seen. 3, infra. Judge Broderick determined that the 

violation was properly designated as significant and substantial, and 

assessed a civil penalty of $150. 5 FMSHRC 378 (March 1983)(ALJ). We 

granted Consol's petition for discretionary review, permitted the 

participation of several amici curiae, and heard oral argument. ];_/ 

We conclude that the test first set forth in Cement Division, National 

Gypsum Co., 3 FMSHRC 822 (April 1981), with certain adaptations appropriate 

in the context of this exposure-related health standard, is applicable in 

determining whether a violation of section 70.lOO(a), based upon designated 

l/ 30 C.F.R. § 70.lOO(a) provides: 

Each operator shall continuously maintain the average 

concentration of respirable dust in the mine atmosphere 

during each shift to which each miner in the active 

workings of each mine is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air as 

measured with an approved sampling device and in terms 

of an equivalent concentration determined in accordance 

with § 70.206 (Approved sampling devices; equivalent 

concentrations). 

30 C.F.R. § 70.207 provides in part: 

(a) Each operator shall take five valid respirable dust 

samples from the designated occupation in each mechanized 

mining unit during each bimonthly period beginning with 

the bimonthly period of November 1, 1980. Designated 

occupation samples shall be collected on consecutive normal 

production shifts or normal production shifts each of which 

is worked on consecutive days. The bimonthly periods are: 

January 1 

March 1 

May 1 

July 1 

September 1 

November 1 

February 28 (29) 

April 30 

June 30 

August 31 

October 31 

December 31. 

]:_/ The following amici curiae participated in review proceedings 

before the Commission: the American Mining Congress, Emery Mining 

Corporation, the United Steelworkers of America, the International 

Chemical Workers Union, and the Council for the Southern Mountains. 

891 
occupation sampling results in excess of the specified limit, is significant 

and substantial. On the bases discussed below, we affirm the judge's 

finding of a significant and substantial violation. 

I. 

Consol operates the Blacksville No. 1 Mine, in Monongalia County, 

West Virginia. On January 20-24, 1982, pursuant to the designated 

occupation sampling requirements of the Department of Labor's Mine 

Safety and Health Administration ("MSHA"), Consol collected five respirable dust samples for the continuous miner occupation in section 026-0, 

a mechanized mining unit. The samples were collected with an approved 

sampling device operated by a certified person. As required by 30 C.F.R. 

§ 70.209(a), Consol submitted the samples to MSHA for analysis. The 

operator included a request that MSHA check the samples for contamination, 

rock dust, and oversized particles. MSHA's weight analysis of the 

samples revealed respirable dust concentrations of 8.1, 0.4, 5.1, 6.3 

and 0.7 milligrams of respirable dust per cubic meter of air (mg/m3). 

The average concentration for the five samples was 4.1 mg/m3. MSHA did 

not microscopically examine the samples for contamination, rock dust, or 

oversized particles. 

On the basis of these test results, an MSHA inspector issued a citation to Consol under§ 104(a) of the Mine Act, 30 U.S.C. § 814(a), 

alleging that miners had been exposed to an average respirable dust 

concentration of 4.1 mg/m3 in violation of section 70.lOO(a). The 

inspector, following MSHA enforcement policy guidelines, designated the 

violation as significant and substantial. ]_/ The citation was terminated 

]_/ Section 104(d)(l) of the Mine Act provides: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created bv 

such violation do not cause imminent danger, such violation 

is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety 

or health hazard, and if he finds such violation to be caused 

by an unwarrantable failure of such operator to comply with 

such mandatory health or safety standards, he shall include 

such finding in.any citation given to the operator under this 

chapter. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such 

citation, an authorized representative of the Secretary 

finds another violation of any mandatory health or safety 

standard and finds such violation to be also caused by an 

unwarrantable failure of such operator to so comply, he shall 

forthwith issue an order requiring the operator to cause all 

persons in the area affected by such violation, except those 

persons referred to in subsection (c) of this section to be 

withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines 

that such violation has been abated. 

30 U.S.C. § 814(d)(l)(emphasis added). 

892 
when five valid samples collected on five consecutive production shifts 

revealed an average respirable dust concentration equal to or less than 

the 2.0 mg/m3 permissible exposure level of section 70.lOO(a). Consol 

contested the citation and a hearing was held. 

Before the administrative law judge, Consol conceded a violation of 

30 C.F.R. § 70.lOO(a). The primary focus of Consol's argument and the 

judge's decision was on whether the violation was of such nature as 

could and substantially contribute to the cause and effect 

of a coal mine health hazard. In upholding the MSHA inspector's finding, 

the judge relied in part on the CoTIIlllission's National Gypsum test for 

determining the existence of a significant and substantial violation of 

a safety standard and on the detailed medical evidence presented by the 

parties. 5 FMSHRC at 388-90. !±_/ 

The found that chronic bronchitis and black lung disease, 

technically known as coal workers' pneumoconiosis ("pneumoconiosis"), 

can result from cumulative exposure to respirable dust in coal mines. 

5 FMSHRC at 381-382. Chronic bronchitis, which can be disabling, is an 

inflammation of the bronchial tubes that results in a chronic productive 

cough and loss of lung function. 5 FMSHRC at 381. Pneumoconiosis, as 

the judge stated, is: 

a disease caused by the deposition of coal dust 

on the human lung and the body's reaction to it. The 

dust accumulates in the small airways and the macrophagia 

of the lungs are unable to clear it. Continuous exposure 

to coal dust may cause the condition to spread and to 

involve most parts of the lung. In some individuals 

the condition may progress to progressive massive fibrosis 

which involves the destruction of alveoli and distortion 

of the remaining lung tissue. 

Id. the medical evidence, the judge found that the overexposure in this case to an average respirable dust concentration of 4.1 

mg/m3, in and of itself, would not cause or significantly contribute to 

chronic bronchitis or pneumoconiosis. 5 FMSHRC at 389. However, he 

also concluded that, in appropriate instances, an 

tor a significant and substantial finding in a section 104(a) 

FMSHRC at 388. The Commission resolved this issue subsequently in Consolidation Coal Co., 6 FMSHRC 189 (February 1984). The 

judge's conclusion is consistent with the Commission's holding in 

-'--"'--~~~~~~~--

and, therefore, we affirm the judge's decision in 

1 i mi t our discussion to the remaining issues raised on 

review. 

!jj Simple pneumoconiosis is asymptomatic and diagnosed by X-ray 

examination. Complicated pneumoconiosis, or progressive massive 

fibrosis, is roore severe and typically causes symptoms of chronic cough 

and shortness of breath. 5 FMSHRC at 381. 

893 
also found that cumulative instances of exposure to a 4.1 mglm3 concentration 

of respirable dust could cause or significantly contribute to development 

of these diseases. The judge reasoned that each unit of overexposure 

is an important factor in contributing to either disease. 5 FMSHRC at 

389-90. He also noted that the overexposure in this case was more than 

twice the allowable maximum dust level--a "substantial overexposureu in 

his view. 5 FMSHRC at 389 n. 4. The judge concluded that each episode 

of overexposure significantly and substantially contributes to the 

health hazard of contracting chronic bronchitis or pneumoconiosis, 

diseases of a reasonably serious nature. 5 FMSHRC at 389-90. 

II. 

We first discuss the proper test for determining whether a violation of section 70.lOO(a) is significant and substantial, evaluate 

Consol's assertions that MSHA's dust sampling methods are fatally flawed, 

and then apply our test to the facts of the present case. 

In National Gypsum, the Commission held: 

[A] violation is of such nature as could significantly and substantially contribute to the cause 

and effect of a mine safety or health hazard if, 

based upon 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. 

3 FMSHRC at 825. Consonant with the Mine Act's significant and substantial phraseology and the Act's overall enforcement scheme, we stated: 

[A] violation "signifiCantly and substantially" 

contributes to the cause and effect of a hazard 

if the violation could be a major cause of a danger 

to safety or health. In other words, the contribution to cause and effect must be significant and 

substantial. 

3 FMSHRC at 827 (footnote omitted). See also U.S. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984); Consolidation Coal Co., 6 FMSHRC 34, 

37 (January 1984); Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). 

Thus, the violation must be a major cause of a danger to safety or 

health. !ii 

!i_I Although the language of National Gypsum speaks to the hazards 

created by violations of both mandatory safety and health standards, it 

is important to note that until now the Commission has had occasion to 

review application of the test only in cases involving violations of 

mandatory safety standards. Se~, .£.:..g_., Mathies Coal Co., 6 FMSHRC at 3 

n. 4. In applying and interpreting the test as it here relates to a 

violation of 70.lOO(a), a health standard, we imply no change in the 

test as applied to violations of mandatory safety standards. 

894 
Prior to the Commission's National Gypsum decision, the Secretary 

of Labor's enforcement policy was to regard all violations of mandatory 

standards as significant and substantial, except violations that were 

technical in nature or that posed only a remote risk of injury. Subsequent to National Gypsum, the Secretary altered his enforcement policy 

with regard to significant and substantial violations. MSHA, Policy 

Memorandum (May 6, 1981). The revised policy recapitulates the Commission's 

National Gypsum test regarding safety standard violations. With respect 

to violations involving health standards, however, the Policy Memorandum 

provides: 

[V]iolations involving mandatory health standards 

which limit exposure to or require protection from 

harmful airborne contaminants, toxic substances or 

harmful physical agents should be designated as 

"significant and substantial. 11 MSHA believes that 

noncompliance with this type of health standard 

involves a reasonable likelihood of injury or 

illness which will be reasonably serious. The use 

of personal protective equipment (PPE), however, 

should be taken into account. Although the use 

of PPE may not constitute compliance with health 

standards that set an exposure limit, the use of 

PPE by miners affected by the violation is relevant to determining whether any injury or illness 

is reasonably likely to occur. 

MSHA's Policy Memorandum makes clear that the use of personal protective equipment by miners affected the violation is relevant to its 

determination of whether any injury or illness is likely to occur. 

MSHA's Policy Memorandum also states that violations of mandatory health 

standards that do not involve an exposure-related standard, or are only 

technical, will not be treated by MSHA as significant and substantial 

violations. 

As the above-quoted portions of MSHA's Policy Memorandum indicate, 

the Secretary's enforcement approach does not precisely parallel 

Gypsum with respect to an exposure-related health hazard. As explained 

below, however, in the particular context of the control of respiruble 

dust in coal mines some departure is justified because of fundamental 

differences between a typical safety hazard and the respirable dust 

exposure-related health hazard at issue. 

An examination of the statutory text and the legislative history of 

the Mine Act reveals a clear congressional understanding of the unique 

nature of the exposure-related health hazards of respirable dust and the 

control of those hazards. Indeed, prevention of pneumoconiosis and 

other occupational illnesses is a fundamental purpose underlying the 

Mine Act. Congress' concern is first expressed in section 2 of the Act: 

895 
[T]here is an urgent need to provide more effective 

means and measures for improving the working conditions 

and practices in the Nation's coal or other mines in 

order to death and serious physical harm, and 

in order to prevent occupational diseases originating 

in such mines [.] 

30 U.S.C. § 80l(c)(emphasis added). Section 20l(b) of the Act, 30 U.S.C. 

§ 84l(b), describes the coverage and intent of the interim mandatory 

health standard regarding respirable dust concentrations. That section 

stresses the prevention of any disability from pneumoconiosis or any 

other occupation-related disease: 

Among other things, it is the purpose of this subchapter 

to provide, to the greatest extent possible, that the 

working conditions in each underground coal mine are 

sufficiently free from respirable dust concentrations 

in the mine atmosphere to permit each miner the 

opportunity to work underground during the period 

of his entire adult working life without incurring 

any disability from pneumoconiosis or any other 

occupation-related disease during or at the end 

of such period. 

30 u.s.c. § 84l(b). 

The respirable dust standard involved in the present case, section 

70.lOO(a), is taken directly from section 202 of the Mine Act, 30 U.S.C. 

§ 842, which, in turn, was carried over without significant change from 

the 1969 Coal Act. These statutory sections set interim mandatory 

health standards, which the Secretary has adopted. When these standards 

limiting miners' exposure to respirable dust in coal mines were drafted 

in 1969, Congress recognized a direct relationship between reductions of 

respirable dust in the mine atmosphere and corresponding reductions in 

the incidence of disabling respiratory disease in coal miners. See, 

~·· S. Rep. No. 411, 9lst Cong., 1st Sess. 14-17 (1969), reprinted in 

Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 

94th Cong., 1st Sess., 1 Legislative History of the Federal Coal Mine 

Health and Safety Act of 1969, at 141-43 (1975)("1969 Legis. Hist."). 

See also 1969 Legis. Hist. 355-58; H. Rep. No. 563, 9lst Cong., 1st 

Sess. 15-20 (1969), reprinted in 1969 Legis. Hist. 1045-50; 1969 Legis. 

Hist. 1195-99. With regard to its ultimate decision to adopt a 2.0 

mg/m3 respirable dust standard, Congress recognized that in a dust 

environment below approximately 2.2 mg/m3, there would be virtually no 

probability of a miner's contracting complicated coal workers' pneumoconiosis, 

even after 35 years of exposure at that level. H. Rep. No. 563, supra, 

at 18, reprinted in 1969 Legis. Hist. 1048; 1969 Legis. Hist. 1197-98. 

The legislative history also reflects awareness that a standard at or 

below 2.2 mg/m3 would produce no danger of miners developing disabling 

disease. Id.; 1969 Legis~ Hist. 1277. 

896 
Thus, we find in the Mine Act an unambiguous legislative declaration 

in favor of preventing any disability from pneumoconiosis or any other 

occupation-related disease. We also find repeated observations in the 

legislative history that a respirable dust standard at or below 2.2 

mg/m3 would produce no danger of miners developing disabling disease. 

To emphasize Congress' desire for a fixed ceiling on exposure levels, 

the section-by-section summary of the Conference Report states: 

In all cases, the standard is keyed to each individual miner. 'The air he breathes, wherever he 

works in the mine, must not contain more respirable dust during any working shift than the 

standard permits. 

1969 Legis. Hist. 1606 (emphasis added). Congress plainly intended the 

2.0 mg/m3 standard it adopted to be the maximum permissible exposure 

level in order to achieve its goal of preventing disabling respiratory 

disease. Also, Congress clearly intended the full use of the panoply of 

the Act's enforcement mechanisms to effectuate this congressional goal, 

including the designation of a violation as a significant and substantial 

violation. It is against the background of Congress' firm intent to 

prevent respiratory disease by setting permissible levels of miners' 

exposure to respirable dust that we turn to the question of the proper 

test for determining whether a violation of section 70.lOO(a), based 

upon excessive designated occupation samples, is a significant and 

substantial violation. 

In Mathies Coal Co., supra, the Commission further discussed the 

elements that establish, under National Gypsum, whether a violation of a 

mandatory safety standard is significant and substantial: 

[T]he 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. 

6 FMSHRC at 3-4 (footnote omitted). 

Adapting this test to a violation of a mandatory health standard, 

such as section 70.lOO(a), results in the following formulation of the 

necessary elements to support a significant and substantial finding: 

(1) the underlying violation of a mandatory health standard; (2) a 

discrete health hazard--a measure of danger to health--contributed to by 

the violation; (3) a reasonable likelihood that the health hazard contributed to will result in an illness; and (4) a reasonable likelihood 

that the illness in question will be of a reasonably serious nature. 

897 
In the present case, as in all cases in which the "significant and 

substantial" issue is being addressed, the underlying violation of a 

mandatory standard (element one), is established. Here, Consol conceded 

the violation. We find that the second element, a measure of danger to 

health posed by the violation, is established also. The miner in the 

sampled designated occupation was exposed to an excessive average concentration of respirable dust, i.e., 4.1 mg/m3, more than twice the 

maximum permissible level set by Congress to eliminate the probability 

of miners contracting disabling respiratory diseases. Indeed, any 

exposure above the 2.0 mg/m3 level, based upon designated occupation 

sampling results, giving rise to a section 70.lOO(a) violation will 

satisfy this element. 

The third element, a reasonable likelihood that the health hazard 

contributed to will result in an illness, presents a more difficult 

conceptual issue. In addressing this element we are mindful that, as 

discussed previously, Congress recognized that miner exposure in excess 

of the maximum level set in the respirable dust standard would produce 

disabling pneumoconiosis and other occupation-related diseases in a 

statistically significant portion of the coal mining workforce. Congress 

established the 2.0 mg/m3 respirable dust standard, which the Secretary 

has adopted, as the best available means of preventing disabling respiratory 

diseases. In adopting this standard, Congress chose not to distinguish 

between susceptible and non-susceptible individuals, choosing instead 

a universal prophylactic approach to the problem of causation. This 

approach reflected Congress' attempt to assure that all miners, regardless of their physical predisposition or the length of time that they 

have worked in coal mines, would be uniformly protected from the incremental health hazards presented by repeated overexposures to respirable 

dust in coal mines. 

We recognize that the development and progress of respiratory 

disease is due to the cumulative dosage of dust a miner inhales, which 

in turn depends upon the concentration and duration of each exposure, 

and that proof of a single incident of overexposure does not, in and of 

itself, conclusively establish a reasonable likelihood that respirable 

disease will result. There is no dispute, however, that overexposure to 

respirable dust can result in chronic bronchitis and pneumoconiosis. The 

effects of the health hazards associated with overexposure to respirable 

dust usually do not cause immediate symptoms--as noted, simple pneumoconiosis 

is asymptomatic. This factor makes precise prediction of whether or when 

respiratory disease will develop impossible. Likewise, it is not possible 

to assess the precise contribution that a particular overexposure will 

make to the development of respiratory disease. In sum, the present 

state of scientific and medical knowledge, as exemplified by the present 

record, do not make it possible to determine the precise point at which 

the development of chronic bronchitis or pneumoconiosis will occur or is 

reasonably likely to occur. 

Thus, the development of respirable dust induced disease is insidious, 

furtive and incapable of precise prediction. Yet, as set forth above, 

reduction in the incidence of such diseases is one of the fundamental 

898 
purposes of the Mine Act. Accordingly, given the nature of the health 

hazard at issue, the potentially devastating consequences for affected 

miners, and strong concern expressed by Congress for eliminating respiratory illnesses in miners, we hold that if the Secretary proves that an 

overexposure to respirable dust in violation of section 70.lOO(a), based 

upon designated occupation samples, has occurred, a presumption arises 

that the third element of the significant and substantial test--a reasonable likelihood that the health hazard contributed to will result in an 

illness--has been established. 

The fourth element of the significant and substantial test, a 

reasonable likelihood that the illness in question will be of a reasonably serious nature, is not seriously disputed. Congress noted not only 

the economic losses to the nation caused by respirable dust induced 

diseases, but also the "immeasurable cost of human pain and suffering." 

S. Rep. No. 411, supra, at 17, reprinted in 1969 Legis. Hist. 143. 

Further, the judge found that complicated pneumoconiosis entails the 

destruction of the lungs' air exchange capabilities and distortion of 

the remaining lung tissue. Progressive massive fibrosis also significantly 

impairs the functional capacity of the lungs through extensive internal 

scarring, contracture of the lungs with compensatory emphysema, and loss 

of the vascalature. Progressive massive fibrosis commonly causes shortness 

of breath and cough, and can cause progressive pulmonary impairment and 

early death. The above facts support a conclusion that there is a 

reasonable likelihood that illness resulting from overexposure to respirable dust will be of a reasonably .serious nature. 

We recognize that the essence of the above discussion of each of 

the four elements of the significant and substantial test would be the 

same in all instances where the Secretary proves a violation of section 

70.lOO(a) based upon designated occupation samples. Therefore, rather 

than requiring the Secretary to prove anew all four elements in each 

case, we hold that when the Secretary proves that a violation of 30 C.F.R. 

§ 70.lOO(a), based upon excessive designated occupation samples, has 

occurred, a presumption that the violation is a significant and substantial 

violation is appropriate. We further hold that this presumption that 

the violation is significant and substantial may be rebutted by the 

operator by establishing that miners in the designated occupation in 

fact were not exposed to the hazard posed by the excessive concentration 

of respirable dust, e.g., through the use of personal protective equipment. II 

Thus, with these adaptations, we extend the application of the 

National Gypsum test to the determination of whether a violation of 

section 70.lOO(a), based upon excessive designated occupation samples, 

is significant and substantial. 

II MSHA's policy memorandum, quoted supra, recognizes that the use of 

personal protective equipment will ordinarily preclude a significant and 

substantial finding in connection with violations of 30 C.F.R. § 70.lOO(a). 

899 
III. 

We next address Consol's contention that, in general, MSHA's 

sampling and testing procedures for respirable dust are not sufficiently 

accurate to warrant designating violations of section 70.lOO(a) as 

significant and substantial. Consol argues that the judge was incorrect 

in assuming that the 4.1 mg/m3 average concentration of the five respirable 

dust samples existed for the entire bimonthly reporting period. We do 

not agree. MSHA's designated occupation respirable dust sampling regulation, 

section 70.207 (n. 1, supra), divides the calendar year into six distinct bimonthly periods. By establishing a series of fixed periods for 

sampling, as opposed to providing for a series of periodic samples, the 

standard evidences an intent that the five respirable dust samples taken 

during each bimonthly period will be viewed as representative of the 

mine atmosphere for that particular period. Perhaps other sampling 

methodology could be devised, but we cannot conclude that the bimonthly 

method chosen by the Secretary is unreasonable or otherwise impermissible. 

The judge correctly interpreted the standard and properly held that the 

4.1 mg/m3 average concentration of the five dust samples 

exemplified the mine atmosphere over the course of the entire bimonthly 

sampling period. 

Consol also argues that the variability encountered in the sampling 

procedure produces results that are not representative of the mine 

atmosphere; that mistreatment or malfunction of sampling devices may 

lead to collection of more dust than intended; that sampling devices 

collect materials other than respirable coal dust; that sampling devices 

may collect non-respirable, oversized dust particles; and that the dust 

samples that are collected do not reflect individual miner exposures. 

In American Mining Congress v. Marshall, 671 F.2d 1215 (10th Cir. 

1982), the Tenth Circuit considered MSHA's designated area sampling 

, substantially the same regulations at issue here. There, 

the American Mining Congress challenged the Secretary's regulations on 

both substantive and procedural grounds, alleging that the Secretary had 

acted in an arbitrary and capricious fashion in promulgating the regulations. 

The Tenth Circuit dismissed the petition for review, holding that the 

Secretary's promulgation of the respirable dust sampling program was not 

arbitrary and capricious. On review, Consol offers variations of the 

arguments advanced and rejected in the standards promulgation case. It 

to distinguish those arguments challenging the test results for 

purposes of issuing a citation from those designating the violation as 

significant and substantial. 

We adopt the initial perspective that all sampling methods fall 

short o+ perfection and are designed to provide best estimates of actual 

conditions. As the Tenth Circuit aptly observed: 

Since measurement error is inherent in all sampling, 

the very fact that Congress authorized a sampling 

program indicates that it intended some error to be 

tolerated in enforcement of the dust standard. 

v. Marshall, 671 F.2d at 1256. 

900 
The Mine Act does not require the Secretary to ensure the accuracy 

of respirable dust samples collected by the operator. That responsibility rests with the operator. 30 U.S.C. § 842(a). By prescribing the 

manner in which samples shall be collected and transmitted, the Secretary 

has attempted to minimize the errors inherent in the sampling process. 

30 C.F.R. Part 70, Subpart B. Among other things, these safeguards 

include multiple shift sampling, 30 U.S.C. § 70.207; certification of 

persons collecting samples, 30 C.F.R. §§ 70.202 and 70.203; periodic 

recalibration of sampling devices, 30 C.F.R. § 204; and periodic 

examination, testing, and maintenance of sampling devices, id. The 

results obtained under MSHA's respirable dust sampling program may not 

perfectly represent atmospheric conditions encountered in the mine. 

However, if the operator complies with the mandated collection procedures, the result obtained should be reasonably representative of the 

mine atmosphere. At the hearing there was considerable testimony offered 

to show that mistreatment and malfunction can affect a sampling device's 

ability to produce accurate results. The judge recognized this fact, 

but found that there was no evidence in the record indicating that 

either of these deficiencies had occurred. 5 FMSHRC at 380. The judge's 

finding is supported by substantial evidence. In the absence of the 

necessary showing of actual deficiencies, further consideration of this 

challenge is unwarranted. 

In the Mine Act, Congress deferred to the Secretary's expertise and 

granted him authority to designate approved sampling devices and to 

define what constitutes concentrations of respirable dust. 30 U.S.C. 

§ 842(a). The Secretary has followed the wording of the Mine Act in his 

regulations, referring to "respirable dust" and "respirable coal mine 

dust." See 30 U.S.C. § 842; 30 C.F.R. Part 70. It is argued that the 

Secretary's use of these terms does not draw a distinction between 

respirable coal dust and other benign types of respirable dust. 

Apparently, this wording was used because Congress relied on studies 

based on the Mine Research Establishment ("MRE") instrument in establishing the 2.0 mg/m3 respirable dust standard. The MRE device was not 

designed to differentiate among different dust types and an amalgamated 

approach is therefore reflected in the 2.0 mg/m3 respirable dust standard. 

It is also noteworthy that the respirable dust standard addresses any 

disability from any other occupation-related disease, and that some of 

these diseases, chronic bronchitis for instance, can be caused by any 

type of respirable dust. 

A similar rationale applies to the argument concerning oversized 

particles. Some particles than 10 microns behave aerodynamically 

like smaller particles and are subject to collection by the sampling 

device. Tr. 275-80. This action occurs in the MRE instrument as well 

as other devices approved by the Secretary. Thus, owing to its genesis, 

the 2.0 mg/m3 standard reflects a certain number of these oversized 

particles in that limit. 

The Secretary's respirable dust analysis procedures provide for a 

visual check for oversized particles when a sample reveals a weight gain 

of greater than 6 mg (an MRE equivalent result of 8.6 mg/m3). This 

901 
examination cutoff point was established on the basis of studies showing 

that samples with less than a 6 mg weight gain have a low statistical 

probability of having enough oversized particles present to affect that 

sample's validity. Tr. 281-86. Thus, we find a reasonable relationship 

between the weight gain cutoff point and the validity of the sample. 

Whether this policy always should prevail over an operator's specific 

request that a suspect sample be inspected visually for oversized particles remains an open question. In this case, however, Consol failed 

to articulate to MSHA, or _later to prove, other sufficient grounds to 

bring the accuracy of the samples into question. 

On the basis of the foregoing, particularly the strength of the 

Tenth Circuit's decision in AMC v. Marshall, we reject Consol's sampling 

procedure challenges and conclude that MSHA's general sampling and 

testing procedures for respirable dust are sufficiently accurate to 

designate violations of section 70.lOO(a) as significant and substantial. 

In addition, an operator is not precluded from proving that the accuracy 

of the sampling or testing results in a particular instance was compromised, 

thereby defeating the allegation of a violation as well as a significant 

and substantial finding. Consol presented no persuasive evidence in 

this regard in this case. 

IV. 

Finally, we analyze under the criteria approved earlier in this 

decision whether Consol's violation of the respirable dust standard was 

significant and substantial. 

Consol has admitted that it violated section 70.lOO(a) based upon 

the excessive designated occupation sampling results at issue. Accordingly, 

a prima facie case that this violation was significant and substantial 

was established by the Secretary. Consol did not assert or prove that 

no miners were exposed to the hazard~ We note that the record is devoid 

of any references to the use of personal protective equipment by the 

miners involved here. Accordingly, the significant and substantial 

nature of the violation is established. 

902 
v. 

Based on the facts presented by this case, we conclude that Consol's 

violation of the mandatory respirable dust standard at issue was of such 

nature that it could contribute significantly and substantially to the 

cause and effect of a mine health hazard and affirm the judge's holding 

to that effect. 

On the foregoing bases, the judge's decision is affirmed.§_/ 

Chairman 

of this matter. 

ames A. Lastowka, Commissioner 

~~ 

did not participate in the consideration or disposition 

903 
Distribution 

Robert M. Vukas, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Anna Wolgast, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Timothy Biddle, 

Adrienne J. Davis, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Henry Chajet, Esq. 

Michael Duffy, Esq. 

American Mining Congress 

1920 N Street, N.W. 

Suite 300 

Washington, D.C. 20036 

J. Davitt McAteer, Esq. 

Center for Law & Social Policy 

1751 N Street, N.W. 

Washington, D.C. 20036 

Mary-Win O'Brien, 

United Steelworkers of America 

Five Gateway Center 

Pittsburgh, PA 15241 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005' 

Salvatore J. Falletta, Esq. 

International Chemical Workers Union 

1655 West Market St. 

Akron, Ohio 44313 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, VA 22041 

904 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 25, 1986 

on behalf of DONALD R. HALE 

v. Docket No. VA 85-29-D 

4-A COAL COMPANY, INC. 

BEFORE: Backley, Doyle, Lastowka, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This discrimination proceeding arising under the Federal Mine 

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

the question of whether the administrative law judge properly granted 

the operator's motion to dismiss the Secretary of Labor's discrimination 

complaint alleging that Donald R. Hale's discharge by 4-A Coal Company 

("4-A") was in violation of the Mine Act. Mr. Hale had filed a timely 

discrimination complaint with the Department of Labor's Mine Safety and 

Health Administration ("MSHA"), but the Secretary did not file his 

complaint before the Commission until more than two years later. Respondent 4-A moved to dismiss the Secretary's complaint as untimely. The 

presiding judge, Commission Administrative Law Judge Joseph B. Kennedy, 

granted 4-A's motion and dismissed the complaint. 7 FMSHRC 1552 (October 

1985)(ALJ). For the reasons that follow, we reverse and remand for 

further proceedings. 

4-A operated the No. 4 Mine, an underground coal mine located in 

Buchanan County, Virginia. The Secretary's complaint alleges that 4-A 

discriminated against Hale when it discharged him on June 16, 1983, for 

making safety complaints to management about the lack of a methane 

monitor on his scoop. 1/ Five days after his discharge, Hale filed a 

timely discrimination complaint with MSHA. The Secretary notified 4-A 

of Hale's complaint and commenced an investigation to determine whether 

1/ A scoop is a mechanized vehicle used primarily to transport coal 

from the face to the dumping point. 

905 
a violation of the Mine Act had occurred. On August 14, 1985, more than 

two years after Hale's initial complaint to MSHA, the Secretary filed a 

discrimination complaint with the Commission on Hale's behalf after 

determining that 4-A had violated the Mine Act. 

