JANUARY 1986 

Commission Decisions 

01-08-86 

01-29-86 

01-29-86 

01-30-86 

Disciplinary Proceeding 

Pittsburg & Midway Coal Mining Co. 

Halfway, Incorporated 

Sec./Ronnie Beavers, et 

and United Mine Workers 

.v. Kitt Energy Corp., 

America 

Administrative Law Judge Decisions 

01-02-86 

01-06-86 

01-07-86 

01-07-86 

01-07-86 

01-07-86 

01-07-86 

01-08-86 

01-08-86 

01-14-86 

01-14-86 

01-14-86 

01-14-86 

01-15-86 

01-16-86 

01-16-86 

01-21-86 

01-21-86 

01-21-86 

01-21-86 

01-21-86 

01-22-86 

01-23-86 

01-22-86 

01-23-86 

01-24-86 

01-24-86 

01-27-86 

01-27-86 

01-28-86 

01-30-86 

01-31-86 

B J D Coal Company, Inc. 

Melanie Coal Company 

Tennis Maynard v. Block Coal Company 

Pyro Mining Company 

Pyro Mining Company 

Sutherland Coal Company 

Donald C. Beatty, Jr. v. Helvetia Coal Co. 

Monterey Coal Company 

Rocco Curcio v. Keystone Coal Mining Corp. 

Dixie Fuel Company 

Peabody Coal Company 

Landwehr Materials, Inc. 

Nacco Mining Company 

Turris Coal Company 

Jim Walter Resources, Inc. 

Southwestern Portland Cement Co. 

Pyro Mining Company 

Pyro Mining Company 

Sec.Labor/Robert Ribel v. Eastern Assoc. Coal 

Pyro Mining Company 

Climax Molybdenum Company 

Youghiogheny & Ohio Coal Company 

Sec. Labor, ·MSHA v. Eisenman Chemical Co. 

Jim Walter Resources, Inc. 

Frontier-Kemper Constructors 

Greenville Quarries, Inc. 

Power Operating Company, Inc. 

Lady Jane Collieries, Inc. 

Kaiser Cement Corporation 

Volunteer Coal Corporation 

Youghiogheny & Ohio Coal Company (addendum) 

Adams Stone Corporation 

D 86-1 

CENT 83-65 

WEVA 85-15 

WEVA 85-73-D 

KENT 85-165 

KENT 85-193 

KENT 84-231-D 

KENT 85-97 

KENT 85-182 

VA 85-33 

PENN 84-205-D 

HOPE 79-323-P 

PENN 84-208-D 

KENT 85-124 

KENT 85-163 

LAKE 85-81-M 

LAKE 85-87-R 

LAKE 85-12-R 

SE 85-134 

WEST 85-64-M 

KENT 85-98 

KENT 85-181 

WEVA 84-33-D 

KENT 85-187 

WEST 85-98-RM 

LAKE 84-98 

CENT 85-47-DM 

SE 85-132 

WEVA 86-76 

KENT 85-160-M 

PENN 85-236 

PENN 85-116-R 

WEST 84-71-M 

WEVA 85-242 

LAKE 84-98 

KENT 85-121-M 

Pg. 

Pg. 

Pg. 

Pg. 

1 

4 

8 

15 

Pg. 23 

Pg. 24 

Pg. 26 

Pg. 33 

Pg. 36 

Pg. 40 

Pg. 42 

Pg. 44 

Pg. 46 

Pg. 48 

Pg. 51 

Pg. 54 

Pg. 59 

Pg. 77 

Pg. 79 

Pg. 81 

Pg. 83 

Pg. 98 

Pg. 107 

Pg. 109 

Pg. 120 

Pg. 121 

Pg. 142 

Pg. 145 

Pg. 147 

Pg. 149 

Pg. 151 

Pg. 157 

Pg. 180 

Pg. 182 

Pg. 183 

Pg. 186 

JANUARY 1986 

The following case was granted for review during the month of Ja~~: 

Disciplinary Proceeding, Docket No. D 86-1. (Judge Koutras, disciplinary 

referral of December 4, 1985.) 

The following cases were not granted for review during the month of January: 

Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Company, Docket No. 

LAKE 85-59. (Judge Koutras, November 21, 1985.) 

Secretary of Labor on behalf of I.B. Acton and others v. Jim Walter 

Resources, Docket No. SE 84-31-D, etc.. (Judge Melick, November 22, 1985.) 

Secretary of Labor on behalf of F. Frederick Pantuso, Jr., v. Cedar Coal. 

Company, Docket No. WEVA 84-193-D. (Judge Steffey, December 12, 1985.) 

Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket No. 

SE 84-79. (Judge Broderick, December 20, 1985.) 

Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Company, Docket No. 

LAKE 85-90. (Judge Melick, December 19, 1985.) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 8, 1986 

TIISCIPLINARY PROCEEDING Docket No. D 86-1 

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

Commissioners 

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

On December 4, 1985, Commission Administrative Law Judge George A. 

Koutras issued a decision in White Oak Coal Co., FMSHRC Docket No. VA 

85-21, in which he held the respondent in default and, pursuant to 

Commission Procedural Rule 80, 29 C.F.R. § 2700.80, referred to the 

Commission for possible disciplinary proceedings the failure of the 

respondent's counsel to appear at the scheduled hearing. The 

respondent's counsel has filed a timely petition for discretionary 

review seeking review concerning only the judge's disciplinary referral. 

The petition for review is granted. The referral is severed from 

the proceedings on the merits, is assigned the above caption and docket 

number, and is referred to the Chief Administrative Law Judge for assignment to an administrative law judge for appropriate proceedings under 

Rule 80(c), 29 C.F.R. § 2700.SO(c). See, e.g., Disciplinary Proceeding, 

7 FMSHRC 1957 (November 1985)(ALJ). If the attorney who is the suh_iect 

of thfs proceeding is adversely af fecte<l or aggrieved by the subsequent 

l 
decision of the judge appointed by the Chief Administrative Law Judge, 

he may file a notice of appeal with the Commission. 29 C.F.R. § 2700.SO(d). 

The Commission expresses no view as to the merits of this referral. 