On September 3, 1985, in response to the Secretary's complaint, 4-A 

filed with the Commission an answer and a motion to dismiss the proceeding. 

As grounds for its motion to dismiss, 4-A contended that the Secretary 

had failed to file his complaint "immediately" with the Commission 

pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), as 

evidenced by the two-year delay in filing. Counsel for the Secretary 

did not file a response to 4-A's motion to dismiss. The administrative 

law judge subsequently granted 4-A's unopposed motion and dismissed the 

Secretary's complaint. 7 FMSHRC at 1552. The Secretary then filed a 

motion for reconsideration, which 4-A opposed. The judge had issued a 

dispositive order in the case and therefore denied the Secretary's 

motion on both legal and jurisdictional grounds. Order dated October 

25, 1985. 2/ The Secretary petitioned the Commission for discretionary 

review of the judge's order of dismissal, and we directed the case for 

review. 

At the outset we reject the Secretary's argument that the Commission's 

procedural rules obligated the judge to issue an order to show cause 

before he dismissed this case. Commission Procedural Rule 63(a) provides: 

When a party fails to comply with 

of a judge or these rules, an order to 

show cause shall be directed to the party before 

the entry of any order of default or dismissal. 

29 C.F.R. § 2700.63(a)(emphasis added). While Rule 63 addresses the 

subject of summary disposition of proceedings, it applies only under the 

specified circumstances. Neither a failure to comply with an order of a 

judge nor a rule of procedure was involved here. Rather, the Secretary 

decided not to file a statement in opposition to 4-A's motion to dismiss 

as permitted by our rules. 29 C,F.R. § 2700.lO(b). The judge was under 

no procedural obligation to issue an order to show cause prior to granting 

4-A's motion to dismiss. Cf. 29 C.F.R. § 2700.64(c); Fed. R. Civ. P. 

56(e) (if a party does not----respond to a summary judgment motion, judgment, 

if appropriate, may be entered against him). 

We also find no merit in the Secretary's argument that the judge's 

dismissal of the complaint was intended as a sanction for the 's 

27 Commission Procedural Rule 65(c) in part provides, "The jurisdiction 

of the Judge terminates when his decision has been issued by the Executive 

Director.n 29 C.F.R. § 2700.65(c). Inasmuch as the judge no longer had 

jurisdiction over the case, his discussion of the merits of the Secretary's 

motion for reconsideration has no legal effect. 

906 
failure to respond to 4-A's motion to dismiss. In his order of dismissal, 

the judge stated: 

[T]he operator filed and served a motion to dismiss 

the captioned wrongful discharge case on the 

grounds it was untimely. Under the Commission 

Rules, the Secretary had 10 days to respond. The 

Secretary having failed to respond or otherwise 

oppose the operator's motion or to seasonably move 

for an enlargement of time, it is ORDERED that the 

operator's motion be, and hereby, is GRANTED and 

the case DISMISSED. See Rules 9, 10, and 41. 

7 FMSHRC at 1552. We find nothing in the text of the judge's decision 

compelling the conclusion that the dismissal was intended as a sanction 

for the Secretary's failure to respond. Furthermore, the Commission 

rules cited by the judge are logically relevant to his decision. We 

also find unpersuasive the Secretary's statement that 4-A's dismissal 

motion, "given its legal and factual deficiencies, did not appear to 

warrant a response." Any motion to dismiss a complaint is a serious 

matter not to be ignored, particularly where, as here, an innocent party 

is dependent upon the Secretary's prosecution of his claim. We expect 

that in the future the Secretary will not treat motions to dismiss 

discrimination complaints so cavalierly. 

Turning to the substantive ground advanced in the motion to dismiss, 

and therefore the ground controlling the judge's dismissal order, 4-A 

summarily contended that the Secretary failed to file his complaint 

"immediately" with the Commission pursuant to section 105(c)(2) of the 

Mine Act, as evidenced by his two-year delay in filing. We find this 

bare ground, without more, to be legally insufficient to sustain the 

motion and therefore conclude that the judge erred in granting it. 

The Mine Act requires the Secretary to proceed with expedition in 

investigating and prosecuting a miner's discrimination complaint. The 

Secretary is required to act within the following time frames: (1) The 

investigation of a miner's complaint "shall commence within 15 days" of 

receipt of the miner's complaint (30 U.S.C. § 815(c)(2)); (2) the Secretary 

"shall notify" the miner, in writing, of his determination as to whether 

a violation of section 105(c)(l) of the Mine Act has occurred "[wJithin 

90 days" of receipt of the m~ner's complaint (30 U.S.C. § 815(c)(3)); 

and (3) if the Secretary determines that there has been a violation of 

the Act, "he shall immediately file a complaint with the Commission." 

30 U.S.C. § 815(c)(2). (Emphasis added throughout.) 1/ Finally, section 

3/ The Commission's rules of procedure implement these provisions. 

Commission Procedural Rule 4l(a) addresses the Secretary's obligation 

under 30 U.S.C. § 815(c)(2) to file his complaint "immediately" with the 

Commission by requiring that the filing be accomplished within 30 days 

of the Secretary's written determination that a violation has occurred. 

29 C.F.R. § 2700.4l(a). Similarly, Commission Procedural Rule 40(b) 

protects miners from investigative delays by permitting them to file 

complaints with the Commission on their own behalf, pursuant to 30 U.S.C. 

§ 815(c)(3), if the Secretary fails to make his written determination of 

violation within the 90-day period prescribed in 30 U.S.C. § 815(c)(2). 

29 C.F.R. § 2700.40(b). 

907 
105(c)(3) of the Act specifically states, "Proceedings under this section 

shall be expedited by the Secretary and the Commission." 30 U.S.C. 

§ 815 (c) (3). 

While the language of section lOS(c) leaves no doubt that Congress 

intended these directives to be followed by the Secretary, the pertinent 

legislative history nevertheless indicates that these time frames are 

not jurisdictional: 

The Secretary must initiate his investigation 

within 15 days of receipt of the complaint, and 

immediately file a complaint with the Commission, 

if he determines that a violation has occurred. 

The Secretary is also required under section 

10[5](c)(3) to notify the complainant within 90 

days whether a violation has occurred. It should 

be emphasized, however, that these time-frames are 

not intended to be jurisdictional. The failure 

to meet any of them should not result in the 

dismissal of the discrimination proceedings; the 

complainant should not be prejudiced because of 

the failure of the Government to meet its time 

obligations. 

S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd 

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

of 1977 at 624 (1978) ("Legis. Hist."). Plainly, Congress clearly 

intended to protect innocent miners from losing their causes of action 

because of delay by the Secretary. 

Related passages of legislative history make equally clear, however, 

that Congress was well aware of the due process problems that may be 

caused by the prosecution of stale claims. See Legis. Hist. at 624 

(discussion of 60-day time limit for the filing of miner:-rs-discrimination 

complaint with the Secretary). The fair hearing process envisioned by 

the Mine Act does not allow us to ignore serious delay by the Secretary 

in filing a discrimination complaint if such delay prejudicially deprives 

a respondent of a meaningful opportunity to defend against the claim. 

Accordingly, we hold that the Secretary is to make his determination 

of whether a violation occurred within 90 days of the filing of the 

miner's complaint and is to file his complaint on the miner's behalf 

with the Commission "immediately" thereafter -- i.e., within 30 days of 

his determination that a violation of section lOS(c)(l) occurred. If 

the Secretary's complaint is late-filed, it is subject to dismissal if 

the operator demonstrates material prejudice attributable to the 

delay. Cf. David Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 23-25 

(January-Y984), aff'd mem., 750 F.2d 1093 (D.C. Cir. 1984)(table); 

Walter A. Schulte v. Industries, Inc., 6 FMSHRC 8, 12-14 (January 

1984). 

908 
Applying these principles to the present record, there is no question 

that the Secretary seriously delayed in filing the complaint. 4/ Nevertheless, 

the record before the judge did not establish that the Secretary's delay 

prejudiced 4-A. In the absence of this requisite foundation, the judge 

erred in granting 4-A's motion to dismiss. 

On the foregoing bases, we therefore reverse the decision of the 

administrative law judge, reinstate the Secretary's complaint and remand 

the case for further proceedings consistent with this opinion. 1/ 

Commissioner ~~~ 

~tl-~ oyceA:DOYie, Commissione 

ames A. Lastow a, 

~(;2 Cooonissioner 

4/ We reject the Secretary's contention that because he filed his 

complaint within 30 days of determining that _a violation had occurred, 

he acted in a timely fashion. This contention ignores the 90-day time 

frame specified in section 105(c)(3) and the possibly prejudicial effect 

of the considerable delay involved here. 

5/ Chairman Ford did not participate in the consideration or disposition 

of this matter. 

909 
Distribution 

Linda L. Leasure, Esquire 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Suite 400 

Arlington, Virginia 22203 

Donald R. Hale 

P.O. Box 1075 

Raven, Virginia 24639 

C.R. Bolling, Esquire 

1600 Front Street 

P.O. Drawer L 

Richlands, Virginia 24641 

Administrative Law Judge Joseph B. Kennedy 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

910 
ADMINISTRATIVE LA\.\T JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210 

June 2, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} 

Petitioner 

v. 

JOLINE I INC. , Respondent 

.Docket No. KENT 85-82 

A. C. No. 15-14382-03510 

No. 3 Mine 

ORDER OF DEFAULT 

The operator having failed to comply with the Pretrial 

Order or to respond to the Order to Show Cause of May 6, 1986, 

it is ORDERED that the operator be, and hereby is, deemed in 

DEFAULT. It is FURTHER ORDERED that pursuant to Rule 63(b) the 

proposed penalties are assessed a inal and the operator 

directed to pay said penalties he amount of $654 on or 

before Friday, June 20, 1986. 

Distribution: 

Joseph B. K nnedy 

Administrative Law 

Mary Sue Ray, Esq., Office of the Solicitor, u. s. Department 

of Labor, 280 u. s. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Robert J. Greene, Esq., Box 432, Betsy Layne, KY 41605 

(Certified Mail) 

dcp 

911 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JUN 5 

KARST ROBBINS COAL COMPANY, 

INC., 

Respondent 

DECISION 

1996 

CIVIL PENTALTY PROCEEDINGS 

Docket No. KENT 85-190 

A. C. No. 15-10904-03534 

Noo 6 Mine 

Appearances: Charles F. Merz, Esq., Office of the Solicitor, 

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

for Petitioner; 

Mr. Edward W. Karst, Operator, Louellen, 

Kentucky, for Respondent 

Before: Judge Kennedy 

These matters came on for a decision after hearing in 

Hazard, Kentucky, on May 22, 1986. At that time, the parties 

proposed settlement of the two violations charged as follows: 

CITATION/ORDER 

2476390 

2476391 

ACTION/PENALTY 

Vacate 

$600.00 

Based on an independent evaluation and de novo review of 

the circumstances, as proffered in the parties' prehearing 

submissions and in the evidence adduced at the hearing, the 

trial judge found the settlement proposed was in accord with 

the purposes and policy of the Act. 

912 
Distribution: 

Charles F. Merz, Esq., Office of the Solicitor, u. S. Department of Labor, 280 u. S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

.Mr. Edward w. Karst, President, Karst Robbins Coal Co., Inc., 

P. O. Box 493, Louellen, KY 40853 (Certified Mail) 

dcp 

913 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 5 1986 

EMERALD MINES COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor 

. . 

: 

. . 

: 

. . 

. . 

DECISION 

CONTEST PROCEEDINGS 

Docket No. PENN 86-133-R 

Order No. 2536796; 4/8/86 

Emerald Mine No. 1 

Appearances: R. Henry Moore, Esq., Rose, Schmidt, Chapman, 

Duff & Hasley, Pittsburgh, Pennsylvania, for 

Contestant; 

James B. Crawford, Esq., Office of the 

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

Virginia, for Respondent; 

Tom Shumaker and Larry Steinhoff, United Mine 

Workers of America, Local 2258, Waynesburg, 

Pennsylvania, for Intervenor. 

Before: Judge Melick 

This case is before me under section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et. ~' the "Act," to challenge a withdrawal order issued 

to Emerald Mines Company (Emerald) by the Secretary of Labor 

under section 104Cd)(l) of the Act.l/ Hearings held May 

1986, and this decision were expedited pursuant to Emerald's 

request. See Commission Rule 52, 29 C.F.R. § 2700.52. 

1/ Section 104(d)(l) provides as follows: 

- "If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory healtft or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act." 

914 
The general issues before me are whether there was a 

violation of the cited standard and if so whether that violation was "significant and substantial" and caused by the 

"unwarrantable failure" of the mine operator to comply with 

that standard. 

The order at bar, No. 2536796, alleges a violation of 

the mine operator's fan stoppa~e plan under the regulatory 

standard at 30 C.F.R. § 75.321_/ and charges as follows: 

The fan stoppage plan was not followed on 4/5/86 

in that the No. 4 Mine fan was down more than 15 

minutes and the persons underground were not 

removed from the mine. The fan went down approximately 13:51 and restarted approximately 14:18. 

As relevent hereto the fan stoppage plan provides that 

"if the fan is down for more than 15 minutes, all personnel 

will be withdrawn from the mine in an orderly manner." 

During relevant. times the Emerald No. 1 Mine was 

equipped with an alarm system which, when properly functioning, would trigger an alarm on the surface in the 

computer room and in the lamp room when any of the mine 

ventilation fans failed to function. It was the established 

procedure for the lampman to make a written notation of the 

time such an alarm would sound and to alert responsible mine 

officials of a fan stoppage and the precise time of stoppage. 

Prompt corrective action could then be taken and, upon the 

lapse of the 15 minute time period set forth in the plan, 

evacuation effected. 

On April 6, 1986, however, the No. 4 fan stopped but 

the alarm system failed to function. Based on computer 

records it is not disputed that the .fan stopped operating at 

1:50 and 50 seconds "computer time." There is no computer 

record of the time the fan resumed operation. The specific 

issue before me is whether or not that fan resumed operation 

prior to the expiration of the 15 minute time period set 

forth in the fan stoppage plan. If it did not then there was 

a violation of the plan since a timely evacuation of the mine 

was not made. 

2; The cited standard is construed to require the operator 

to comply with the fan stoppage plan approved by the Secretary, i.e., the provisions of the plan are enforceable as 

though they were a mandatory standard. See Zeigler Coal Co. 

v. Kleppe, 536 F.2d 398 CD.C. Cir. 1976); Secretary v. Carbon 

County Coal Co., 7 FMSHRC 1367 (1985). 

915 
The Secretary urges as the best evidence of this time 

interval the testimony of maintenance foreman Charlie 

Buttermore. Buttermore testified that according to his watch 

the power went off at 1:59 p.m.~/ It is not disputed that 

the subject fan stopped at the same time the power went off. 

Buttermore further testified that he restarted the No. 4 fan 

at 2:14 p.m. according to his watch. Buttermore later 

compared his watch to the computer clock and found his watch 

to be 7 minutes £aster than the computer clock. 

In sum the Secretary argues that the fan must have gone 

off at 1:57 and 50 seconds (i.e. 1:50 and 50 seconds plus the 

7 minute correction to Buttermore's watch). Implicit in the 

Secretary's argument is t.hat Buttermore' s testimony that the 

power (and thus also the fan) went down at 1:59 p.m. was 

erroneous. According to the Secretary, therefore, the fan 

was down for 16 minutes and 10 seconds, exceeding the 15 

minute time frame set forth in the fan stoppage plan by 1 

minute and 10 seconds. 

Emerald argues on the other hand that Mr. Buttermore's 

testimony of his time recordation standing alone is the best 

evidence of the elapsed time. According to this view the fan 

was down from 1:59 p.m. to 2:14 p.m., and was within compliance of the 15 minute time frame in the fan stoppage plan. 

Buttermore's testimony is not however consistent. It is not 

disputed that the fan went down at 1:50 p.m. and 50 seconds 

"computer time" and that Buttermore's watch was 7 minutes 

faster than that. Accordingly Buttermore's estimate that the 

power went off (and the fan went down) at 1:59 p.m. was 

clearly erroneous. Since the time recordation was within the 

complete control of the mine operator the proffered times 

should also be contrued strictly against the operator. Under 

the circumstances I accept the Secretary's reconstruction of 

the time interval and find that there was a violation of the 

fan stoppage plan by 1 minute and 10 seconds. 

I cannot however find on the facts of this case that 

exceeding the 15 minute time period by 1 minute and 10 

seconds was a "significant and substantial" violation of the 

plan. See Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984). 

3/ The MSHA Investigators also relied upon markings on the 

fan charts (Exhibits G-3 and G-4) to conclude that the No. 4 

fan had actually been stopped for 30 minutes. Other witnesses examining the same records with a magnifying glass 

concluded however that the No. 4 fan had been down for less 

than 15 minutes. From my own examination of those charts 

with a magnifying glass I am unable to ascertain, with any 

degree of C'ertainty, the time interval during which the fan 

was stopped. Under the circumstances I accord but little 

weight to this evidence. 

916 
The reasoning and conclusions of the MSHA inspectors that the 

violation was "significant and substantial" were based on 

their assumption that the plan had been violated by 12 to 15 

minutes not 1 minute and 10 seconds. Clearly the potential 

hazard of methane being drawn from the gob area would be 

greatly reduced by this significant factual change. Under 

the circumstances there is simply insufficient evidence to 

find that the violation was "significant and substantial." 

I further find that the violation was not caused by 

"unwarrantable failure." In Zeigler Coal Company, 7 IBMA 280 

(1977). The Interior Board of Mine Operations Appeals 

interpreted the term "unwarrantable failure" as follows: 

An inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable 

failure to comply with such standard if he 

determines that the operator has failed to abate 

the conditions or practices constituting such 

violation, conditions or practices the operator 

knew or should have known existed or which it 

failed to abate because of lack of due diligence, 

or because of indifference or lack of reasonable 

care. 

The Commission has concurred with this definition to 

the extent that an unwarrantable failure to comply may be 

proven by a showing that the violative condition or practice 

was not corrected or remedied prior to the issuance of a 

citation or order, because of indifference~ willful intent, 

or serious lack of reasonable care. United States Steel 

v. Secretary of Labor, 6 FMSHRC 1423 at 1437 (1984). 

It is clear in this case that the ilure to precise 

record the time of the fan stoppage was the result of an 

unanticipated failure in the alarm system.4/ The designated 

employee, the lampman, was therefore unable to precisely 

record the time the fan went down. Since this time wasu due 

to this unexpected failure, erroneously recorded and that 

erroneous information was conveyed to mine management it 

cannot be said that management knew or even should have known 

of the violation. 

In addition, I find that the manager having what was 

then the best available information, Charlie Buttermore, 

determined in good faith that he restarted the subject fan 

within the 15 minute time frame. Furthermore as soon as 

higher managers realized that the 15 minute time frame might 

have been exceeded they promptly evacuated the mine and 

4; I note in this regard that MSHA does not contend that the 

alarm failure was the result of operator negligence and 

acknowleges that the alarm had been inspected in compliance 

with the regulatory requirements. 

917 
performed a special inspection in accordance with the fan 

stoppage plan. These actions are not consistent with an 

"unwarrantable failure" determination.~/ 

Under the circumstances Order 

to a citation under section 104( ) 

Distribution: 

is modified 

R. Henry Moore, Esq., Rose, Schmidt, Chapman, Duff & Hasley, 

900 Oliver Bldg., Pittsburgh, PA 15222 (Certified Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Tom Shumaker and Larry Steinhoff, United Mine Workers of 

America, Local 2258, Box 95 R.D. #2, Prosperity, PA 15329 

(Certified Mail) 

5/ Since I have found on the facts of this case t~at an 

"unwarrantable failure" did not exist it is not necessary to 

consider Emerald's objections to such findings on the grounds 

that the findings were based on an "investigation" rather 

than an "inspection" and that the alleged violation was 

abated before the order was issued. 

rbg 

918 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

333 W. COLFAX AVENU~, SUITE 400 

DENVER, COlORADO 80204 JUN 5 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE PITTSBURG & MIDWAY 

COAL MINING CO. , 

Respondent 

DECISION 

Docket No. WEST 86-11 

A.C. No. 05-00303-03508 

Edna Mine 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

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

for Petitioner; 

John A. Bachmann, Esq., The Pittsburg & Midway 

Coal Mining Co., Denver, Colorado, 

for Respondent. 

Before: Judge Carlson 

This civil penalty proceeding came regularly on for 

hearing at Denver, Colorado on May 16, 1986. The case involved two citations charging that pins in the steering 

mechanism of two large coal-hauling trucks were loose. The 

inspector cited this alleged condition as a violation of the 

mandatory safety standard published at 30 C.F.R. § 77.404(a) 

which requires that mobile equipment be maintained in safe 

operating condition. 

'rhe Secretary put on his evidence and rested. As 

respondent proceeded with its evidence it became ever more 

apparent that witnesses for the two parties were not only 

in disagreement about the design characteristics of the 

steering mechanisms, but that there were divergent notions 

as to which parts of the trucks were actually the subject 

of the citations. During a recess this judge suggested to 

counsel that they con£er with a view to resolving the 

differences about which parts were involved. The parties 

did so. 

When the hearing reconvened, counsel for the Secretary 

announced that there had been a good faith mistake-of-fact 

on the part of the enforcement authorities, and that the 

Secretary therefore moved to vacate both citations. Counsel 

for respondent agreed with that disposition, and moved for 

919 
leave to withdraw respondent's plea for attorney and 

costs {Tr. 98-99) . 

Having heard the evidence to that point in the case, 

this judge believed that the motions of the parties were 

highly appropriate and announced his intention to grant them. 

Accordingly, both citations in the case are hereby 

ORDERED vacated with prejudice, together with the proposed 

pena.l ties; and respondent's plea for attorney fees and costs 

is ORDERED withdrawn and stricken. This proceeding is dismissed. 

Distribution: 

/' 

'~-w 

J§,,r L._ ~ -

A. Carlson 

nistrative Law Judge 

J.::rn1es H. Barkley 9 • , Off ice of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, 

Denver, Colorado 80294 (Certified Mail) 

John A. Bachmann, • , Pittsburg & Midway Coal Mining Co., 

1720 South Bellaire Street, Denver, Colorado 80222 (Certified 

Mail) 

/ot 

920 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

June 9, 1986 

WHITE COUNTY COAL CORPORATION,: 

contestant : 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

Before: Judge Melick 

. . 

DECISION 

CONTEST PROCEEDINGS 

Docket No. LAKE 86-58-R 

Order No. 28173731 2/6/86 

Docket No. LAKE 86-59-R 

Order No. 2817375; 2/21/86 

Pattiki Mine 

These cases are before me upon the contests filed by the 

White County Coal Corporation (White County) under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq., the "Act, 11 to challenge the issuance by 

the Secretary of Labor of two orders of withdrawal under 

section 104(d) of the Act.~/ 

1/ Order No. 2817373 was issued under section 104Cd)(l) of 

the Act. That section reads as follows: 

"If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act." 

Order No. 2817375 was issued under section 104(d)(2) of 

the Act. That section provides as follows: 

"If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to paragraph Cl), 

a withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar 

to those that resulted in the issuance of the withdrawal 

order under paragraph Cl) until such time as an inspection of 

such mine discloses no similar violations. Following an 

inspection of such mine which discloses no similar violations, the provisions of paragr~ph Cl) shall again be applicable to that mine." 

921 
White County subsequently filed a motion for partial 

summary decision pursuant to Commission Rule 64, 29 C.F.R. § 

2700.64 seeking modification of the orders to citations under 

section 104(a) of the Act. White County maintains that the 

section 104(d) orders at issue are invalid because they are 

not based on existing practices or conditions actually perceived during an inspection by an inspector as purportedly 

required by that section of the Act. The essential underlying facts indeed do not appear to be in dispute and I find 

that White County is entitled to partial summary decision as 

a matter of law. Commission Rule 64, supra. 

On February 6, 1986, an inspector for the Federal Mine 

Safety and Health Administration (MSHA), Wolfgang Kaak, was 

conducting an inspection of the White County Pattiki Mine 

when he discovered that a chalk centerline had been drawn 

under the unsupported roof of room No. 6 from the last row of 

permanent supports inby to the face for a distance of 13 feet. 

It is clear that the inspector was not present when the chalk 

line was drawn and that he did not observe anyone under the 

unsupported roof. 

The coal drill operator, Darrell Marshall, admitted to 

Inspector Kaak however that he had drawn the chalk line in 

question because the mining sequence was behind schedule and 

he was being pressed to keep his coal drilling process going. 

Marshall also admitted that he had walked under the unsupported area even though he had seen the red flag warning of 

the danger. Based upon these observations and admissions 

Kaak thereupon issued section 104(d)(l) Withdrawal Order No. 

2817373 alleging an unwarrantable violation of the standard 

at 30 C.F.Ro § 75.200. That standard provides in pertinent 

part that "no person shall proceed beyond the last permanent 

support o o " • n 

The order reads as follows: 

A chalk centerline was observed on the roof of 

room No. 6 running from the last row of permanent 

supports, roof bolts, inby to the face. This 

area was and had not been supported when the coal 

drill operator, (D. Marshall), made the centerline on the roof. The distance from the last row 

of bolts to the face was 13 feet. Working 

section I.D. 003-0. 

The order was terminated 25 minutes later following crew 

reinstruction on the roof control plan. 

922 
During a subsequent inspection at the Pattiki Mine on 

February 12, 1986, Inspector Kaak observed foot prints 

beneath an area of unsupported roof. Again Kaak did not 

observe anyone under the unsupported roof. Moreover he was 

unable to obtain any further information about the incident 

upon questioning the foreman and miners in the area. Kaak 

nevertheless then issued section 104(d)(2) Order No. 2817375 

alleging an unwarrantable violation of 30 C.F.R. § 75.200. 

The order reads as follows: 

Physical evidence, footprints, were observed 

going through an area of unsupported roof in the 

X-cut between Entry No. 6 and Entry No. 7 at 

curve Y spad No. 1773. The opening averaged 

about 10 feet long by 10 feet wide. The height 

average was 6 feet. The area was rock dusted and 

foot prints were clearly visible. Work section 

I.D. 002-0. 

This order was terminated about 1 hour later after the crew 

was again reinstructed on the roof control plan and the area 

had been permanently supported. 

Citing the decisions of 5 Commission Administrative Law 

Judges (Westmoreland Coal Company, Docket Nos. WEVA 82-34-R 

et al, May 4, 1983, Judge Steffey; Emery Mining Corporation, 

7 FMSHRC 1908, 1919 (1985), Judge Lasher; Southwestern 

Portland Cement Company, 7 FMSHRC 2283, 2292 (1985), Judge 

Morris; Nacco Mining Company, 8 FMSHRC 59 (1986), Chief Judge 

Merlin, review pending; Emerald Mines Corporation, 8 FMSHRC 

324 (1986), Judge Melick, review pending) White County maintains that the section 104(d) orders herein are invalid 

because they were not issued based upon a finding by an MSHA 

inspector of an existing violation of the Act or a mandatory 

standard. 

It is not necessary to here restate the supportive 

rational of the cited decisions. It is sufficient to state 

that I am in agreement with the rational of those decisions 

and the principles stated therein that section 104(d) orders 

cannot be issued based upon a finding by the inspector of a 

violation that has occurred in the past but no longer then 

exists. It is undisputed in this case that the inspector did 

not observe any violations being committed but that he based 

his issuance of the 104(d) orders before me upon evidence of 

past violations. Accordingly White County's motion for 

partial summary decision is granted and the orders at bar are 

accordingly modified to citations under section 104(a) of the 

Act. 

923 
In light of this decision the parties are directed to 

confer and advise the undersigned on or bef June 20, 1986 

regarding further proceedings in this mattei • 

Distribution: 

Timothy M. Biddle, Esq., and Barbara Myers, Esq., Crowell & 

Moring, 1100 Connecticut Ave., N.W., Washington, DC 200036 

(Certified Mail) 

James B. Crawford, Esq., Office of the Solic-itor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

rbg 

924 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

June 10, 1986 

BON TRUCKING COMPANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BON TRUCKING COMPANY, INC., 

Respondent 

. . 

CONTEST PROCEEDINGS 

Docket No. KENT 85-34-R 

Order No. 2472775; 9/25/84 

Docket No. KENT 85-35-R 

Order No. 2472776; 9/25/84 

Docket No. KENT 85-151-R 

Citation No. 2595441; 6/6/85 

: Docket No. KENT 85-152-R 

: Citation No. 2594993; 6/6/85 

Docket No. KENT 85-153-R 

Citation No. 2594994; 6/6/85 

Docket No. KENT 85-154-R 

Citation No. 2594996; 6/6/85 

Docket No. KENT 85-155-R 

Citation No. 2594997; 6/6/85 

Berger No. 2 Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 86-104 

A.C. No. 15-13202-03544 

Berger No. 2 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Melick 

These consolidated cases are before me under section 

105(d) of the Federal Mine Safety and Health Act of 1977 the 

"Act. 11 Proceedings had been stayed in these cases at the 

specific request of the mine operator and the Secretary to 

await the decision of the United States Attorney as to 

whether to present criminal charges. Because of the age of 

these cases and the lack of specific information as to when the 

925 
United Stat~s Attorney might reach a decision in the matter, 

the stay was subsequently dissolved and these cases set for 

hearings on the merits. 

The Secretary thereafter filed a motion to approve a 

settlement agreement and to dismiss the cases. The motion 

reads in part as follows: 

"These citations and orders were issued during 

the investigation of the multiple fatal roof fall of 

September 12, 1984 at the Berger No. 2 mine operated 

by Bon Trucking Company, Incorporated (Bon Trucking). 

They are specially assessed penalties totalling 

$55,000.00. Bon Trucking has offered to settle these 

matters by the voluntary penalty payment of $50,000, 

to be allocated by the Secretary amoung [sic] the 

various violations. The Secretary has agreed, at the 

request of Bon Trucking counsel, to accept payment of 

the agreed amount in five monthly installments, the 

first of which is to be $10,000 due on the last day 

of the month in which the administrative law judge 

approves the settlement, with the remainder being 

paid $10,000 per month for the following four months 

on the last day of each month. It is also understood 

that the total balance will be due together with 

interest and costs as provided by the Federal Mine 

Safety and Health Act of 1977 (Mine Act) and federal 

debt collection laws if Bon Trucking fails to make 

these installment payments as agreed. 