~~ 

Richard 

~~~ V. Backley, Commissioner 

~t1.~. oyce:i50i1e, ComliliSSier 

2 
Distribution 

Timothy W. McAfee, Esquire 

Cline,· McAf ee & Adkins. 

Professional Arts Buildi.ng 

1022 Park Avenue, N.W. 

Norton, VA 24273-0698 

Administrative Law Judge George A. Koutras 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church., Virginia 22041 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety and Health Review Commission 

1730 K Street, N.W~ 

Washington, D.C. 20006 

Ann Rosenthal, Esquire 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Mark R. Malecki, Esquire 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Room 1237A 

Arlington, Virginia 22203 

3 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETA..~Y OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

.. v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 29, 1986 

Docket No. CENT 83-65 

PITTSBURG & MIDWAY COAL MINING 

COMPANY 

BEFORE: Backley, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

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

It involves a single issue: Whether Pittsburgh & Midway Coal Mining 

Company ("P&M") violated 30 C.F.R. § 77.202, a mandatory safety standard 

which provides: "Coal dust in the air of, or in, or on the surfaces of, 

structures, enclosures, or other facilities shall not be allowed to 

exist or accumulate in dangerous amounts." Following a hearing on the 

merits, a Commission administrative law judge concluded that P&M violated 

the standard and assessed a civil penalty of $400. 6 FMSHRC 1347 (May 

1984)(ALJ). We affirm the judge's decision. 

The violation occurred at P&M's McKinley Mine. The mine includes 

several surface facilities used in the processing of coal. Among these 

facilities is a coal transfer building. In this building coal is transferred onto a conveyor belt, and, as a result of the transfer, coal dust 

enters the building's atmosphere. At the top of the building is the 

tipple control room. The control room serves as an observation post 

from which the coal processing operations are monitored. In the room 

are two electrical control boxes, the main breaker box and the main 

crusher box! The main breaker box, as the name implies, contains several 

circuit breakers. Inside the main crusher box are a motor starter, a · 

small transformer, an overload relay or circuit hreaker, and numerous 

wires. The main breaker box is approximately 2 feet high and 2 feet 

wide. The main crusher box is approximately 6 feet high and 2 feet wide. 

4 
The citation alleging the violation of section 77.202 was issued on 

June 9, 1983. The MSHA inspector who issued the citation stated that he 

observed coal dust in the bottom of each electrical box, that the coal 

dust was black in color, and that it had accumulated in each box to a 

depth of at least 1/8 of an inch. The inspector considered this amount 

dangerous in that an electrical malfunction in the control boxes could 

cause an arc or spark which could, in turn, put the dust into suspension 

and propagate an explosion. 

P&M's electrical foreman and P&M's director of safety training 

stated that the accumulations of coal dust were not as extensive as 

indicated by the inspector. They asserted that under nonnal operating 

conditions the accumulations would not be dangerous because electrical 

malfunctions in electrical control boxes are rare and electrical back-up 

systems in both boxes are designed to prevent arcs or sparks in the 

event of malfunctions. 

The judge found that the accumulations existed in both boxes and in 

the amount described by the inspector. 6 FMSHRC at 1349. The judge 

also found that energized electrical facilities were present and that 

faults or failures in such facilities are common occurrences. Id. The 

judge concluded that the existence of accumulations in the presence of 

potential ignition sources established that the accumulations were 

"dangerous" within the meaning of the standard. Therefore, he concluded 

that a violation occurred. Id. 

Substantial evidence supports the judge's findings concerning the 

presence of the accumulation. The inspector visually observed and 

measured the coal dust. P&M's witnesses did not dispute the presence of 

the coal dust. Rather, they argued that it was not as extensive as the 

inspector testified. The judge, who heard the witnesses and who had an 

opportunity to evaluate their testimony first hand, credited the inspector. 

We find nothing in the record to warrant the reversal of the judge's 

findings in this regard. Mathies Coal Co., 6 FMSHRC 1, 5 (January 

1984). 

The inspector also testified that the circuit breakers on the boxes 

could short circuit and put the coal dust into suspension and thereby 

propagate an explosion. He further testified that any broken wire in 

the boxes could ignite the coal dust. MSHA's electrical specialist 

confirmed that faulty circuit breakers and defects in the wiring could 

create an ignition source. P&M's electrical foreman did not dispute 

that the components of the electrical boxes could become ignition sources. 

When asked if there could be an electrical failure in the main crusher 

box which could result in an ignition source, he replied, "Yes ••• I 

guess [there] could." Moreover, he stated that he had twice seen circuit 

breakers in a main breaker box explode. The foreman emphasized, however 9 

that such occurrences are not common. Re stated -that there was a back-up 

system to prevent electrical failures. He also stated that it would be 

"very rare" for the circuit breakers to explode. 

5 
P&M argues on review that the judge erred in finding a violation 

because the judge did not require the Secretary to establish the existence 

of a present, actual ignition source in the vicinity of the accumulation 

at the time of the inspection. Rather, the judge concluded that under 

section 77.202, if a "potential" ignition source is present in the 

vicinity of an accumulation, the accumulation is dangerous within the 

meaning of the standard. 6 FMSHRC at 1349. We agree with the judge's 

conclusion. It is well established that the Mine Act and the standards 

promulgated thereunder are to be interpreted to ensure, insofar as 

possible, safe and healthful working conditions for miners. Westmoreland 

Coal Co. v. Federal Mine Safety and Health Review Commission, 606 F.2d 

417, 419-20 (4th Cir. 1979); O.ld Ben Coal Co., l FMSHRC 1954, 1957-58 

(December 1979). Section 77.202, like most coal mine safety standards, 

is aimed at the elimination of potential dangers before they become 

present dangers. Thus, we conclude that the judge did not err in seeking 

to determine whether, under the circumstances, an ignition could have 

occurred and that his finding of a violation is supported by substantial 

evidence. 

Accordingly, the decision of the administrative law judge is 

affirmed. ];/ 

Richard V. Backley, Commissioner 

.!/ Pursuant to section ll3(c) of the Mine Act, 30 U.S.C. § R23(c), we 

have designated ours.elves a panel of three members to exercise the 

powers of the Commission. 

6 
Distribution 

John A. Bachmann, Esquire 

The Pittsburg & Midway Coal Mining Company 

1720 South Bellaire Street 

Denver, Colorado 80222 

Vicki J. Shteir-Dunn 

U. S. Department of Labor 

Office of the Solicitor · 

4015 Wilson Boulevard 

Suite 400 

Arlington, Virginia 22203 

Administrative Law Judge James Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, lOtli Floor 

Falls Church, Virginia 22041 

7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY.AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HALFWAY, INCORPORATED 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 29, 1986 

Docket No. WEVA 85-15 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

The issue in this civil penalty proceeding is whether a violation 

of a mine's roof control plan properly was found to be "significant and 

substantial" within the meaning of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (the "Mine Act"). A citation, 

issued by the Department of Labor's Mine Safety and Health Administration 

("MSUA") pursuant to section 104(d)(l) of the Mine Act, 30 u.s.c. § 814(d)(l), 

alleged that the mine operator, Halfway, Incorporated ("Halfway0 ), violated 

30 C.F.R. § 75.200 by failing to comply with the minimum requirements of its 

approved roof control plan. Halfway contested the inspector's actions and 

the jurisdiction of the Commission, an independent adjudicatory agency, 

attached. Following a hearing on the merits, Commission Administrative 

Law Judge James A. Broderick affirmed the citation and assessed a civil 

penalty of Sl,000. 7 FMSHRC 884 (June 1985)(ALJ). We granted Halfway's 

petition for discretionary review. For the following reasons, we affirm 

the judge's decision. 

Halfway operated the No. 1 Mine, an underground coal mine located 

in Raleigh County, West Virginia. The mine was a "hilltop" mine, in 

which entries are driven through the coal seam from the interior of the 

mountain towards the outcrop. )j As part of a regular mine inspection 

1/ The term "outcrop" is defined as " [ t }he part of a rock formation · that appea,.rs at the surface of the ground" or "[c]oal which appears at 

or near the surface; the intersection of a coal seam with the surface. 11 

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

Mineral, and Related Terms 778 (1968). 

8 
conducted on June 20, 1984, MSHA Inspector James Ferguson examined the 

mine map. It showed that mining operations had advanced within 150 

feet of the outcrop on the 001 Second South Section. The inspector 

asked mine management whether supplemental support had been used in 

advancing the entry, as required by the mine's approved roof control 

plan when mining within 150 feet of the outcrop. 2/ He was informed by 

Donald Hughes, Halfway's general mine foreman, that no supplemental 

support had been used. 

After proceeding underground to inspect the area in question, the 

inspector observed that the entries had been driven at widths of 20 

feet. Room No. 9 had been advanced for a distance of 150 feet beyond 

the point 150 feet from the outcrop. The last 20 feet of top in that 

room had deteriorated to such an extent that it had fallen. Similarly, 

Room No. 8 had been advanced 100 feet beyond the point 150 feet from the 

outcrop. The inspector also observed deterioration of the roof in that. 

room. Roof bolting provided the sole means of roof support in these 

areas. At the time of his inspection, the inspector observed no miners 

in the particular rooms. 

Because of these conditions, the inspector issued Halfway a citation 

alleging a violation of 30 C.F.R. § 75.200. 3/ Pursuant to section 104(d)(l) 

2/ Safety Precaution No. 15 of Halfway's Minimum Roof-Control Plan 

provides: 

Roof bolts shall not be used as the sole means of roof 

support when underground workings approach and/or mining is 

being done within 150 feet of the outcrop or highwall. 

Supplemental support shall consist of at least one row of 

posts on 4-foot spacing, maintained up to the loading machine 

operator, limiting roadway widths to 16 feet. This does not 

apply to new openings being developed from the surface. 

Ex • G- 3 at 11. 

3/ 30 C.F.R. § 75.200 provides: 

[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 

(footnote 3 continued) 

9 
of the Act, the inspector found that the violation was of such nature as 

could contribute significantly and substantially to the cause and effect 

of a mine safety hazard. The inspector terminated the citation after 

Halfway abated the condition by dangering-off Room Nos. 8 and 9 and 

agreed to use supplemental support in the remaining rooms as specified 

in the roof control plan. 

The judge found that Halfway violated 30 C.F.R. § 75.200 by mining 

within 150 feet of the outcrop without the supplemental support required 

by its roof control plan. 7 FMSHRC at 885. He found the violation to 

be serious because roof conditions can deteriorate as mining operations 

approach the outcrop, and referred to the deterioration of the roof in 

Room Nos. 8 and 9 as evidence supporting his conclusion. Id. The judge 

stated, "A serious injury or fatality would have been reasonably likely 

had mining continued." 7 FMSHRC at 885-86. He determined that the 

violation was therefore of such nature as could significantly and substantially contribute to the cause and effect of a mine safety hazard. 

7 FMSHRC at 886. 

A "significant and substantial" violation is described in section 

104(d)(l) of the Mine Act as a violation "of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard[.]" 30 u.s.c. § 814(d)(l). The 

Commission first interpreted this statutory language in Cement Division,. 

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

[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 the 

Footnote 3 end. 

conditions and mining system of each coal mine and 

approved by the Secretary shall be adopted and set out in 

printed form •••. 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. 

10 
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. In Mathies- Coal Co., 6 FMSHRC 1 (January 1984), the 

Commission reaffirmed the analytical approach set forth in National Gypsum, 

and stated: 

in order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation 

of a mandatory safety standard; (2) a discrete 

safety hazard -- that is, a measure of danger to 

safety -- contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed 

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

likelihood that the injury in question will be of 

a reasonably serious nature. 

6 FMSHRC at 3-4 (footnote omitted). Accord, Consolidation Coal Co., 6 

FMSHRC 34, 37 (January 1984). 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). 

On review, Halfway concedes a violation of its roof control plan, 

but contests the finding that the violation was significant and substantial. It argues that the violation did not contribute to a discrete 

safety hazard and that no reasonable likelihood existed for an injury. 

We disagree. 

By mining the subject entries within 150 feet of the outcrop without 

supplemental support and in widths in excess of 16 feet, Halfway violated 

its roof control plan and, hence, 30 C.F.R. § 75.200. There is ample 

record evidence to support the judge's finding that this conceded violation 

contributed to the discrete safety hazard of a roof fall. MSHA Inspector 

Ferguson testified that the mine had a massive roof structure, which 

diminished and deteriorated as mining approached the outcrop. He explained 

that near the outcrop roof conditions could change without warning, and 

that the deterioration created a danger of roof falls, which could occur 

suddenly. Clearly, the roof control provision requiring supplemental 

support within 150 feet of the outcrop was included in the roof control 

plan in contemplation of those dangers. The inspector confirmed that 

the purpose of the supplemental support was to replace some of the roof 

support lost in driving 20-foot wide entries, by ~ffectively limiting 

the width of the entries to 16 feet, and to serve as a visual indicator 

of potential roof movement. Tr. 38-39. This evidence provides substantial 

support for the judge's finding that the failure to provide the required 

supplemental support contributed to a discrete hazard of roof falls in 

the deteriorating mining conditions encountered near the outcrop. 

11 
Halfway further challenges the judge's finding that the hazard 

contributed to by the violation was reasonably likely to result in 

injury. It argues that the judge improperly assumed the existence of a 

"continuing violation" because he conditioned his conclusion regarding 

the likelihood for injury on continued mining activity, and, at the time 

that the citation was issued, mining in Room Nos. 8 and 9 had already 

been discontinued. 

This argument misconstrues the importance of the timing of the 

issuance of a citation in the significant and substantial violation 

context. The fact that a miner may not be directly exposed to a safety 

hazard at the precise moment that an inspector issues a citation is not 

determinative of whether a reasonable likelihood for injury existed. 

The operative time frame for making that determination must take into 

account not only the pendency of the violative condition prior to the 

citation, but also continued normal mining operations, National Gypsum, 

supra, 3 FMSHRC at 825; U.S. Steel Mining Co., Inc., 6 F1-1s11Rc 1°573, 1574 

(July 1984). 

It is undisputed that Halfway's miners advanced Room Nos. 8 and 9 

for distances of 100 feet and 150 feet, respectively, beyond the point 