The Secretary submits that the following allocation of the settlement is consistent with the 

remedial purposes of the Mine Act in particular 

Section llO(i), and is in the public interest: 

Citation/Order No. 30 C.F.R. Pro:eosed Settlement 

2272775 75.200 $10,000 $10,000 

2472776 75.200 $10,000 $10,000 

2594994 75.200 $10,000 $10,000 

2594996 75.201 $10,000 $10,000 

2594993 75.200 $ 5,000 $ 5,000 

2594995 75.200 $ 3,000 $ 1,000 

2594997 75.303 $ 5,000 $ 2,000 

2594998 75.1200 $ 2,000 $ 2,000 

TOTAL $55,000 $50,000 

The roof fall collapsed on six miners, killing 

four and injuring two, as indicated in the Secretary's investigation report. The massive roof fall 

occurred in the second set of entries off 1st right 

of the Berger No. 2 Mine, Harlan County, Kentucky. 

The fall occurred while the miners were repairing a 

bridge conveyor, used with the auger-type continuous 

926 
mining machine. A large portion of the roof, about 

100 feet long, 30 feet or more wide, and 10 feet or 

less in thickness, fell and covered one bridge conveyor and part of the mining machine. The Secretary's investigation further revealed that entry and 

cross-cut widths exceeded the allowable widths as 

required by the roof control plan and that mining of 

pillars (second mining) inby the accident area had 

occurred. 

The Secretary's allocation of penalties appropriately places the maximum penalty on those four 

violations which were the greatest contributing 

factors in the roof fall. This allocation properly 

requires full payment of the maximum civil penalty 

proposed for these four roof-control and mining 

method violations. In these violations, Bon Trucking 

was cited for not following the major provisions of 

its approved roof-control plan and for practicing 

mining methods which resulted in faulty pillar 

recovery. In a fifth violation, a $5,000 penalty is 

assessed for the violation citing Bon Trucking for 

mining pillars (second mining) when it did not 

include procedures for such activity or supporting 

the roof during second mining in the roof control 

plan submitted for MSHA's approval. 

Failure to provide supplementary roof support 

materials and failure to conduct a pre-shift examination are violations cited which the Secretary also 

has included in this settlement. These violations, 

in the Secretary's view, contributed to a substantially lesser degree to the cause of the roof fall 

but were issued during the investigation and are 

discussed in the Secretary's report. This lesser and 

indirect relationship to the accident supports the 

reduction of these proposals as indicated. The 

penalty proposal for the up-dated mine map violation 

remains unchanged, since maps provided by the 

operator at the time of the roof fall bore very 

slight resemblance, to the actual mining structure 

and conditions underground. A higher penalty was not 

proposed for this clear violation since, it too, was 

not directly related to the cause of the roof fall. 

The settlement amounts are consistent with what the 

Secretary would expect had the cases been litigated. 

All the violations in these proceedings were 

very serious. 

The Secretary maintains that these violations 

involved negligence ranging from a high degree to 

reckless disregard as described in the copies of the 

927 
citations and orders previously submitted, and 

further maintains that the penalty assessments 

accurately reflect these levels of negligence. Bon 

Trucking denies that any negligent or other tortious 

act or omission on its part caused the roof fall and 

takes the position that for purposes of actions other 

than actions or proceedings under the Mine Act, 

nothing contained herein shall be deemed an admission 

by Bon Trucking that it violated the Mine Act or its 

standards. Therefore, the issue of Bon Trucking's 

negligence is in dispute between the parties. 

The violations were abated in good faith and the 

operator's history of prior violations is not considered a factor in their occurrence. The operator 

is medium in size and the payment of these penalties 

will not adversely effect its ability to remain in 

business. (However, the operator is not presently 

engaged in active operation of a mine.) 

This settlement agreement is the complete 

written agreement between the Secretary and Bon 

Trucking. While the Secretary agrees that this 

settlement is not an adjudication of the issues 

herein in dispute, it is understood by Bon Trucking 

that these citations and orders are final dispositions under the Mine Act and will be considered a 

part of Bon Trucking's history for purposes of the 

Mine Act." 

Based on the representations and documentation submitted 

in these cases I conclude that the proffered settlement is 

appropriate under the criteria set forth in section llO(i) of 

the Act and is consistent with this Commissions decision in 

Secretary v. Amax Lead Company of Missouri, 4 FMSHRC 975 

(1982). 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that Bon Trucking Co., Inc., pay a 

penalty of $50,000 in accordance with the pa ment schedule 

provided in the settlement agreement. The ntest proceedings 

are dismissed. 

928 
Distribution: 

Karls. Forester, Esq., Forester, Forester, Buttermore & 

Turner, P.S.C., P.O. Box 935, Harlan, KY 40831-0935 (Certified 

Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

rbg 

929 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 101986 

EMERY MINING CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'I'ION ( MSHA) , 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEST 86-35-R 

Citation No. 2503818; 10/22/85 

Docket No. WEST 86-36-R 

Order No. 2503819; 10/22/85 

Deer Creek Mine 

DECISION 

Appearances: Timothy Biddle, Esq., and Peter K. Levine, Esq., 

Crowell & Moring, Washington, D.C., 

for Contestant; 

James H. Barkley, Esq., Office of the Solicitor, 

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

for Respondent. 

Before: Judge Morris 

These consolidated cases, heard under the provisions of the 

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

seq., (the Act), arose from a regular inspection of contestant's 

Deer Creek coal mine on October 22, 1985. On that date a federal 

mine inspector issued citations under section i04(d)(l) of the 

Act. 

Emery contests the citations and denies that a violation 

occurred; further, Emery asserts that if a violation occurred it 

was not caused by Emery's unwarrantable failure to comply with 

the regulation. 

The cases were expedited and heard in Salt Lake City, Utah 

on March 5, 1986. Emery submitted two Commission decisions in 

support of its position. The Secretary did not submit any posthearing submissions. 

General Background 

The parties stipulated that Emery is subject to the Act and 

the administrative law judge has jurisdiction over the dispute. 

The citation and order attached to the notices of contest are 

authentic copies of the ones served on Emery. Further, the 

inspector was a duly authorized representative of the Secretary 

of Labor when the citation and order were issued. Finally, the 

citation and order at issue were properly served on Emery CTr. 5, 

6) • 

930 
WEST 86-35-R 

In this case Emery contests Citation No. 2503818. MSHA's 

citation alleges Emery violated 30 C.F.R. § 75.200. The citation 

reads as follows: 

Bad top is present along the First South track haulage 

for approximately 55 feet between the #65 and #66 crosscuts, through this area the roof is broken up and 

and [sic] sagging between the roofbolts, several steel 

roof matts have buckled and several roofbolts have pulled 

through the bearing plates, the chain link has loaded up 

with broken top between the matts causing it to sage 

[sic] on to the trolley gard [sic] compressing it against 

the energized trolley, loaded trips of material have 

rubed [sic] against the top tearing the chain link at 

two locations. 

The cited regulation provides as follows: 

§ 75.200 Roof control programs and plans. 

[STATUTORY PROVISIONS] 

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control 

system of each coal mine and the means and measures to 

accomplish such system. The roof and ribs of all active 

underground roadways, travelways, and working places 

shall be supported or otherwise controlled adequately to 

protect persons from falls of the roof or ribs. A roof 

control plan and revisions thereof suitable to the roof 

conditions and mining system of each coal mine and approved by the Secretary shall be adopted and set out in 

printed form on or before May 29, 1970. The plan shall 

show the type of support and spacing approved by the 

Secretary. Such plan shall be reviewed periodically, at 

least every 6 months by the Secretary, taking into consideration any falls of roof or ribs or inadequacy of 

support of roof or ribs. No person shall proceed beyond 

the last permanent support unless adequate temporary support is provided or unless such temporary support is not 

required under the approved roof control plan and the 

absence of such support will not pose a hazard to the 

miners. A copy of the plan shall be furnished to the 

Secretary or his authorized representative and shall be 

available to the miners and their representatives. 

Summary of the Evidence 

MSHA's Evidence 

MSHA inspector Dick Courtney Jones, a person experienced in 

mining, issued a citation and order in the First South switch 

area of the Emery Deer Creek Mine on October 22, 1985 (Tr. 

14-24). 

931 
At the time the inspector had been travelirig through the 

area with Gary Christensen, the company safety engineer (Tr. 

24-26). They were traveling in a Scout vehicle operating on a 

rail. This particular entry was used daily by over 200 miners, 

including shift foremen and supervisors (Tr. 25-29). 

The coal seam underneath the entry was also being developed. 

As a result there was a lot of caving and settling in the area 

(Tr. 26). A portion of the roof was also secured with chain link 

fencing (Tr. 35). 

The inspector indicated (referring to an area shown on 

exhibl.t Pl) that some of the roof bolts had failed and in turn 

fractured coal was causing the chain link to sag. Four of the 

roof bolts had failed. Also pressure on the bolts had forced the 

six by six metal plates over the head of the bolts CTr. 33-38). 

Such bolts are no longer effective when the roof pressure pushes 

the plates over the end of the bolts (Tr. 34, 35). This is not 

an uncommon occurrence and it indicates "real pressure" in the 

area CTr. 39) • 

During an inspection the roof and rib areas are always 

checked. In a location where the top had been secured with chain 

link fencing the coal had sagged down to a point where the chain 

link was pressing across the trolley (Tr. 35). One of the two 

trolley guards had already worn through. The clearance of a 

trolley wire should be six to eight inches (Tr. 35, 36, 46). The 

trolley wire carries 250 to 300 volts of DC power. If contact 

occurs between the energized trolley and the chain link the 

resulting sparking and heat could cause a serious and hazardous 

fire in a short time (Tr. 37, 38, 44). In the inspector's 

opinion about 65 feet of roof in this area had deteriorated (Tr. 

43) . 

The inspector considered this to be an S & S violation. The 

company should have known of the condition because supervisors 

travel through the area CTr. 50, 51). They could have seen the 

condition of the trolley wire as well as the failed bolts (Tr. 

51, 52}. The loss of bearing plates indicated the bolts were no 

longer sustaining their weight. The leaning timbers in the area 

also confirmed this view. It would take at least a week, 

possibly months before a bearing plate becomes separated from the 

bolt. There are always physical signs before a plate falls off. 

In the area there was no indication of the plates that had been 

forced over bolts (Tr. 40-42, 56). This particular area was also 

subject to a preshift examination (Tr.' 52). The preshift examiner should have checked for any such problems (Tr. 53). The 

inspector found that no entry had been made concerning this condition in the preshift and onshift examinations book (Tr. 53). 

In abating the violation extensive work was required to 

support the roof. This also indicated to the inspector that it 

took a month for the condition to develop (Tr. 44). 

932 
Inspector Jones (in rebuttal) testified that the four popped 

roof bolts were the last ones installed. He concluded this 

because the bolts had been sucked [sic) up against the chain link 

fence. You could also see the plate imprint of the 6 x 6 plate 

on the chain link (Tr. 223, 224). The inspector called this 

condition to the attention of Tucker and Christensen (Tr. 224). 

In addition, there was no evidence of any ~lates laying between 

the chain link fence and the roof (Tr. 224). 

Witness Tucker confirmed inspector Jones' testimony about 

his statement to Christensen (Tr. 226). 

If the trolley wears through the guarding and comes in 

contact with the chain link fence, a fire could result. Also 

there was a possibility of chain link fence striking the miner as 

he was riding through the area. Fire and roof fall hazards 

existed in this area of bad top (Tr. 90, 91). The fracturing of 

the roof and its settlement onto the chain link took one or two 

weeks to occur (Tr. 92-93). 

In Tucker's opinion this condition was apparent and should 

have been known to management on the day of the inspection. In 

addition, in Tucker's view, the condition existed for a week or 

more before the inspection (Tr. 101). But he had no scientific 

background to support his opinion (Tr. 111). 

Emery's Evidence 

Kenneth D. Calihan, Emery's shift foreman, oversees the 

production of coal and is responsible for safety at the Deer 

Creek coal mine (Tr. 140-142). 

The First South track haulage runs from No. 1 crosscut to 

approximately No. 120 crosscut. The area of roof discussed by 

the inspector was approximately from 58 crosscut to 80 crosscut 

(Tr. 143). At the time of the inspection, between crosscut 62 

and 78, there was a row of cribs installed on five-foot centers 

the full length of the area. The mining activities created a 

roof condition known as a squeeze or a roll (Tr. 143, 144). The 

cribs on one side and timber on the other in the 65-66 crosscut 

area provided additional roof support (Tr. 144-146). It was not 

feasible to place timber and cribs any closer (Tr. 147). The 

area cited by the inspector, between crosscuts 65 and 66, was 

developed with 6 foot conventional roof bolts. At various times 

the bottom and top were cut and the area was matted (Tr. 145). 

The mats had some bulges in it from catching the fractured top 

between the gaps in the mats (Tr. 150). 

Calihan returned to the area with Inspector Jones and Max 

Tucker (Tr. 151). The bulging in the chain link did not indicate 

any serious long term problem (Tr. 152). Calihan described how 

933 
the mats were placed parallel to the track and pinned with a 

second set of 6 foot resin roof bolts (Tr. 145, 146). The chain 

link meshing was installed with a trolley drill. Three sets of 

roof bolts were in place. At the time of the inspection the 

roofbolts were spotted on 5 foot centers and they were as close 

as one or two feet (Tr. 146). 

The Emery safety department, as well as its safety committee, monitors this area. Calihan had not had any reports 

about problems in the area in the year before the issuance of the 

citation (Tr. 147). Three fire bosses, who are certified mine 

inspectors and part of the union work force, walk the area once 

each shift (Tr. 148, 149). Caliban could not recall any reports 

of problems in this area (Tr. 149). 

When Caliban was called to 65-66 crosscut he saw that the 

trolley wire was close to chain link mesh in spots (Tr. 152, 153). 

The condition was not obvious (Tr. 153). The wear on the trolley 

wire might have been caused by clearance in the area (Tr. 154). 

In this area some roof bolts had been bent and some were 

missing plates (Tr. 156). Caliban agreed that it takes awhile 

for bearing plates to pop off (Tr. 181, 186). The ones with the 

missing plates were above the wire mesh. They looked old. 

Conventional roof bolts can be distinguished by their style and 

material (Tr. 156). In Calihan's opinion the roof was adequately 

supported (Tr. 156, 157) however, he would change his opinion 

(that the roof was adequately supported) if it was the last group 

of bolts that were losing its bearing plates (Tr. 187). The 

inspector and Calihan only discussed the wire mesh, the trolley 

guard and the roof bolts (Tr. 157). They shook some coal out of 

the wire mesh. There was still a good layer of trolley guard and 

t were ample roof bolts in place (Tr. 157). 

Gary W. Christensen, Emery's safety engineer, testified that 

he had traveled through the 20-foot wide entry for over six years 

(Tr. 188, 189). The entry had been mined to a width of about 10 

feet (Tr. 190). 

Emery has been aware of the movement in the area an0 has 

matted the roof and installed additional roof bolts. On October 

22 Christensen was instructed to check the area for material 

pushing against the chain link (Tr. 192). Christensen clipped 

the chain, dumped out the coal and rewired the chain link (Tr. 

194, 212, 220). As he dumped out the coal the inspector looked 

at the surrounding top. Jones pointed out to the witness that 

the bolts had pulled through some of the bearing plates. The 

plate was still on the top side of the chain link. Christensen 

could not see any newer bolts that had been popped off (Tr. 196). 

Christensen felt that the new bolts that had been installed 

provided adequate support in the area (Tr. 215). The men also 

discussed that the chain link was down against the trolley guard 

(Tr. 196). Jones indicated he wanted immediate action in abating 

the condition (Tr. 197). 

934 
It took 24 hours to abate the condition; further, additional 

bolts were required. In Christensen's view, this additional 

activity wasn't necessary to make the area safe (Tr. 221). 

Discussion 

I credit MSH~'s evidence in resolving the credibility 

conflicts in this case. 

During the inspecting of this entry Inspector Jones observed 

that four roof bolts had "popped" their plates. This indicated 

extreme pressure in the area. In add1tion, there is persuasive 

evidence that the condition existed for at least a week, probably 

longer. This evidence arises from the inspector's opinion. It 

is further supported by the absence of any of the popped plates 

laying in the area, as well as from the imprint on the chain link 

fencing caused by the plates. In short, the most recently installed roof bolt plates were the ones that failed. 

Emery's evidence counters the inspector's view: the 

operator's witness felt the bulging in the chain link fencing 

presented no long term problem. I agree, the bulging in the 

chain link was not pivitol to the violative condition. It merely 

served to focus attention on this portion of the entry. 

Emery's witnesses further claim the roof, although a problem 

area, was adequately supported by the three different sets of 

roof bolts installed with mats on different occasions. Some 

plates were on the top side of the chain link. 

I credit Inspector Jones' contrary evidence and expertise in 

this case. Jones has been a coal mine inspector for eleven years. 

Prior to becoming an inspector he had fifteen years' experience 

as an underground miner including section foreman in the Deer 

Creek mine. He also served as a fire boss (Tr. 15-18). At the 

time of the inspection he was particularly checking the roof and 

rib areas. Witness Tucker further supports the testimony of 

inspector Jones. 

While Emery's witnesses were experienced in underground 

mining I do not consider their expertise to be as persuasive. 

In support of its· position, Emery relies on the Commission 

decision in Westmoreland Coal Company, 7 FMSHRC 1338 (1985) and 

United States Steel Corporation, 6 FMSHRC 1423 (1984). These 

cases are offered in support of Emery's argument that there was 

no violation and, in any event, no unwarrantable failure. Emery 

argues (Tr. 229-230) that it had taken substantial steps to 

control the roof in this area. Further, the problem of the loose 

935 
coal on the chain link was a recent development. I agree that 

this was a problem area. Three sets of roof bolts are not 

installed without a purpose. But it is apparent that the most 

recently installed bolts had "popped" their plates. Witness 

Jones indicated this condition existed for at least a week. 

Witness Caliban agrees that the bearing plates took awhile to 

"pop" off (Tr. 181, 186). Finally, the evidence fails to 

indicate the· presence of any of the popped plates in the area. 

The cases relied on by Emery are not factually controlling. 

Here, the roof bolts had shed their plates at least a week before 

the citation. Emery's inspectors should have detected this condition. No action was taken. In Westmoreland the Conunission 

held there was no "unwarrantable failure" because "each and every 

miner who observed the formation before it fell, including the 

foreman, attempted to bar it down ..• " 7 FMSHRC at 1342. In the 

case at bar an unstable roof was permitted to exist in a travelway for at least a week, probably longer. Emery should have 

known of this condition. 

The Commission decision in United States Steel Corporation 

does not support Emery. To restate the holding in the case at 

bar: Emery's failure to correct this defective roof for a week 

constituted an unwarrantable failure on its part as that term is 

defined by the Commission. 

For the reasons herein stated the contest of Citation 

2503818 should be dismissed. 

WEST 86-36-R 

In this case Emery contests Order No. 2503819. MSHA's order 

alleges Emery violated 30 C.F.R. § 75.200, the same regulation 

allegedly violated in the companion case. 

The order reads as follows: 

A large loose rib is present along the First South 

track at the 3rd West switch. This rib is approximately 

six feet high and 25 feet long and has seperated [sic] 

from the top and main coal seam. The rib is being supported by steel rib bolts and steel matts however the 

weight of the rib has caused several bolts to break or 

pull through the bearing plates and matts. Haulage 

equipment regularly park along this area while switching 

out with equipment traveling to the 3rd West area of the 

mine. 

Summary of the Evidence 

MSHA's Evidence 

After issuing the prior citation Inspector Jones continued 

on in the same entry to the Third West switch area. At this 

936 
area a telephone may be used to obtain clearance to proceed (Tr. 

57, 58; Exhibit P2). The rib adjacent to the switching track was 

clearly fractured the length of its middle; it was undercut; and 

it was separated from the top. Some of the fractures were three 

inches wide. The rib had been bolted with 3 pins in an attempt 

to secure it (Tr. 59, 60, 66). Only two pins were still 

affecting it (Tr. 60). The area.was also experiencing some 

subtle settling (Tr. 60). 

The inspector was concerned that the rib would come off and 

anyone adjacent to it would be crushed (Tr. 60). He has the 

authority to close an area but he did not do so (Tr. 76). After 

the rib was taken down, Emery installed seven cribs, side to side 

(Tr. 61). 

Most of the working section, 200 to 300 men, would use this 

route (Tr. 62, 63). Between 10 and 15 locomotive man trips per 

shift would stop approximately four feet from the rib (Tr. 63-65). 

Frequently men stand near the rib stretching their legs or 

sitting in the man trips (Tr. 65). 

The rib would have come off if this condition had not been 

corrected. A fatality could have occurred (Tr. 69). This 

obvious condition had been deteriorating over a period of months 

(Tr. 69). 

This rib should have been examined by a preshift examiner 

(Tr. 70). 

MSHA's witness Tucker also stated that the bolted 4 to 5-ton 

rib was fractured at the top (Tr. 94). One bolt was hanging 

loose; this left one bolt to hold most of it CTr. 95). The rib 

was undercut about three feet (Tr. 95). On the side of the 

pillar, where the telephone was located, there were two to 

three-inch wide cracks running the length of the rib (Tr. 95, 96). 

The fracture had existed for some time (Tr. 97). 

Management should have known about the rib because it was 

obvious and it should have been known to Emery. In addition, the 

miners would also comment about it (Tr. 97-98, 101, 103). 

About a year before the MSHA inspection a union inspection 

team recommended to the mine foreman that the rib be checked (Tr. 

98-101). In the close out conference following the union 

inspection Emery said some additional support had been placed on 

the rib (Tr. 100). 

Emery's Evidence 

Emery's witness Kenneth Calihan indicated he travels the 

Third West Switch area where this order was issued (Tr. 157). 

937 
In this area only miners between starting and quitting time 

stop to request clearance at the "Y" in the track (Tr. 158, 159). 

The rib that was the subject of the MSHA order was 6 foot 

high and 25 feet long. It had four horizontal and one vertical 

mat. Conventional r6of bolts done about two years before the 

order hold the mats in place (Tr. 159, 161). The vertical mats 

go from the top to the bottom and they are crossmatted across the 

roof (Tr. 159). The purpose of the pinning and matting is to 

hold the rib in place (Tr. 160). If you take it down and widen 

the area you would have to add cribs or timber later (Tr. 160). 

It was observed by almost anyone passing by the area (Tr. 161). 

Fire bosses also walk by this area (Tr. 161). But the mine 

foreman.had not received any reports of problems with this area 

(Tr. 161, 162). 

Caliban didn't think it was necessary to take the rib down 

nor was it evident to him that the back was fracturing (Tr. 164). 

The rib was taken down, but Caliban felt this was more dangerous 

than to leave it up because the worker pulling it down would be 

in danger (Tr. 165). 

Caliban considers that undercutting was deliberately done by 

digging but he ag there were several one to two foot voids 

without foundation under the rib (Tr. 165-167). Calihan could 

see a crack in the rib at the roof but he did not know its depth 

(Tr. 168). He further observed one loose roof bolt (Tr. 170). 

Emery's witness, Gary Christensen, indicated that the Third 

West Switch area is about 1500 feet from the 65-66 crosscut (Tr. 

188, 197). Christensen called his supervisor, Calihan, from this 

area CTr. 197). Inspector Jones, who was present, brought the 

condition of the rib to Christensen's attention (Tr. 198). Jones 

said it wasn't adequately supported and Christensen could see 

that it had pulled away from the rib at the top. The rib was 

batted, pinned and cross matted (Tr. 199). The mat had pulled 

away from the top pin (Tr. 200). He didn't see any cracks in the 

rib (Tr. 201-206). 

The rib is approximately 15 feet from the switch intersection and about the same distance to the telephone booth (Tr. 

202) • 

There was no indication of any recent movement of the rib 

(Tr. 203) . 

Discussion 

I credit MSHA's evidence in resolving the credibility 

conflicts in this case. 

Inspector Jones described the conditions related in the 

summary of the evidence. Emery's evidence takes a lesser view of 

the seriousness of the problem. But Emery's witnesses basically 

confirmed certain physical conditions that establish the vio938 
lative condition. Witness Calihan confirms that the rib was 

undercut and there was a one to two foot "void" under the rib. 

There was also a loose roof bolt. 

Witness Christensen could see that the rib had pulled away 

from the top. 

Discussion 

The obvious physical condition of the rib was essentially 

agreed to by all witnesses. These conditions cause m: to conclude that the rib at this switch area was unstable and not 

adequately supported. For these reasons I concur in MSHA's 

position that a violation occurred. 

Emery argues that it had taken substantial measures to 

secure the rib with bolts and mats. Further, it had been stable 

and solid for over a two-year period (Tr. 229-230). I disagree. 

The unstable condition described by the inspector and witness 

Tucker had clearly existed for a long period of time. This was 

not a "judgment call 11 as contended by Emery. About a year before 

the MSHA inspection, witness Tucker's safety committee recommended to the mine foreman that the rib be checked. 

The contest of Order No. 2503819 should be dismissed. 

Conclusions of Law 

Based on the record and the factual findings made in the 

narrative portion of this decision, the following conclusions of 

law are entered: 

lo The Commission has jurisdiction to decide this case. 

2. Contestant failed to meet its burden of proof in WEST 

86-35-R and WEST 86-36-R. 

3. Contestant's conduct constituted an unwarrantable 

failure to comply with the regulation. 

4o The contests filed herein should be dismissed. 

ORDER 

Based on the foregoing facts and conclusions of law, I enter 

the following order: 

1. The contest filed in WEST 86-35-R is dismissed. 

2. The contest filed in WEST 86-36-R is dismissed. 

Law Judge 

939 
Distribution: 

Timothy Biddle, Esq., Peter K. Levine, Esq., Crowell & Moring, 

1100 Connecticut Avenue, NW, Washington, D.C. 20036 (Certified 

Mail) 

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

of Labor, ·1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

/blc 

940 
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. 

GREENWICH COLLIERIES, 

Respondent 

JUN 111986 

: 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 85-307 

A.C. No. 36-02404-03595 

Greenwich No. 2 Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

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

Health Act of 1977, 30 U.S.C. § 801 et seq. The petitioner 

proposed a civil penalty assessment In the amount of $1,000, 

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

§ 75.316, as stated in section 104(d) (2) Order No. 2407481, 

April 18, 1986. 

This case was docketed for hearing with seven other cases 

in Indiana, Pennsylvania, during the hear;ng term June 3, 4, 

1986. When the case was called for trial, petitioner's counsel 

confirmed that the contested order has been vacated. Counsel 

moved that the civil penalty proposal be withdrawn, and that 

the case be dismissed. In support of the motion, counsel 

asserted that the inspector relied on an incorrect standard and 

that the cited "condition or practice" does not constitute a 

violation of the respondent's approved ventilation plan. 

After due consideration of the petitioner's oral.motion 

to dismiss, IT IS GRANTED, and this case IS DISMISSED. 

cl~a~~ 

941 
Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Joseph T. Kosek, Esq., Greenwich Collieries, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

/fb 

942 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 121986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREENWICH COLLIERIES, 

Respondent 

GREENWICH COLLIERIES, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

Docket No. PENN 86-51 

A.C. No. 36-02404-03608 

Greenwich Collieries No. 2 Mine 

CONTEST PROCEEDINGS 

Docket No. PENN 86-7-R 

Order No. 2549436; 9/3/85 

Docket No. PENN 86-8-R 

Order No. 2549437; 9/3/85 

Docket No. PENN 85-314-R 

Order No. 2549335; 8/30/85 

Greenwich No. 2 Mine 

DECISION AND ORDER OF DISMISSAL 

Appearances: 

Before: 

Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner/Respondent; 

Joseph T. Kosek, Esq., Greenwich Collieries, 

Ebensburg, Pennsylvania, for the Respondent/ 

Contestant. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings were scheduled for hearing 

in Indiana, Pennsylvania, during the hearing term June 3-5, 

1986, along with several other cases involving these same 

parties. Docket No. PENN 86-51, is a civil penalty proceeding 

943 
initiated by MSHA pursuant to section llO(a} of the Federal 

Mine and Health Act of 1977, 30 U.S.C. § 801 et seq. 

MSHA s civil penalty assessments for five allegea-violations certain mandatory safety standards found in Part 75, 

Title 30, Code of Federal Regulations, as charged in five 

section 104(d) (2) orders, with special "S&S" findings, served 

on the respondent Greenwich Collieries in August and September 

1985. Docket Nos. PENN 85-314-R, PENN 86-7-R and PENN 86-8-R, 

are contests filed by Greenwich Collieries challenging 

the legality of three of the orders (2548335, 2549436, and 

2549437). 

Discussion 

The conditions or practices cited as alleged violations 

in these proceedings are as follows: 

Order No. 2549419 - August 22, 1985, 30 C.F.R. 

§ 75.516-2(c). Additional insulation was not provided for the communication circuit (twist wires) 

where they crossed over and under power cables in 

the track entry leading to M3 tailgate of the 

MS longwall working section. This telephone wire 

was twisted around 550 volt pump cables at the 

stribution box at the M3 #2 crossbelt. This box 

was placed in this area on 8-21-85 and the telephone wire should have been seen. This telephone 

wire also crossed 550 volt pump cables in the 

track entry and certified persons should have seen 

this condition. 

No. 2549335 - August 30, 1985, 30 C.F.R. 

An accumulation of combustible material 

of paper, rags, and card board boxes 

was allowed to exist in the f crosscut inby 

the M-2 track switch, within 8-1/2 feet of the 

energized trolley wire 250 D/C power. The 

cardboard boxes measured with a standard rule 

1-1/2 x 2 foot in width, 3 in length. There 

were 8 of them with fiberglass insulation in them. 

There were also several smaller cardboard boxes 

filled with paper and rags this area. This area 

was preshifted on the 4 to 12 p.m. shift at 10:00 

hours, R.B. on the 8/29/85. 

944 
Order No. 2549436 - September 3, 1985, 30 C.F.R. 

§ 75.202. Loose not adequately supported roof was 

present along the M-14 track entry beginning at the 

return overcast and extending inby 42' to spad 76.36. 

The roof in this area was broken in several places 

and contained a cutter along the left rib of which 

4" to 6 11 of rock fell out. The roof supports in this 

area, posts and bolts, showed sign of pressure on them. 

This area is examined each shift during the preshift 

examination. 

Order No. 2549437 - September 3, 1985, 30 C.F.R. 

§ 75.303(a}. An adequate preshift examination was 

not conducted in the M-14 area of the mine in that 

an obvious violation and hazardous condition existed 

along the M-14 track entry and this condition had 

not been reported or recorded in the book provided 

for this purpose on the surface. This area was pre~ 

shifted on the 12:01 a.m. to 8 a.m. shift on 9/3/85 

by Donald Schroyer. It was apparent that this condition existed for a period of time. 

Order No. 2404348 - September 16, 1985, 30 C.F.R. 

§ 75.400. An accumulation of combustible materials 

(lunch wrappers and wax paper) were thrown on the 

mine bottom in the last open crosscut off of the L-1 

entry in the M-5 longwall section ID No. 004. The 

crosscut is used for the men eating dinner. 

When these dockets were called for trial, the parties 

advised me that they had reached a settlement of all of the 

contested violations, and pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30, they jointly moved for approval of the 

proposed settlement. The parties were afforded an opportunity 

to present their proposals on the record, and the proposed 

settlement disposition is as follows: 

30 C.F.R. 

Order No. Date Section Assessment Settlement 

2549419 8/22/85 75.516-2(c) $ 500 $ 100 

2549335 8/30/85 75.400 800 400 

2549436 9/3/85 75.202 1,000 1,000 

2549437 9/3/85 75.303(a) 1,000 1,000 

2404348 9/16/85 75.400 500 250 

945 
The respondent agreed to pay the full amount of the 

$1,000 civil penalty assessments for section 104(d) (2) Order 

Nos. 2549436 and 2549437, issued on September 3, 1985. 

With regard to Order No. 2549335, petitioner's counsel 

asserted that the cited accumulations of trash in question 

were placed in the entry to be picked up by a tractor and 

removed from the mine, but were cited by the inspector before 

this could be done. Under the circumstances, counsel suggests 

that the degree of negligence is not as high as originally 

believed, and that the proposed settlement qf $400 for the 

violation is not unreasonable. 

With regard to Order No. 2404348, petitioner's counsel 

pointed out that the cited accumulations consisted of paper 

materials discarded by the miners immediately after eating 

their dinner on the shift prior to the inspection. Counsel 

believes that the proposed settlement of $250 is reasonable 

under the circumstances. 

With regard to Order No. 2549419, petitioner's counsel 

asserted that the gravity was low and that it was unlikely 

that the cited condition would result in an accident or injury. 

Under the circumstances, counsel believed that the agreed upon 

settlement of $100 is reasonable. 

The parties agreed that the respondent is a medium to 

large size mine operator employing 700 miners at all of its 

operations, and that its annual coal production was approximately two million tons. They also agreed that the annual 

production for the No. 2 Mine is approximately 877,000 tons, 

and that the payment of the civil penalties in question will 

not adversely affect the respondent's ability to continue in 

business. 

The parties agreed that all of the violations were abated 

in good faith within the times fixed by the inspectors. 

Petitioner's counsel confirmed that the respondent's history 

.of prior violations consists of 245 paid assessments for the 

first 9 months of 1985, 214 in 1984, and 155 in 1983. 

Conclusion 

After careful review and consideration of the pleadings, 

and arguments made in support of the joint oral motion to 

approve the proposed settlement disposition of this case, I 

946 
conclude and find that it is reasonable and in the public 

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

motion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

The respondent IS ORDERED to pay civil penalties in the 

settlement amounts shown above within thirty (30) days of the 

date of this decision. Upon receipt of payment by MSHA this 

matter is dismissed. 

In view of the settlement disposition of the civil penalty 

case, including the disputed orders in question which were 

contested, Contest Docket Nos. PENN 85-314-R, PENN 86-7-R, and 

PENN 86-8-R, ARE DISMISSED. 

Distribution: 

Linda M. Henry, Esq., Office 

of Labor, Room 14480 Gateway 

Philadelphia, PA 19104 ( 

~!istrative ~~g~ Law Judge 

the Solicitor, U.S. Department 

lding, 3535 Market Street, 

Mail) 

Joseph T. Kosek, Esq., Greenwich Collieries, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

/fb 

947 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

June 13, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

YOUGHIOGHENY AND OHIO COAL 

COMPANY, 

Respondent 

YOUGHIOGHENY & OHIO COAL 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 86-56 

A.C. No. 33-00968-03629 

Docket No. LAKE 86-57 

A.C. No. 33-00968-03630 

Nelms No. 2 Mine 

CONTEST PROCEEDINGS 

Docket No. LAKE 86-20-R 

Order No. 2823802; 10/17/85 

Docket No. LAKE 86-21-R 

Order No. 2823806; 10/28/85 

Docket No. LAKE 86-30-R 

Order No. 2823831; 11/19/85 

Nelms No. 2 Mine 

Appearances: Patrick M. Zohn, Esq., Office of the Solicitor, 

U"S. Department of Labor, Cleveland, Ohio for 

the Secretary of Labor; 

Robert Co Kota, Esq.~ St. Clairsville, Ohio for 

Youghiogheny & Ohio coal Company. 

Before: Judge Melick 

These consolidated cases are before me under section 

105(d/ of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et. ~, the "Act," to challenge citations and 

withdrawal orders issued by the Secretary of Labor to the 

Youghiogheny & Ohio Coal Company (Y&O). 

948 
Withdrawal Order No. 2823806 issued under the provisions 

of section 104(d)(l) of the Act,l/ alleges violations of the 

mine operator's roof control plan under the regulatory standard at 30 C.F.R. § 75.200. As subsequently modified the 

order charges as follows: 

The roof control plan was again not complied with 

in the 3 section of main East at the following locations: Cl) "A" Entry - the one row of temporary 

roof supports were installed 60 inches, 67 inches, 

70 inches and 62 inches from the face and another 

row of temporary roof supports was required to be 

installed in this area prior to installing the last 

row of bolts in this entry at that time. (2) "D" 

Entry - the last temporary roof supports in the 

second row of supports which was in the right side 

of the entry was [sic] 90 inches from the right rib 

leaving unsupported roof 78 inches from the first 

row temporary roof support on the right side of the 

entry to the face (78 inches X 90 inch area) and 

requiring another temporary roof support prior to 

bolting. (3) D - E crosscut - in the second row of 

temporary row of roof support, one was 20 inches 

from the other, width wise, and the last support on 

the right side was 96 inches from the right rib 

leaving unsupported roof 22 inches from the first 

l;section 104Cd)(l) of the Act reads as followsg 

- nrf, upon any inspection of a coal or other mine, an 

authorized representative of.the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

by such violation do not cause imminent danger, such 

violation is of such r:ature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such citation, an authorized 

representative of the Secretary finds another violation of 

any mandatory health or s ety standard and finds such violation to be also caused by an unwarrantalbe failure of such 

operator to so comply, he shall forthwith issue an order 

requiring the operator to cause all persons in the area 

affected by such violation, except those persons refered to 

in subsection (c) to be withdrawn from, and to prohibited 

from entering such area until an authorized representative of 

the Secretary determines that such violation has been abated." 

949 
row temporary roof support to the face (72 inches X 96 inch 

area) and requiring another temporary roof support prior to 

bolting. 

Y&O does not dispute the factual allegations set forth 

in the order nor that these facts constitute violations of 

its roof control plan page 57 (Appendix A).2/ It argues only 

that the violations were not "significant and substantial" 

and were not caused by its "unwarrantable failure" to comply 

with the roof control plan. 

A violation is "significant and substantial" if Cl) there 

is an underlying violation of a mandatory safety standard, 

(2) there is a discrete safety hazard, (3) there is a reasonable likelihood that the hazard contributed to will result in 

injury, and (4) there is a reasonable likelihood that the 

injury in question will be of a reasonably serious nature. 

Secretary v. Mathies Coal Company, 6 FMSHRC l (1984). 

In this regard MSHA coal mine inspector Franklin Homko 

testified that there had been 17 roof falls during 1985 at 

the Nelms No. 2 Mine and that two of those roof falls had 

occurred in the No. 3 section at issue. Based on this 

history and the noted deviations from the requirements of the 

roof control plan Homko opined that it was reasonably likely 

that a partial or complete roof fall could occur in the area 

cited. He further opined that should a roof fall occur it 

was reasonably likely that miners working beneath the roof 

would receive serious or fatal injuries. 

Assistant Y&O safety director Lawrence Wehr acknowledged 

that the right side of the crosscut between the D and E 

Entries and the D Entry itself were not adequately supported 

and in· fact were "dangerous". Under the circumstances I find 

that the violation was "significant and substantial" and 

serious. 

Unwarrantable failure is defined as the failure by an 

operator to abate a condition that he knew or should have 

known existed, or the failure to abate because of indifference or lack of due diligence or reasonable care. Ziegler 

Coal Corp., 7 IBMA 280 (1977); United States Steel Corp., 6 

FMSHRC 1423 (1984)" In this regard it is not disputed that 

Inspector Homko had, only 3 days before the issuance of the 

2; Y&O understandably did not object to the multiplicity of 

charges set forth in the orders before me Cl6 separate violations charged in the two orders). To the extent that such 

multiple charges prevent separate "significant and substantial" and "unwarrantable failure" findings for each violation 

the practice may short circuit several important enforcement 

mechanisms created by the Act. 

950 
order at bar, cited a similar violation of the operator's 

roof control plan in the same entries now at issue. The 

repetition of the same type of violation within such a short 

time shows indifference or lack of due diligence or reasonable care. 

In addition Homko observed that the cited violative conditions had not been reported in the required on-shift and 

pre-shift reports from October 27, 1985, at 12 p.m. through 

the time he issued the order at bar on October 28. It is not 

disputed that the cited area was subject· to pre-shift and 

on-shift examinations to be performed by state certified 

persons such as a section foreman or fire boss and that any 

defects in roof control must be documented in these reports. 

Homko also observed that notation cards placed in the section 

and initialed and dated by the certified inspectors showed 

that the inspections had been performed after 4:00 pm on the 

27th of October. The failure of these certified inspectors 

to have discovered and reported these violative conditions 

that from their nature should have been fairly obvious, leads 

me to also conclude that the operator should have known of 

the cited violations. 

Under the circumstances I find that the violation was 

caused by the "unwarrantable failure" of the operator to 

comply with the standard. Based on the same evidence I find 

that the mine operator was negligent. Even though some of 

the certified inspectors who failed to detect the violation 

may have been union employees they were clearly acting as 

agents of the operator while performing these pre-shift and 

on-shift inspections. The negligence is in any case therefore attributable to the operator. 

Withdrawal Order No. 2823831, issued under section 

104(d)(l) of the Act, footnote l supra, alleges 8 other 

violations of the operator's roof control plan under 30 

C.F.R. § 75.200 and charges as follows: 

The roof control plan was not complied with in the 

following rooms off "E" Entry of 5 section: (1) 71 

room - the last cut in this room had a cut taken on 

the straight and th~n cut to the left and right of 

the room for the width of the miner leaving an area 

of more than 20 feet wide inby the last row of 

bolts (Fan type cut at face}. This type of side 

cutting is not supported on either side before work 

is done in or inby this area similar to an intersection but not mined to create one. (2) 72 room -

same condition or practice as in No. 71 room, but 

the right cut holed into unsupported roof fan cut 

f rorn the No. 71 room. There was only one post and 

a danger board installed outby the cut. (3) 73 

room - the last cut in this room was also a fan 

951 
type cut from the straight to the left side leaving 

cut over 21-1/2 feet in width. There was only one 

post and danger board installed outby the cut. T. 

Carter, section foreman, supervised mining of the 

No. 73 room and J. Marshall, section forman, mined 

the the No. 71 and 72 room. 

The Secretary contends that the order charges 8 separate 

violat~ons of the plan, namely: Cl> in room 71 the cut taken 

to the left off the last straight cut1 (2) in room 71 the cut 

taken to the right off the last straight cut; C3) in room 72 

in referring to the "same condition or practice as in No. 71 

room" the order refers to the cut taken to the left off the 

last straight cut1 C4) in room 72 the cut taken to the right 

off the last straight cut; (5) the right side cut in the 72 

room was cut so that it holed into the 71 room into unsupported roof created by the left side cut taken in the 71 

room; (6) in the 72 room only one post and a danger board 

were installed outby the cut; (7) in room 73 the cut taken to 

the left off the last straight cut; and (8) in the 73 room 

only one post and a danger board were installed outby the 

cut. 

It is undisputed that the cited cuts were taken in a 

manner depicted on Exhibit GX-8 (Appendix B). Y&O acknowledges that it did not have a sufficient number of posts set 

with a danger sign in rooms 72 and 73 but maintains that it 

did have the requisite danger sign posted and that therefore 

this admitted violation constituted a mere technicality and a 

non "significant and substantial" violation. Y&O denies all 

other alleged violations of the roof control plan. 

The Secretary first alleges that the cut taken to the 

t (violation No. 1) and the cut taken to the right (violaon No. 2) in room 71 violated provisions 16 and 19 on pages 

5 and 56 of the roof control plan and also violated the 20 

foot room width requirments set forth on page 51 of the roof 

control plan. Provision 19 on page 56 of the roof control 

.,:Jlan as clarified at hearing by agreement of the parties 

;,>rranscript 220-224) provides that "the last projected cut in 

room or crosscuts not to be used as travelways need not be 

supported if the entrance to such areas are [sic] posted off 

th one row of supports installed on a maximum of five (5) 

foot centers and ~DANGER 1 signs placed." The Secretary 

argues in its post hearing brief that since the provision for 

the "last projected cut" is expressed in the singular only 

cne cut is permitted and that the side cuts to the right and 

to the left were therefore in excess of the one allowed by 

provision 19. 

Y&O points out on the other hand that provision No. 16 

on page 56 of the roof control plan specifically allows fan 

or side cuts (in the plural) and only requires support if 

952 
work is to be done in or inby. Provision 16 on pa~e 55 of 

the plan reads as relevant hereto as follows: 

Side cuts will be started only in areas that are 

permanently supported. The first side cut on 

either side of a room or entry will be supported by 

either temporary or permanent supports before any 

work is done in or inby the intersection. 

Y&O maintains that it complied with provision No. 16 because 

the continuous miner operator was under supported roof when 

the sidecuts were made and no other work was to be done in or 

inby since mining had been completed in that area. Y&O also 

points out that the sidecuts were in fact begun in areas that 

were permanently supported as required by provision 16 and as 

evidenced by roof bolts shown in the diagrams in evidence. 

The secretary next maintains that if the operator 

intends to take a side cut it must support the roof not only 

in accordance with provision 16 but also in accordance with 

the instructions and diagram found on page 57 (Appendix A). 

Y&O counters however by pointing out that the diagram on page 

57 is applicable only to advancing sections and is not applicable under the specific exceptions set forth in provision 16 

on page 56 of the plan. 

The Secretary argues, finally, that there was nevertheless a violation of the plan because Y&O exceeded the maximum 

room width allowance of 20 feet set forth on page 51 of the 

roof control plan. Y&O maintains on the other hand that the 

cited fan cuts were equivalent to crosscuts and accordingly 

the corresponding room size in those locations must necessarily exceed the 20 foot maximum width otherwise required by 

the roof control plan. 

Upon my own independent examination of the provisions of 

the roof control plan I find that the interpretations place 

upon it by Y&O are the more rational and convincing. 

Accordingly the number 1, 2, 3, 4, and 7 violations have not 

been proven as charged. 

The Secretary maintains that alleged violation No. 5 

i.e., the right sidecut in the 72 room was cut so that it 

holed into the 71 room into unsupported roof created by the 

left side cut taken in the 71 room, was in violation of 

provision 15(a) on page 55 of the roof control plan. That 

provision requires that "mine openings will not be cut 

through to areas that are not totally supported by either 

temporary supports on maximum of five (5) foot centers or 

permanent supports installed on pattern as required by the 

approved plan. 

It is not disputed that the right side cut in room 72 

953 
had indeed been holed through into the left side cut of room 

71 and that the left sidecut of room 71 had not been supported by either temporary or permanent supports. I do not 

find that provision 15Ca) is limited to advancing sections 

and accordingly I find that the violation has been proven has 

charged. According to the undisputed testimony of Inspector 

Homko the greates~ hazard of room falls was presented by this 

holed through area because it exposed a much larger area of 

unsupported roof. This testimony is not disputed and accordingly I find that the violation was "significant and substantial." Mathies Coal Company, supra. 

I also find that this violation was caused by the 

"unwarrantable failure" of the operator to comply with the 

roof control plan. Indeed the operator's excuses that it was 

necessary to hole through to provide ventilation and that it 

did not intend to mine any additional coal after holing 

through provides no defense or justification for the clear 

violation. There are no exceptions for the requirements of 

provision 15(a) and the operator clearly should have known of 

the violation. Indeed it is not disputed that two section 

foremen were actually cutting the side cuts in the manner 

cited. The violation was thus caused by the "unwarrantable 

failure" of the operator to comply with the cited provisions 

of the roof control plan and was the result of a high degree 

of negligence. Ziegler Coal Corp., supra, United States 

steel Corp, supra. 

Inasmuch as Y&O has admitted to the number 6 and 8 violations in that it has conceeded that it did not have the "row 

of supports installed on a maximum of 5 foot centers and 9 DANGER' signs placed" thereon in the No. 72 and 73 rooms, 

those violations are proven as charged. It is conceded however £hat these "supports" are not designed for actual roof 

support but are intended only to warn persons from entering a 

dangerous area. It is also acknowledged that in this case 

one support had been placed at the center of the entrance to 

each of the rooms and that "danger" signs were hung on those 

supports warning persons not to enter the rooms. Under the 

circumstances I do not find that the violation was "significant and substantial" Mathies Coal Company, supra. Since 

the placement of the danger signs was also in substantial 

compliance with the requirements of the roof control plan, I 

do not find that the violation was caused by the "unwarrantable failure" of the mine operator to comply with the plan. 

Since at least one of the eight cited violations (violation No. 5) has been proven as charged with attendant "significant and substantial" and "unwarrantable failure" findings, 

section 104(d)(l) order No. 2823821 is affirmed. 

In determining the appropriate penalties to be assessed 

in this case I have also considered that the mine operator 

954 
abated the cited conditions in a timely and good faith 

manner, that the mine operator is moderate in size and that 

it has a substantial history of violations. There is no 

evidence that the penalties I am assessing herein would have 

any effect on the operators ability to stay in business. 

Accordingly I find that a penalty of $800 is appropriate for 

the violations found in Order No. 2823806 and a penalty of 

$500 for the violations found in Order No. 28238031. 

At hearing the parties agreed to ·settle the remaining 

citations at issue i.e., Citation Nos. 2023802 and 2825317. 

Y&O agreed to pay the penalty of $147 initially proposed by 

the Secretary for the former citation and agreed to pay $25 

(a reduction of $60) for the violation charged in latter citation. I have considered the documentation and representations presented in support of the settlement and find that 

the proposal is appropriate under the criteria set forth in 

section llO(i) of the Act. 

ORDER 

The Youghiogheny and Ohio Coal Company is hereby ordered 

to pay civil penalties of $1,472 within 30 days of the date 

of this decision. Contest Procee9ings Docket Nos. LAKE 86-20-R 

and LAKE 86-21-R are dismissed. Contest Proceeding Docket No. 

LAKE 86-30-R is granted in part and denied in art in accordance with the decision herein. 

Distribution: 

Patrick M. Zohn, Esq., Office of the licitor.1 U.S. Department of Labor, 881 Federal Office Builaing, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

Robert C. Kota, Esq., Youghiogheny & Ohio Coal Company, P.O. 

Box 1000, St. Clairsville, OH 43950 (Certified Mail) 

rbg 

955 
... - ,... .. .• 'l ........... ':', • A. 

APPENDIX A 

g TEMP. SUPPORT 

+ ROOF BOLT 

20" 

SKETCH 3 

BOLTING SilO'.ffi IS TII E MHIH!UM FOR WORKHiG PLACS::;. 

ADDITIONAL BOLTS WILL BE INSTALLED FOR UNUSUAL 

CONDITIONS. TIIE DISTANCE FROM mtE BOLT TO TH~; 

NEXT BOLT OR TO THE RIB WILL NE1(ER EXCEED 4 FEST. ~ 

BREAKTHROl.!:HS WILL NOT BE TIJR.NED OFF ROOMS l.J1iTIL 

THE ROOM IS BOLTED, NOR WILL BRE:AKTHRCOCHS BE 

SEQUENCE OF BOLTING 

WIT!! SINGLE: BOOM BOLTERS 

WILL BE FROM LEFT TO RIGHT A5 FOLLOWS: Si::T 

TEMPORARY PCSTS OR JACKS A,B,G,D,E, AND F (5 ri. 

l"tAXIMUM DISTANCE FROM BOLTS, :UB O:t OTHEfl PCST). 

INSTALL ROOF BOLTS 1,2,J, and 4. (4 FT. 1-L.\XHri.J!·: 

DISTANCE FROM LAST RO'..i OF BOLTS, 4 FT. BETtlEEN 

BOLTS ANO NOT OVER 4 FT. FROM RIB). MOVE POSTS 

A,B, AND C to LOCATIONS G,H, and I, AND INSTALL 

BOLTS 5,6, 7, ~nd 8. CONTINUE MOVING TEMPORA:IY 

POSTS TO NEW LOCATIONS AND IKSTALLING BOL'W lJNTil 

BOLTS ARE INSTALLED TO WIT'nIN 4 FEET OF THE FACE. 

DRIVING DISTANCE 

THE LENGTII OF' CONTINUOUS MINER ADVANCE AFTSR 

BOLTING WILL BE LIMITED TO A DISTANCE WHICH WILL 

KE:EP THE MINER OPERATOR UNDER THE LAST ROW OF 

BOLTS. 
..0 

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7.., 

fl 00"" 

l ~s+ 

73 

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+ 

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Le
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 131986 

RONALD E. MCKINNEY, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

EASTERN ASSOCIATED COAL 

CORPORATION, 

Respondent 

Docket No. WEVA 86-92-D 

MSHA Case No. HOPE CD 86-3 

Keystone No. 2 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This is a discrimination proceeding initiated by the 

complainant Ronald E. McKinney against the respondent pursuant to section lOS(c) of the Federal Mine Safety and Health 

Act of 1977, alleging that the respondent discriminated 

against him by discharging him for exercising certain rights 

afforded him under the Act. Mr. McKinney's initial complaint 

was investigated by MSHA, and it declined to file a formal 

complaint with this Commission. Mr. McKinney subsequently 

retained private counsel who filed this action on his behalf. 

This matter was scheduled for a hearing on the merits in 

Beckley 1 West Virginia, on June 19, 1986. By motion filed 

June 5, 1986, Mr. McKinney's counsel requested leave to withdraw the complaint on the ground that the parties have fully 

resolved their differences and have settled the matter. The 

terms of the settlement agreement are set forth in a four 

page agreement executed by Mr. McKinney and counsel for the 

parties, and they all agree that the settlement terms are fair 

and proper. 

The respondent has agreed to make a lump sum payment to 

Mr. McKinney in complete satisfaction of all claims against 

the respondent, and to change its employment termination 

records from a discharge of McKinney to reflect a voluntary 

resignation. The respondent also agrees that upon receipt of 

any future job reference requests on Mr. McKinney's behalf, 

958 
it will provide information concerning his dates of employment 

and job classifications while in the respondent's employ, 

safety and attendance ratings of "satisfactory," and information reflecting that he is not eligible for rehire due to his 

voluntary resignation. 

Conclusion 

After careful review and consideration of the settlement 

terms and conditions executed by the parties in this proceeding, 

including Mr. McKinney, I conclude and find that it reflects a 

reasonable resolution of his complaint. Since it seems clear 

to me that all parties are in accord with the agreed upon 

settlement disposition of the complaint, I see no reason why it 

should not be approved. 

ORDER 

The proposed settlement IS APPROVED. Respondent IS ORDERED 

AND DIRECTED to fully comply forthwith with the terms of the 

agreement. Upon full and complete compliance with the terms of 

the agreement, this matter is dismissed. 

1~A.~~ Administrative Law Judge 

Distribution: 

Kathryn R. Bayless, Esq., Bayless & Wills, 1625 North Walker 

Street, Princeton, WV 24740 (Certified Mail) 

Sally S. Rock, Esq., Eastern Associated Coal Corporation, 

One PPG Place, Pittsburgh, PA 15222 (Certified Mail) 

/fb 

959 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 161986 

QUARTO MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

M.INE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

QUARTO MINING COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. LAKE 85-72-R 

Citation No. 2330910; 4/8/85 

Powhatan No. 4 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 85-97 

A.C. No. 33-01157-03732 

Powhatan No. 4 Mine 

DECISION 

Appearances: Timothy M. Biddle, Esq., and Thomas C. Means, Esq.~ 

Crowell & Moring, Washington, D.C. for Contestant/ 

Respondent Quarto Mining Company (Quarto); 

Edward H. Fitch, Esq., Office of the Solicitor, 

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

Respondent/Petitioner Secretary of Labor 

(Secretary) 

Before: Judge Broderick 

STATEMENT OF THE CASE 

This is a consolidated contest and civil penalty proceeding, 

in which Quarto challenges the validity of a citation alleging a 

violation of 30 C.F.R. § 75.1106-2, and the Secretary seeks a 

civil penalty for the alleged violation. The parties have 

submitted the case on stipulated facts, including joint exhibits, 

Following submission of the stipulation, Quarto filed a Motion 

for Summary Decision and the Secretary filed a Cross Motion for 

Summary Decision. Both parties have submitted legal briefs. I 

accept the stipulation of facts as constituting the facts in the 

960 
case, and have carefully considered the contentions of the 

parties. 

FINDINGS OF FACT 

Based on the stipulation, I find the following facts: 

Quarto is the operator of an underground coal mine in Monroe 

County, Ohio, known as the Powhatan No. 4 Mine. It produces coal 

which enters and affects interstate commerce. Quarto is a large 

operator and has an average history of prior violations. It has 

had no previous violations of the standard involved in these 

proceedings. Payment of a civil penalty for the alleged 

violation will not adversely affect Quarto's ability to continue 

in business. 

On April 6, 1985, as it had done previously, Quarto placed a 

heavy-duty metal acetylene cylinder and an oxygen gas cylinder on 

a longwall chain conveyor to be moved along the conveyor trough 

toward the headgate of the longwall. The cylinders were placed 

in the confines of a metal chain haul conveyor flight, resting on 

the chains. They were not placed in any special devices designed 

to hold the cylinders in place during transit. As the acetylene 

cylinder travelled along the trough of the chain conveyor, it 

caught against a piece of metal protruding from one of the sides 

of the stationary trough. The cylinder ruptured causing an 

explosion. Seven miners suffered first, second, and/or third 

degrees burns to the upper body and were taken to a hospital. 

MSHA officials conducted an investigation of the accident on 

Saturday, April 6, 1985. A citation was issued at 3:40 p.m. on 

Monday, April 8 alleging a violation of 30 C.F.R. 

§ 75.1106-2(a)(l). Issuance of the citation was delayed in part 

because of MSHA's ~ncertainty whether the standard applied to 

longwall chain conveyors. MSHA had not previously issued a 

citation or order to any operator applying the standard to 

longwall chain conveyors, and no policy memoranda or other 

interpretive document had been issued stating that the standard 

applied to longwall chain conveyors. 

A chain conveyor, such as was on the longwall here, moves 

material by mechanically pushing it across a stationary surface, 

the trough. The material is pushed through the trough by a 

series of regularly placed flights attached to the moving chains. 

In moving coal after it is cut from the face, the chain conveyor 

clears the cut coal and deposits it on a belt conveyor by a stage 

loader at the end of the chain conveyor. A belt conveyor, as 

distinguished from a chain conveyor, provides a moving surface 

Cthe belt) on which material is placed and transported. 

961 
Quarto had rio policy or practice concerning the 

transportation of compressed gas cylinders on longwall chain 

conveyors, but did not believe that any mandatory standard 

prohibited or otherwise regulated the practice. Devices 

generally designed to hold a compressed gas cylinder in place 

during transit on self-propelled equipment or belt conveyors 

would not work on a longwall chain conveyor. After the citation 

involved here was issued, Quarto demonstrated good faith in 

abating the alleged violation within the time set for abatement. 

REGULATION 

30 C.F.R. § 75.1106-2(a)(l) provides as follows: 

(a) Liquif ied and nonliquified compressed gas cylinders 

transported into or through an underground coal mine shall be: 

(1) placed securely in devices designed to 

hold the cylinder in place during transit on selfpropelled equipment or belt conveyors1 

ISSUES 

1. Does the mandatory standard apply only to the 

transportation of compressed gas cylinders on self-propelled 

equipment or belt conveyors? 

2. Do the facts establish that the longwall chain conveyor 

was self-propelled equipment? 

3. Do the facts establish that the longwall chain conveyor 

was a belt conveyor? 

4" If a violation of the mandatory standard is established, 

what is the appropriate penalty? 

CONCLUSIONS OF LAW 

JURISDICTION 

Quarto was subject to the provisions of the Federal Mine 

Safety and Health Act of 1977 (the Act) in the operation of the 

Powhatan No. 4 Mine, and I have jurisdiction over the parties and 

subject matter of this proceeding. 

INTERPRETATION OF REGULATIONS 

The Secretary argues that the Act and the regulations 

promulgated under it should be liberally construed to promote 

their purpose in preserving life and health. Quarto concedes 

962 
that Court decisions support a liberal construction of the Act to 

promote its purpose, but denies that the rule of liberal 

construction applies to the Secretary's regulations. It is 

clear, and Quarto does not contend otherwise, that 

broadly-phrased standards are necessary, and are to be tested by 

whether they inform a reasonably prudent person that the 

.condition or conduct involved was prohibited by the standard. 

Secretary v. Mathies Coal Comapny, 5 FMSHRC 300 (1983); Secretary 

v. Alabama By-Products Corp., 4 FMSHRC 2128 (1982). The basic 

rule of interpretation of a mandatory standard, however, is "the 

plain langauge of the regulation. Absent a clearly expresssed 

legislative or regulatory intent to the contrary, that language 

ordinarily is conclusive." Secretary v. Freeman United coal 

Mining Company, 6 FMSHRC 1577 (1984). As an aid in interpreting 

the language of a regulation, it should be read "in the context 

.of the preventive purpose of the statute." See Secretary v. 

United States Steel Corporation, 5 FMSHRC 3, 5 (1983). When the 

violation of a regulation results in the imposition of a penalty, 

however, the rule of liberal construction must give way to the 

requirement that the regulation give fair notice of the 

prohibited conduct. Diamond Roofing Co. v. OSHRC, 528 F.2d 645 

(5th Cir. 1976); Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189 (9th 

Cir. 1982); Gates & Fox Company v. OSHRC, No. 80-1446 CD •• C. Cir. 