150 feet from the outcrop without the supplemental support mandated by 

the mine's roof control plan. This was a major, not minor, departure 

from the roof control plan and, during that phase of active mining, this 

violation exposed miners to a roof fall hazard. The undisputed testimony 

of MSHA Inspector Ferguson clearly supports this finding. T11e i.nspector 

testified that the roof near the face area in the cited rooms had deteriorated to the point that a roof fall was likely to occur. Tr. 41, 53, 

70, 77. He also testified that roof bolts would not anchor and that the 

roof had fallen, exposing mud, dirt, and the roots of grass and trees. 

Tr. 84-85. The testimony of Halfway's own witness supports the inspector's 

testimony. See, e.g., Tr. 106. This constitutes substantial evidence 

supporting the conclusion that a reasonable likelihood for injury existed 

as the cited entries approached the outcrop. 

We find further support for the conclusion that it was reasonably 

likely that the roof fall hazard contributed to by the violation would 

result in injury had normal mining operations continued because Room 

Nos. 8 and 9 remained accessible until Halfway abated the citation by 

dangering-off the entries. Tr. 44. !±._/ Active mining was taking place 

4/ The evidence is conflicting as to whether Room No. 9 was dangeredoff at the time of the inspection. Compare Tr. 44 with Tr. 94. However, 

in finding that the violation "was abated by dangering off rooms 8 and 

9," 7 FMSHRC at 885, the judge appears to have implicitly credited the 

MSHA inspector's testimony and found that Room No·. 9 had not been previously dangered-off. 

12 
in Room Nos. 3-7 and travelways to the cited areas could have been used 

by miners. Tr. 29, 43-44, 74. In the absence of any affirmative measures 

by Halfway to prevent miner exposure to the roof fall hazard found to 

exist in Room Nos. 8 and 9, a roof fall with resulting injury to a miner 

remained a reasonable possibility. 

Finally, Halfway does not dispute on review that any actual injury 

from a roof fall would be reasonably serious in nature. Our decisions 

have stressed the fact that roof falls remain the leading cause of death 

in underground mines. See, e.g., Consolidation Coal Co., supra, 6 

FMSHRC at 37-38 & n. 4.~ 

Accordingly, we conclude that the violation in this case properly 

was found to be "significant and substantial" in that there was a reasonable likelihood that Halfway's noncompliance with the supplemental 

support requirements of its roof control plan could significantly and 

substantially contribute to the cause and effect of a roof fall hazard. 

The decision of the administrative law judge is affirmed. 2_/ 

L. Clair Nelson, Commissioner 

5/ Chairman Ford assumed off ice after this case had been considered at 

a Commission decisional meeting and took no part in the decision. 

13 
Distribution 

William D. Stover, Esq. 

Halfway, Incorporated 

41 Eagles Road 

Beckley, West Virginia 25801 

Linda Leasure, Esquire 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge James Broderick 

Federal Mine Safety & Health Review Co111111ission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

14 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

RONNIE D. BEAVERS, et al. 

v. 

KITT ENERGY CORPORATION, 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 30, 1986 

Docket No. WEVA 85-73-D 

UNITED MINE WORKERS OF AMERICA 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISim1 

BY THE COMMISSION: 

This inquiry has been conducted to determine whether Commission 

Administrative Law Judge Roy J. Maurer, the presiding judge in the 

above-captioned case, and Frederick W. Moncrief, counsel for the 

Secretary of Labor, engaged in prohibited ex parte communications in 

violation of Commission Procedural Rule 82, 29 C.F.R. §. 2700.82. };;./ 

1/ Rule 82, entitled 11Ex parte communications," provides: 

(a) Generally. There shall be no ex parte communication with 

respect to the merits of ariy case not concluded, between the 

Commission, including any member, Judge, officer, or agent of the 

Commission who is employed in the decisional process, and any of 

the parties or intervenors, representatives, or other interested 

persons. 

(b) Procedure in case.of violation. (1) In the event an ex 

parte comnunication in violation of this section occurs, the 

Commission or the Judge may make such orders or take such action as 

fairness requires. Upon notice and hearing, the Commission may 

take disciplinary action against any person who knowingly and 

willfully makes or causes to be made a prohibited ex parte 

communication. 

(2) All ex parte communications in violation of this 

section shall be placed on the public record of the proceeding. 

(c) Inouiries. Any inquiries. coneerning, filing requirements, the sta~of cases before the Commissioners, or docket 

information shall he directed to the Office of the Executive 

Director of the Comr.rl.ssion •••• 

29 C.F.R. § 2700.82. 

15 
This matter was brought before the Commission on October 30, 1985, when 

Commission Administrative Law Judge Joseph B. Kennedy filed with the 

Commission a memorandum asserting that ex parte telephone conversations 

between Judge Maurer and Mr. Moncrief occurred on May 2, 1985, and 

October 1 and 2, 1985, during the course of pre-trial proceedings in 

this case. (Judge Kennedy attached to his memorandum copies of letters 

in the record of this case from Moncrief to Judge Maurer memorializing 

the telephone conversations in question.) Judge Kennedy requested the 

Commission to conduct an inquiry to determine whether the telephone 

conversations were in violation of Rule 82. The Commission solicited 

and received from Judge Maurer and Moncrief statements making a full and 

complete disclosure of the circumstances and content of the communications. In addition, the Commission severed this Rule 82 inquiry from 

the merits of the case and stayed further proceedings before Judge 

Maurer. 

The case on the merits involves a discrimination complaint filed on 

January 9, 1985, by the Secretary of Labor on behalf of Ronnie D. Beavers 

and twenty-seven other miners pursuant to the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). The complaint 

alleges that Kitt Energy Corporation("Kitt Energy") laid off the complainants because they lacked the underground safety and health training 

specified in section 115 of the Mine Act, 30 U.S.C. § 825. The complaint 

also states that although Kitt Energy subsequently provided the training 

and recalled the complainants to work, it refused to compensate them for 

their training. .The Secretary asserts that the layoff of the miners and 

the refusal to compensate them after the recall violated section 105(c)(l) 

of the Mine Act, 30 u.s.c. § 815(c)(l). Kitt Energy denied the allegations 

of illegal discrimination, and the United Mine Workers of America ("UMWA") 

intervened. 

Frederick Moncrief represented the Secretary, Bronius Taoras represented Kitt Energy, and Earl Pfeffer represented the UMWA. The case was 

assigned first to Commission Administrative Law Judge James A. Broderick~ 

On April 5, 1985, Judge Broderick issued a pre-hearing order directing 

counsel to file stipulations concerning those factual matters not in 

dispute and to specify witnesses and exhibits to be offered concerning 

disputed factual issues. On April 25, 1985, after Judge Broderick's 

pre-hearing order was issued, but before the specified dates for compliance with the order, the matter was reassigned to Judge Maurer. 

Prior to the reassignment of the case, the Commission heard oral 

argument in two cases posing the issue of whether an operator violated 

section lOS(c)(l) of the Mine Act when it bypassed for rehire laid-off 

individuals because they had not obtaine<l relevant training referred to 

in section 115 of the Act. UMWA on behalf of Rowe, et al. v. Peabody Coal 

Co., etc., 7 FMSHRC 1357 (September 1985), pets. for review filed, Nos. 

85-1714 & 85-1717 (D.C. Cir. October 29 & 30, 1985); Secretary on behalf 

of I.B. Acton, et al., etc. v. Jim Walter Resources, Inc., 7 FMSHRC 1348 

(September 1985), pets. for review filed, Nos. 86-1002 & 86-1027 (D.C. 

Cir. January 3 & 10, 1986)• In these cases, the Commission concluded 

16 
that an operator could bypass laid-off individuals who lacked training 

but that if it recalled individuals who had obtained the training, it 

had to reimburse them for their training costs. In large part, the 

Commission rested its decisions on Secretary on behalf of Bennett, et al. 

v. Emery Mining Corp., 5 FMSIIRC 1391 (August 1983), pet. for review filed, 

No. 83-2017 (10th Cir. August 17, 1983), in which the Commission held 

that although a mine operator may require that job applicants obtain 

requisite training prior to hire, it must reimburse newly hired miners 

who had obtained such training. 

For the reasons that follow, we conclude that Judge Maurer and 

Moncrief did not engage in ex parte communications in violation of Rule 

82. The stay is dissolved and the matter is returned to Judge Maurer 

for further proceedings on the merits. 

Based upon the consistent and uncontested statements that Judge 

Maurer and Moncrief submitted to the Commission pursuant to this inquiry, 

and upon other aspects of the record in this matter, we find that the 

following events pertinent to this inquiry occurred following the 

reassignment of this case. On May 2, 1985, Moncrief telephoned Judge 

Maurer. Moncrief told the judge that he was calling on behalf of both 

himself and Kitt Energy's counsel, Mr. Taoras. Moncrief requested 

relief for the parties from the various filing requirements of Judge 

Broderick's previously issued pre-hearing order. Judge Maurer reminded 

Moncrief that the UMWA had intervened. Moncrief stated that he had 

contacted the UMWA's counsel, who had agreed with the Secretary and Kitt 

Energy to seek relief from the pre-hearing order. As the basis for the 

request, Moncrief told Judge Maurer that he and Taoras had agreed that 

the case largely involved legal questions. He advised Judge Maurer that 

the Peabody and Jim Walter cases, supra, had been argued before the 

Commission and that Emery, supra, was pending in the Tenth Circuit. 

Moncrief stated that these cases probably would be dispositive of the 

issues at hand. In response, Judge Maurer told Moncrief to submit a 

letter on behalf of the parties requesting the relief that they wanted. 

Judge Maurer also stated that if he were to conclude that Peabody and 

Jim Walter had a potentially decisive bearing on the issues of the case, 

he would stay the matter but not past September 1985. 

As the requested follow-up to the May 2 conversation, on May 8, 

1985, Moncrief wrote to Judge Maurer. In the letter, Moncrief requested 

relief from the pre-hearing order "on behalf of ••• Mr. Taoras, and 

myself. 11 The letter asserted that the Peabody, Jim Walter, and Emery 

cases were likely to resolve the issues in Kitt Energy, or at least 

provide considerable guidance in their resolution. Accordingly, Moncrief 

requested a continuance pending the Commission's decisions in Peabody 

and Jim Walter, but stated that he had advised the other counsel of 

Judge Haurer's desire not to continue the matter beyond September. 

Moncrief ended his letter, "I trust that this eff_ectively summarizes our 

conversation." Copies of the letter were sent to Taoras and Hr. Pfeffer, 

and the .letter was placed in the official file of the case. Subsequently, 

by order dated May 10, 1985, Judge Maurer granted the parties relief 

from the requirements of Judge Broderick's pre-hearing order and notified 

the parties that the matter would be set for hearing in Septembei:- 1985. 

17 
On September 5, 1985, Judge Maurer scheduled a hearing for October 9, 

1985, in Morgantown, West Virginia. On September 30, 1985, the Commission 

issued its decisions in Peabody and Jim Walter. On October 1~ 1985, Judge 

Maurer received a copy of a letter written by Taoras to counsel for the 

Secretary and the UMWA, which stated that the parties were attempting to 

stipulate to the relevant facts in Kitt Energy. On October 1, about the 

same time that Judge Maurer received the copy of the Taoras letter, 

Moncrief again telephoned the judge. Moncrief stated that he was calling 

on behalf of all of the parties and that he was seeking a continuance of 

the scheduled October 9 hearing. Moncrief stated that the previous day's 

issuance of the Commission's decisions in Peabody and Jim Walter probably 

would obviate the need for an evidentiary hearing. Moncrief also stated 

that the parties were working on stipulations to submit to the judge. 

Judge Maurer told Moncrief that he would continue the hearing if Moncrief 

and Taoras would agree to certain other conditions with respect to future 

hearings. 

On October 2, 1985, Moncrief called Judge Maurer and informed him 

that Taoras had agreed to the other conditions. Judge Maurer asked 

Moncrief to advise all of the parties that the judge would issue an 

order continuing the hearing. Moncrief complied with this request and 

on October 3, 1985, wrote the judge a letter in which he "confirm[ed] 

[theJ telephone calls of October 1 and 2." Copies of the letter were 

sent to counsel for Kitt Energy and the UMWA, and the letter was placed 

in the record. On October 4, 1985, the judge made an order continuing 

indefinitely the previously scheduled Morgantown hearing. 

Commission Procedural Rule 82 (n. 1, supra) and section 557(d) of 

the Administrative Procedure Act ("APA11 ), 5 U.S.C. § 557{d) (1982), 

prohibit ex parte communications between a Commission judge and a party 

regarding the merits of a pending case. UMWA on behalf of Rowe, et al. 

v. Peabody Coal Co., etc., 7 FMSHRC 1136, 1142 (August 1985); Secretary 

on behalf of Clarke v. T.P. Mining, Inc., 7 FMSHRC 1010, 1014 (July 

1985); United States Steel Corp., 6 FMSHRC 1404, 1407-09 (June 1984); 

Knox County Stone Co., Inc., 3 FMSURC 2478, 2482-86 (November 1981). 

The term, "ex parte communication," is defined in the APA as: 

an oral or written communication not on the public 

record with respect to which reasonable prior 

notice to all parties is not given, but it shall 

not include requests for status reports on any 

matter or proceeding •.•• 

5 u.s.c. § 551(14) (1982). The three telephone conversations between 

Judge Maurer and Moncrief were not ex parte communications within the 

meaning of our rule and the APA. The record reflects that reasonable 

prior notice of the conversations was given to all of the parties. 

Moncrief asserts that when he spoke with Judge Maurer, "it was after 

discussion with and by agreement of (Kitt Energy's] and [the UMWA's] 

counsel." Judge Maurer's statement and the record confirm Moncrief's 

assertion. We note also that Moncrief's letters memorializing these 

conversations were placed promptly in the record and served on the 

parties. 

18 
Judge Maurer states that in the first conversation on May 2, 1985, 

Moncrief informed him that he was calling on behalf of himself and Kitt 

Energy and that he had been in touch with counsel for the UMWA. Judge 

Maurer's contemporaneous handwritten notes on the conversation, which 

are in the record, state, "Moncrief calling on behalf of both." (Emphasis 

in original.) With respect to the telephone conversation--or-october 1, 

1985, Judge Maurer states that Moncrief also informed him that he was 

calling on behalf of all of the parties. It is clear from the statements 

of Moncrief and Judge Maurer that Moncrief contacted Taoras and the 

UMWA's counsel regarding the substance of the May 2 and October 1 conversations prior to calling Judge Maurer. (The October 2 conversation 

was merely a follow-up to the October l conversation.) Moreover, copies 

of Moncrief's letters of May 8 and October 3, 1985, in which Moncrief 

indicated to the judge that counsel for the parties had been contacted 

previously concerning the subjects of the conversations, were sent to 

both counsel. Importantly, neither counsel for Kitt Energy nor counsel 

for the UMWA has disputed the contents of Moncrief's letters, nor have 

they objected to the contacts reflected in the letters. If Moncrief had 

not been speaking for all of the parties and with their prior notice 

when he contacted the judge, it is logical to assume that some objection 

.from the other parties to the litigation would have been lodged. 

Thus, we find that prior to the telephone conversations Moncrief 

advised the parties that he would converse with the judge, and we find 

further that the parties were aware of the subject matter that Moncrief 