May 13, 1986). Therefore, I look first to the language of the 

regulation involved here to determine whether it fairly gives 

notice that the conduct complained of is prohibited by the 

regulation. 

BREADTH OF THE REGULATION 

The mandatory standard in issue here attempts to regulate 

the transportation of compressed gas cylinders: It requires that 

they be disconnected from hoses and gages; that they be labeled 

"empty" when the gas has been expended; that they may not be 

transported on mantrips; and, Cl) during transit on 

self-propelled equipment or belt conveyors, that they be placed 

securely in devices designed to hold them in place, (2) during 

transit by trolley wire haulage, that they be placed in well 

insulated and substantially constructed containers specifically 

designed for holding them. 

Because the standard specifically refers to certain modes of 

transportation: self-propelled equipment, belt conveyors, trolley 

haulage, mantrips, I conclude that other forms of transportation 

(assuming there are any) of gas cylinders are not regulated by 

the standard. 

SELF-PROPELLED EQUIPMENT 

963 
The Secretary asserts that the chain conveyor involved here 

is a piece of self-propelled equipment, because "the chain and 

flights clearly are self-propelled along the trough," and "the 

chain conveyor is an integral part of the longwall mining unit 

which is also self-propelled equipment." Quarto argues that the 

basis for the citation was the transportation of cylinders on a 

conveyor, and the Secretary is precluded from now changing the 

basis of the citation. It also argues that the chain conveyor is 

not self-propelled equipment. Addressing the latter issue, it is 

clear to me, and I conclude, that a longwall chain conveyor is 

not self-propelled equipment. Part 75 of the regulations (safety 

standards in underground coal mines) uses the term self-propelled 

in referring to self-propelled electric face equipment such as 

cutting machines, shuttle cars, battery powered machines, and 

roof drills and bolters (75.523), in referring to a 

self-propelled mantrip car C75.1100-2Cd)), in requiring that 

operators face in the direction of travel (75.1403-10-(j)), and 

that self-propelled rubber tired haulage equipment have adequate 

brakes, lights and a warning device (75.1403-lOCe)), in requiring 

cabs and canopies for self-propelled electric face equipment 

(75.1710-1). The term self-propelled equipment thus refers to 

equipment which has its own source of power, which moves from 

place to place, and which (ordinarily at least) has an operator. 

A conveyor is not such a piece of equipment. 

CHAIN CONVEYOR-BELT CONVEYOR 

The terms chain conveyor and belt conveyor are not defined 

in the Secretary's regulations. They are defined in the 

Dictionary of Mining, Mineral and Related Terms (United States 

Department of the Interior, 1968) as follows: 

Chain conveyor; scraper chain conveyor. A conveyor 

comprising one or two endless linked chains with 

crossbars or flights at intervals to move the coal or 

mineral. The loaded side of the conveyor runs in a 

metal trough while the empty side returns along guides 

underneath. The material is transported on the 

conveyor partly by riding on the chains and flights and 

partly by being scraped along in the trough ••. 

Belt conveyor. A moving endless belt that rides on rollers 

and on which coal or other materials can be carried for 

various distances. The principal parts of a belt conveyor 

are (1) a belt to carry the load and transmit the pull, (2) 

a driving unit, (3) a supporting structure and idler rollers 

between the terminal drums, and (4) accessories .•• 

These definitions are consistent with the stipulations (10 

and 11) submitted in this proceeding, and very clearly are 

964 
describing two different things, which operate in quite different 

ways. The "plain language" of the regulation would therefore 

seem to preclude applying it to a chain conveyor. More 

importantly, devices generally designed to hold cylinders in 

place during transit on belt conveyors "would not work on a 

longwall chain conveyor." (Stipulation 25). Obviously, 

therefore, in promulgating the regulation involved here, the 

Secretary did not intend to treat chain conveyors as the same as 

or equivalent to belt conveyors. 

The Secretary argues that it was clearly hazardous to move a 

compressed gas cylinder by mechanically pushing it along a chain 

conveyor. And indeed it was hazardous, and caused multiple · 

injuries. It may be that transportation of such cylinders on 

chain conveyors should be banned. But that is not the issue 

before me. Rather the issue is whether such transportation comes 

within the regulation cited, that is, whether the regulation 

fairly notifies the operator that it encompasses transportation 

by chain conveyor. I conclude that it does not. Therefore, I 

conclude that the mandatory standard in 30 C.F.R. § 

75.1106-2(a)(l) does not apply to the transportation of 

compressed gas cylinders on longwall chain conveyors. The 

citation contested here was therefore invalidly issued. 

ORDER 

Based on the above findings of fact and conclusions of law 

IT IS ORDERED that citation 2330910 issued to Quarto on April 8, 

1985 is VACATED. IT IS FURTHER ORDERED that the petition for 

assessment of civil penalty is DENIED. 

Distribution: 

)

l·tM{ ~ ;ftv&rz€;i 

James A. Broderick 

Administrative Law Judge 

Timothy M. Biddle, Esq., Thomas c. Means, Esq., Crowell & Moring, 

1100 Connecticut Ave., N.W., Washington, o.c. 20036 (Certified 

Mail) 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of the 

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

Mail) 

slk 

965 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ODELL MAGGARD, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 171986 

Complainant 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-1-D 

MSHA Case No. BARB CD 85-48 

CHANEY CREEK COAL CORPORATION,: 

Respondent : 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

ODELL MAGGARD, 

Complainant 

v. 

DOLLAR BRANCH COAL 

CORPORATION, 

and 

. . 

. . 

. . 

CHANEY CREEK COAL CORPORATION,: 

Respondents : 

No. 3 Mine 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-51-D 

MSHA Case No. BARB CD 85-48 

No. 3 Mine 

DECISION 

Appearances: Tony Oppegard, Esq., Appalachian Research & 

Defense Fund of Kentucky, Inc., Hazard, 

Kentucky, for Odell Maggard; 

Joseph B. Luckett, Esq., Office of the 

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

Tennessee, for the Secretary of Labor; 

Thomas W. Miller, Esq., Miller, Griffin & 

Marks, P.S.C., Lexington, Kentucky, for 

Respondents. 

Before: Judge Melick 

By decision dated May 8, 1986,_ the Chaney Creek Coal 

Corporation was found to have discharged Odell Maggard in 

violation of section 105(c) of the Federal Mine safetl and 

Health Act of 1977, 30 u.s.c. 801 et~, the "Act."_/ 

Based upon that decision the parties subsequently stipulated 

1/ Following Maggard's refusal to perform what was found to 

be hazardous work, he was denied alternate work and told to 

perform the hazardous task "or else." Maggard's subsequent 

departure from the mine and failure to return was, under the 

circumstances, a constructive discharge. 

966 
that Mr. Maggard would be entitled to net back pay through 

June 1, 1986, of $31,812. Interest was thereafter computed 

based on the formula set forth in Secretary v. Arkansas 

Carbona Co. and Walter, 5 FMSHRC 2042 (1983), at $1,848.19 

through June 1, 1986 (excluding 12 days to compensate for an 

extention in filing the Complainant's brief). The total back 

pay award is therefore $33,660.19. 

The Complainant also seeks an award of attorney's fees 

and expenses totalling $18,016.22. This request is based 

upon a claim of 213.4 hours of legal work at $80 per hour 

plus expenses of $944.22. Section 105(c)(3) of the Act 

provides that "[w]henever an order is issued sustaining the 

complainant's charges under this subsection, a sum equal to 

the aggregate amount of all costs and expenses (including 

attorney's fees) as determined by the Commission to have been 

reasonably incurred by the miner, applicant for employment or 

representative of miners for, or in connection with, the 

institution and prosecution of such proceedings shall be 

assessed against the person committing such violation." 

Respondents object to any attorney's fees arguing that 

the work performed by the Appalachian Research and Defense 

Fund of Kentucky, Inc., (Defense Fund) was "totally unnecessary." They suggest that the Complainant would have been 

"more than sufficiently represented by the Secretary "since 

the Secretary had also brought action against the Respondents 

under section 105Cc)(2) of the Act and argue that the retention of a private attorney under the circumstances was 

"totally unreasonable." 

While the fees of a true "intervenor" in cases where the 

government has a statutory obligation to prosecute may be 

reduced as duplicative (See e.g. Donnel v. United States, 682 

F.2d 240 (D.C. Cir. 1982) cert. denied, 103 s.ct. 1190 Cl983); 

and Rollison v. Local 879, 677 F.2d 741, 748 (9th Cir. 1982)) 

the fees awarded in Maggard's 105(c)(3) proceeding, which was 

parallel in many respects to the Secretary's case but independent of it, should not be reduced. Maggard was not an "intervenor" in these consolidated proceedings and his counsel took 

the lead role in their prosecution. Under the circumstances I 

find that attorney fees may properly be awarded to counsel for 

the Complainant. Such fees were "reasonably incurred by the 

miner" within the meaning of section 105(c)(3). 

In addition the record shows that the Secretary did not 

even decide to bring his section 105(c)(2) case on behalf of 

Mr. Maggard and actually did not file his complaint with this 

Commission until December 26, 1985, nearly 2 months after the 

notice of hearing had been issued in Maggard's section 

105(c)(3) case and only 20 days before the hearings commenced. 

It is therefore likely that the cases would have been delayed 

967 
had Maggard's counsel not taken the prosecutive initiative. 

The Secretary has also on occasion changed his mind about 

bringing section 105(c)(2) cases thereafter leaving the miner 

with no ~eptesentation. Thus there is always uncertainty as 

to whether the Secretary will actually follow through on any 

such decisibn. 

The·recognized method of computing the amount of 

attorney's fees begins by multiplying a reasonable hourly 

rate by ~he' number of hours reasonably expended. Hensley v. 

Eckerhart, 103 S.Ct. 1933 (1983); Blum v. Stenson, 104 S.Ct 

1541 (198_4); Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 

1980). The resulting figure is called the lodestar. The 

lodestar fee may then be adjusted to reflect a variety of 

other factors. 

Respondents do not object to the proposed hourly rate of 

$80. They do object however to what they maintain was time 

devoted to unrelated activities involving communications with 

the Secretary and litigating issues surrounding the Secretary's motion to dismiss Maggard's section 105Cc)(3) case. 

Respondents argue that these matters had nothing to do with 

the anti-discrimination purposes of the Act and did not concern any activities of Respondent. I do not agree. Consultation with the Secretary's counsel and the litigation of 

issues surrounding the Secretary's motion to dismiss are not 

unforeseeable consequences of a discriminatory action under 

the Act. See 2 Court Awarded Attorney Fees ! 16.02(a) Those 

matters were, moreover, clearly "in connection with the institution and prosecution of" proceedings within the context of 

section 105(c)(3). 

Respondents also maintain that the 44-1/2 hours spent 

preparing and writing the post-hearing brief was "totally 

excessive, particularly where there were no unique or complicated legal issues and where the attorney is well versed in 

the area of t.he law." Counsel for Respondents indicates that 

he spent, in comparison," only 15 hours on all aspects of the 

brief, research and drafting." 

The appropriate measure of an attorney's time for 

setting his fees is of course not the actual time spent but 

the time that should reasonably have been spent. Spray-Rite 

Service Corporation v. Monsanto Co., 684 F.2d 1226 (7th Cir. 

1982), Copeland v. Marshall, supra. In this regard I observe 

that the transcript of the proceedings consisted of only 414 

pages and the post-hearing issues were factual (credibility) 

in nature. There were no novel or complex legal issues in 

the case and counsel is familiar with the relevant law. 

Under the circumstances I find that the time proffered as 

expended in this areas was excessive and that a reduction to 

25 hours is warranted for time reasonably expended in this 

regard. 

968 
Respondents next argue that the amount of time spent by 

the Defense Fund was not reasonably related to the amount of 

money in controversy. While the request for attorney fees 

represents approximately one-half of the damage award in this 

case it is erroneous to relate a fee award in a case of this 

nature strictly to the monetary results achieved. Copeland, 

supra at page 888; Munsey v. Smitty Baker Coal Company, Inc., 

et al., 5 FMSHRC 2085 (1983). Indeed it is well recognized 

that market value fee awards in cases such as this take into 

account the need to assure that miners with bona fide claims 

of discrimination are able to find capable lawyers to represent them. Moreover the success in cases such as this represents a vindication of societal interests incorporated in the 

mine safety legislation above and beyond the particular 

individual rights in the case. Under the circumstances the 

fee award in this case is not in the nature of an inappropriate "windfall." 

Respondents argue, finally, that the Defense Fund should 

have used paralegals or investigators at a lower billing rate 

for much of the work. The time an attorney spends on investigating facts is however clearly compensable. 2 Court Awarded 

Attorney Fees t 16.02(b). In any event there is no evidence in 

this case concerning the availability of paralegals and/or 

investigators. 

Under all the circumstances I find that a reduction in 

the amount of time reasonably expended of 19-1/2 hours is 

appropriate. There is no dispute concerning the related 

expenses of $944.22 and accordingly the total amount of 

$16,456.22 is awarded as attorney fees. 

Wherefore Respondents are hereby ordered jointly and 

severally, to pay to Odell Maggard within 30 days of this 

decision damages of $33,660.19 and attorney's fees of 

$16,456.22. 

CIVIL PENALTY 

Based upon information available when the initial 

decision in this case was rendered a civil penalty of $1,000 

was deemed appropriate. At subsequent proceedings on the 

issues of damages and costs, however, it was represented that 

the Complainant, contrary to that decision, had not been 

reinstated. In addition, as of May 29, 1986, the date the 

Complainant's computation of interest was filed, it appears 

that the Complainant had still not been reinstated. 

Accordingly the violation of section 105(c)(l) is continuing and has not been abated. I am therefore directing 

that, in addition to the $1,000 civil penalty previously 

969 
ordered, the Chaney Creek Coal Corporation and the Dollar 

Branch Corporation jointly and severally pay civil penalties 

of $1,000 for each day during which they fail to reinstate 

Mr. Odell Maggard to his former position or similar position 

(at the same rate of pay) held prior to his discharge on 

January 10, 1985, up to a maximum of $9,000. Such additional 

civil penalties shall be incurred commencing on the first day 

after the receipt of this decision by counsel for Respondents. 

Respondents are accordingly directed to pay, jointly and 

severally, a civil penalty of $1,000 and such additional 

penalties as specified herein within 30 day of the date of 

this decision. 

Distribution: 

Tony Oppegard, Esq., Appalachian Re 

Kentucky, Inc., P.O. Box 360, Hazar 

Mail) 

ense Fund of 

(Certified 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Thomas w. Miller, Esq., Miller, Griffin & Marks, P.S.C., 700 

Security Trust Building, Lexington, KY 40507 (Certified Mail) 

rbg 

970 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 171986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

DRUMMOND COMPANY, INC., 

AS SUCCESSOR BY MERGER TO 

ALABAMA BY-PRODUCTS 

CORPORATION, 

Respondent 

CIVIL PENALTY PROCFEDING 

Docket No. SE 86-24 

A.C. No. 01-00323-03557 

Chetopa Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section llO(a} of the 

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

seeking a civil penalty asses.sment in the amount of $700, for 

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

§ 75.200, as stated in a section 104(d) (2) Order No. 2603334, 

served on the respondent by an MSHA inspector on July 30, 1985. 

The respondent filed a timely answer and contest, and the 

case was scheduled for hearing in Birmingham, Alabama, on 

July 16, 1986. However, the parties have now filed a motion 

pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, seeking 

approval of a settlement of the case. The respondent agrees 

to pay a civil penalty in the settlement amount of $500, and 

upon approval, withdraws its request a hearing in this case. 

Discussion 

The respondent received the order in question as a result 

of a continuous miner being operated in violation of the 

roof-control plan. Specifically, the distance from the machine 

controls to the bits of the ripperhead was 20 feet while the 

coal had been cut to a depth of 22 feet inby the last row of 

971 
permanent roof supports. Consequently, the miner operator was 

at least 2 feet beyond the permanent supports. 

In support of the proposed settlement reduction of the 

initial proposed civil penalty assessment in this case, the 

petitioner's counsel asserts that the respondent employs a 

progressive disciplinary program for instances of employee 

misconduct, and that it was implemented in this case. Counsel 

states that the continuous miner operator received a written 

reprimand for violating the roof-control plan. Under the circumstances, counsel argues that the respondent's negligence 

should be considered as slightly moderate, and that in view of 

all of the available evidence, the parties agree that the proposed settlement disposition of this case is proper and in the 

public interest. 

Conclusion 

After careful review and consideration of the pleadings 

and arguments made in support of the motion to approve the proposed settlement disposition of this case, I conclude and find 

that is reasonable and in the public interest. Accordingly, 

pursuant to 29 C.F.R. § 2700.30, the motion IS GRANTED, and the 

settlement IS APPROVED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $500 to the petitioner within thirty (30) days of the 

date of this decision. Upon receipt of payment, this matter is 

dismissed. 

Distribution: 

{:/ /PY~ ~t:'~I' b!ut/-Ps ~ /t~ini~ative Law Judge 

J. Fred McDuff, Esq., Alabama By-Products Corporation, P.O. 

Box 10246, Birmingham, AL 35202 (Certified Mail) 

David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, 

1200 Watts Building, Birmingham, AL 35203 (Certified Mail) 

George D. Palmer and William Lawson, Esqs., Office of the 

Solicitor, U.S. Department of Labor, 2015 Second Avenue North, 

Suite 201, Birmingham, AL 35203 (Certified Mail) 

/fb 

972 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE'. LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

June 17, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

POLLARD SAND COMPANY, : 

Respondent 

Docket No. SE 85-1-M 

A.C. No. 01-02168-05505 

Pollard Sand and Gravel Mine 

DEFAULT DECISION 

Before: Judge Koutras 

Statement of the Case 

This case concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 820(a). Petitioner seeks a civil 

penalty assessment in the amount of $500 for an alleged violation of mandatory safety standard 30 C.F.R. § 56.9-3, as 

stated in a section 104(a) "S&S" Citation No. 2244781, served 

on the respondent by an MSHA inspector on June 28, 1984. 

The respondent filed a timely answer contesting the 

alleged violation, and the case was scheduled for hearing in 

Birmingham, Alabama, on July 16, 1986. Subsequent to the 

issuance of the hearing notice, the respondent's owner and 

operator Ronnie Pollard advised me by letter received May 9, 

1986, that he is out of business and no longer in operation, 

?nd that all of his business assets have been disbursed to pay 

his business obligations. Mr. Pollard further advised that he 

did not intend to attend the scheduled hearing because 11 I am 

no longer in business and have no connection with any corporation under your jurisdiction." 

In view of the respondent's position in this matter, I 

issued an Order to Show Cause on May 23, 1986, requiring the 

parties to state why the respondent should not be declared in 

973 
default and a summary order entered pursuant to Commission 

Rule 63, 29 C.F.R. § 2700.63, assessing the proposed civil 

penalty of $500 as final, and directing that such penalty be 

paid. The petitioner responded within the 15 day time limit, 

and agreed that the respondent may be declared in default. 

The respondent failed to reply to my show cause order. 

Conclusion 

The respondent has been given an ample opportunity to 

refute and defend the alleged violation and proposed civil penalty filed by the petitioner. It seems obvious to me that the 

respondent does not wish to litigate this matter further 

because he is out of business, and he has failed to respond to 

my show cause order. Under the circumstances, I conclude and 

find that the respondent is in default, and that a summary 

order pursuant to 29 C.F.R. § 2700.63, is appropriate under the 

circumstances of this case. 

ORDER 

Judgment by default is entered in favor of the petitioner, 

and I assess the proposed civil penalty assessment of $500 for 

the violation in question as the final assessment in this matter. 

The respondent IS ORDERED to pay the final civil penalty assessment of $500, to the petitioner within thirty {30) days of the 

date of this decision and order. The scheduled hearing is 

cancelled. 

Distribution: 

t2:L'~ ~~~ 7~Koufr~ Administrative Law Judge 

George D. Palmer, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 

35203 (Certified Mail) 

Pollard Sand Company, Route 2, Box 361-C, Gadsden, AL 35203 

(Certified Mail) 

Mr. Ronnie Pollard, Dixie Concrete Company, 111 North Harriss 

Avenue, Piedmont, AL 35272 (Certified Mail) 

/fb 

974 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 181986 

YOUGHIOGHENY AND OHIO COAL 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

YOUGHIOGHENY AND OHIO COAL 

COMPANY, 

Respondent · · 

CONTEST PROCEEDING 

Docket No. LAKE 86-4-R 

Order. No. 2495235; 9/10/85 

Nelms No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 86-26 

A.C. No. 33-00968-03621 

Nelms No. 2 Mine 

DECISION APPROVING SETTLEMENT 

Before: Juoge Kennedy 

When the parties' motions to withdraw and approve 

settlement were before me in February, I denied them unless 

the amount of the settlement proposed was increased from 

$150 to $250. This was based on my belief that the operator's 

alleged failure to install new bolts to abate the condition 

cited measurably increased the negligence and gravity of 

the violation. A review of the Secretary's prehearing 

submissions, however, shows that MSHA is not claiming that 

the failure to abate properly changed the character of the 

violation from that of non-S&S to that of significant and 

substantial. 

The premises considered, therefore, it is ORDERED that 

the order of February 28, 1986 be, and hereby is, VACATED 

and the parties motions to withdraw and settle this matter 

by payment of a penalty of $150 be, and hereby are, APPROVED. 

It is FURTHER ORDERED that the operator pay the amount of 

the settlement agreed upon, $150, on or before Friday, 

July 6, 1986 and that subject to payment the captioned 

matter be DISMISSED. Finally, 'it is ORDERED that the hearing 

scheduled for Thursday, Ju 26, 1986 be, and hereby is, 

CANCELLED. 

975 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ANN RILEY 

MONTEREY 

Before: 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 181986 

OWENS, DISCRIMINATION 

Complainant 

Docket No. LAKE 

v. 

VINC CD 85-21 

COAL COMPANY, 

Respondent Monterey No. 2 

DECISION APPROVING SETTLEMENT 

Judge Kennedy 

PROCEEDING 

86-33-D 

Mine 

For good cause shown, it is ORDERED that the parties 

confidential settlement agreement and stipulation for settlement 

and dismissal be received in camera and under seal. It is 

FURTHER ORDERED that pursuant to such agreement and the parties' 

joint motion to dismiss the settlement be, and hereby is, 

APPROVED and subject to payment of the sum agreed upon the 

matter DISMISSED. 

Distribution: 

Ms. Ann Riley Owens, 910 Morrison, St. Louis, MO 63104 

(Certified Mail) 

Thomas c. Means, Esq., Crowell & Moring, 1100 Connecticut 

Avenue, N.W., Washington, D.C. 20036 (Certified Mail) 

slk 

976 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 181986 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

977 

CONTEST PROCEEDINGS 

Docket No. WEVA 86-80-R 

Citation No. 2714701; 12//11/85 

Docket No. WEVA 86-103-R 

Order No. 2566327; 1/9/86 

Docket No. WEVA 85-209-R 

Citation No. 2422888; 5/30/85 

Docket No. WEVA 85-210-R 

Citation No. 2422889; 5/30/85 

Docket No. WEVA 85-230-R 

Order No. 2422891; 6/19/85 

Docket No. WEVA 85-231-R 

Order No. 2422892; 6/19/85 

Docket No. WEVA 85-232-R 

Order No. 2422893; 6/19/85 

Docket No. WEVA 85-234-R 

Order No. 2423426; 6/25/85 

Docket No. WEVA 85-235-R 

Order No. 2423427; 6/25/85 

Buckeye Prep Plant 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 85-277 

A.C. No. 46-03243-03505 

Docket No. WEVA 86-237 

A.C. No. 46-03242-03506 

Buckeye Prep Plant 
Before: 

DECISIONS APPROVING SETTLEMENTS 

AND 

ORDER OF DISMISSAL 

Judge Koutras 

Statement of the Proceedings 

·These consolidated proceedings concern proposals for 

assessment of civil penalties filed by MSHA against the 

Consolidation Coal Company (hereinafter Consol) pursuant to 

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

1977, 30 u.s.c. § 820(a), seeking civil penalty assessments 

for six alleged violations of certain mandatory safety standards found in Part 77, Title 30, Code of Federal Regulations. 

The contests concern Notices of Contests filed by Consol 

challenging the legality of three of the citations, and six 

section 104(b} orders which were issued for Consol's alleged 

failure to timely abate the citations in question. The citations and orders were issued during mine safety inspections 

of a refuse pile associated with the Buckeye Preparation Plant 

located in Stephenson, West Virginia. 

These cases were scheduled for hearings in Charleston, 

West Virginia, during the hearing term June 17 through 19, 

1986. However, by motion filed with me on June 5, 1986, pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, the parties 

seek approval of a proposed settlement of the civil penalty 

proceedings. Upon approval of the settlement, MSHA requests 

that the contests be dismissed. The citations, initial assessments, and the proposed settlement amounts are as follows: 

Docket No. WEVA 85-277 

Citation No. 

2022955 

2022956 

2123823 

2422888 

2422889 

Date 

9/06/83 

9/06/83 

10/24/83 

5/30/85 

5/30/85 

Docket No. WEVA 86-237 

Citation No. Date 

27114701 12/11/85 

30 C.F.R. 

Section 

77. 215 (a) 

77. 215 (h) 

77.215(j) 

75.215-2(c) 

77.215-3(b) 

30 C.F.R. 

Section 

77.215(f) 

978 

Assessment Settlement 

$ 78.00 $ 78.00 

$ 78.00 $ 78.00 

$ 78.00 $ 78.00 

$180.00 $ 85.00 

$180.00 $ 85.00 

Assessment Settlement 

$395.00 $275.00 
Discussion 

In support of the proposed settlement disposition of the 

citations in question, MSHA's counsel has submitted a full 

discussion and disclosure with respect to the facts and circumstances concerning the violations, including arguments in 

support of the proposed reduction of the initial civil penalty 

assessments for three of the citations. Counsel has also provided a full discussion of the six statutory criteria found in 

section llO(i) the Act. 

With regard to Citation Nos. 2422888 and 2422889, MSHA's 

counsel states that they were issued for failure by Consol 

to file reports and certifications pursuant to 30 C.F.R. 

§ 77.215. Counsel asserts that these violations are of low 

gravity, are not significant and substantial violations, and 

would not, in themselves, cause injury or lost work days. 

Counsel concludes that the proposed settlement reduction~ are 

justified. 

With regard to Citation No. 27114701, coun states that 

it was issued for a violation of 30 C.F.R. § 77.215(f), because 

an erosion gulley in excess of 12 feet deep was causing refuse 

at the pile to shift and slide material down a hi ide towards 

adjacent residences. However, counsel points out that the 

violation has abated in that the erosion gulley has been 

filled and the se rediverted away from the residences and 

nearby stream, and that this was accomplished after a bi-party 

conference and visitation to the site in February 1986. 

Counsel also points out that Consol has agreed to develop and 

submit to MSHA a schedule of a plan to permanently reclaim and 

site" In view of Consol 1 s good faith efforts 

believes that the proposed 1 penalty 

is justif 

MSHA recognizes that Consol delayed the abatement of the 

violations because of its litigation position denying ownership 

and operation of the refuse le in question. Consol's position in this was rejected by former Commission Judge 

Richard Co Stef in his decision of March 1, 1985, in 

Consolidation Coal Company v. S of Labor, 7 FMSHRC 322 

(March 1985). On March 13, 1 , court of 

Appeals denied Consol's appeal and affirmed Judge Steffey's 

decision. 

MSHA estimates that approximately one million dollars 

will be needed to properly rehabilitate the refuse pile in 

accordance with Federal safety standards, and it recognizes 

979 
that available financial resources are best spent on such 

rehabilitation efforts and that the proposed civil penalty 

settlement amounts are consistent with the remedial purposes 

of the Act. In this regard, MSHA asserts that the violations 

are being abated in good faith and that Consol's history of 

prior violations shows no related violations. 

Conclusion 

After careful review and consideration of the pleadings 

and arguments made in support of the proposed settlement disposition of the civil penalty cases, I conclude and find that 

they are reasonable and in the public interest. Accordingly, 

pursuant to 29 C.F.R. § 2700.30, the settlements ARE APPROVED. 

ORDER 

Consol IS ORDERED to pay civil penalties in the set~lement amounts shown above to MSHA within thirty (30) days of 

the date of these decisions. Upon receipt of payment, the 

civil penalty cases are dismissed. 

Consol has filed a motion to withdraw Contest Docket No. 

WEVA 86-80-R, upon approval of the civil penalty which is the 

subject of Docket No. WEVA 86-237. The motion IS GRANTED, and 

the contest IS DISMISSED. 

With regard to the remaining contest dockets, in view of 

the approval of the companion civil penalty Docket No. 

WEVA 85-277, I see no reason why these contests should not now 

be dismissed. Accordingly, the remaining contests ARE DISMISSED. 

/~ Administrative Law Judge 

Distribution: 

Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

/fb 

980 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 191986 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

Docket No. VA 85-32-D 

MSHA Case No. NORT CD 84-7 

EARL KENNEDY, 

LARRY COLLINS, 

v. 

Mine No. 1 

Complainants 

RAVEN RED ASH COAL 

CORPORATION, 

Appearances: 

Before: 

Respondent 

AMENDED DECISION 

Sheila K. Cronan, Esq., Off of the Solicitor, 

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

for the Complainants; 

Daniel R. Bieger, Esq., Copeland, Molinary & 

Bieger, Abingdon, Virginia, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

by the complainants against the respondent pursuant to section 

105(c) of the Federal Mine Safety and Health Act of 1977. The 

complainants contended that they were discharged from their 

employment with the respondent because of refusal to work 

under unsupported roof. 

On April 7, 1986, I issued my decision in s case. I 

concluded and found that the complainants were fired by the 

respondent because of their sal to work under unsupported 

roof. I further concluded and found that the work refusal was 

protected activity under the Act, and their discharge by 

the respondent for this reason constituted a violation of 

section 105(c} (1) of the Act. The respondent was ordered to pay 

981 
complainant Earl Kennedy the sum of $2,170 in backpay, less any 

amounts normally withheld pursuant to state and Federal law, 

with interest at 9 percent until paid. The respondent was 

ordered to pay complainant Larry Collins the sum of $10,600, 

ss any amounts normally withheld pursuant to state and Federal 

law, with interest at 9 percent until paid. I also assessed a 

civil penalty in the amount of $1,000, for the violations in 

question, and entered an order requiring the respondent to remit 

payment of same to MSHA within 30 days. 