would raise with the judge in those conversations. It is not impermissible for a party to contact a judge on behalf of all the parties concerning essentially procedural matters, where the conversation remains 

within the scope of the procedural subjects previously authorized by the 

parties to be raised with the judge. Because we find that Moncrief was 

acting with authorization on behalf of all parties and that "reasonable 

prior notice" had been given to other parties regarding the conversations, 

we conclude that the conversations at issue were not "ex parte communications" within the meaning of Rule 82 and the APA. 

Even were we to conclude that the communications were ex parte, we 

would not find them "prohibited ex parte communications." Rule 82 

prohibits communications "with respect to the merits of any case." The 

conversations of Judge Maurer and Moncrief were procedural in nature and 

did not concern the merits of the Kitt Energy litigation. It is true, 

as the Commission has stated, that the concept of the "merits of a case" 

is to be construed broadly and, at the very least, includes discussion 

of issues in a case and how those issues should or will be resolved. 

Peabody Coal Co., supra, 7 FMSHRC at 1014; T.P. Mining, supra, 7 FMSHRC 

at 1143. For example, a judge may not suggest to counsel in an off-therecord, ex parte conversation that counsel obtain a potential piece of 

evidence from opposing counsel. T. P. Mining, 7 FMSHRC at 1015-16. Nor 

may a judge solicit substantive, off-the-record information fro~ one 

counsel concerning the position a party has taken in other pending 

litigation when that position might influence the outcome of the case. 

Peabody Coal Co., 7 FMSHRC at 1143. However, when counsel merely 

19 
advises a judge of the existence of pending decisions that may obviate 

the need for an evidentiary hearing, as was done here in the conversations 

of May 2 and October 1, 1985, the conversation is procedural and does 

not pertain to the merits of the case. 

It is one thing to discuss the substance of the issues in a case; 

it is quite another to advise a judge -- on behalf of all of the parties 

that decisions are forthcoming or already exist that may simplify the 

procedural tasks of the judge and the litigants in the pending case. To 

do the former is to influence the substance of the decision in a pending 

case outside of the formal, public proceeding. See, e.g., Patco v. 

Federal Labor Relations Authority, 685 F.2d 547, 570 (D.C. Cir. 1982). 

To do the latter is to facilitate the procedural process by which the 

decision is reached. The prohibition against ex parte communications 

was not intended to erect meaningless procedural barriers to effective 

agency action. Patco, supra, 685 F.2d at 563-64. 

Further, that portion of the conversation of October 1, 1985, in 

which Moncrief advised Judge Maurer that the parties were drafting 

factual stipulations to submit to the judge was in the nature of a 

status report to the judge. This type of conversation is permissible. 

T.P. Mining, 7 FMSHRC at 1015. Similarly, the conversation of October 

2, 1985, in which Moncrief advised the judge that Taoras had agreed to 

the other conditions that the judge wished to impose with respect to 

future hearings and in which the judge asked Moncrief to advise the 

parties that he was continuing the hearing also concerned the status of 

the case and did not violate Rule 82. 

Thus, there is nothing in this record that in any way reflects 

discredit on the conduct of Judge Maurer or Moncrief. Indeed, they 

conducted themselves in an able and efficient manner. Their conduct in 

handling the litigation was procedurally proper and in accordance with 

accepted standards. We therefore conclude that the referral by Judge 

Kennedy is without merit. l:._/ 

2/ Because. of the unusual manner in which this inquiry arose, the 

Commission directed Judge Kennedy to make a full and complete disclosure 

of the circumstances by which he became aware of the asserted f;:' prcr·t:e 

communications. In doing so, Judge Kennedy also moved the C;J<,,:::::';;i.or, to 

strike certain portions of Judge Maurer's statement. Because our 

resolution of this matter, we have determined that the question of how 

the Moncrief Letters were obtained need not he addressed further in the 

present proceeding. Accordingly, the motion to strike is denied. 

20 
For the foregoing reasons, this inquiry is closed and the case on 

the merits may proceed. )_/ 

3/ Chairman Ford assumed office after this case had been considered at 

a Commission decisional meeting and took no part in the decision. 

21 
Distribution 

Frederick W. Mon~rief, Esquire 

Office of the Solicitor 

U.S. Department of Laoor 

4015 Wilson Boulevard 

·Arlington, Virginia 22203 

B.K. Taoras, Esquire 

P.O. Box 500 

Race Track .Road 

Meadow Lands, PA 15347 

Earl R. Pfeffer, Esquire 

United Mine Workers of America 

900 15th Street,.N.W. 

Washington, D.C. 20005 

Administrative Law Judge Roy J. Maurer 

Federal Mine Safety and Health Raview Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

Administrative Law Judge Joseph Kennedy 

Federal Mine Safety and Health R-eview Commission .. 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 . 

22 
ADMINISTRATIVE LAW JUDGE DECISIONS 
• 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 2 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BJ D COAL COMPANY, INC., 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-165 

A.C. No. 15-12081-03530 

Docket No. KENT 85-197 

A.C. No. 15-12081-03531 

No. E-1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Melick 

These cases are before me upon petitions for assessment 

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

Safety and Health Act of 1977 (the Act). Petitioner has 

filed a joint motion to approve settlement agreements and to 

dismiss the cases. Respondent has agreed to pay the proposed 

penalties of $2,140 in full. I have considered the representations and documentation submitted in these cases, and I 

conclude that the proffered settlement is appropriate under 

the criteria set forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that Respondent pay penalties of 

$2,140 within 30 days of this order. No amount of these 

penalties shall be taken from nor detrac~ed from the estate 

of the deceased Jimmy Dale Hamilton. 

u 

~· 1 

Gaiy,~elick 

Adminastrative aw 

Distribution: I ·\ 

W. F. Taylor, Esq., Office of thb Solicito~, U.S. Department 

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

37203 (Certified Mail) 

Timothy Crawford,, Esq. 1 Kelsey E. Friend Law Firm1 2nd Floor, 

Paulsey Building, PO Box 512, Pikeville, KY 41501 (Certified 

Mail) 

rbg 

23 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

-FALLS CHURCH, VIRGINIA 22041 

January 6, 1986 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

MELANIE COAL COMPANY,_ INC., 

Respondent 

: 

. • 

. . 

: 

. . 

. . 

: 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-193 

A. C. No. 15-14443-03517 

No. 4 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Kennedy 

Based on an independent evaluation and de nova review 

of the circumstances, I find CMI Richy D. Hamilton and the. 

Assessment Of £ice did a specially commendable job of 

enforcement in this case and that unlike many of the 

marginal proposals I receive this one is in full accord with 

the purposes and policy of the Act. 

Accordingly, It is ORDERED that the motion to approve 

settlement be, and hereby is, GRANTED. It is FURTHER 

ORDERED that the operator pay the amount of the settlement 

agreed upon, $3,692, in six equal installments commencing 

January 15, 1986 and each month thereafter until the full 

amount is paid on or before June , 1986. Finally, it is 

ORDERED that subject to payment f the amount agreed upon 

the captioned matter be DISMISS D 

24 

Joseph B. Kennedy 

Administrative Law 
Distribution: 

Robert C. Haynes, Esq., Office of the Solicitor, u. s. 

Department of Labor, 280 U. S •. Courthouse, 301 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Randy A. Campbell, Esq., Weinberg & Campbell, Perkins 

Building, P. o. Box 727, Hindman, NY 41822 (Certified Mail) 

dcp 

25 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

January 7, 1986 

TENNIS MAYNARD, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BLOCK COAL COMPANY, 

Respondent . . 

DECISION 

Docket No. KENT 84-231-D 

MSHA Case No. Pike CD 84-12 

Appearances: Hugh M. Richards, Esq., Prestonsburg, Kentucky, 

for Complainant: 

Thomas J. Blaha, Esq., Paintsville, Kentucky, 

for Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

Complainant filed a complaint with the Commission under 

§ 105(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815Cc) [hereinafter referred to as the Act] on 

August 23, 1984 alleging that he was "not able to take time 

off with a paid vacation" in violation of company policy. He 

further alleged that he was harassed on and off the job (presumably by the Respondent) as a result of filing an earlier 

discrimination complaint against Block Coal company. This 11 harassment 11 allegedly has caused him severe mental anguish 

and requires medical treatment. By his complaint, he sought 

removal of all reprimands and personnel actions from his 

personnel file and vacation with pay. At the hearing, this 

request for relief was expanded to include reinstatement to 

his former job at some future time when he becomes medically 

able to return to work, three hours of pay at time and a half 

(for which he had been docked) and that he be allowed ~o keep 

the medical insurance he had prior to leaving the job. 

This is the second Complaint of Discrimination filed 

with the Commission by Mr. Maynard against essentially the 

same Respondent. The earlier case is styled Secretary of 

Labor, Mine Safety and Health Administration CMSHA), on 

behalf of Tennis Maynard, Jr. v. Diamond P. Coal Company, 

Inc., (Docket No. KENT 82-199-D). Exhibit No. C-1 herein is 

the settlement agreement filed in that case and is signed by 

Mr. Paul Pelphrey for both Diamond P. and Block Coal 

26 
Companies. That case was disposed of by Decision Approving 

Settlement at 5 FMSHRC 1988 on November 25, 1983. Insofar as 

it is relevant, it will be discussed further in the body of 

this decision. 

Pursuant to notice, this case was heard in Prestonsburg, Kentucky on August 28 and 29, 1985. Tennis Maynard, 

Jr., Elbie Pickelsimer and Joe Cook testified on behalf of 

the Complainant; Paul Pelphrey and Dennis Marshall testified 

on behalf of Respondent. 

I have carefully considered the entire record and the 

contentions of the parties, and make the following decision. 

DISCUSSION AND F'INDINGS 

Tennis Maynard, Jr. [hereinafter Complainant] had been 

employed as a rock truck driver by Mr. Pelphrey in the surface coal mining business under various company names1 

Diamond P. and Block Coal among them, and at various locations in Eastern Kentucky. His former job with Diamond P. 

terminated with his firing on May 17, 1982 because he refused 

to work in an allegedly unsafe condition. As a consequence 

of this firing, he filed a Complaint of Discrimination, which 

was later settled prior to hearing and resulted in his reinstatement. His last job was in Morgan County, Kentucky on 

Rou~e 650, where Dennis Marshall was again his supervisor on 

the second shift.l This was the job he was reinstated in 

as of October, 1983 as a result of the settlement of his 

previous discrimination complaint, supra. He remained in 

this job until he quit on June 14, 1984. 

After Complainant 1 s return to work in October of 1983, 

he felt that there were several incidents which occurred at 

work which interfered with his job and amounted to 

"discrimination". 

Among them was one case where he had backed his rock 

truck up a ramp into a four foot wide hole which almost 

caused the truck to turn over. He was not warned of the hole 

in time by the man "running field". Another time there was a 

tree improperly loaded on another truck, which broke the 

windshield of Complainant's truck while passing at night. I 

specifically find that these two incidents were serious and 

posed a grave danger to Complainant. However, Complainant 

lThe second shift was a ten hour shift from six (6) in the 

evening until four (4) in the morning, with frequent overtime 

until seven (7) in the morning. 

27 
has failed to show that the management of Block Coal Company 

was culpable in bringing these occurrences abouto There is 

simply no evidence in the record to that effect from any 

source, including the Complainant himself. The men involved 

in these accidents were rank.and file workers in the same 

relative position as Complainant with management. 

Complainant also was docked three (3) hours of overtime 

pay one night because he had parked his truck and was not 

working due to problems with the truck's headlights. His 

supervisor explained that the Complainant had failed to contact him concerning any difficulty with the truck and only 

after one of the other men had told him that Maynard was 

sitting out there did he go out to investigate. He found him 

"reared back in the seat," appearing to be asleep. He was 

docked three {3) hours pay because he didn't contact his 

foreman to either have his truck repaired or to use the spare 

truck which was available on the site that night. Mr. 

Marshall's explanation of the Company's action in this matter 

is credible •nd I so find. 

With regard to malfunctioning equipment generally, a 

somewhat related claim is made by Complainant that his supervisor provided him with inferior equipment in comparison with 

the other rock truck drivers. It is not disputed' that the 

trucks were assigned on a seniority basis, with the more 

desirable trucks going to the most senior men. Complainant, 

however, feels that he should have been assigned a better 

truck earlier in his employment at the Morgan County site. 

For purposes of this discrimination case and without deciding 

which particular truck Complainant should have been driving 

on any particular day, the important issue is safety on the 

job. It is unrefuted in the record that the company rule was 

that any truck driver having any problem with his truck is to 

report it to the foreman.immediately and that he is not 

required to operate an unsafe vehicle. In several places in 

the record, Complainant states he did operate an unsafe 

vehicle but he does not state that he was required to do so 

or that he could not have reported the vehicle's condition·to 

management. In fact Mr. Marshall testified that Complainant 

didn't report problems with the vehicles as often as others 

did. 

Complainant further complains that on at least one 

occasion, he was made to work harder than the other rock 

truck drivers. No allegations of a derogation in job safety 

are made. The Respondent of course contests this and replies 

that the foreman 'involved in this instance only wanted 

Complainant to put in a day's work for a day's pay. I find 

this issue unnecessary to resolve as even if it is true, it 

28 
is not "protected activity" within the meaning of the Act. 

Mere complaints about job duties and general disagreements 

with supervisors are not "protected activities". 

Finally, with regard to. the issue of Complainant's 

entitlement to one week's vacation pay prior to his departure 

from the Company, there is a definite split of opinion 

between the parties. Complainant is aware that you have to 

be on the job one year in order to get one week's paid 

vacation, but he states he was going into his third year of 

employment by senority and had never had a paid vacation. 

The settlement agreement which the parties signed to 

reinstate Complainant in 1983 (Exhibit No. C-1) states inter 

alia that: "Respondent shall pay Maynard back wages in the 

lump sum amount of Ten Thousand ($10,000.00) Dollars, less 

deductions, required by law." Block Coal Company's position 

on this issue, through Mr. Pelphrey, is that Complainant was 

paid two weeks vacation as part of the $10,000 settlement. 

Therefore he .would have to finish a full year's work after 

reinstatement in order to be entitled to another week of paid 

vacation. I note, however, that the settlement agreement 

itself does not mention vacation pay. Nor does the Decision 

Approving Settlement. The only evidence in the record concerning this issue comes from Mr. Pelphrey, who with his 

counsel, personally negotiated the settlement with a Mr. 

Grooms, the Department of Labor attorney who was representing 