By motion filed with me on April 23, 1986, MSHA requested 

reconsideration of my decision of April 7, 1986, to delete the 

reference to the 9 percent interest rate, and to require the 

respondent to pay interest on the backpay awards in accordance 

with the Commission-approved formula in Secretary ex rel. Bailey 

v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2050-2054 (Dec. 1983). 

MSHA also requested further leave to submit a statement stating 

the total amount of interest due on the back wage award to each 

complainant, and suggested that the respondent be given 10 days 

within which to file a reply. MSHA's motion was granted, and 

on May 2, 1986, I issued an Amended Decision affording MSHA an 

opportunity to file its requested monetary relief on behalf of 

the complainants, and the respondent was afforded an opportunity 

to file a reply. 

By letter and enclosures filed with me on June 2, 1986, 

MSHA submitted its backpay and interest summaries supported by 

detailed computations for both complainants. According to 

these computations, complainant Larry Collins is due backpay in 

the amount of $10,600, with interest computed through June 2, 

1986, in the amount of $1,640.57, for a total of $12,240.57. 

Complainant Earl Kennedy is due backpay in the amount of $2,170, 

with interest computed through June 2, 1986, in the amount of 

$403.29 for a total of $2,573.29. MSHA's computations also 

reflect that interest will continue to accrue to Mr. Collins 

through June 30, 1986, in the amount of $2.94 daily, and to 

Mr. Kennedy in the amount of .60 daily. 

The respondent f led to respond to MSHA's motion of 

April 23, 1986, for an amended decision, and it also failed to 

reply to MSHA's submissions concerning the due the 

complainants. 

ORDER 

1. My decision of April 7, 1986, as amended on May 2, 

1986, is further amended to incorporate the aforementioned 

monetary relief requested by MSHA on behalf of complainants 

Earl Kennedy and Larry Collins. 

982 
2. Respondent IS ORDERED to pay to the complainant 

Earl Kennedy the sum of $2,170, less any amounts normally withheld pursuant to state and Federal law, with interest computed 

through June 2, 1986, in the amount of $403.29, for a total of 

$2,573.29. Interest will continue to accrue to Mr. Kennedy in 

the amount of .60 daily, through June 30, 1986, and thereafter 

in any amount computed in accordance with the Arkansas-Carbona 

Co. formula. 

3. Respondent IS ORDERED to pay to the complainant Larry 

Collins the sum of $10,600, less any amounts normally withheld 

pursuant to state and Federal law, with interest computed 

through June 2, 1986, in the amount of $1,640.57, for a total 

of $12,240.57. Interest will continue to accrue to Mr. Collins 

in the amount of $2.94 daily, through June 30, 1986, and thereafter in any amount computed in accordance with the ArkansasCarbona Co. formula. 

4. Respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $1,000 for the violations in question. 

5. All payments required to be made by the respondent in 

accordance with my decision, as amended, shall be made within 

thirty (30) days of the date of this amended decision. 

~~K~~ Administrative Law Judge 

stribution: 

Sheila K. Cronan, Esq. Office of the Solicitor, U.S. Department 

of Labor~ 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203 

(Certified Mail) 

1 R. , Esq., Copeland, Molinary & Bieger, P.O. 

Box 1296, Abingdon, VA 24210 (Certified Mail) 

/fb 

983 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COlFAX AVENUE, SUITE 400 

DENVER, COlORADO 80204 JUN 201986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COBBLESTONE, LTD., 

Respondent 

. . 

Docket No. WEST 86-52-M 

A.C. No. 05-03950-05501 

Cobblestone Pit Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

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

for Petitioner; 

Respondent was absent. 

Before: Judge Carlson 

This civil penalty proceeding came regularly on for hearing 

at Grand Junction, Colorado on May 2, 1986. At the outset of the 

hearing, counsel for the Secretary of Labor announced that he had 

reached a settlement with the respondent on the previous evening 

which, if approved, would resolve all matters in dispute. He 

also announced that respondent's representative had elected not 

to attend the hearing in view of the settlement, but had authorized him to recite the substance of the agreement for the record. 

Mr. Lloyd, respondent's representative, has since confirmed the 

par culars of the agreement by letter. 

The terms of the settlement are as follows: 

The Secretary moves to withdraw citations 2376695 arid 

2376699 for lack of sufficient evidence. 

Of the remaining 18 citations, the penalties for all are to 

be $20.00 and those which were originally classified as 

"significant and substantial" are to be classified as "nonsignif icant and substantial." 

Based upon the representations of the Secretary at the 

hearing and the contents of the file, I conclude that the 

settlement agreement should be approved in all respects. 

984 
Accordingly, the settlement provisions set forth above are 

ORDERED approved. Citations 2376695 and 2376699 are vacated. A 

total civil penalty of $360.00 is assessed for the remaining 18 

citations, which sum shall be paid within 50 days of the date of 

this decision. 

Distribution: 

John A. Carlson 

Administrative Law Judge 

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

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Cobblestone, Ltd, Mr. Leonard W. Lloyd, P.O. Box 173, Pagosa 

Springs, CO 81147 (Certified Mail) 

/blc 

985 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 201986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COBBLESTONE, LTD., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-55-M 

A.C. No. 05-03950-05502 

Cobblestone Pit Mine 

Appearances: James H. Barkley, Esq., Office of the Solicitor u.s$ Department of Labor, Denver, Colorado, 

for Petitioner; 

Respondent was absent. 

Before: Judge Carlson 

This civil penalty proceeding came regularly on for hearing 

at Grand Junction, Colorado on May 2, 1986. At the outset of 

the hearing, counsel for the Secretary of Labor announced that 

he had reached a settlement with the respondent on the previous 

evening which, if approved, would resolve all matters in dispute. 

He also announced that respondent's representative had elected 

not to attend the hearing in view of the settlement, but had 

authorized him to recite the substance of the agreement for the 

record. Mr. Lloyd, respondent's representative, has since confirmed the particulars of the agreement by lettero 

terms of the proposed settlement are as follows~ 

The .;enalty for citation 2376711 is reduced from $79.00 to 

$29o00o 

The penalty for combined citation/order 2376712 and 2376742 

is reduced from $225000 to $125.00o 

Conditioned upon these reductions, respondent agrees to withdraw its notices of contest. 

Based upon the representations of the Secretary made upon the 

record and the contents of the file, I conclude that the settlement agreement is appropriate and should be approved. 

986 
Accordingly, the settlement agreement is ORDERED 

approved in all respects. A total civil penalty of $154.00 

is assessed, to be paid to the Secretary of Labor within 

50 days of the date of this decision. 

Distribution: 

' John A. Carlson 

Administrative Law Judge 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, 

Denver, Colorado 80294 (Certified Mail) 

Mr. Leonard W. Lloyd, Cobblestone, Ltd., P.O. Box 173, 

Pagosa Springs, Colorado 81147 

/ot 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 20, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THOMPSON COAL & CONSTRUCTION, 

INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 85-119 

A. C. No. 46-06646-03502 

Docket No. WEVA 85-124 

A. C. No. 46-06646-03503 

River Mine 

ORDER DENYING MOTIONS TO SET ASIDE ORDERS OF DEFAULT 

Before: Judge Broderick 

On June 13, 1986, the operator filed motions to set aside 

orders of default and permit filing of answer. Orders of default 

in these cases were entered on April 27 and April 28 for failure 

of the operator to submit answers. Pursuant to section 113 of 

the Federal Mine Safety and Health Act of 1977, these orders 

became final Commission decisions on June 6 and June 7. No 

sufficient reason has been offered which would justify relief 

from the judgment as provided by Rule 60(b) of the Federal Rules 

of Civil Procedure, as referenced by Commission Rule l(b), 

29 C.F.R. § 2700.l(b). 

Accordingly, the motions to set aside the default orders in 

these cases are DENIED. 

{j{/f1LU'.~ d ;,/// dvvt~d( , James A. Broderick 

v Acting Chief Administrative Law Judge 

Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, U. S. Department 

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

Philaaelphia, PA 19104 (Certified Mail) 

Charles G. Johnson, Esq., Johnson & Johnson, Thompson Coal & 

Construction, Inc., 222 Goff Building, P. O. Box 2332, 

Clarksburg, W-V 26301 (Certified Mail) 

Mr. James w. Thompson, President, Thompson Coal & Construction, 

Inc., P. O. Box 228, Clarksburg, WV 26301 (Certified Mail) 

/gl 

988 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 2 31986 

WILLIAM D. SHELL, 

RALPH CORNETT, 

JACK FARLEY, 

JIM ENGLE, 

Complainants 

v. 

HARLAN-BELL COAL, INC., AND 

REECE LEMAR, 

Respondents 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

WILLIAM D. SHELL, 

RALPH CORNETT, 

JACK FARLEY, 

JIM ENGLE, 

RAYMOND HALCOMB, 

CHARLES ROBBINS, 

Complainants 

v. 

HARLAN-BELL COAL, INC., AND 

SHAUNA DAREASE COAL CO., 

Respondents 

DISCRIMINATION PROCEEDING 

Docket Nos. KENT 8 144-D 

KENT 85-145-D 

KENT 85-146-D 

KENT 85-147-D 

DISCRIMINATION PROCEEDING 

Docket Nos. KENT 85-210-D 

KENT 85-211-D 

KENT 85-212-D 

KENT 85-213-D 

KENT 85-176-D 

KENT 85-177-D 

DECISION APPROVING SETTLEMENT 

Before: Judge Maurer 

Statement of the Case 

This is a discrimination proceeding initiated by the 

complainants against the respondents pursuant to section 

105(c) of the Federal Mine Safety and Health Act of 1977, 

(the Act) charging the respondents with unlawful discrimination against the complainants for exercising certain rights 

afforded them under the Act. The matter was scheduled for 

hearing in Berea, Kentucky, on May 21, 1986, but was continued when the parties advised me a proposed settlement 

disposition of the dispute. 

989 
On June 3, 1986, the parties filed joint settlement 

agreements proposing to dispose of this matter. Included 

as part of the negotiated settlement is an agreement by the 

respondents to pay certain sums to each complainant as 

follows in three equal installments on May 21, 1986, 

June 20, 1986, and July 21, 1986: 

William D. Shell 

Ralph Cornett 

Jack Farley 

Jim Engle 

Raymond Halcomb 

Charles D. Robbins 

$6,000.00 

$6,088.25 

$7,678.13 

$6,542.50 

$6,000.00 

$6,542.50 

Likewise, the respondents agreed to pay the Appalachian 

Research and Defense Fund of Kentucky, Inc. the total sum 

of $6,500.00 for attorney's fees and expenses. In addition, respondents agreed to expunge the personnel files 

of the complainants concerning their discharge from employment on or about January 3, 1985, and substitute therefor 

the agreed upon particular language applicable to each case. 

In the case of William D. Shell, his personnel file shall 

also reflect that he was returned to an active work status 

in September 1985, but due to low coal demands, his employment has again been temporarily suspended. He shall be 

immediately reinstated to a permanent full-time position 

at his regular rate of pay when economic conditions improve. 

In the case of Raymond Halcomb, respondents agreed that his 

temporary reinstatement is converted to permanent full-time 

reinstatement at his current hourly wage. 

The Secretary waived the assessment of a civil penalty 

for violations of § lOS(c) of the Act in order to facilitate the agreement and thereby provide speedy economic relief to the complainants. 

Conclusion 

After careful review and consideration of the settlement terms and conditions executed by the parties in this 

proceeding, including the individual complainants, I conclude and find that it reflects a reasonable resolution of 

the complaints. Since it seems clear to me that all parties 

are in accord with the agreed upon disposition of the 

complaint, I see no reason why it should not be approved. 

ORDER 

The proposed settlement IS APPROVED. Respondents ARE 

ORDERED AND DIRECTED to fully comply forthwith with the 

990 
terms of the agreement. Upon full and complete compliance 

with the terms of the agreement, these matters are dismissed. 

aurer 

istrative Law Judge 

Distribution: 

W. F. Taylor, Esq., Office of the Solicitor, U. S. Department 

of Labor, 801 Broadway, Room 280, Nashville, TN 37203 

(Certified Mail) 

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

Kentucky, Inc., P. o. Box 360, Hazard, KY 41701 (Certified 

Mail) 

Rudy Yessin, Esq., 411 W. Broadway, P. 0. Drawer B, Frankfort 

KY 40602 (Certified Mail) 

Steve Cundra, Esq., Thompson, Hyde & Flory, 1920 N St., NW, 

Washington, DC 20036 (Certified Mail} 

Sidney Douglass, Esq., 101 Court St., Harlan, KY 40831 

(Certified Mail) 

yh 991 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 51986 

JOHNNIE LEE JACKSON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

TURNER BROTHERS, INC., 

Respondent 

Docket No. CENT 86-36-D 

MSHA Case No. MADI 8 

Rogers No. 2 Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint initially filed by MSHA on behalf of the complainant Johnnie Lee 

Jackson against the respondent pursuant to section 105(c} of 

the Mine Safety and Health Act of 1977. Mr. Jackson 

claimed that he was discharged by the respondent because he 

made safety complaints concerning an unsafe bulldozer which 

he operated while in the respondent's employ. Mr. Jackson was 

involved in an accident while operating the bulldozer, and the 

respondent claimed that he was fired for causing the accident, 

and that his discharge was in accord with company pol 

regarding accidents caused by its employees. 

On January 22, 1986, MSHA filed an Application for Temporary Reinstatement on Mr. Jackson's behalf, and a hearing on 

the application was conducted in Muskogee, Oklahoma, on 

February 5, 1986. Subsequently, on March 18, 1986, I issued 

a decision denying Mr. Jackson's temporary reinstate~ent, and 

a hearing on the merits of the complaint was scheduled for 

June 25, 1986, in Muskogee, Oklahoma. 

On May 5, 1986, MSHA filed a motion to withdraw its representation of Mr. Jackson. As grounds for its motion, MSHA 

stated that it had "discovered information which would have 

caused the Secretary to reject Mr. Jackson's complaint had that 

information been available when the investiqation report was 

reviewed.". MSHA stated further that 11 under-these circumstances, 

the Secretary is obligated not to pursue the matter on behalf 

of Mr. Jackson and not to compel respondent to defend an action 

that should not have been filed. 11 

992 
On May 7, 1986, I issued an order granting MSHA's motion 

to withdraw its representation of Mr. Jackson. Mr. Jackson 

was directed to file a complaint within 30 days on his own 

behalf or through counsel of his own choosing. Mr. Jackson 

failed to file such a complaint, and on June 10, 1986, I 

issued an Order to Show Cause as to why this matter should not 

be dismissed because of Mr. Jackson's failure to file a complaint on his own behalf. Mr. Jackson has failed to respond 

to my order. Under the circumstances, I conclude and find that 

this matter should now be dismissed because of Mr. Jackson's 

failure to pursue his complaint. 

ORDER 

In view of the foregoing, this matter IS DISMISSED. The 

hearing previously scheduled in Muskogee, Oklahoma, IS CANCELLED. 

. (r/ • . ., A. A' ~ .. //// t:..·.,...z· uf _, 1..Georg~ ·Administrative 

~<"Kout as 

Law 

,~ Judge 

Distribution: 

Johnnie Lee Jackson, Rt. 1, Box 5 {57 Lot 21), Talala, OK 74080 

{Certified Mail) 

Robert Petrick, Esq., North Highway 69, P.O. Box 447, 

Muskogee, OK 74402 {Certified Mail) 

/fb 

993 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 301986 

WHITE C_Q~JiTY COAL CORPORATION,: CONTEST PROCEEDINGS 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent . . 

Docket No. LAKE 86-sa~R 

Order No. 281-7373; 2/6/86 

Docket No. LAKE 86-59-R 

Ordei No. 28173751 2/21/86 

Pattiki- Mine 

ORDER OF DISMISSAL 

. By interlocutory decision dated June 9, 1986, (Appendix 

A) the Motions for Summary Decision filed by the Contestant 

were granted in the captioned cases and the.withdrawal orders 

therein were accordingly modified to citations under section 

104(a) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 814(a). By letter dated June 24, 1986, Contestant 

states that it does not dispute either the existence of the 

violations alleged in these citations or the "significant and 

substantial" findings associated therewith. Accordingly 

section 104(a) Citation Nos. 2817373 and 2817375 are affirmed 

with "significant and substantial" findings. These Contest 

Proceedings have accordingly been rendered mootl '.and ar 

therefore dismissed. P· \. \ . '' 

\ \1lv 'I 

Gary Meli_l ck 

Administ.'ative 

Distribution: 

Timothy M. Biddle, Esq., and Barbara M ers, Esq., Crowell & 

Moring, 1100 Connecticut Ave., N.W., shington, DC 20036 

(Certified Mail) 

James Bo Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

rbg 

994 
APPENDIX A 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 9 1986 

WHITE COUNTY COAL CORPORATION,: CONTEST PROCEEDINGS 

Contestant : 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

Docket No. LAKE 86-58-.R 

Order No. 2817373; 2/6/86 

Docket No. LAKE 86-59-R 

Ordei No. 2817375; 2/21/86 

Pattiki·Mine 

DECISION 

Before: Judge Melick 

These cases are before me upon the contests filed by the 

White County Coal Corporation (White County) under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq., the "Act," to challenge the issuance by 

the Secretary of Labor of two orders of withdrawal under 

section 104(d) of the Act.l/ 

1/ Order No. 2817373 was issued under section 104(d)(l) of 

the Act. That section reads as follows: 

"If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent qanger, such 

violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act." 

Order No. 2817375 was issued under section 104Cd)(2) of 

the Act. That section provides as follows: 

"If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to paragraph (1), 

a wlthdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar 

to those that resulted in the issuance of the withdrawal 

order under paragraph (1) until such time as an- inspection of 

such mine discloses no similar violations. Following an 

inspection of such mine which discloses no similar violations, the provisions of paragraph Cl) shall again be applicable to that mine." 

995 
White County subsequently filed a motion for partial 

summary decision pursuant to Commission Rule 64, 29 C.F.R. § 

2700.64 seeking modification of the orders to citations under 

section 104Ca) of the Act. White County maintains that the 

section 104Cd) orders at issue are invalid because they are 

not based on existing practices or conditions actually per~ 

ceived during an inspection by an inspector as purportedly 

required by that section of the Act. The essential underlying facts indeed do not appear to be in dispute and I find 

that White County is entitled to partial summary decision as 

a matter of law. Commission Rule 64, supra. 

On February 6, 1986, an inspector for the Federal Mine 

Safety and Health Administration CMSHA}, Wolfgang Kaak, was 

conducting an inspection of the White County Pattiki Mine 

when he discovered that a chalk centerline had been drawn 

under the unsupported roof of room No. 6 from the last row of 

permanent supports inby to the face for a distance of 13 feet. 

It is clear that the inspector was not present when the chalk 

line was drawn and that he did not observe anyone under the 

unsupported roof. 

The coal drill operator, Darrell Marshall, admitted to 

Inspector Kaak however that he had drawn the chalk line in 

question because the mining sequence was behind schedule and 

he was being pressed to keep his coal drilling process going. 

Marshall also admitted that he had walked under the unsupported area even though he had seen the red flag warning of 

the danger. Based upon these observations and admissions 

Kaak thereupon issued section 104(d)(l) Withdrawal Order No. 

2817373 alleging an unwarrantable violation of the standard 

at 30 C.F.R. § 75.200. That standard provides in pertinent 

part that "no person shall proceed beyond the last permanent 

support •••• " 

The order reads as follows: 

A chalk centerline was observed on the roof of 

room No. 6 running from the last row of permanent 

supports, roof bolts, inby to the face. This 

area was and had not_ been supported when the coal 

drill operator, CD. Marshall), made the centerline on the roof. The distance from the last row 

of bolts to the face was 13 feet. working 

section I.D. 003-0. 

The order was terminated 25 minutes later following crew 

reinstructibn on the roof control plan. 

996 
During a subsequent inspection at the Pattiki Mine on 

February 12, 1986, Inspector Kaak observed foot prints 

beneath an area of unsupported roof. Again Kaak did not 

observe anyone under the unsupported roof. Moreover he was 

unable to obtain any further information about the incident 

upon questioning the foreman and miners in the area. Kaak 

nevertheless then issued section 104(d)(2) Order No. 2817375 

alleging an unwarrantable violation of 30 C.F.R. § 75.200. 

The order reads as follows: 

Physical evidence, footprints, were observed 

going through an area of unsupported roof in the 

X-cut between Entry No. 6 and Entry No. 7 at 

curve Y spad No. 1773. The opening averaged 

about 10 feet long by 10 feet wide. The height 

average was 6 feet. The area was rock dusted and 

foot prints were olearly visible. Work section 

I.D. 002-0. 

This order was terminated about 1 hour later after the crew 

was again reinstructed on the roof control plan and the area 

had been permanently supported. 

Citing the decisions of 5 Commission Administrative Law 

Judges (Westmoreland coal Company, Docket Nos. WEVA 82-34-R 

et al, May 4, 1983, Judge Steffey; Emery Mining Corporation, 

7 FMSHRC 1908, 1919 (1985), Judge Lasher; Southwestern 

Portland cement Company, 7 FMSHRC 2283, 2292 (1985), Judge 

Morris; Nacco Mining Company, 8 FMSHRC 59 (1986), Chief Judge 

Merlin, review pending; Emerald Mines Corporation, 8 FMSHRC 

324 (1986), Judge Melick, review pending) White County maintains that the section 104(d) orders herein are invalid 

because they were not issued based upon a finding by an MSHA 

inspector of an existing violation of the Act or a mandatory 

standard. 

It is not necessary to here restate the supportive 

rational of the cited decisions. It is sufficient to state 

that I am in agreement with the rational of those decisions 

and the principles stated therein that section 104(d) orders 

cannot be issued based upon a finding by the inspector of a 

violation that has occurred in the past but no longer then 

exists. It is undisputed in this case that the inspector did 

not observe any violations being committed but that he based 

his issuance of the 104Cd) orders before me upon evidence of 

past violations. Accordingly White County's motion for 

partial summary decision is granted and the orders at bar are 

accordingly modified to citations under section 104Ca) of the 

Act. 

997 
In light of this decision the parties are directed to 

confer and advise the undersigned on or bef re June 20, 1986 

regarding further proceedings in this matte • 

I 

\ 

..-L_.-----...\ 

' 

Distribution: 

Timothy M. Biddle, Esq., and Barbara Myers, Esq., Crowell & 

Moring, 1100 Connecticut Ave., N.W., Washington, DC 200036 

(C~rtified Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

rbg 

998 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 301986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

GATEWAY COAL COMPANY, 

Respondent 

Docket No. PENN 85-260 

A. C. No. 36-00906-03584 

Gateway Mine 

DECISION 

Appearances: Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Penn~ 

sylvania, for Petitioner; 

Before: 

George S. Brooks, Esq., Lexington, Kentucky, 

for Respondent. 

Judge Maurer 

Statement of the Case 

This case is before me upon a petition for assessment 

of civil penalties under section lOS(d} of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. section 801, et seq., 

the "Act," in which the Secretary initially had chargedthe 

Gateway Coal Company with five (5) violations of the mandatory safety standards. However, prior to the commencement 

of taking testimony in this case, the Secretary vacated 

§ 104{a) Citation Nos. 2398789 and 2398784 and also withdrew 

the civil penalty assessment concerning Citation No. 2397333. 

I approved the vacation and withdrawal of the above three 

(3) citations on the record. 

The remaining two alleged violations were tried before 

me at a scheduled hearing on 'April 23, 1986, at Pittsburgh, 

Pennsylvania. 

The general issues before me are whether the company 

has violated the regulatory standards as alleged in the 

petition and, if so, the appropriate civil penalty to be 

assessed for the violation(s). 

Since the respondent readily admits the regulatory violations of 30 C.F.R. § 75.1725(a) alleged in Citation No. 

2399220 (GX-1) and 30 C.F.R. § 75.1403 alleged in Citation 

999 
No. 2397217 (GX-2), the specific issues before me for resolution concerning these violations are whether they are 

"significant and substantial" (S&S) violations and what the 

proper penalty should be. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Tr. 7-8): 

1. The Gateway Mine is owned and operated by the 

Gateway Coal Company. 

2. The Gateway Mine is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977. 

3. The .undersigned administrative law judge has 

jurisdiction over these proceedings. 

4. The subject citations were properly served by a 

duly authorized representative of the Secretary of Labor, 

upon an agent of the respondent, at the dates, times, and 

places stated in the citations, and may be admitted into 

evidence for the purpose of establishing their suance, 

but not necessarily for the truthfulness or relevance, 

or any of the statements contained therein. 

5. The assessment of the civil penalties in this 

proceeding will not affect the respondent's ability to 

stay in business. 

6. The appropriateness of the penalties, if any, 

to the size of the coal operator's business should be based 

on the fact that the Gateway Mine's annual production tonnage, as of the time of the issuance of the citations, 

was nine hundred and sixty-one thousand, one hundred and 

sixty-six (961,166). 

7. The respondent demonstrated ordinary good faith 

in attaining compliance after the issuance of each citation. 

8. The Gateway Mine was issued three hundred and 

thirty seven (337) citations in the twenty-four months 

immediately preceding the issuance of these citations 

involved in this case. 

9. The parties stipulate to the authenticity of 

the exhibits to be entered. 

1000 
Discussion and Analysis 

Section 104(a) Citation No. 2399220 was issued to the 

operator because a personnel (jeep) that was equipped 

with a dead man switch had that switch wired into the "closed" 

position. It had in effect been rendered inoperative. This 

is a violation of 30 C.F.R. § 75. 25(a) and is admitted by 

the operator. 

Section 104(a) Citation No. 2397217 was issued to the 

company because another personnel carrier (jeep) did not 

have the required reflectors on one side. The company had 

previously been issued a notice to provide safeguards requiring that all self-propelled personnel carriers (jeeps) 

be equipped with reflectors on both ends and both sides 

(GX-4). This is a violation of 30 C.F.R § 75.1403 and again 

is readily admitted by the operator. 

Inspector Francis E. Wehr testified that he issued 

§ 104(a) Citation No. 2397217 on February 1, 1985, during 

an inspection of the Gateway Mine. In his opinion, since 

the jeep was missing reflectors on the tight side, the 

hazard created was that if it was coming on to a piece of 

track haulage at a particular angle and if an oncoming 

piece of equipment was coming, there could be a collision 

and individuals could be injured. He assessed the likelihood of such an event occurring as "reasonably likely" and 

he would expect injuries ranging from bruises to broken 

bones as a result of the collision. He therefore assessed 

this violation as a "significant and substantial" (S&S) one. 

During cross-examination of Inspector Wehr, Citation 

No. 2397139, which was originally a notice to provide safeguards, was introduced (RX-1). This document was issued 

to the Gateway Coal Company on January 4, 1985, by, Inspector 

Wehr because he had observed a jeep being operated without 

any at all, on either ends or sides. On this 

occasion, the inspector did not mark the "S&S" box. His 

first explanation of that was that he made a mistake, that 

it should have been marked "S&S." He later amended his 

response to state that this document had originally been 

issued as a safeguard under section 314(b) of the Act and 

when issuing a safeguard you are not concerned with the 

determining whether a violation would be 

cant and substantial." However, I note that he 

that the penalty criteria do not apply when 

issuing a safeguard. That for purposes of issuing a safeguard, whether there would be an injury, the likelihood of 

that ury or what the negligence would be are not considered. Yet, when he issued Citation No. 2397139, as a 

1001 
notice to provide safeguards, he checked the boxes for "low" 

negligence, "no likelihood" of occurrence and "no lost workdays" as the type of injury that would result from occurrence 

of the event. 

As it turns out, this citation should not have been 

issued as a safeguard at all because a safeguard for the same 

thing had previously been issued by Inspector Light on May 29, 

1984 (GX-4). Inspector Light issued Citation No. 2253769 as 

a safeguard and likewise did not markthe "S&S" box. He did, 

however, mark the penalty criteria. He checked the boxes 

for "none" pertaining to negligence, "unlikely" occurrence 

and "lost workdays or restricted duty" as type of injury. 

When it was subsequently discovered that there was an 

existing safeguard issued concerning jeep reflectors, Inspector Wehr modified Citation No. 2397139 from a safeguard 

to a § 104(a) citation on January 23, 1985. However, even 

though he concedes he could have, he did not at that time' 

modify this citation to reflect an 11 S&S" violation. 

Although Inspector Wehr testified on direct that the 

lack of a reflector on the tight side of the jeep would be 

reasonably likely to cause an accident, it is apparent to 

me that he changed his mind sometime between issuing Citation No. 2397139 on January 4, 1985, and February 1, 1985, 

when he issued the citation at bar. Further, he has no 

knowledge of any statistics concerning accidents caused by 

missing reflectors nor was he able to cite a single example 

of an accident caused by a missing reflector. This last 

observation also applies to the opinion testimony of the 

two miner wi tnesse,s concerning gravity. 

The Commission in Cement Division, National Gypsum 

Company, 3 FMSHRC 822 (1981} set out th~ test for,determining whether a violation, in the words of the statute, " ••. 

could significantly and substantially contribute to the 

cause and effect ••• of a mine safety or health hazard." 

s.uch a violation, the ·commission held, is one where there 

exists" ... a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature." 

Later, in Mathies Coal Co., 6 FMSHRC 1 (1984}, the 

Commission applied the definition of "significant and substantial11 in four steps. The first step was whether a 

violation occurred. In this case that much is admitted by 

the respondent. The second step is whether the violation 

contributed a measure of danger to a discrete safety hazard. 

1002 
Relying on the testimony of the inspector and the two miner 

witnesses, I conclude that there was a discrete safety 

hazard and the violation did contribute some additional 

measure of danger. The third step in applying the definition is whether there is a reasonable likelihood that the 

hazard contributed to will result in injury, and the fourth 

step is whether there is a reasonable likelihood that the 

injury in question will be of a reasonably serious nature. 

I think we would all agree that if a collision accident 

occurred involving two of these ]eeps, traveling at anything 

more than a minimal rate of speed that injuries of a reasonably serious nature would likely occur. Therefore, the 

ultimate issue is whether the absence of reflectors on the 

jeep would be reasonably likely to cause such an accident. 

At the hearing,and within the four corners of the citation 

at bar, Inspector Wehr was of the opinion that such an 

occurrence was "reasonably likely." However, less than a 

month before, in the same mine, for the same violation, 

involving the same type of vehicle, he was of the opinion 

that there was "no likelihood" of such an occurrence (RX-1) . 

Therefore, I conclude that the respondent has effectively 

impeached the inspector by his own prior inconsistent 

statement on the ultimate issue of this case. Further, a 

second inspector, Mr. Light, also had occasion to write a 

safeguard for this identical violation of the same standard, 

in the same mine and involving the same type of equipment 

(GX-4). His opinion was that the occurrence of the event 

against which the cited standard is directed was "unlikely." 

Additionally, I note that an inspector could change his mind 

over a period of time about the seriousness of a particular 

regulatory violation but here there is less than a month 

between Inspector Wehr's "writings" on this identical 

subject and in any case, there is no evidence in this record 

of any empirical substantiation of his current opinion that 

this violation was "S&S." I therefore aonclude that the 

cited violation was non "S&S." 

Turning now to the matter of the inoperative dead man 

switch cited in§ 104(a) Citation No. 2399220, the issue 

is once again whether this admitted violation is a •significant and substantial" one. 

I have some problem with what I perceive to be an inconsistent position taken by the Secretary with regard to 

the importance of the dead man switch as a safety item on 

jeeps used in the mines. To begin with, the Act directs 

1003 
the Secretary of Labor to develop mandatory safety standards 

to protect the nation's miners. The Secretary, in his 

wisdom, has so far not seen fit to require the installation of dead man switches on personnel carriers. Therefore, 

the inoperative dead man switch complained of herein was 

not required to be installed on the jeep to begin with, and 

could in fact have been completely removed by the operator 

at any time. The only violation herein involved leaving the 

switch on the jeep in an inoperable condition. 

In this one case, the Secretary takes the position that 

this is a "significant and substantial" violation of the 

mandatory standards "reasonably likely" to cause a "fatal" 

injury. Yet, at the same time, the Secretary admits that 

the dead man switch is not a required piece of equipment on 

this jeep and in fact other jeeps are operating without one 

in the same mine, apparently with the Secretary's blessing. 

I conclude that if it truly is a "significant and 

substantial" safety hazard to operate a personnel carrier 

with an inoperable dead man switch, the Secretary, by regulation, would require such a switch in the first instance. 

At the hearing, the Secretary's counsel argued that a 

jeep that has an inoperable dead man switch is not the 

equivalent of a jeep without such a switch at all, because 

of the potential for reliance on the availability of the 

switch and the assumption that it works. A case for this 

position possibly could be made. However, the evidence 

adduced at the hearing was to the effect that the only 

accident that any witness could recall involving a throttle 

sticking open was on a vehicle that didn't have a dead man 

switch installed, and there was presumably not in violation of anything. The only other evidence on the significance of this violation was an opinion which was not 

factually supported in the record. 

The test is whether this violation has a reasonable 

likelihood of resulting in serious injury. I do not find 

any evidentiary support for that in s record and therefore I do not find that the violation was "significant and 

substantial." Mathies Coal Company, supra. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and considering the criteria contained in section llO{i) of 

the Act, respondent is assessed a civil penalty in the 

1004 
amount of $20 for section 104(a) Citation No. 2397217, 

issued on February 1, 1985, for a violation of 30 C.F.R. 

§ 75.1403 and $20 for section 104(a) Citation No. 2399220, 

issued on March 19, 1985, for a violation of 30 C.F.R. 

§ 75.1725(a). 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $40 within thirty (30) ·days of the date of this 

decision. Payment is to be made to MSHA, and upon receipt 

of same, this proceeding is dismissed. 

Roy J:. aurer 

Admi istrative Law Judge 

Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Rm. 14480, Philadelphia, PA 

19104 (Certified Mail) 

George S. Brooks, Esq., 1200 First Security Plaza, Lexington, 

KY 40507 (Certified Mail) 

yh 1005 
FEDERAL MINE SAFETY AND HEALTH REV!EW COMMISSION 

OFFICE OF AOMINISTRA TIVE LAW JUDGES 

333 W. COtFAX AVENUE. SUITE 400 

DENVER, COlORADO 80204 JUN 30 \986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C. D. LIVINGSTON, 

Respondent 

Docket No. WEST 85-55-M 

A.C. No. 04-04700-05502 

Digmor Placer Mine 

DECISION 

Appearances: Carol A. Fickenscher, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California, 

for Petitioner; 

Mr. C. D. Livingston, Iowa Hill, California, 

pro , for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a petition 

for assessment of a civil penalty by the Secretary of Labor 

(herein the Secretary} on April 1, 1985, pursuant to Section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. Section 820(a)(l977) (herein the Act). A hearing on the 

merits was held in Sacramento, California on ~pril 9, 1986, at 

which the Secretary was represented by counsel and the Respondent, Mr. C.D. Livingston, represented himself. 

The Secretary seeks assessment of a penalty against 

Respondent for violation of 30 C.F.R. § 57.4-52 l; which was 

described in combination Citation (Section 104(a)) Order (Section 

107(a)) Noo 2363585 issued May 17, 1984, as follows: 

"A 4-cylinder gasoline powered front-end loader is 

being used underground to muck out the sand and gravel 

and hawl [sic] the material to the surface. 

CO Drager gas detector measurements at the face 50 ppm 

one stokeo" 

1/ "Gasoline shall not be stored underground, but may be used 

only to power internal combustion engines in nongassy mines that 

have multiple horizontal or inclined roadways from the surface 

large enough to accommodate vehicular traffic. Roadways and 

other openings shall not be supported or lined with combustible 

material. All roadways and other openings shall be conected with 

another opening every 100 feet by a passage large enough to accommodate any vehicle in the mine ... 

1006 
The Citation/Order also charged that the violation was 

"significant and substantial" (herein "S & S") ~/ and that an 

imminent danger existed. 

The preponderant reliable and probative evidence of record 

established the following sequence of events and factual 

conformation. 

The subject gold mine, owned and operated by Respondent and 

referred to in this matter as the Digmor Placer Mine, is not a 

gassy mine (Tr. 51-53). However, it has but one horizontal or 

inclined roadway from the surf ace large enough to accommodate 

vehicular traffic, in this case, a tunnel (Tr. 28). 

On May 17, 1984, MSHA Inspector Nicholas Esteban, having 

been assigned to inspect another mine, a surface mine, located on 

the same Digmor Placer property, observed the subject underground 

gold mine and undertook to inspect the same (Tr. 14-15, 39-41, 

46-49, 71). Respondent Livingston owns the 80-acre Digmor Placer 

property, and leases the surface mine to others (Tr. 71, 72, 77). 

Inspector Esteban came upon the Respondent (Tr. 15) who at 

first refused to allow his mine to be inspected on the basis that 

his was a "one-man" operation (Tr. 15) but subsequently acceded 

to the Inspector's request and signed a CAV (compliance 

assistance visit} request after the Inspector indicated to him 

that the inspection was to be a "courtesy" inspection and after 

the Inspector told him that no penalties would derive from the 

issuance of any notices of violation 3; (Tr. 15, 16, 18, 21, 22, 

42, 43, 60). The Inspector and Mr. LTvingston then walked into 

the mine (Tr. 23). 

The Inspector took a Drager gas detector measurement which 

indicated the air inside the mine was contaminated with carbon 

monoxide (50 parts per million> (Tr. 23). The Inspector informed 

Mr. Livingston of this result and advised him a Citation/Order 

rather than a CAV "notice" would be issued for this violation 

(Tr. 24). Mr. Livingston became upset at this point, but ad-

~j In Secretary v. Consolidation Coal Company, 6 FMSHRC 189 

(1984), the Commission held that S & S findings may be made in 

connection with a citation issued under. Section 104(a) of the Act. 

Considering this ruling in conjunction~with U.S. Steel Mining 

Company, 6 FMSHRC 1834 (1984), where tne mine operator was allowed to contest s & s findings entered on Section 104(d}(l) 

citations in a penalty case, it is concluded that S & s findings 

contained in a Section 104(a) Citation similarly are properly reviewable in this penalty proceeding. 

3/ Notices of violation, which are issued on CAVs instead of 

Citations, are on a form approximately 1/3 the size of a regular 

Citation form (Tr. 20). 

1007 
mitted he had been using the gasoline-powered front-end loader in 

question that morning and also the previous day to muck around a 

fan (Tr. 23-24, 30, 70). Mr. Livingston also admitted he had 

been using the loader underground 2 or 3 days a week for a period 

of approximately 2 months (Tr. 72) and that at times other miners 

were present (Tr. 73). 

The gasoline-powered engine emitted carbon monoxide and it 

did not have a water scrubber or a catalytic converter "to help 

burn off the carbon monoxide." (Tr. 26). 

Inspector Esteban advised Mr. Livingston that he could not 

leave the property without issuing the imminent danger order (Tr. 

24, 31) because'someone could be killed using a gasoline-powered 

engine underground. The mine did not meet the regulation's 

criteria for using gasoline powered equipment (Tr. 27, 28) since 

it did not have multiple roadways from the surface, but only a 

single tunnel (Tr. 28, 52, 54). There existed a serious hazard 

from carbon monoxide poisoning (Tr. 26, 30, 32, 34, 72-73, 75), 

which could result in a fatality (Tr. 30, 34). As many as 4 

persons had worked in the mine in the past (Tr. 28, 44-46, 66, 

67, 76), and Mr. Livingston and his "partner" were currently 

working in the mine (Tr. 28, 72-73). 

The lethal nature of carbon monoxide poisoning was described 

by the Inspector as follows: 

"Because if he gets a high concentration of carbon 

monoxide, you can't smell the gas, you can't detect it. 

All of a sudden you're down, and you're dead." 

(Tr. 34). 

Mr. Livingston had been using the gasoline-powered loader 

two or three times a week for 4 or 5 years (Tr. 66). He intended 

to dispose of the loader at the time of the inspection and so 

advised the inspector (Tr. 61-62). Mr. Livingston thereafter 

sold the loader to one Douglas Mead, who he first characterized 

as a "junk dealer" {Tr. 64), but subsequently in his testimony, 

it also turned out that Douglas Mead was one of those who worked 

in the mine (Tr. 67) and the same person Mr. Livingst~n said was 

his "partner" (Tr. 73). Mr. Livingston closed the mine 2 or 3 

weeks after the CAV inspection (Tr. 62, 76). 

Following the inspection, Inspector Esteban issued 4 

CAV-type notices of violation CTr. 22) in addition to the 

Citation/Order which is the subject of this proceeding. 

At the hearing, Mr. Livingston who, it should again be 

mentioned, was not represented by counsel, offered an undated 

letter (Ex. R-1) which he had sent to the Secretary's counsel 

subsequent to the issuance of the Citation/Order. In the first 

paragraph of this letter he sets f.orth what appears to be his 

primary contention (Tr. 75) in this matter, i.e., t.hat a 

"one-man" operation is not subject to the Act: 

1008 
"Please be advised that I do indeed protest the proposal 

for assessment of a civil penalty against me for an 

alleged violation of the Mine Safety and Health Act of 

1969. Since I am a private citizen, work alone and hire 

no employees, I declare myself to be exempt from any 

rules and regulations of the Dept. of Labor. You, nor 

anyone else has shown proof that it was the intent of 

Congress to subject the one-man mine operator to the 

burden of these rules and regulations. Neither you, nor 

anyone in your off ice has ever quoted a court case that 

pertained to a one-man operation. Every case you cite 

has had paid employees or several people working." 

However, at the hearing, Mr. Livingston testified under oath 

as to a somewhat contrary picture of the employment situation at 

his mine. 

Q. Do you have friends or acquaintances or relatives that 

have worked at the Digmor Placer with you, and when I use 

the term "Digmor Placer", I'm referring to the specific mine 

that Mr. Esteban inspected? 

The Witness: Do I ever have someone with me? 

Q. During the time that you were working it? 

A. Okay. Occasionally I have had people help me. 

Q. Who were those people that helped you? 

A. My son. 

Q. Anyone else? 

Ao Yeah. There was a Ron Stockman. He helped me for just 

a few days is all, but that didn't last long. 

Q. Anyone else? 

A. Yeah, Douglas Mead. He helped me for a while. 

Q. So, you really weren't working that by yourself? 

A. I was working it alone by myself most of the time. 

Q. But you had other people there? 

A. I had, occasionally, some people there, yes. 

CTr. 66, 67). 

Based on his sworn testimony, Mr. Livingston's contention 

that his was a "one-man" operation is rejected. Regardless, his 

Digmor Placer mine is covered by the 1977 Mine Safety Act. 

Secretary of Labor v. C.D. Livingston, 7 FMSHRC 1485 (1985). 

1009 
Mr. Livingston also complains of the Inspector's action in 

first telling him there would be no penalties assessed and then 

finding a violation and issuing the Citation/Order in question 

for which a penalty is sought herein: 

"The point I'm trying to make is that he told me there 

would be no finable, assessable violations per se; and 

you won't have to pay a fine and this and that, and then 

he writes me up one for a loader which I already told 

him I was getting rid of." 

(Tr. 63) 

It is first noted that the "compliance assistance visit" 

process is not provided for in the Act. The Secretary, although 

requested (Tr. 81), has not furnished the source of MSHA's CAV 

policies. On the other hand, the gold mine in question is subject to the Act and inspections thereof are mandated by the Act. 

Section 103Ca), 30 U.S.C. § 815. Regardless of the Inspector's 

promises, the Act requires that a penalty be assessed when a 

violation occurs. Old Ben Coal Co., 7 MSHRC 205, 208 (1985); 

Section llO(a), 30 U.S.C. § 820. The record is not absolutely 

clear that the Inspector utilized the CAV policy to overcome 

Respondent's refusal of entry, but it strongly appears such was 

the case (Tr. 10, 15, 16, 42, 43, 60) and I do so infer and 

find. 

A preliminary question is thus posed: whether Respondent, 

had any right to deny entry to begin with. In the circumstances established in this record, I find that Respondent had no 

right to deny the Inspector entry to the mine to conduct an 

inspection. In Secretary of Labor v. Calvin Black Enterprises, 7 

MSHRC, 1151 (1985), the Commission succinctly enunciated the 

principles relating to such denial of entry: 

11 The law on denial of entry under the mandatory inspection provisions of section 103(a) of the Act is 

clear. Section 103(a) expressly requires that no advance notice be given an operator prior to an inspection 

and gives authorized representatives of the Secretary an 

explicit right of entry to all mines for the purpose of 

performing inspections authorized by the Act. The 

Supreme Court has upheld the constitutionality of thses 

provisions. Donovan v. Dewey, 452 U.S. 594, 598-608 

(1981). Consistent with that decision, we have held that 

an operator's failure to permit such inspections constitutes a violation of section 103(a). Waukesha Lime 

& Stone Co., Inc., 3 FMSHRC 1702, 1703-04 (July 1981)~ 

United States Steel Corp., 6 FMSHRC 1423, 1430-31 (June 

1984)." (emphasis supplied). 

1010 
It is clear that regardless of Respondent's stand to the 

contrary, his mine was subject to inspection as required by the 

Act and that likewise a penalty is required to be assessed for a 

violation. In view thereof, there is no support from a purely 

equitable standpoint for Respondent's argument that the Inspector's "no penalty" promise should bind the Secretary and 

excuse Respondent from the requirements of the Act. Certainly 

the Inspector's promise does not in these circumstances-where Mr. 

Livingston's refusal to permit an inspection is itself a violation-work a serious injustice to Mr. Livingston, See U.S. v. 

Lazy F.C. Ranch, 481 F.2d 985 (9th Cir, 1973). Similarly, since 

several miners were endangered by Respondent's intransigence, the 

public interest as reflected in the purposes behind the safety 

standard infracted would not be served by estopping the enforcement agency from disavowing the misstatement of its agent. 

In any event, in Secretary of Labor v. King Knob Coal 

Company, Inc., 3 FMSHRC 1417 (1981), the Commission has rejected 

the doctrine of equitable estoppel. It also viewed the erroneous 

action of the Secretary (mistaken interpretation of the law leading to prior non-enforcement) as a factor which can be considered 

in mitigation of penalty, stating: 

"The Supreme Court has held that equitable estoppel 

generally does not apply against the federal government. 

Federal Crop Insurance Corp v. Merrill, 332 U.S. 380, 

383-386 (1947); Utah Power & Light Co. v. United States, 

243 U.S. 389, 408-411 (1917). The Court has not expressly overruled these opinions, although in recent years 

lower federal courts have undermined the Merrill/Utah 

Power doctrine by permitting estoppel against the government in some circumstances. See, for example, United 

States v. Georgia-Pacific Co., 421 F.2d 92, 95-103 (9th 

Cir. 1970). Absent the Supreme Court 1 s expressed approval of that decisional trend, we think that fidelity 

to precedent requires us to deal conservatively with 

this area of the law. This restrained approach is 

buttressed by the consideration that approving an estoppel defense would be inconsistent with the liability 

without fault structure of the 1977 Mine Act. See El 

Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (1981). 

Such a defense is really a claim that although a violation occurred, the operator was not to blame for it. 

Furthermore, under the 1977 Mine Act. an equitable consideration, such as the confusion engendered by conflicting MSHA pronouncments, can be appropriately weighed in 

determining the appropriate penalty (as the judge did 

here)." 

But here, in contrast to the situation in King Knob, the 

Inspector's inpropriety did not induce or otherwise result in the 

commission of the violation itself Cthe Respondent was solely to 

blame for this violation), and there being no legal or equitable 

1011 
justification for Respondent's opposition to the inspection, no 

basis exists for reduction of the penalty amount otherwise 

warranted. 

The Respondent does not challenge the occurrence of the 

violation. Although Respondent did not challenge that it was a 

significant and substantial (S & S) violation or that it resulted in an imminent danger, it should be mentioned with regard to 

the S & S charge in the Citation that the Commission has held 

that a violation is properly designated S & S "if, based on the 

particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or'illness of a reasonably serious nature." Cement 

Division, National Gypsum Co., 3 FSMHRC 822, 825 (April 1981}. 

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

Commission explained: 

"In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: Cl) 

the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will 

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

the injury in question will be of a reasonably serious 

nature." 

The Commission has explained further that the third element 

of the Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury." U.S. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984). The Commission has 

emphasized that, in accordance with the language of section 

104(d)(l), it is the contribution of a violation to the cause and 

effect of a hazard that must be S & S. See 6 FMSHRC at 1836. 

On this record, and in view of the findings heretofore made, 

there is no question but that a violation of 30 C.F.R. § 57.4-52 

occurred and that a 11measure 11 of danger to safety was contributed 

to by such. 

Based on the prior findings as to the absence of multiple 

roadways into the mine, the lethal nature of carbon monoxide 

poisoning, the results of Inspector Esteban's gas detector 

measurements, (Tr. 23, 28-32), the lack of a water scrubber and 

catalytic converter on the engine, and the number of miners 

(including Mr. Livingston when he was working alone) who were 

exposed to the danger (Tr. 71-73), it is clear that there was a 

reasonable likelihood that the hazard (carbon monoxide poisoning) 

contributed to by the violation would result in an injury of a 

reasonably serious nature, including a fatal injury. The Secretary is thus found to have impressively established his burden of 

proof that the violation was S & S. 

1012 
Turning now to the question of whether the imminent danger 

aspect of the Citation/Order is supported in the record, it is 

first noted that there is some similarity in the factual foundation required for the special "S & S" finding and that sufficient 

to support a reasonable belief on the part of an inspector that 

an imminent danger exists. It would seem that in all cases a 

violation which results in an imminent danger would also be S &S 

while the reverse would not necessarily be true. Determining 

whether the factors constituting the instant violation, taken in 

combination with evidence relating to S & S (similar to imminent 

danger except in degree and immediacy) as well as other 

evidence-which is not necessarily relevant to the violation or 

the S & S determ1nation - meets the level of proof required to 

justify the "imminent danger" order is aided by a brief 

consideration of the evolution of this term. 

The term "imminent danger" is found in both the Federal Coal 

Mine Health and Safety Act of 1969 and the Amendments thereto 

which comprise the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. 801, et seq., and the definition thereof currently 

found in section 3(j) of the 1977 Act is for all intents and 

purposes identical in both Acts, to wit: 

"the existence of any condition or practice in a coal 

or other mine 4; which could reasonably be expected to 

cause death or-serious physical harm before such condition or practice can be abated." 

Historically, the first tests for determining whether an 

imminent danger exists or not were set forth in Freeman Coal 

Mining Corp., 2 IBMA 197, 212 (1973), and Eastern Associated Coal 

Corp., 2 IBMA 128, 80 I.D. 400 (1973), aff 'd Eastern Associated 

Coal Corp. v. Interior Board of Mine Operations Appeals et al., 

491 F.2d 277 (4th Cir.v 1974). In Eastern, supra, the Board of 

Mine Operations Appeals, formerly a division of the Interior 

Department 1 s Office of Hearings and Appeals, herein "BMOA", held 

that: 

* * * an imminent danger exists when the condition or 

practice observed could reasonably be expected to cause 

death or serious physical harm to a miner if normal mining 

operations were permitted to proceed in the area before the 

dangerous condition is eliminated. The dangerous condition 

4/ By virture of Section 102(b)(4) of the 1977 Mine Act the 

~hrase "or other" was added after the word «coal" to expand the 

Act's coverage to all mines. 

1013 
cannot be divorced from the normal work activity. The 

question must be asked - could normal operations proceed 

prior to or during abatement without risk of death or 

serious physical injury? If the answer to this question is 

"no,' then an imminently dangerous situation exists and the 

issuance of a 104(a) withdrawal order is not only proper but 

mandatory under the Act. 

In Freeman, supra, the BMOA elaborated on its decision in 

Eastern and held that the word "reasonably" as used in the definition of imminent danger necessarily means that the test of 

imminence is objective and that the inspector's subjective 

opinion is not necessarily to be taken at face value. The Board 

also gave this 2-sentence test of "imminent danger:" 

* * * would a reasonable man, given a qualified inspector's 

education and experience, conclude that the facts indicate 

an impending accident or disaster, threatening to kill or 

to cause serious physical harm, likely to occur at any 

moment, but not necessarily immediately? The uncertainty 

must of of a nature that would induce a reasonable man to 

estimate that, if normal operations designed to extract coal 

in the disputed area proceeded, it is at least just as 

probable as not that the feared accident or disaster would 

occur before elimination of the danger. (Emphasis added) 

The United States Court of Appeals for the 7th Circuit in Freeman 

Coal Mining Company v. Interior Board of Mine Operations Appeals, 

et al., 504 F.2d 741 (1974), while quoting with surface approval 

the BMOA's definition of "imminent danger," went on to add its 

own: 

An imminent threat is one which does not necessarily come 

to fruition but the reasonable likelihood that it may, 

particularly when the result could well be disastrous, is 

sufficient to make the impending threat virtually an 

immediate one" (Emphasis supplied) 

In Canterbury Coal Corporation v. Mining Enforcement and 

Safety Administration (MESA), Docket No. PITT 74-57 (January 24, 

1975, ALJ Decisioni unreported), the extreme but plain meaning of 

the second sentence of the BMOA's imminent danger test was 

questioned: 

var conclude, after reviewing the Board's decisions in Freeman and Eastern, the decisions from the 4th and 7th Circuits 

on appeal therefrom, and subsequent Board decisions, that 

the Board, by its use of the phrase "at least just as probable as not" in the Freeman case, did not set up a pure 

mathematical equation for determining whether it is reason1014 
able for an inspector to find imminent danger. More directly, I do not believe the Board intended to require that the 

odds be even that if normal operations continued the danger 

would come to fruition, or to hold that there must appear to 

be a 50/50 chance ••• that the tragedy or disaster would 

occur, to justify the issuance of a closure order. It 

most certainly is clear from factual analysis of the Board's 

numerous "imminent danger" decisions that the lives and 

well-being of miners are not to ride on the same law of 

statistical probabilities found in the toss of a coin. Accordingly, I reject any such interpretation of the Freeman 

test." 

Thereafter, during the process of the enactment of the 1977 

Act, the Senate Committee on Human Resources, made this 

statement: 

"The Committee disavows any notion that imminent danger can 

be defined in terms of a percentage of probability that an 

accident will happen; rather the concept of imminent danger 

requires an examination of the potential of the risk to 

cause serious physical harm at any time. It is the Committee's view that the authority under this section is essential to the protection of miners and should be construed 

expansively by inspectors and the commission." (Leg. Hist. 

of the Federal Mine Safety & Health Act of 1977, 95th Cong., 

1st Sess. (hereinafter Leg. Hist. 1977 Act) at 38.) 

The Commission, in Pittsburg & Midway Coal Mining Company v. 

Secretary of Labor, (2 MSHRC 787, 788~ 1980) also set a different 

course for approaching imminent danger questions: 

" o o we note that whether the question of imminent danger 

is decided with the "as probable as not" gloss upon the 

language of section 3{j), or with the language of section 

3(j) alone, the outcome here would be the same. We therefore need not, and do not, adopt or in any way approve the 

"as probable as not" standard that the judge applied. With 

respect to cases that arise under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq., we wi 

examine anew the question of what conditions or practices 

constitute an imminent danger." 

(emphasis added} 

Research of this question leads one to believe that the 

literal meaning of the "at least just as probable as 

not 11 (emphasis supplied) language, has for the most part been 

expressly discarded or otherwise ignored. In studying the past 

difficulties of various tribunals to describe what constitutes an 

imminent danger, one is reminded of the recent answer of a 

Supreme Court Justice when asked what pornography was: "While I 

can't put it into words, I know it when I see it." But also, it 

is well established that the Mine Act and the standards 

1015 
promulgated thereunder are to be interpreted to ensure, insofar 

as possible, safe and healthful working conditions for miners. 

Westmoreland Coal Co., v. FMSHRC, 606 F.2d 417, 419-420 (4th Cir. 

1979); Old Ben Coal Co., 1 FMSHRC 1954, 1957-58 (1979); Secretary 

of Labor v. Pittsburg & Midway Coal Mining Company, 8 FMSHRC 4 

(1986). Accordingly, the "at least just as probable as not" 

formula contained in the BMOA's Freeman decision, supra, will not 

be used here as the sounding board for determining the existence 

of imminent danger. 

Since the Commission's Pittsburg & Midway decision, there 

have been relatively few imminent danger matters in litigation 

before the Commission. Under the 1977 Act, decisional emphasis 

seems to be on the individual factual configurations involved 

rather than on discrete tests and formulas for determining 

imminent danger. See, for example, Secretary of Labor Vo U.S. 

Steel Corporation, 4 FMSHRC 163 (1982). At this time, the Act's 

section 3(j) definition appears to be the primary legal touchstone. Evaluating the dangerous condition or practice - whether 

or not a violation-in the perspective of continued mining 

operations also appears to be a prerequisite in determining the 

validity of an imminent danger order. There also is a case for 

treating these as prerequisites: (1) that the hazard (risk) foreseen must be one reasonably likely to induce fatalities or injuries of a reasonably serious nature, and (2) that such hazard 

or risk have an immediacy to it, that is, it could come to realization "at any time." 

In adopting the above concepts, a review of the factual 

underpinnings for the Inspector's conclusions is required. It is 

found therefrom that the Inspector properly issued an imminent 

danger order based on (a) those findings previously made in 

connection with the S & S issue and (b) these additional probative evidentiary factors: 

1. Carbon monoxide is undetectable, as the Inspector 

testified: 

11 if he gets a high concentration of carbon monoxide, 

you can 1 t smell the gas, you can't detect it. All of a 

sudden you're down, and you're dead." (Tr. 34) 

2. Respondent's admission that he used the front-end loader 

"two or three days a week" over a period of four or five years 

{Tr. 66, 72>, and underground for a period of 2 months (Tr. 

70-72) on occasions when other miners were present (Tr. 73}. 

3. Respondent's admission that he knew that operating the 

gasoline-powered loader was dangerous CTr. 75) coupled with the 

extent of his prior use of the same compels the inference of the 

probability that the loader would have continued to be used under 

improper and dangerous conditions. 

1016 
4. A fan in the mine which Respondent thought would clear 

the air when the loader was running was actually insufficient for 

this purpose (Tr. 31, 32). 

Based on the foregoing substantial evidence it is concluded 

that the Inspector exercised correct and reasonable judgment in 

determining that an imminent danger existed on May 17, 1984, 

since there existed both Cl) a practice and (2) conditions in the 

subject mine which reasonably could be expected to cause death or 

serious physical harm at any time had normal mining operations 

been permitted to continue and before such condition and practice 

could have been abated. The imminent danger withdrawal order is 

thus affirmed. 

RULING ON SECRETARY'S MOTION 

The Secretary, at the end of his post-hearing brief received 

May 23, 1986, and in the 11th hour of the Judge's jurisdiction in 

this matter, states that in keeping with the Secretary's "policy 

of conducting Compliance Assistance visits, a penalty should not 

have been assessed", going on to add: 

"Since the inception of the CAV program in 1979, MSHA 

policy has been to not propose penalties for violations 

observed during the course of a CAV reopening inspection 

(Metal - Nonmetal Assistance Program) or § 303(x) reopening inspection (Coal Mine Assistance Program). This violation was not identified as observed during a CAV inspection, hence, trial counsel is now advised that it inadvertently received a proposed penalty." 

(emphasis added) 

The last sentence of the Secretary 1 s brief more clearly 

indicates what the Secretary intended: 

"Plaintiff therefore withdraws the penalty assessment 

and respectfully requests that the citation/order be 

upheld." 

The requests therein for both (a) withdrawal, and (b) review 

of the Citation/Order are contradictory. Thereafter, in response 

to my Order to Show Cause, the Secretary clarified this motion to 

show that he wa~ moving to withdraw the petition and that indeed 

such should result in dismissal of the entire proceeding and 

preclude review of the Citation/Order. 

Commission Rule 11 provides that a party may withdraw a 

pleading at any stage of a proceeding with the approval of the 

Commission or the Judge". (emphasis supplied). Both the form and 

timing of the attempted withdrawal here are of some concern since 

the unsupported motion comes after the matter has proceeded 

through an adversary hearing. Nevertheless, since it is clear 

that the Secretary does not wish that a penalty be assessed in 

this de nova proceeding before the Commission for the violation 

1017 
found and since the Commission's Rule 11 requires the judge's 

approval before such can be accomplished, an exercise of discretion and a ruling thereon is required. Here, at the 

Secretary's instigation, this matter was fully litigated on the 

record in an adversary proceeding provided for in the Act, and 

of more importance, the Secretary clearly established that a 

violation occurred (admitted by Respondent). The Secretary has 

not shown-or alleged-any basis why or how Section llO(a) of the 

Act can be ignored. The impropriety of the Inspector's CAV 

promises not to issue citations was litigated. As above noted, 

Section llO(a) r,equires that a penalty be assessed when a 

violation occurs and this also is a principle of mine safety law. 