Complainant at the time. Since only Pelphrey, his lawyer, 

and Grooms were privy to these settlement negotiations, if 

the situation was other than as Mr. Pelphrey has testified, 

it was incumbent upon Complainant to produce that testimony 

from Grooms. Therefore, by a simple prepondera~ce of the 

relevant, probative and credible evidence I find that the 

$10,000 settlement paid the Complainant up through the time 

of his reinstatement, including two weeks of paid vacation 

that he had accumulated in the interim less $2,000 and some 

odd dollars that he earned in other jobs during the time 

period he was off work. 

By early 1984, Complainant was having medical problems 

with his stomach and nerves and was subsequently given 

Tagamet and Mylanta for his stomach, Sinequan to help him 

sleep at night, which was later changed to Amitriplyline, and 

Chlorpromazine. Complainant traces these medical problems to 

"harassment and discrimination" that he was going through on 

the job. Towards the end of his employment with Block Coal 

Company, he became worried about his safety and the safety of 

the men that worked with him because he couldn't keep his 

mind on his job. on June 14, 1984, Complainant filed the 

instant discrimination complaint with MSHA and quit his job 

with Block Coal Company on the advice of ,~is personal 

physician, Dr. Param. ~ t 

29 
Dr. Robert P. Granacher, Jr. a Board certified psychiatrist, examined Mr. Maynard for 5-1/2 hours on June 5, 1985 

in connection with a worker's compensation case in which 

complainant is the Plaintiff .and concluded that he is 

suffering a spontaneous major depression with paranoid 

features unrelated to working conditions or occupational 

cause. The doctor realized that Complainant feels very 

strongly that his medical problems were brought about by his 

work, more specifically, his problems at work, but he (the · doctor) feels he is having misperceptions about t;.he eti.ology 

of his illness, is pr.obB:bly paranoid and may even be 

delusional. 

As of the date of the hearing in Aμgust of 1985, Complainant was himself still of the opinion that he could not 

return to work at that time, because of his emotional 

illness, and in fact, doesn't know if he ever will be well 

enough to work again. 

ISSUES 

1. Whether Complainant has established that he was engaged 

in activity protected by the Act. 

2. If so, whether Complainant suffered adverse action as a 

result of the protected activity. 

3. If so, to what relief is he entitled. 

CONCLUSIONS OF LAW 

Complainant and Respondent are protected by and subject 

to the provisions of the Act, Complainant as a miner, and 

Respondent as the operator of a mine. 

In order to establish a prima facie case of discrimination under the Act, the miner has the burden of showing Cl) 

that he engaged in protected activity and (2) that he was --· subject to adverse action which was motivated in any part by 

the protected activity. Secretary/Pasula v. Consolidation 

Coal co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub 

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd 

Cir. 1981)~ Secretary/Robinette v. United Castle Coal Co., 3 

FMSHRC 803 (1981>1 Secretary/Jenkins v. Hecla-Day Mines 

Corporation, 6 FMSHRC 1842 (1984). The mine operator may 

rebut the prima facie case by showing that no protected 

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

30 
On the facts presented in this proceediQg, I cannot 

conclude that there is any credible evidence to suggest or 

support any theory that Mr. Maynard's departure from Block 

Coal Company or his difficulties while employed there from 

October 1983 until June 14, 1984 were in any way connected 

with any protected activity on his part. There is no evidence of any protected work refusals or retaliations for such 

activity nor is there any evidence that Mr. Maynard made any 

safety complaints to MSHA or to any state or local mining 

authorities during this time period. 

I do conclude, however, that when Complainant filed the 

two Complaints of Discrimination which he has filed against 

Diamond P. and Block coal Companies, he was engaged in 

activity protected under the Act. Further, I conclude that 

on those occasions during the eight (8) month period of his 

reinstatement with Block Coal, when Complainant reported 

accidents, incidents involving safety and safety-related 

problems with the equipment he was using to management 

personnel, he was engaged in activity protected under the 

Act. Having found Complainant engaged in activity protected 

by the Act, the critical issue in this case is whether Mr. 

Maynard's termination of his employment was in any way 

prompted by his engaging in protected activity under section 

105(c) of the Act, or whether it resulted from his inability 

to handle his job because of emotional or mental illness. 

While there is some argument by counsel as to the.proper 

characterization of Complainant's June 14, 1984 departure, I 

find that Complainant quit his job because of his emotional 

illness which is diagnosed as a major depression with 

paronoid features, not because of any discriminatory action 

on the part of the mine ownership or management. 

The only ~dverse action therefore that I find in this 

case is the docking of Complainant's pay for three (3) hours. 

The crucial question here then is whether the evidence 

establishes that the adverse action was motivated in any part 

by the protected activity. I conclude for the reasons stated 

earlier in this decision under Discussion and Findings· that· 

it was not. 

Whether the Respondent treated the Complainant unfairly 

by assigning him to drive older equipment vice newer and 

better equipment or making him work harder than other truck 

drivers; or whether it sufficiently considered his emotional 

problems are not issues properly before me in this case. My 

jurisdiction is limited to considering whether the Respondent 

discriminated against the Complainant for activity protected 

under the Federal Mine Safety and Health Act of 1977. I 

conclude that the evidence before me establishes that it did 

not. 

31 
CONCLUSION AND ORDER 

In view of the foregoing findings and conclusions, and 

after careful consideration of all of the evidence and testimony adduced in this case, I conclude and find that the 

Complainant here has failed to establish a prima f acie case 

of discrimination on the part of the Respondent. Accordingly, the Complaint IS DISMISSED, and the Complainant's 

claims for relief ARE DENIED. 

4.1/1~ nistrative Law Judge 

Distribution: 

Mr. Tennis M~ynard, Jr., Rt. 264, Box 670, Oavella, KY 41212 

(Certified Mail> 

Hugh Richards, Esq., 715 North Lake Drive, Prestonsburg, KY 

41653 (Certified Mail) 

Thomas J. Blaha, Esq., J. Scott Preston Law Offices, 232 

Second Street, P.O. Box 1361, Paintsville, KY 41240 

(Certified Mail) 

rbg 

32 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

January 7, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Docket No. KENT 85-97 · Petitioner A.C. No. 15-13881-03554 

v. 

PYRO MINING COMPANY, 

Respondent 

·: Pyro No. 9 Slope 

William station 

Appearances: 

Before: 

DECISION 

Thomas A. Grooms, Esq., Office of the Solicitor, 

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

for the Petitioner; 

Bruce Hill, Director of Safety and Training, 

Pyro Mining Company, Sturgis, Kentucky, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

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

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

§ 820(a). Petitioner seeks civil penalty assessments against 

the respondent for two alleged violations of certain mandatory 

safety standards set forth in Part 75, Title 30, Code of 

Federal Regulations. The respondent filed a timely answer contesting the alleged violations, and a hearing was convened in 

Evansville, Indiana, on December 3, 1985. 

Issues 

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

conditions or practices cited by the inspector constitute violations of the cited mandatory safety standards, and (2) the 

appropriate civil penalty to be assessed for the violations, 

taking into account the statutory.civil penalty criteria found 

in section llO(i) of the Act. 

33 
Discussion 

Section 104(a) "S&S" Citation No. 2505478 issued on 

January 7, 1985, cites a violation of 30 C.F.R. § 75.301, and 

the condition or practice is stated as follows: 

A violation was observed on the No. 3 unit 

I.D. 003 in that the quantity of air going 

through the last open crosscut was less than 

9000 CFM as required by the approved ventilation, 

methane and dust-control plan. When measured 

with an approved anemometer there was only 

5710 CFM going through the last open crosscut. 

Section 104(a) 11 S&S 11 Citation No. 2506565, issued on 

January 28, 1985, cites a violation of 30 C.F.R. § 75.400, and 

the condition or practice is stated as follows: "An accumulation of loose coal was present under the bottom belt and 

rollers along the No. 1 belt conveyor entry starting at the 

tail feeder and extending outby for a distance of approximately 

20 feet." 

This case is one of five cases heard in Evansville, 

Indiana, on December.3, 1985. When this case was called for 

trial, the parties advised me that the respondent admitted to 

the violations, and sought leave to dispose of the matter by 

tendering full payment of the proposed civil penalties filed 

by the petitioner for the two violations in question. 

Respondent's representative confirmed that the respondent 

no longer contests the violations, and he agreed that the respondent would tender the full amount of the proposed civil penalties. He also agreed to the negligence and gravity findings 

made by the inspector in support .of the citations issued in this 

case. 

The parties stipulated that at all times relevant to this 

case, the overall coal production for the respondent's operating 

company was 5,020,840 tons, and that the production for the 

Pyre No. 9 William Station Mine was 2,041,542 tons. 

_ The parties stipulated that the payment of the assessed 

civil penalties will not adversely affect the respondent's 

ability to continue in business. 

The parties stipulated that the violations were promptly 

abated in good faith by the respondent. I take note of the 

34 
fact that Citation No. 2505478 was abated within 20 minutes 

of its issuance, and that Citation No. 2506565 was abated 

within an hour of its issuance. In both instances abatement 

was achieved prior to the time fixed by the inspector. 

The respondent's request to withdraw its contest and to 

pay the proposed civil penalties was granted from the bench, 

and I considered the proposed disposition of this case as a 

settlement proposal pursuant to Commission Rule 30, 29 C.F.R. 

§ 2700.30. Further, after consideration of the pleadings, 

stipulations, and arguments made on the record by the parties 

in support of the proposed mutually agreed upon disposition of 

the case, I rendered a bench decision approving the proposed 

disposition, and this decision is reaffirmed and reduced to 

writing herein pursuant to Corrimission Rule 65, 29 C.F.R. 

§ 2700.65. 

Conclusion 

In view of the foregoing~ the citations issued in this 

case ARE AFFIRMED. Further, after careful consideration of 

the information submitted by the parties with respect to the 

six statutory civil penalty criteria found in section llO(i) 

of the Act, I conclude and find that the proposed settlement 

disposition advanced by the parties is reasonable and in the 

public interest, and IT IS APPROVED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $206 in full satisfaction of Citation No. 2505478, 

January 7, 1985, 30 C.F.R. § 301, and a civil penalty in the 

amount of $112 for Citation No. 2506565, January 28, 1985, 

30 C.F.R. § 75.400. Payment is to be made to the petitioner 

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

and upon receipt of payment, this proceeding is dismissed. 

fi~d~~ ~{g#'A. ifo~fr:·as Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

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

37203 (Certified Mail) 

Mr. Bruce Hill, Director of Safety and Training, Pyro Mining 

Company, P.O. Box 267, Sturgis, KY 42458 (Certified Mail) 

/fb 

35 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

January 7, 1986 

SECRETARY OF LABOR, 

MINE. SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-182 · Petitioner A.C. No. 15-13881-03569 

v. 

PYRO MINING COMPANY, 

Respondent 

·: Pyro No. 9 Slope 

William Station 

Appearances: 

Before: 

DECISION 

Thomas A. Grooms, Esq., Office of the Solicitor, 

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

for the Petitioner; 

Bruce Hill, Director of Safety and Training, 

Pyro Mining Company, Sturgis, Kentucky, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

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

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

§ 820(a). Petitioner seeks a civil penalty assessment in the 

amount of $241 against the respondent for an alleged violation 

of mandatory health standard 30 C.F.R. § 70.501. The respondent filed a timely answer contesting the alleged violation, 

and a hearing was convened in Evansville, Indiana, on December 3, 

1985. 

Issues 

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

conditions or practices cited by the inspector constitute a 

violation of the cited mandatory health standard, and (2) the 

appropriate civil penalty to be assessed for the violation, 

taking into account the statutory.civil penalty criteria found 

in section llO(i) of the Act. · 

36 
Discussion 

Section 104(a) "S&S" Citation No. 2505980, issued on 

June 12, 1985, cites a violation of 30 C.F.R. § 70.501, and 

the condition or practice is stated as follows: 

Based upon the results of a supplemental 

noise survey conducted by MSHA on 5-30-85, the 

noise exposure exceeds the allowable dose percentage of 132%. The noise exposure in the 

working environment of the continuous miner 

operator (occupation code 036) on Number 4 unit 

MMU No. 0040 is 133.5%. 

The operator shall take corrective actions 

to reduce the noise level to within the allowable 

limit of 132%. A hearing conservation plan as 

required by section 70.501 shall be submitted to 

MSHA within 60 days of this citation dated 

6-4-85. Joy Miner 14 CM-5 Co. SN. M 004. No. 4 

Unit located in the 1st west entries off the 

5th north. 

This case is one of five cases heard in Evansville, 

Indiana, on December 3, 1985. When this case was called for 

trial, the parties advised me that they reached a proposed 

settlement of the controversy, the terms of which included 

an agreement by the respondent to pay a civil penalty assessment in the amount of $50 for the violation in auestion. 

The respondent's representative agreed that the violation 

occurred as stated in the citation, and he also agreed to the 

negligence finding made by the inspector in support of his 

citation. 

The parties stipulated that at all times relevant to this 

case, the overall coal production for the respondent operating 

company was 5,020,840 tons, and that the production for the 

Pyro No. 9 William Station Mine was 2,041,542 tons. 

The parties stipulated that the payment of the assessed 

civil penalty will not adversely affect the respondent's ability 

to continue in business. They also stipulated that the violation was abated in good faith by the respondent. 

37 
In support of the proposed civil penalty reduction in this 

case, the petitioner's counsel asserted that he has taken into 

consideration a possible error factor in connection with the 

dosimeter used by the inspector to measure the noise level 

exposure for the continuous miner operator's working environment. Under the circumstances, counsel asserted that the 

gravity of the violation is not as great as originally determined by'the inspector. 

I take note of the fact that in its answer to the initial 

civil penalty proposal filed by the petitioner, the respondent 

took issue with the inspector's "significant and substantial 11 

(S&S) finding in view of the marginal dosimeter reading of 

133.5 percent. The allowable noise exposure limit for the 

tested occupation in question is 132 percent. I also take 

note of the fact that compliance was achieved and the noise 

level exposure was reduced to within the allowable limit of 

132 percent after the respondent replaced a worn part and 

replaced a chain on the continuous-mining machine operated by 

the affected miner in question. Under the circumstances, I 

cannot conclude that the inspector's original gravity finding 