See U.S. Steel Mining Co., Inc.! 6 FMSHRC 1148 (1984)~ Tazco, 

Inc., 3 FMSHRC 1895 (1981). Whatever the Secretary's CAV 

procedures are - again the Secretary, although requested (Tr. 

81), has not submitted any written documentation reflecting what 

his CAV procedures or policies are - the Secretary has not shown 

how a mandatory provision of the Mine Act can be waived in this 

matter or why it should be. I am unaware of any basis upon which 

such can be waived. Even the Secretary's "policy" as articulated 

in his brief - applicable only where a mine is being reopened -

isn't clearly relevant. Also, and as previously found, the 

Secretary should not be estopped from enforcing the Act and the 

publicus interest in this matter. 

Some situations where the Secretary, after Commission 

jurisdiction attaches, might be permitted to drop its prosecution 

are usefully compared: 

1. where the parties, before entry of a final agency 

decision, reach an appropriate settlement; 

2. where the Secretary, after further investigation on or 

f the record of a formal adversary hearing, concludes that a 

olation was not committedj 

3. where some late-discovered jurisdictional defect is 

d:Lscovered1 

As best I divine it, if it is not self-application of the 

estoppel defenseF the Secretary 1 s purpose here is simply to 

protect the credibility of its CAV process. But this is both an 

~nusual and isolated case where such is not significantly 

threatened. As previously discussed, there certainly is no 

inequity or unfairness which would result from not dismissing 

this matter. Mine safety clearly is best served by not aborting 

~he proceeding at this juncture; where the public interest rests 

is well demonstrated on this record. Dismissal of this de novo 

proceeding where the Commissionis jurisdiction has been locked in 

and cl record developed would more likely bring in to question the 

proper discharge of the administrative-judicial responsibility 

than the enforcement process. Accordingly, in the exercise of my 

1018 
discretion under Rule 11, the motion of the Secretary to withdraw 

the petition for penalty assessment herein is denied. ~/ 

ASSESSMENT OF PENALTY 

It has previously been shown that the violation occurred as 

charged in Citation/Order No. 2363585 and that both the Inspector's special S & S findings and finding that an imminent 

danger existed are supported in the record. There remains the 

determination of an appropriate penalty. The mine in question is 

a very small one which is now out of business (Tr. 62). Since 

there were no previous inspections (Tr. 63) Respondent has no 

history of previous violations. Respondent makes no claim that 

payment of a penalty to use the words of the Act, will jeopardize 

"his ability to,continue in business", or, more appropriately 

here, that he is unable to pay a penalty. 6; Since Respondent 

never used the front-end loader in question after the Citation/-

Order was issued, it is concluded that Respondent, after 

notification of the violation, proceeded in good faith to 

promptly achieve compliance with the safety standard violated. 

The record is clear that this was a serious violation which 

created an imminent danger and that Respondent was highly 

negligent in its commission (Tr. 34, 75). The Inspector's 

indecorous preliminaries, as previously noted, do not call for a 

downward penalty adjustment. After weighing these various 

penalty assessment criteria mandated by the Act, a penalty of 

$150.00 is found appropriate. 

ORDER 

1. Citation/Order No. 2363585 is affirmed in all respects. 

2o Respondent, if he has not previously done so, shall pay 

the Secretary Labor within 30 days from the date hereof the 

sum of $150.00 as and for a civil penalty. 

~d.~p{_ Michael A. Lasher, Jr. 

Administrative Law Judge 

c~/ It may be that as a matter of supporting enforcement policy 

the Secretary should have the absolute right to withdraw his 

initial pleading at any time before final decision by (a) the 

trial level judge or (b) the Commission. I am, however, unable 

to draw such a line absent clarifying Commission policy or 

distinguishing precedent. The Secretary has not cited, nor do I 

know of, any basis for such proposition. The facts of this 

particular matter do not provide an illustration for removing 

Commission review of withdrawal requests. 

~/ In the absence of proof that the imposition of otherwise appropriate penalties would adversely affect a mine operator's 

ability to continue in business, there is a presumption that no 

such adverse affect would occur. Sellersburg Stone Company, 5 

FMSHRC 287 (1983), aff'd 736 F.2d 1147 (7th Cir., 1984). 

1019 
Distribution: 

Carol A. Fickenscher, Esq., Office of the Solicitor, U.S. Department of Labor, 11071 Federal Building, 450 Golden Gate Avenue, 

San Francisco, CA 94102 (Certified Mail) 

Mr. C.D. Livingston, P.O. Box 661, Iowa Hill, CA 95713 

(Certified Mail) 

/blc 

1020 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 3 0 1986 

CLIMAX MOLYBDENUM COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CLIMAX MOLYBDENUM COMPANY, 

Respondent 

DECISION 

CONTEST PROCEEDING 

Docket No. WEST 85-96-RM 

Citation No. 2358524; 3/20/85 

Docket No. WEST 85-97-RM 

Citation No. 2358525; 3/21/85 

Docket No. WEST 85-99-RM 

Citation No. 2356413; 3/21/85 

Docket No. WEST 85-100-RM 

Citation No. 2356414; 3/21/85 

Climax Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-120-M 

A.C. No. 05-00354-05510 

Climax Mine 

Appearances: Richard w. Manning, Esq., Climax Molybdenum Company, 

Greenwich, Connecticut, 

for Contestant/Respondent; 

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

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

for Respondent/Petitioner. 

Before: Judge Carlson 

These consolidated proceedings arose out of inspections conducted by representatives of the Secretary of Labor (hereafter 

"the Secretary") at the underground molybdenum mine operated by 

Climax Molybdenum Company (hereafter "Climax") at Climax, Coloradq. 

The inspections took place on March 20 and 21, 1985. The 

specters issued five citations for violations of mandatory safety 

standards promulgated by the Secretary. Each of these citations 

was timely contested by Climax. Later, the Secretary proposed 

penalties for the alleged violations. These proposals appear in 

1021 
the single civil penalty proceeding docketed as WEST 85-120-M, 

which was consolidated for hearing with the individual contest 

cases. y 

The consolidated proceedings were tried under the provisions of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (hereafter "the Act"). Both parties 

filed post-hearing briefs. 

WEST 85-96-RM, Citation No. 2358524 

Inspector Jake DeHerrara issued this citation on March 20, 

1985, because openings in a flume board constituted an alleged 

falling hazard under 30 C.F.R. § 57.11-12. 2/ That standard 

provides: -

Openings above, below, or near 

travelways through which persons 

or materials may fall shall be protected by railings, barriers, or 

covers. Where it is impractical 

to install such protective devices, 

adequate warning signals shall be 

installed. 

The evidence shows that the cited condition existed at or 

near a switch-point on the railroad which runs through an underground haulage drift. The flume is a shallow ditch-like drain 

which parallels the track and drains water from the mine. The 

top of the flume is covered by boards (two adjacent 2 by 12 1 s) 

to keep debris from entering the flume and clogging it. 

The evidence also shows that the haulage drift is approximately 12 feet wide with the track running down the center. 

The track is 3 feet in width, measured between the rails, which 

leaves about 4 feet of open drift floor on the side of the tracks 

opposite the side where the flume is located. 

Witnesses for both parties agreed that the miners walking 

through the haulage drift frequently use the flume boards as a 

walkway because they generally offer the smoothest surface. On 

the other hand, miners may also walk on the opposite side of the 

rails, or between the rails. The drift floor is often wet and 

muddy, and isu by its nature, rough and uneven. 

1/ Originally, Docket No. WEST 85-98-RM was included in the 

consolidation. That contest was withdrawn by Climax at the 

hearing, however, and was severed for disposition by separate 

order issued on January 21, 1986. 

2/ The standard is now re-codified as 30 C.F.R. § 57.11012. 

1022 
According to the inspector, the opening was 14 inches long, 

14 inches deep, and 10 inches wide. Measurements provided by 

Climax were not significantly different. This opening lay between the two railroad ties on either side of the metal throw 

rod which opens and closes the switch. The opening also accommodates the bridle bar mechanism of the switch. 

While Climax concedes that the opening existed, it adduced 

testimony through one of its own safety inspectors, Mr. Kenneth 

Johnston, that the switch openings were necessary to furnish 

access to the switches to clean out debris. Storke level railroad switches number about 100, according to Johnston, and only 

a small number o these are covered. About half, however, do 

not cross flume boards as does the one cited. Those which are 

covered, Climax's safety and health manager Dan Larkin testified, 

are generally on curves or at other points where debris from the 

loads of passing cars is likely to sift into the openings and 

interfere with the switches' operation (Tr. 85). Larkin maintained that it was 11 possible 11 but not "practical" to cover the 

part of the switch openings between the tracks because the cover 

would interfere with operation of the switches (Tr. 51-52). He 

acknowledged, however, that the part of the opening outside the 

rails (between the throw lever and the nearer track) could be 

covered (Tr. 68). 

The undisputed evidence showed that a second and somewhat 

smaller opening existed in the flume boards near the opening for 

the throw rod. This opening was also about 14 inches long and 

width varied between 7 and 4 inches. It, too, was 14 inches 

deep. Here it appeared that the flume board had simply been 

broken (Tr. 36). 'l'he relative location of the two openings is 

shown plainly in the photograph received as government exhibit 1 

and the sketch received as Climax's exhibit 2. 

The inspector believed that the openings in the boards 

presented a clear falling haz~rd to miners walking the flume 

boards. He testified that a walker's foot could easily enter 

the opening causing a broken or sprained leg or foot (Tr. 18, 26). 

He emphasized that the haulageway was not lighted except by the 

miners' cap lights. The uneven illumination source increased 

the danger, he believed. That the haulageway was not otherwise 

lighted is not disputed. 

Climax disagrees with the entire thrust of the inspector's 

presentation insofar as the hazard was concerned. Mr. Johnston 

expressed great doubt that any part of a miner's body would 

actually drop through one of the openings causing an injury. 3/ 

3/ The standard does appear to be aimed at hazards where a 

worker may fall through (or partly through) a hole. It does 

not, that is to say, encompass mere tripping over objects or 

at uneven spots. 

1023 
He admitted such an accident was "possible" (Tr. 71-72}, but 

deemed it highly unlikely. He stressed that the opening at the 

switch itself> was at least partly blocked by the throw rod itself, which would support a part of the foot if a miner should 

step into the opening. The opening on one side of the rod was 

1-1/2 inches, and on the other was 8 inches, he testified. 

Johnston, also suggested that the inspector's focus on 

flume-board openings was unrealistic since the haulageway floor 

was inherently uneven, and obstacles were common. He mentioned 

standing water in depressions, rocks, and openings between the 

railroad ties. The Secretary has not denied that these features 

were present. In framing its legal argument on this matter, 

Climax states in,its post-hearing brief: 

In determining whether a particular opening 

constitutes a violation of 57.11-12, it is crucial 

to consider the location of the opening. An opening of 8 by 14 inches in the floor of a 5-foot wide 

elevated walkway may constitute a violation, while 

another opening of the same dimensions at a different location would not. (Climax's brief at 4.) 

Further, Climax contends that the openings were not a 

citable hazard because in its safety meetings the company routinely warned miners to exercise care in walking the drift, 

particularly around switches (Tr. 40-42). Referring to the 

miners, Mr. Johnston stated: "They're told to be very observant 

and keep your [sic) eyes open where you're going" (Tr. 41). 

Finally, Climax contends that its history of falling accidents in haulage drifts showed that the openings were not a 

hazard. In this regard, Dan Larkin, the company's manager of 

safety and health, testified that approximately 28 to 25 percent 

of all accidents at the mine since 1979 had been slip-and-fall 

incidents. In the same period, however, only about 5 percent of 

these occurred in haulage drifts. None involved falls through 

openings around track switches (Tr. 87-88). 

I must conclude that the preponderant evidence establishes 

a minor violation of the cited standard. Climax's argument 

that the hazard presented by the openings in the flume boards 

constitutes no greater danger than the uneven floor of the drift 

generally, or the danger of walking the railroad ties - conditions 

which the inspector doubtless saw but did not cite - deserves some 

consideration. It would be naive, certainly, to expect a drift 

of the sort we deal with here to be as smooth and obstacle-free 

as an office~building corridor. The chief difficulty with 

Climax's position is that the flume boards presented themselves 

as an inviting walkway. The evidence convinces me that, overall, 

they offered the smoothest walking surface in the drift. That 

miners often choose to walk on them with the operator's approval 

is not disputed. I find that because of the openings, however, 

the boards held out a deceptive sense of safety to walkers who 

1024 
chose that route, a sense not provided by the drift floor or 

the railroad ties which tended to be uniformly uneven. Moreover, the 14-inch drops at the flume-board openings are not 

inherent in the design and purpose of either the flume or the 

track switches; they may be remedied. Climax acknowledges 

that some of the switch openings were covered at the time of 

citation. This greatly weakens its argument that use of covers 

was "impractical." Rather, it appears that it was practical to cover the openings where accumulation of debris was 

a problem, and impractical to do so where it was not. The 

question appears more one of mere convenience than practicality. 

It must also be noted that the smaller opening complained 

of in the citation had nothing to do with a switch. Instead, 

the boards had apparently simply been broken off and not repaired or replaced. Where flume boards are offered as a travelway, it is incumbent on the mine operator to keep them in decent 

repair. 

We now turn directly to the question of whether either of 

the two openings was large enough to represent a realistic possibility that a miner's foot could fall through, thus violating the 

standard. I must agree with Climax that the chances of this 

happening are not great. I further agree that even a miner's 

foot did encounter one of the openings, the openings were narrow 

enough that the foot might not fall through. On the other hand, 

Climax acknowledges that it is possible that a foot could drop 

into the openings and that injury could ensue. From simply looking 

at the openings as depicted in the photographs and sketches in 

evidence, I must conclude that there is a realistic possibility 

that a foot, or a part of one, could drop through. That is sufficient to establish violation. 

Climax's argument concerning safety education and the miners' 

familiarity with switch openings and other walking hazards in the 

drift does not constitute a defense. Where a standard prescribes 

certain protective measures to eliminate hazards, a cautious state 

of mind cannot be substituted for those measures. 

The operator's favorable injury record of falling incidents 

in the haulage drifts is commendable, but again is no defense. It 

bears instead upon the-severity of the violation. 

The Secretary's citation classifies the violation as 11 significant and substantial" under section 104(d) of the Act. In Cement 

Division, National Gypsum Company, 3 FMSHRC 822 (1981), the Commission defined such a violation as where " ••• there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Although 

I am satisfied by the evidence that the falling hazard contributed 

to by the openings creates a reasonable likelihood of injury, I am 

1025 
not satisfied that the likely injury would be of a reasonably 

serious nature. On the contrary, I must agree with Climax's 

position that where injuries did occur they would be non-serious, 

in the nature of scrapes, bruises or minor sprains rather than 

the broken bones, or severe sprains envisioned by the inspector. 

The violation cannot, therefore, qualify as significant and substantial. 

The Secretary proposes a penalty sum of $91.00 for this 

citation. The parties have stipulated, however, that should the 

violation be found non-significant and substantial, the appropriate penalty would be $20.00. 

The record contains evidentiary facts or stipulations regarding the six elements to be considered under section llO(i) of 

the Act in assessing penalties. These need not be detailed here. 

It is enough to say that nothing in the record shows the stipulated amount inappropriate. A civil penalty of $20.00 will 

therefore be assessed. 

WEST 85-97-RM, Citation No. 2358525 

This citation nearly duplicates that discussed immediately 

above. Inspector Jake DeHerrera issued it on March 21, 1985, for 

another opening in haulage drift flume boards. This, too, was an 

alleged violation of 30 C.F.R. § 57.11-12. 

The evidence shows that this opening measured 14 inches deep 

by 31 inches long and up to 5 inches wide. The only significant 

difference between the circumstances here and those in the previous 

citation may be summarized as follows: the opening is not at or 

near a railway switch; the opening had a cover, but it had been dislodged and was leaning against the rib, rather than being in place; 

the longest dimension of the opening ran the.length of the flume 

boards, rather than across them; and the foot traffic could be expected to be less, consisting primarily of six electricians headquartered in a nearby shop area. 

In terms of the existence of a violation, none of these differences would alter the result reached for the earlier citation. The 

defenses are essentially the same (except for those relating exclusively to switch openings), and are insufficient for the reasons 

discussed in connection with that citation. 

If anything, the circumstances here are slightly more favorable 

to the Secretary. This is so because the opening had previously 

been covered. 

Nevertheless, this violation does not rise to the "significant 

and substantial" level. The credible evidence shows that while 

injuries are reasonably likely to occur, they are not reasonably 

likely to be serious. I agree with Climax that slight bruises, mild 

sprains, etc., would be the common result of accidents involving this 

small opening. 

1026 
The penalty for this violation will be assessed at $20.00. 

This is in conformance with the parties' stipulation regarding 

non-significant and substantial violations. 

WEST 85-99-RM, Citation No. 2356413 

On March 21, 1985, Inspector Elmer Nichols, acting on behalf 

of the Secretary, issued a citation charging that Climax was in 

violation of the mandatory safety standard published at 30 C.F.R. 

§ 57.3-22. !/ That standard provides: 

Miners shall examine and test the back, 

face, and rib of their working places 

at the beginning of each shift and frequently thereafter. Supervisors shall 

examine the ground conditions during 

daily visits to insure that proper 

testing and ground control practices 

are being followed. Loose ground shall 

be taken down or adequately supported 

before any other work is done. Ground 

conditions along haulageways and travelways shall be examined periodically 

and scaled or supported as necessary. 

The alleged violation took place in one of the fingers rising 

from a slusher drift. (See joint exhibits 4 and 5.} The finger 

was not in use at the time. A concrete safety plug had been in 

place at the upper end. On the day prior to the inspection, miners 

had set and shot one round of explosives in the plug, bringing part 

of it down. Their purpose was to remove the plug in order to bring 

the finger back into production. Miners were continuing the removal work when the inspector arrived at about 10:00 a.m. on the 

morning of his inspection. These background facts were not in dispute. 

According to Inspector Nichols, when he and Inspector DeHerrera 

arrived at the base of the finger, a miner, Kelly Kramp, had just descended a set of ladders after having drilled the face of the finger 

preparatory to setting a second round of charges. 

At about that time a "handful" of small bits of rock dribbled 

down from somewhere, convincing him that the finger was beginning 

to "work." He then noticed a piece of concrete in the face which 

appeared to him "quite loose." He described it as about the size of 

a basketball, and estimated its weight at between 50 to 60 pounds. 

4/ Now published, without change, as 30 C.F.R. § 57.3022. 

1027 
He viewed the concrete {referred to most often in all the testimony as "the rock") from the third step of the bottom ladder in 

a set of two six-foot stepladders. This put him about seven or 

eight feet from the face. The rock was to the left of the top 

step of the upper ladder. The only illumination present was his 

cap lamp. 

He was immediately concerned that the rock could come down. 

DeHerrera and he left very briefly and went to a nearby lunchroom where he wrote out the citation for violation of 30 C.F.R. 

57.3-22. He advised that Kramp and the other miner in the crew, 

Nick Doran, should not go back up to load holes until the offending 

piece of cement was barred down. 

The inspector explained that because of the location of the 

loose cement he was not concerned that it would fall directly on 

the miner or the ladder. Rather, he testified, it would likely 

fall on the 4 by 4 wooden brace upon which the upper ladder rested. 

This, in turn, would cause the miner and his equipment to fall to 

the concrete base of the finger. 

Inspector Nichols maintained that when he returned from the 

slusher drift (or dash) at about 10:10 a.m. the piece of concrete 

had been brought down. He made it clear that the single piece of 

concrete (a part of the plug which did not come down in the original 

blasting of the plug) was the only part of the face which he deemed 

a hazard. 

Mr. Kelly Kramp was called as a witness by both the Secretary 

and Climax. His assessment of the stability of the piece of concrete 

differed markedly from the inspector's. Kramp testified that when 

he reached the finger on the morning in question he first checked 

for misfires from the previous round. He then barred down until he 

was certain any loose material had been removed. Then, he testified, 

he proceeded to drill for the second round. Kramp agreed that the 

inspectors appeared just after he had completed the drilling. He 

denied that he had seen any materials fall while the inspector was 

there, but conceded that the "handful" could have fallen and escaped 

his notice. He did acknowledge that some dribbling of "fines" or 11 sands" had occurred earlier when he was drilling. This he insisted, 

was common when drilling a safety plug after a first round had been 

fired. In this case he suggested it was caused by movement in the 

finger attributable to a combination of drill water, drill vibration, 

and drill air. He believed that most of it was small bits of muck 

loosened by the first blast which had come to rest on a narrow 

bench he had created just below the face to facilitate preparation 

for the setting of the first charge. 

All in all, Kramp was certain that although dribbling of 

materials could sometimes presage a major movement in muck or ore 

in a finger, what he saw on March 21 was not of that sort. Rather, 

it was no more than what was to be anticipated from a stable face 

during removal of a safety plug (Tr. 291-292). 

1028 
Mr. Kramp maintained that his later effort to dislodge the 

piece of cement confirmed his view. He testified that it took 

five minutes of vigorous barring and prying by his partner and 

him to loosen it. They were forced to get in behind it to destabilize it. Some of the difficulty stemmed from the fact that 

the piece of concrete was partly supported by the concrete forming 

the walls or ribs of the finger itself. 

Mr. Ken Johnston, the Climax safety inspector who accompanied the federal inspectors, testified briefly for the operator. 

He agreed with Kramp's assessment. He could see nothing indicating that the piece concrete was loose or unstable. He also 

asserted that the few "pebbles" coming down seemed "inconsequential." 

The Secretary presented no evidence tending to show that 

Climax failed to bar down at the beginning of the shift. The 

inspector did suggest at one point that there had been a failure 

to examine and test "frequently thereafter." There is no evidence, however, to support that assertion. Similarly, Inspector 

Nichols acknowledged that there was no question of supervisory 

dereliction in performing daily visits. Thus, the only relevant 

part of the standard is that which declares: 

Loose ground shall be taken down 

or adequately supported before any 

work is done. 

The parties' versions of the facts are not greatly divergent. 

The question of violation actually turns on the validity of their 

witnesses' opinions. Whose judgment, Inspector Nichols's or Mr. 

Kramp's, is entitled to acceptance? One claims the cement appeared 

loose; the other insisted it was not. That determination is dif 

cult because both men are highly experienced hardrock miners, wellqualified to make such judgments. 

Having weighed the matter, I conclude that the Secretary has 

failed to carry his ultimate burden of proof. I reach this conclusion for several reasons. Although Inspector Nichols had great 

familiarity with work in raises, he had no prior specific experience with the reopening of fingers which had been safety-plugged 

for repair. Kramp, by contrast, had 10 years of experience working 

in fingers, five of which involved removing safety plugs. Beyond 

that, the inspector reached his judgment after seeing the allegedly 

loose piece of concrete briefly and from a distance. Kramp not 

only looked at it at close range, but ultimately barred it down. 

Finally, the fact that it took two miners, Kramp and Doran, at 

least five minutes to bar down the relatively small piece of cement 

tends to show that it was stable. None of this would be persuasive, 

of course, if the truth of Kramp's testimony were somehow suspect. 

In this regard, I note that at the time of the hearing Kramp had not 

been employed by Climax for five months. If he had any reason to 

1029 
slant his testimony in favor of the operator, it was not apparent 

on the record. I accept Mr. Kramp's view that the cement was stable. 

The citation will be vacated. 

WEST 85-100-RM, Citation No. 2356414 

This citation concerns the ladder arrangement used by Mr. 

Kramp to reach the concrete plug in the finger discussed in the 

previous citation. Inspector Nichols observed that miners had 

used two six-foot folding stepladders. These ladders remained 

in the closed or folded position. Mr. Kramp had leaned them 

against the concrete side of the finger, which rose from the 

floor at a 45-degree angle. The feet of the rear legs of the 

lower ladder rested on the floor. The feet of the upper ladder 

were spaced 46 inches above the top step of the lower ladder. 

They rested on a 4 by 4 inch wooden brace. Neither ladder was 

fastened to the finger by any means. (See sketch, government 

exhibit 8.) 

Inspector Nichols believed this arrangement violated the 

standard published at 30 C.F.R. § 57.11-1. ~ That standard 

provides: 

Safe means of access shall be 

provided and maintained to all 

working places. 

In his testimony, Nichols expressed a number of concerns about 

the safety of the ladders. Chief among these were the following: 

that the ladders were designed to be self-standing, not to be 

leaned; that unsecured, the ladders were unstable and, under loading, 

could slip to one side or the other, causing a climbing miner to fall; 

that the top step of the lower ladder was cracked; and that the 

46-inch gap between ladders, where no steps were provided, created 

a separate and significant hazard. 

He also maintained that the necessity for Mr. Kramp to carry 

a 125-pound drill up the ladder increased the overall hazards. The 

proper practice, the inspector claimed, was to use a single "miner's 

ladder" to reach the workplace. He contended that the folded stepladder, resting on its back legs alone, was inherently less stable 

than the miner's ladder. This was so, he testified, because the 

steps at 12-inch intervals between the heavy side rails of the 

single ladder lent those rails more rigidity than the slender back 

legs of the stepladder. Only the front legs of the stepladder were 

meant to bear the weight of a climber, while the back legs were designed merely to support the ladder itself. 

5/ Now re-codified as 30 C.F.R. § 57.11001. 

1030 
The witnesses for Climax disagreed with nearly all of the 

inspector's contentions. Mr. Kramp, who was using the ladders, 

believed they were safer than a miner's ladder. He pointed out 

that they were wider at the base than a miner's ladder and should 

therefore be steadier. He also testified that the steps on the 

ladders used were wider and angled differently from those on miners' 

ladders. This, he said, gave the stepladders a superior footing 

when the ladder had to be leaned at a 45-degree angle, and allowed 

the climber more toe space because of the offset provided by the 

rear legs. He further insisted that the top step was sound when 

he ascended the ladder; it cracked, he said, when he dropped the 

drill leg on it as he started to descend. 

The Climax safety manager, Mr. Larkin, testified that he could 

see no problem with the ladder arrangement. 

Counsel for Climax points out that since the standard prescribes no specific measures to achieve "safe access," safe compliance must be gauged by whether the access used by the company 

would inspire corrective action in a " ••• reasonably prudent person 

familiar with the factual circumstances surrounding the allegedly 

hazardous condition, including any facts peculiar to the mining 

industry •••• " Alabama By-Products Corporation, 4 FMSHRC 2128, 2129 

(December, 1982). 

The test is the correct one. I must conclude, however, that 

a reasonably prudent person confronted with the ladder arrangement used by Climax would judge it unsafe. I do not reach this 

conclusion based upon the inspector's concerns about the inherent 

design differences between folding stepladders and miners' ladders. 

The inspector's testimony in that regard was weakened by his admission that had the safety of the lower ladder been the only issue, 

he would have found it satisfactory except for the broken top step. 

(Tro 307-308 8 321, 324.) 

The hazard revealed by the evidence was the use of the two 

ladders with a 46-inch gap between the two. Mr. Kramp maintained 

that he could easily and safely climb the lower ladder with a 

125-pound jackleg drill over his shoulder, sling the drill off his 

shoulder and onto the 4 by 4 brace supporting the second ladder, 

and then somehow pull himself up onto the brace where he would 

stand to drill. This testimony is simply not credible. One way 

or another, he had to climb the last 46 inches of a 45-degree concrete wall without steps and without ladder rails to grasp to 

balance himself. The manuever would be hazardous without a heavy 

drill being carried. With the drill, it was even more dangerous. 

Because of the gap between the upper and lower ladders, the standard 

was clearly violated. 

1031 
Further, I conclude that the violation was "significant and 

substantial," as alleged. Had a miner, particularly one burdened 

with a 125-pound drill, fallen while ascending or descending the 

makeshift ladder arrangement, the possibility of a reasonably 

serious injury was all too apparent. The reasonable possibility 

of such an injury's occurring is likewise manifest. 

The parties have stipulated that for those violations which 

are found to exist, and which are also found to be "significant 

and substantial," the civil penalties proposed by the Secretary are 

appropriate and should be imposed. The stipulation appears reasonable. Consequently, a civil penalty of $98.00 will be assessed. 

CONCLUSIONS OF LAW 

Based upon the entire record herein, and in accordance with 

the determinations of fact contained in the narrative portions of 

this decision, the following conclusions of law are made: 

(1) The Commission has jurisdiction to decide this consolidated matter. 

(2) Climax violated the mandatory safety standard published 

at 30 C.F.R. § 57.11-12 as alleged in citation number 2358524. 

(3) The violation was not "significant and substantial" 

within the meaning of the Act. 

(4) The reasonable and appropriate penalty for the violation 

is $20.00. 

(5) Climax violated the mandatory safety standard published 

at 30 C.F.R. § 57.11-12 as alleged in citation number 2358525. 

(6) The violation was not "significant and substantial" 

within the meaning of the Act. 

(7) The reasonable and appropriate penalty for the violation 

is $20.00. 

(8) Climax did not violate the mandatory safety standard 

published at 30 C.F.R. § 57.3-22 as alleged in citation number 

2356413. 

(9) Climax violated the mandatory safety standard published 

at 30 C.F.R. § 57.11-1 as alleged in citation number 2356414. 

(10} The violation was "significant and substantial" within 

the meaning of the Act. 

(11) The reasonable and appropriate penalty for the violation 

is $98.00. 

1032 
ORDER 

Accordingly, citations numbered 2358524 and 2358525 are 

ORDERED affirmed as non-significant and substantial; citation 

number 2356413 is ORDERED vacated; citation number 2356414 is 

ORDERED affirmed as significant and substantial; and Climax is 

ORDERED to pay total civil penalties of $138.00 to the Secretary 

within 30 days of the date of this decision. 

Distribution: 

Richard W. Manning, Esq., Climax Molybdenum Company, One Greenwich 

Plaza, Greenwich, Connecticut 06836-1700 (Certified Hail) 

Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 

80294 (Certified Mail} 

/ot 

1033 

U. S, GOVERNMENT PRINTING OFFICE 1986; 491-223/53104