indicating a permanently disabling possible hearing loss is 

supportable. 

Conclusion 

After careful consideration of the pleadings, stipulations, 

and arguments advanced by the parties on the record in support 

of the proposed settlement disposition of this case, I affirmed 

the citation and approved the proposed settlement in a bench 

decision made pursuant to 29 C.F.R. § 2700.30. That decision 

is reaffirmed and reduced to writing pursuant to 29 C.F.R. 

§ 2700.65. I conclude and find that the settlement disposition 

is reasonable and in the public interest. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $50 for the violation in question, and payment is 

to be made to the petitioner within thirty (30) days of the 

date of this decision and order. Upon receipt of payment, 

th~s proceeding is dismissed • 

.;~.r1'/J? ~!i.gn. Administrative tf?. 

Koutras ~ Law Judge 

38 
Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

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

37203 (Certified Mail) 

Mr. Bruce Hill, Director of Safety and Training, Pyro Mining 

Company, P.O. Box 267, Sturgis, KY 42458 (Certified Mail) 

/fb 

39 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 7 1986 

SECRETARY OF LABOR, . 

. CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SUTHERLAND COAL COMPANY, 

Respondent 

. . 

: 

Docket No. VA 85-33 

A.C. No. 44-05831-03524 

Mine No. 47 

ORDER APPROVING SETTLEMENT 

Before: Judge Broderick 

On December 24, 1985, the Secretary of Labor filed a 

motion for approval of a settlement reached by the parties 

in this case. The two violations involved were originally 

assessed at $3450, and the parties propose to settle for 

the amount assessed with a provision for extended payment 

of the assessment. 

The violations were very serious, having resulted in 

or contributed to the fatal injury of a mine foreman, who 

was the son of the mine owner. The motion states that the 

fatal accident resulted from the operator's reckless disregard 

for safety. Respondent was a small operator, with a limited 

history of prior violations. The mine was closed following 

the accident and has not reopened. Respondent states that 

it can only pay the penalty in installments, and the Secretary 

has agreed to this. 

I conclude that the settlement agreement should be approved. 

Therefore, IT IS ORDERED that the settlement is APPROVED. 

It is further ordered that Respondent shall pay the sum of 

$3450 for the violations alleged. Payment shall be made as 

follows: 

Respondent shall pay the sum of $143.75 

on or before February 1, 1986, and a 

like sum on the first day of each month 

thereafter until the total amount is paid. 

J

fi//A-&5 .ptj;vlt~v/__ James A. Broderick 

. Administrative Law Judge 

40 
Distribution: 

Craig w·. Hukill, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd.,. Arlington, VA 22203 

(CertifieO. Mail) 

Kermit R. Sutherland, Sutherland Coal Company, P.O. Box 41, 

Birchf iela, VA 24220 (Certified Mail) 

slk 

41 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE t..AW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 7 1986 

DONALD C. BEATTY, JR., DISCRIMINATION PROCEEDING 

Complainant 

v. 

HELVETIA COAL COMPANY, 

Respondent 

: Docket No. PENN 84-205-D 

Lucerne No. 8 Mine 

SUPPLEMENTAL DECISION 

Appearances: Earl R. Pfeffer, Esq., Washington, D.C., for 

Complainant; William M. Darr, Esq., Indiana, 

Pennsylvania, for Respondent. 

Before: Judge Broderick 

I issued a decision on the merits in this case on 

October 22, 1985 (corrected October 24, 1985). In that 

decision, I found that Complainant established that he had 

been discriminated against by Respondent in violation of 

section lOS{c) of the Federal Mine Safety and Health Act 

of 1977 (Act). As part of the relief, I ordered Respondent 

to pay the costs and expenses {including attorney's fees) 

reasonably incurred by Complainant in connection with the 

institution and prosecution of this proceeding. I directed 

counsel to confer and attempt to agree on the amount due 

Complainant as costs and expenses. 

Complainant has submitted a statement of attorney's 

fees in the total amount of $6230. Of this amount, $4250 

is claimed for Earl R. Pfeffer, Esq., $60 is claimed for 

Mary Lu Jordan, Esq., and $1920 is claimed for the United 

Mine Workers of America (UMWA) , by whom Pfeffer and Jordan 

are employed. $441.12 is claimed by the UMWA for the attorney's 

travel expenses. Respondent does not object to these amounts. 

Complainant has also filed a claim in the total amount 

o.f $495. 72 for "briefing" of Donald Beatty, Tom Grove and 

Robert Schork on May 14, 1985, and their appearance at the 

hearing May 15, 1985. Beatty is the Complainant. Grove and 

Schork testified on his behalf. The Local Union apparently 

paid them $167.12, $165.99, and $162.61 respectively. There 

is no explanation of the amount~ claimed. I will allow reimbursement of the statutory witness fees for the three 

individuals ($30 per day) • 

42 
Therefore, IT IS ORDERED that Respondent shall pay the 

following costs and expenses in satisf actio~ of paragraph 3 

of the Relief in my decision issued October 24, 1985: 

1. To Earl R. Pfeffer, Esq., 

2. To Mary Lu Jordan, Esq. 

3. To UMWA 

4. To Local 3548, UMWA 

$4250.00 

60.00 

2361.12 

90.00 

t&\ttu:.~ .A-(i;p~ ~ i 

James A. Broderick 

Administrative Law Judge 

Distribution: 

Earl R. Pfeffer, Esq., Mary Lu Jordan, Legal Asst., UMWA, 

·900 15th St., N.W., Washington, D.C. 20005 (Certified Mail) 

William M. Darr, Esq., Helvetia Coal Company, 655 Church St., 

Indiana, PA 15701 (Certified Mail) 

slk 

43 
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. 

MONTEREY COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. HOPE 79-323-P 

A.C. No. 46-05121-03008F 

Wayne Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

The parties have moved for approval of a settlement to 

dismiss this proceeding, upon the following grounds: 

1. On May 8, 1978, Section 107(a) imminent danger 

Withdrawal Order No. 25842 was issued to Monterey at its 

Wayne Mine for three alleged violations of the mandatory 

safety standards which are the subject of the present civil 

penalty proceeding. 

2. The violations were issued as a result of a fatal 

shaft sinking accident which occurred at the mine on 

May 5, 1978. 

3. At the time the accident occurred, the intake air 

shaft at the Wayne Mine was being constructed by FrontierKemper Constructors ("Frontier-Kemper") , an i:i.dependent 

contractor employed by Monterey for the purpose of conducting 

the shaft sinking operations. 

4. While the shaft sinking operations at the Wayne 

Mine were under the direct supervision and control of 

Frontier-Kemper, MSHA enforcement policy on May 8, 1978, was 

to cite the mine owner-operator for all violations which 

occurred on mine property. Therefore, Withdrawal Order No. 

25842 was issued to Monterey instead of Frontier-Kemper which 

was actually conducting the operations which resulted in the 

three violations at issue. · 

44 
5. MSHA's enforcement policy with regard to issuing 

citations or orders to independent contractors was later 

revised and on July 26, 1985, Order No. 28542 was modified 

to include Frontier-Kemper as the operator responsible for 

the three alleged violations. 

6. On December 13, 1985, the Secretary filed a civil 

penalty proceeding with this Commission against Frontier-Kemper, 

Docket No. WEVA 86-76, for the same three violations at 

issue in this proceeding. It is now the intention of the 

Secretary to proceed solely against Frontier-Kemper as the 

operator responsible for the violations at issue • 

. 7. Therefore, the following settlement has been 

agreed to by the parties: 

a. The Secretary will modify Order No. 28542 to 

delete Monterey as the cited operator; and 

b. The Secretary will and hereby does move to 

dismiss this civil penalty proceeding against Monterey 

without penalty assessment. 

I conclude that the settlement should be approved. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The motion for approval of settlement is GRANTED. 

2. The hearing set for January 9, 1986, is CANCELLED. 

3. This proceeding is DISMISSED. 

U)1i,~ ~VeA- william Fauver 

Administrative Law Judge 

Distribution: 

Thomas C. Means, Esq., Crowell & Moring, 1100 Connecticut 

Avenue, N.W., Washington, D.C. 20036 {Certified Mail) 

William A. Howe, Esq., Richard A. Steyer, Esq., Loomis, 

Owen, Fellman & Howe, 2020 K Street, N.W., Washington, D.C. 

20006 (Certified Mail) 

Robert A. Cohen, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Suite 400, Arlington, VA 

22203 (Certified Mail) 

kg 

45 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 8 1986 

ROCCO CURCIO, DISCRIMINATION PROCEEDING 

Complainant 

v. 

KEYSTONE COAL MINING 

CORPORATION, 

Respondent 

: Docket No. PENN 84-208-D 

: ' 

. . 

Emilie No. 1 Mine 

SUPPLEMENTAL DECISION 

Appearances: Earl R. Pfeffer, Esq., Washington, D.C., for 

Complainant; William M. Darr, Esq., Indiana, 

Pennsylvania, for Respondent. 

Before: Judge Broderick 

I issued a decision on the merits in this proceeding on 

September 27, 1985. In that decision I found that Complainant 

established that he had been discriminated against by Respondent 

in violation of section 105(c) of the Federal Mine Safety and 

Health Act of 1977 (Act). As part of the relief, I ordered 

Respondent to pay the costs and expenses (including attorney's 

fees) reasonably incurred by Complainant in connection with 

the institution and prosecution of this proceeding. I directed 

counsel to confer and attempt to agree on the amount due 

Complainant as costs and expenses. Complainant has submitted 

a statement of attorneys fees in the total amount of $5407.49. 

Of this amount $3671.87 is claimed for Earl R. Pfeffer, Esq., 

$120. is claimed for Mary Lu Jordan, Esq., and $1615.62 is 

claimed for the United Mine Workers of America (UMWA), by 

whom Pfeffer and Jordan are employed. In addition, the UMWA 

claims $370.65 for the cost of the attorney's hotel, per diem 

and transportation expenses and ·for the transcript of the hearing. 

Respondent does not object to these amounts. 

Complainant also has filed a claim in the amount of 

$294.72 for expenses incurred by Local 1412, UMWA in connection 

with this proceeding. Respondent objects to this claim. 

Section lOS(c) (3) of the Act provides that all costs 

and expenses determined to have been reasonably incurred in 

connection with the institution and prosecution of the 

proceeding shall be assessed against the person found to 

have violated section 105(c}. 

46 
·.: ·.· Local 1412 apparently paid Complainant $25.00 for a 

two hour meeting he had with his counsel on December 12, 1984, 

the day prior to the hearing herein. The amount is apparently 

based on Complainants hourly rate of pay (12.50). There is 

no showing or claim that he actually lost time or wages 

as a result of the meeting. Therefore, it is not shown to 

be an expense reasonably incurred in this proceeding, and I 

reject the claim. However, I will allow the claim for mileage 

and parking on that day in the total amount of $17.00. The 

Local Union also apparently paid claimant $106.78 for his 

attendance at the hearing on December 13, 1984 (8 hours at 

$13.348 per hour. The discrepancy in the hourly rate is not 

explained). Again, there is no showing or claim that he 

actually lost wages in the amount claimed and I reject the 

claim. The Local Union claims $115.32 for witness Jerry Duncan 

who testified at the hearing (8 hours at $14.415 per'hour). The 

reasonable expense for a witness at a hearing is the witness 

·fee fixed by 28 u.s.c. § 1821, and I will allow reimbursement 

for. the statutory witness fee ($30 per day) and the mileage 

and parking expenses ($17.00). Claimant seeks reimbursement 

to the Local Union for a one half hour meeting of Jerry Duncan 

and Jim Bonelli with MSHA on July 23, 1984 in the total amount 

of ~13.62. The complaint was filed with the Commission on 

August 30, 1984. The expense is not explained and cannot 

be said to have been incurred in connection with the present 

proceeding. It is denied. 

Therefore, IT IS ORDERED that Respondent.shall pay the 

following costs and expenses in satisfaction of paragraph 3 

of the Relief in my decision issued September 27, 1985: 

1. To Earl R. Pfeffer, Esq. 

2. To Mary Lu Jordan, Esq. 

3. To UMWA 

4. To Local 1412, UMWA 

$3,671.87 

12Q.OO 

2,086.27 

64.00 

~rJ.A;i,Ll ~ Mt/l? 'l-~~ eL 

James A. Broderick 

Administrative Law Judge 

Distribution: 

Earl R. Pfeffer, Esq., Mary Lu Jordan, Legal Asst., UMWA, 900 

15th St., N.W., Washington, o.c. 20005 (Certified Mail) 

William M. Darr, Esq., Keystone CoalMining Corp., 655 Church St., 

Indiana, PA 15701 (Certified Mail) 

slk 

47 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 141986 

SECRETARY OP LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

DIXIE FUEL COMPANY, 

Respondent 

. 

• 

. 

• 

. . 

. . 

•.: 

. • 

. . 

. . 

. • 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-124 

A.C. No. 15-00590-03527 

No. 1 Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

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

for Petitionerr William A. Rice, Esq., Harlan, 

Kentucky, for Respondent. 

Before: Judge Broderick 

The above case was called for hearing pursuant to notice 

on December 17, 1985 in Pineville, Kentucky. At the opening of 

the hearing, counsel made a motion on the record for the 

approval of a settlement agreement reached by the parties. 

The case involves two citations, one for an alleged 

violation of the ventilation standard, originally assessed at 

$400.00, the other for an alleged violation of the roof control 

plan originally assessed at $10,000.00. The agreement proposes 

to settle for payment of $400.00 and $7500.00 for the 

violations. 

The operator operates two mines which in 1983 produced 

223,504 tons of coal and in 1984 242,784 tons. There were 9 

prior violations of 30 C.P.R. § 75.316, and 27 prior violations 

of 30 C.F&R. § 75.200. 

The ventilation violation alleged that the air had dropped 

below the required 9000 cubic feet per minute at the last open 

crosscut. Less than one tenth of one percent methane was 

present. Because the operator could not determine the reason 

for the air loss after diligent ~ffort, the area was abandoned. 

The roof control violation was extremely serious. It 

resulted in one fatal injury, and 3 other nonfatal injuries. 

48 
The citation charged that while advancing toward the outcrop, 

subnormal roof conditions were encountered and a sufficient 

number of additional roof supports were not installed to 

adequately support the roof. Respondent's history of prior 

roof control violations is not good and includes another fatal 

roof fall in May, 1983. The mine in question has been closed, 

having been operated for only two weeks in 1985. 

As part of the settlement agreement, Respondent has agreed 

to make available to all miners in its two mines a copy of the 

approved roof control plan. It has further agreed that all the 

miners up to and including section foremen will attend a 

training class in roof control to be conducted by MSHA at its 

Harlan, Kentucky office. The class will be held on company 

time, that is, the miner.s ·will be paid at their regular rates 

of pay for attending· the c:ia·ss •.. 

I have carefully considered the settlement agreement in 

the light of the criteria in section llOCi) of the Act, and 

conclude that it should be approved. 

Therefore, IT IS ORDERED that the settlement agreement 

proposed on the record December 17, 1985 is APPROVED; 

IT IS FURTHER ORDERED that Respondent shall make available 

to each of its miner-employees a copy of the current approved 

roof control plan. 

IT IS FURTHER ORDERED that all of Respondent's 

miner-employees, up to and including section foremen, shall 

attend a roof control class at the MSHA off ice in Harlan, 

Kentucky and they shall be paid by Respondent at their regular 

rates of pay. This class shall be held on or before February 7, 

1986. 

IT IS FURTHER ORDERED that Respondent shall pay the sum of 

$7900.00 within 30 days after the roof control class referred 

to above is held, and subject to the payment and the other 

conditions set out above being fulfilled, this proceeding is 

DISMISSED. 

~, tli11J! s h3i z::il!A, !L;L j James A. Broderick · Administrative Law Judge 

49 
Distribution: 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the 

Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail> 

William A. Rice, Esq., Rice, Huff & Uenderickson, 417 East 

Mound Street, Harlan, KY 40831 (Certified Mail) 

slk . 

50 
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. 

PEABODY COAL COMPANY, 

Respondent 

JAN 141986 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-163 

A.C. No. 15-03161-03558 

Star North Underground 

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 

civil penalty assessments in the amount of $6,000 for two alleged 

violations of certain mandatory safety standards found in Part 77, 

Title 30, Code of Federal Regulations. The respondent contested 

the alleged violations and the case was docketed for a hearing 

on the merits. The hearing was subsequently continued after the 

parties advised me of a proposed settlement of the violations. 

By joint motion filed with me on January 6, 1986, pursuant 

to Commission Rule 30, 29 C.F.R. § 2700.30, the parties seek 

approval of a proposed settlement of the case, the terms of 

which require the respondent to pay civil penalties in the 

amount of $4,000 for the disputed violations. 

Discussion 

In support of the proposed settlement, the parties stete 

that they have discussed the alleged violations and the statutory 

criteria stated in section 110 of the Act. They have also submitted information concerning the civil penalty criteria and a 

full disclosure of the circumstances connected with the issuance 

of the violations. 

51 
The violations in this case were issued after an investigation of a fatal accident at the respondent's mine on January 15, 

1985. According to MSHA's official accident investigation 

report, which is a part of the record, chief maintenance foreman 

James w. Warner was fatality injured when he became entangled 

between a belt conveyor and belt roller. According to the report, 

the accident victim had apparently removed a portion of the belt 

conveyor guard without deenergizing the belt. Citation No. 

2506470, January 15, 1985, cites a violation of 30 C.F.R. 

§ 75.400(c) for a failure to adequately guard the belt conveyor 

drive, and Citation No. 2506471, January 15, 1985, cites a violation of 30 C.F.R. § 77.404(c), for the failure of the accident 

victim to deenergize the power from the beltline before performing 

maintenance or repairs on th~ belt. 

In support of the proposed settlement, petitioner states 

that the.accident victim was grossly negligent in attempting 

to repair or perform maintenance on the belt when he removed a 

portion of the belt guarding and failed to deenergize the 

belt. Based on a review of the available evidence, including 

the information contained in the accident report, and citing 

Old Dominion Power Company, 6 FMSHRC 1886, 1895-96 (1984), and 

Nacco Mining Company, 3 FMSHRC 848 (1981), petitioner believes 

that this gross negligence should not be attributed to the 

respondent. 

Petitioner asserts that the accident victim did not endanger 

others by his negligent acts, and there is no evidence that the 

respondent could have reasonably foreseen that he would act in 

such a manner on the date the violations occurred. Petitioner 

points out that the accident victim was chief maintenance 

foreman at the mine with over 7 year..s experience at his occupation, had 14 years total mining experience, and had received his 

annual retraining on October 26, 1984. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

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

the proposed settlement disposition is reasonable and in the 

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

the motion IS GRANTED, and the settlement IS APPROVED. 

52 
ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $2,000 in satisfaction of Citation No. 2506470, and 

$2,000 for Citation No. 2506471. Payment is to be made to MSHA 

within thirty (30) days of the date of this decision. Upon 

receipt of payment this matter is dismissed. 

Distribution: 

_·.~AtA// ~~~~- ~~· Ko~as · 

Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

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

37203 (Certified Mail) 

Michael A. Kafoury, Esq., Peabody Coal Company, P.O. Box 373, 

St. Louis, MO 63166 (Certified Mail) 

/fb 

53 

• 
• 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 141986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH . ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . 

. . 

. LANDWEHR MATERIALS, INC., . Respondent : 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 85-81-M 

A.C. No. 47-0095-05502 

Mackville Quarry 

DECISION 

Appearan.ces: Miguel J. Carmona, Esq., Office of the Solicitor, 

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

Petitioner; Thomas J.Landwehr, General Manager, 

Landwehr Materials, Inc., Appleton, Wisconsin, 

for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for an alleged 

violation of 30 C.F.R. § 56.5-SO(b). Pursuant to notice, the 

case was heard in Green Bay, Wisconsin on December 10, 1985. 

Arnie Mattson, a Federal mine inspector, testified on behalf of 

Petitioner. No witnesses were called by Respondent. The 

parties waived their right to file written post-hearing briefs, 

but both made arguments on the record at the close of the 

hearing. I have considered the entire record, and the 

contentions of the parties, and make the following decision. 

FINDINGS OF FACT 

1. At all times pertinent to this proceeding, 

Respondent was the owner and operator of a limestone quarry in 

Outagamie county, Wisconsin, known as the Mackville Quarry and 

Mill. 

2. The subject mine is open about 9 months of the year, 

and works about 38,000 to 40,000 production hours annually. 

About 20 employees work at the mine. 

54 
3. Inspections of the subject Quarry's noise levels were 

conducted by MSHA in May, 1979 and March, 1984. In May, 1979 

citations were issued because two miners were exposed to 

excessive noise and were not wearing approved hearing 

protection. The citations were terminated when Respondent 

required the miners to wear hearing protection. In March, 

1984, a noise sampling survey was conducted. It showed that 

certain employees were exposed to noise in excess of the 

prescribed limits. Citations wece not issued, because the 

employees were wearing approved hearing protection. 

4. Between October 17, 1982 and October 16, 1984, 

Respondent had a history of one paid violation of a mandatory 

health or safety standard. 

S. Respondent· has ~~ways cooperated with the MSHA 

inspectors in their inspections of its facilities. 

6. On October 16 and 17, 1984, Federal Mine Inspector 

Arnie Mattson conducted a health and safety inspection of 

Respondent's mine. The inspection included a sound level 

examination of the environment of a shovel operator. The 

inspector determined that the shovel operator was exposed to 96 

dBA for an 8 hour day. The operator was wearing personal 

hearing protection. A citation was issued because the 

Inspector determined that feasible engineering controls were 

not being utilized. 

7. Following a discussion between Respondent and the 

Inspector, the MSHA Technical support Unit in Denver, Colorado 

performed a noise control examination in April and May, 1985. 

The citation termination date was extended because of this 

examination. 

8. A vinyl barrier curtain was installed between the 

shovel operator and the engine compartment of the shovel. 

Tests performed by MSHA's Industrial Hygienist showed that the 

noise level was reduced in the shovel operator's environment by 

almost 4 dBA (from an average of 101 dBA to an average of 98 

dBA). This was a reduction in terms of the percentage of the 

permissible noise levels of approximately 33 percent (101 dBA 

is 459 percent of the allowable level; 98 dBA is 303 percent). 

The reduction, though significant, did not reduce the noise to 

permissible levels C90 dBA), so personal protection equipment 

was still' deemed necessary. 

9. The report from the Denver technical center indicated 

that the ear muffs worn by the shovel operator did not afford 

adequate protection because of a loose fit. This report was 

issued after the citation was terminated. 

55 
10. The citation was terminated on May 1, 1985 after the 

installation of a leaded vinyl curtain between the shovel 

operator and the engine. ~he shovel operator was still 

required to wear hearing protebtion. 

REGULATORY PROVISIONS 

30 C.F.R. § 56.5-50 provides in part as follows: 

56.5-50 Mandatory. (a) No employee shall be 

permitted an exposure to noise in excess of that 

specified in the table below. Noise level 

measurements shall be made using a sound level 

meter meeting_ spe.c~f ications for type 2 meters 

contained in American· National Standards 

Institute (ANSI) Standard Sl.4-1971, 'General 

Purpose Sound Level Meters,' approved April 27, 

1971, which is hereby incorporated by reference 

and made ~ part hereof, or by a dosimeter with 

similar accuracy. This publication may be 

obtained from the American National Standards 

Institute, Inc., 1430 Broadway, New York, New 

Yark 10018, or ~ay be examined in any Metal and 

Nonmetal Mine Safety and Health District or 

Subdistrict Office of the Mine Safety and Health 

Administration. 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, hours of exposure 

8 . • . . . . . • • . • . . . . . . . . • . • . . . . . . . . . . . . . 

6 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ~ • • .. • 

4 . . . . 0 • • • • • • • 0 • • • • • • • • • • • ~ • • • • • • • • • • 

3 • • • • • • • • • • ~ • e • • • • • • • ~ • • • • • • • • • • • • • • 

2 .. ...................•.•.....•... ~ .. 

1-1/2 .. ~·-························•«> 1 • • • • • • . • • . • . . • • • • . 0 • • • • • • • • • • • • • • • • 

l/ 2 ••.•••••.....•..••.•..••.•.•..•.. 

1/4 or less •••.•.••.•••••••.••.•••.• 

* * * 

Sound level 

dBA, slow 

response 

90 

92 

95 

97 

100 

102 

105 

110 

115 

(b) When employees' exposure exceeds that 

listed in the above table, feasible 

administrative or engineering controls shall be 

utilized. If such controls fail to reduce 

56 
ISSUES 

exposure to within permissible levels, personal 

protection equipment shall be provided and used 

to reduce sound levels to within the levels of 

the table. 

1. Whether the evidence showed that Respondent failed to 

utilize feasible engineering controls where an employee's 

exposure to noise exceeded permissible limits? 

2. If so, what is the appropriate penalty for the 

violation? 

CONCLUSIONS OF LAW 

1. Respondent is subject to the prov1s1ons of the 

Federal ~ine Safety and Health Act of 1977 (the Act) in the 

operation of the subject mine. I have jurisdiction over the 

parties and the subject matter of this proceeding. 

2. Section llOCa) of the Act provides that if a 

violation occurs of a mandatory health or safety standard, a 

civil penalty shall be assessed for the violation. 

3. On October 17, 1984, a shovel operator at the subject 

mine was exposed to noise 2.28 times the permisible level; the 

exposure was equivalent to 96 dBA for 8 hours per day. 

4. There were feasible engineering controls available to 

reduce the exposure, namely the installation of a vinyl curtain 

between the shovel operator and the shovel motor. 

5. Respondent was in violation of 30 C.F.R. § 56.5-50(b) 

on October 17, 1984 because of its failure to utilize 

engineering controls to reduce the exposure of its shovel 

operator to excessive noise. 

6. Respondent is a relatively small operator and 

operates only 9 months of the year. 

7. The violation was moderately serious: the exposure 

was 2.28 times the permissible level; the shovel operator was 

wearing inadequate personal protection. Therefore, a hearing 

loss was likely to result from continued exposure to the 

excessive noise. 

8. Because MSHA had examined the noise level in the 

facility previously, and had never required engineering 

57 
controls to reduce the noise levels, Respondent's negligence 

must be deemed minimal. 

9. There is no evidence that the imposition of a penalty 

will have any effect on Respondent's ability to continue in 

business. 

10. Respondent abated the violation promptly and made a 

good faith effort to comply with MSHA's requirements • 

. 11. Considering the moderately serious nature of the 

violation, an appropriate penalty would be $90. Giving 

Respondent credit for the minimal negligence, its cooperative 

attitude, and prompt abatement, I conclude that an appropriate 

penalty for the viol~tion~is_ $70. 

ORDER 

Ba.sed on the above findings of fact and conclusions of 

law, IT IS ORDERED: 

1. Citation 2373982 issued October 17, 1984 is AFFIRMED. 

2. Respondent shall within 30 days of the date of this 

decision pay the sum of $70 as a civil penalty for the 

violation found herein. 

Distribution: 

JI tU1Ak5 A 11'/?c~,._, tl 

./ James A. Broderick 

Administrative Law Judge 

Miguel J. Carmona, Esq., U.S. Department of Labor, Office of 

the Solicitor, 230 s. Dearborn st., 8th Fl., Chicago, IL 60604 

(Certified Mail) 

T. J. Landwehr, General Manager, Landwehr Materials, Inc., 

Route 2, Appleton, WI 54911 (Certified Mail) 

slk 

58 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

January 14, 1986 

NACCO MINING COMPANY, 

Contestant 

v • 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NACCO MINING COMPANY, 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor 

CONTEST PROCEEDING 

Docket No. LAKE 85-87-R 

Citation No. 2330657; 6/5/85 

Modified to 

Citation No. 2330657-02; 6/24/85 

Powhatan No. 6 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 86-2 

A. C. No. 33-01159-03668 

Powhatan No. 6 Mine 

DECISION 

Appearances: Paul W. Reidl, Esq., Crowell & Moring, Washington, 

D. C. for Contestant/Respondent; 

Before: 

Patrick M. Zohn, Esq., Office of the Solicitor, 

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

Respondent/Petitioner; 

Thomas M. Myers, Esq., United Mine Workers of 

America, Shadyside, Ohio for Intervenor. 

Judge Merlin 

59 
The above-captioned notice of contest is before me pursuant 

to order of the Commission dated November 13, 1985. See also the 

letter or the Commission's Acting General Counsel dated 

January 7, 1986. The related penalty case is before me pursuant 

to Order of Assignment dated November 14, 1985. 

In a telephone conference call with the undersigned Administrative Law Judge counsel agreed that (1) the contest and 

penalty cases be consolidated for decision; (2) the cases be decided on the basis of the present record without any further 

hearing and (3) filing of post-hearing briefs be waived. l/ 

Accordingly, the contest and penalty cases are hereby consolidated and decided on the present record. 

The subject citation dated June 5, 1985 and issued under 

section 104(a) for a violation of 30 C.F.R. § 75.200, reads as 

follows: 

During an investigation of a 103(g)(l) 

complaint it has been determined that 

Bill Palmer, while operating the No. 14 

continuous mining _machine in the 6+94 

crosscut No. 3 to 2 entry in the 9 left 

2 east section on the first shift 

5-30-85 traveled at least 6 feet 5 inches 

inby permanent roof supports (roof bolts) 

and temporary roof supports had not been 

installed. Information to substantiate 

this violation was obtained by inspecting 

the 6+94 crosscut and conferring with 

management and mine employees. The 

Section Foreman was Stanley Sikora. 

The notice of termination dated June 11, 1985 provides: 

Safety meetings were held and the roof 

control plan and the hazards of going 

beyond roof supports were explained to 

all the working miners. 

Subsequently on June 24, 1985, a modification was issued 

changing the 104(a) citation to a 104(d)(l) citation. This 

modification states as follows: 

l/ 

No. 2330657 issued on 6-5-85 is being modified to show this action was a 

Operator's counsel filed a Notification of Subsequent Authority which the Solicitor has moved to strike. The 

operator has opposed the Solicitor's motion. The 

matter is moot because I read the decisions in question before the operator's notification was received. Since 

the positions of the parties have been fully presented, 

f u r t-h er b r i e f i n g i s u n n e c e s s a r y • 

60 
104(d)(l) type citation instead of a 

104(a). Bill Palmer, continuous miner 

operator under the supervision of 

Stanley Sikora, Section Foreman, was 

mining coal 6 feet 3 inches inby 

permanent roof supports in an area of 

unsupported roof. This violation 

occurred May 30, 1985, in the 9 left 

2 east section. This is an unwarrantable 

failure. This citation was terminated 

6-11-85. 

The operator does not contest the fact of violation 

(Tr. 6-7). Nor has it argued that the violation was not serious. 

Its challenge is first, to the circumstances and procedures under 

which the (d) citation was issued and second, to the existence of 

unwarrantable failure (Tr. 7-8, 37). 

The first issue is the validity of the citation in light of 

the requirements of section 104(d) that the inspector issue the 

citation on an 11 inspection 11 and make a 11 finding 11 of unwarrantable 

fai 1 ure. 

Three administrative law judges of this Commission now have 

considered the meaning and effect of section 104(d) in cases like 

this. In an Order Granting In Part For Summary Decision, Specifying Further Proceedings, And Granting Motion To Consolidate in 

Westmoreland Coal Co., (WEVA 82-340-R et al.) (May 4, 1983), 

Judge Steffey explained section 104(d)--,n~light of the 

legislative history as follows: 

wee correctly argues that an order issued under section 104(d) should be 

based on an inspection as opposed to an 

investigation. As hereinbefore indicated, the Secretary argues that Congress has not defined either term to 

indicate that Congress recognized that 

there is a difference between an 11 inspec- tion11 as opposed to an 11 investigation. 11 

If one wants to examine the legislative 

history which preceded the enactment of 

the unwarrantable-failure provisions of 

the 1977 Act, one must examine the legislative history which preceded the enactment of section 104(c) of the 1969 Act. 

The reason for the aforesaid assertion 

is that Congress made no changes in the 

wording of section 104(c) of the 1969 

Act when it carried those provisions 

over to the 1977 Act as section 104(d). 

The history of the 1969 Act shows that 

there was a difference in the language 

of the unwarrantable-failure provisions 

of s. 2917 as opposed to H. R. 13950. 

61 
Whereas S. 2917, when reported in the 

Senate, contained an unwarrantable-failure section 302(c) which read almost 

word for word as does the present section 104(d), H.R. 13950 contained an 

unwarrantable-failure section 104(c) 

which provided that if an unwarrantablefai lure notice of violation had been 

issued under section 104(c)(l), a reinspection of the mine should be made within 90 days to determine whether another 

unwarrantable-failure violation existed. 

H.R. 13950 also contained a definition 

section 3(1) which defined an "inspection" to mean "*** the period beginning 

when an authorized representative of the 

Secretary first enters a coal mine and 

ending when he leaves the coal mine 

during or after the coal-producing shift 

in which he entered." 

Conference Report No. 91-761, 9lst 

Cong., 1st Sess., stated with respect to 

the definition in section 3(1) of H.R. 

13950 (page 63): 

***The definition of "inspection 11 as 

contained in the House amendment is no 

longer necessary, since the conference 

agreement adopts the language of the 

Senate bill in section 104{c) of the Act 

which provides for findings of an unwarrantable failure at any time during the 

same inspection or during any subsequent 

inspection without regard to when the 

particular inspection begins or 

ends.*** 

Section 104(c)(l) of H.R. 13950 provided for the findings of unwarrantable failure to be made in a notice of violation 

which would be issued under section 

104(b). Section 104(c)(l)'s requirement 

of a reinspection within 90 days to determine if an unwarrantable-failure violation still existed explained that the 

reinspection required within 90 days by 

section 104(c){l) was in addition to the 

special inspection required under section 104(b) to determine whether a violation cited under section 104{b) had 

been abated. Section 104(c)(l), as finally enacted, eliminated the confusion 

about intermixing reinspections with 

62 
special inspections by simply providing 

that an unwarrantable-failure order 

would be issued under section 104{c)(l) 

any time that an inspector, during a 

subsequent inspection, found another 

unwarrantable-failure violation. 

(Conference Report 91-761, pp. 67-68). 

The legislative history discussed above 

shows that Congress thought of an inspection as being the period of time an 

inspector would spend to inspect a mine 

on a single day because the inspection 

was to begin when the inspector entered 

the mine and end when he left. It would 

be contrary to common sense to argue 

that the inspector might take a large 

supply of food with him so as to spend 

more than a single day in a coal mine at 

one time. On the other hand, Congress 

is very experienced in making investigations to determine whether certain 

types of legislation should be enacted. 

Congress is well. aware that an investigation, as opposed to an inspection, is 

likely to take weeks or months to complete. Therefore, I cannot accept the 

Secretary's argument that Congress did 

not intend to distinguish between an 

"inspection" and an "investigation" when 

it used those two terms in section 

104(a) and section 107(a) of the 1977 

Act. 

It should be noted, for example, that th~ counterpart of section 104(a) in the 

1977 Act was section l04(b) in the 1969 

Act. Section l04(b) in the 1969 Act 

provided for notices of violation to be 

issued "upon any inspection," but section 104(a) in the 1977 Act provides for 

citations to be issued "upon inspection 

or investigation." Likewise, the counterpart of imminent-danger section 

107(a) in the 1977 Act was section 

104(a) in the 1969 Act. In the 1969 Act 

an imminent-danger order was to be written "upon any inspection," but when Congress placed the imminent-danger provision of the 1977 Act in section 

107(a), it provided for imminent-danger 

orders to be issued "upon any inspection 

or investigation." On the other hand, 

63 
when the unwarrantable-failure prov1s1on 

of section 104(c) of the 1969 Act was 

placed in the 1977 Act as section 

104(d), Congress did not change the requirement that unwarrantable-failure 

orders were to be issued "upon any 

inspection. 11 

The legislative history explains why 

Congress changed section 104(a) in the 

1977 Act to allow a citation to be 

issued 11 upon inspection or investigation." Conference Report No. 95-461, 

95th Cong., 1st Sess., 47-48, states 

that the Senate bill permitted a citation or order to be issued based upon 

the inspector 1 s belief that a violation 

had occurred, whereas the House amendment required that the notice or order 

be based on the inspector's finding that 

there was a violation. Additionally, as 

both the Secretary and WCC have noted, 

Senate Report No. 95-181, 95th Cong., 

1st Sess., 30, explains that an inspector may issue a citation when he 

believes a violation has occurred and 

the report states that there may be 

times when*** a citation will be delayed because of the complexity of issues raised by the violations, because 

of a protracted accident investigation, 

or for other legitimate reasons. For 

this reason, [section 104(a)J provides 

that the issuance of a citation with 

reasonable promptness is not a juris- dictional prerequisite to any 

enforcement action. *** 

The legislative history and the plain 

language of section 107(a) in the 1977 

Act explain why that section was changed 

so as to insert the provision that an 

imminent-danger order could be issued 

upon an 11 investigation 11 as well as upon 

an 11 inspection. 11 Section 107(a) states 

that 11 *** [t]he issuance of an order 

under this subsection shall not preclude 

the issuance of a citation under section 

104 or the proposing of a penalty under 

section 110. 11 Both Senate Report No. 

95-181, 37, and Conference Report No. 

95-461, 55, refer to the preceding 

quoted sentence to show that a citation 

64 
of a violation may be issued as part of 

an imminent-danger order. Since section 

104(a) had been modified to provide for 

a citation to be issued upon an inspector's "belief" that a violation had 

occurred, it was necessary to modify 

section l07(a) to provide that an imminent-danger order could be issued upon 

an inspection or an investigation so as 

to make the issuance of a citation as 

part of an imminent-danger order conform 

with the inspector 1 s authority to issue 

such citations under section 104(a). 

Despite the language changes between the 

1969 and 1977 Acts with respect to the 

issuance of citations and imminent-danger orders, Congress did not change a 

single word when it transferred the unwarrantable-failure provisions of section 104(c} of the 1969 Act to the 1977 

Act as section 104(d). Conference Report No. 95-461, 48, specifically states 

"(t]he conference substitute conforms to 

the House amendment, thus retaining the 

identical language of existing law." 

My review of the legislative history 

convinces me that Congress did not intend for the unwarrantable-failure pro- visions of section 104(d) to be based 

upon lengthy investigations. Congress did not provide that an inspector may 

issue an unwarrantable-failure citation 

or order upon a "belief" that a violation occurred. Without exception, 

every provision of section 104(d) specif- ically requires that findings be made by 

the inspector to support the issuance of 

the first citation and all subsequent 

orders. The inspector must first, "upon 

any inspection" find that a violation 

has occurred. T~he must find that 

the violation could significantly and 

substantially contribute to the cause 

and effect of a coal or other mine 

safety or health hazard. He must then 

find that such violation is caused by an 

unwarrantable failure of such operator 

to comply with such mandatory health or 

safety standard. He thereafter must 

place those findings in the citation to 

65 
be given to the operator. If during 

that same inspection or any subsequent 

inspection, he finds another violat1on 

of any mandatory health or safety standard and finds such violation to be also 

caused by an unwarrantable failure of 

such operator to so comply, he shall 

forthwith issue an order requiring the 

operator to cause all persons in the 

area affected by such violation to be 

withdrawn and be prohibited from entering such area until the inspector 

determines that such violation has been 

abated. 

After a withdrawal order has been issued 

under subsection 104(d)(l), a further 

withdrawal order is required to be issued promptly under subsection 104(d)(2) 

if an inspector finds upon any 

subsequent inspection that an additional 

unwarrantable-failure violation exists 

until such time as an inspection of such 

mine discloses no unwarrantable-failure 

violations. Following an inspection of 

such mine which discloses no unwarrantable-fai 1 ure violations, the 

operator is liberated from the unwarrantable-failure chain. Conference Report No. 95-181, 34, states that "[b]oth 

sections [104(d){l)] and [104(e)J require an inspection of the mine in its 

entirety in order to break the sequence 

of the issuance of orders." [Emphasis supplied.] 

Most recently, in Emery Mining Corporation, 7 FMSHRC 1908 

(1985) Judge Lasher agreed with and followed Judge Steffey stating in pertinent part: 

The first mention of the words "inspection and "investigation" is at the 

heading of Section 103 of the Act. That 

heading reads "Inspections, Investigations, and Recordkeeping." 

Section 103(a) of the Act provides: 

"Authorized representatives of the Secretary ••. shall make frequent inspections 

and investigations in ••• mines each 

year for the purpose of ••• (4) determining whether there is compliance with the mandatory health or safety standards ••• 11 

66 
Jj 

~/ 

Section 103(b) of the Act, speaking only 

of an 11 investigation, 11 provides: "For 

the purpose of making any investigation 

of any accident or other occurrence relating to health or safety in a ... mine, the Secretary may, after notice, 

hold public hearings, et cetera." II 

Section 103(g){2) of the Act, relating only to "inspection, 11 provides that 

prior to or during "any inspection of a 

••• mine, any representative of miners 

••• may notify the Secretary ••• of any 

violation of this Act, et cetera."~/ 

Of considerable significance, the most 

used enforcement tool, section 104(a), 

mentions both inspections and 

investigations. It provides that "if, 

upon inspection or investigation, the 

Secretary ••• believes that an operator 

of a ••• mine ••• has violated this Act, 

or any ••• standard, ••. he shall, with 

reasonable promptness, issue a citation 

to the operator •••• The requirement for 

the issuance of a citation with 

reasonable promptness shall not be a 

jurisdictional prerequisite to the 

enforcement of any provision of this 

Act. 11 

I note here that this is one of the more 

significant provisions of the Act in 

determining the validity of the order in 

question since it authorizes the 

Secretary to make an "investigation" of 

an accident or "other occurrence 

relating to health or safety." It is 

clear here, as well as in other 

provisions of the Act, that Congress saw 

an investigation as something different 

from an inspection. One can readily see 

the difference between the investigation of some past happening or occurrence or 

accident and the inspection of some 

physical plant or property. 

Section 103(g)(l) provides a procedure 

for the representative of miners to 

obtain "an immediate inspection" by 

giving notice to the Secretary of the 

occurrence of a violation or imminent 

danger. 

67 
Section 104(d)(l), in contrast to section 104(a), relates only to "inspec- tions," providing that "if, upon any 

inspection of a ••. mine, an authorized 

representative of the Secretary finds 

that there has been 9/ [footnote omitted] 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 can significantly and substantially contribute to the cause and effect of a 

••• hazard, and if he finds such violation to be caused by an unwarrantable 

failure ••• he shall include such ·findings in any citation given to the 

operator under this Act." 

The second sentence of section 104(d)(l) 

provides for the withdrawal order in the 

enforcement chain or scheme contemplated 

by Congress in this so-called "unwarrantable failure" formula. Signifi- cantly, it provides that "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 ••• and 

finds such violation to be also caused 

by an unwarrantable failure ••• , he 

shall forthwith issue an order requiring 

the operator to cause all persons ••• to 

be withdrawn from .•• such area •.•• 11 

If the position of the Secretary in this 

case were adopted, that is, if withdrawal orders could be issued on the 

basis of an investigation of past occurrences, the effect would be to increase 

the 90-day period provided for in the 

second section of section 104(d){l) and 

by the amount of time which passed between the occurrence of the violative 

condition described in the order and the 

issuance of the order. 10/ [footnote omitted] ~ 

Section 104(d)(2) of the Act permits the 

issuance of a withdrawal order by the 

Secretary if his authorized representa- tive "finds upon any subsequent inspection" the existence of violations similar 

to those that resulted in the issuance of 

the section 104(d){l) order. 

68 
Summing up, it is clear that nowhere in 

section l04(d) is the issuance of any 

enforcement documentation sanctioned on 

the basis of an investigation. Although 

Congress did not define the terms "inspection11 or 11 investigation 11 specifically in the Act, there is no question 

but that Congress in using those terms 

in specific ways in prior sections of 

the Act, and by not using the term "investigation" in section 104{d)(l) and 

(2) 11/ [footnote omitted] did so with 

some-Premeditation. 

* * * * * 

Finally, it is noted that section 107(a) 

of the Act permits the Secretary's 

representative to issue a withdrawal 

order where imminent danger is found to 

exist either upon an inspection or 

investigation. 

Perusal of these various portions of the 

Mine Act, commencing at the point where 

the subject words are first used on 

through to the end of their use, indicates that such terms were used with 

care and judiciously and with an understanding of the general connotations 

contained in their definitions • .!1/ 

* * * * * 

Reference is made to Webster's Third New 

International Dictionary, G. & C. 

Merriam Company, 1976, which 

defines 11 inspect 11 in the following 

manner: 11 1: to view closely and 

critically (as in order to ascertain 

quality or state, detect errors, or 

otherwise appraise): examine with care: 

scrutinize (let us inspect your motives) 

{inspected the herd for ticks) 2: to 

view and examine officially (as troops 

or arms). 11 The word 11 inspection," in 

the same dictionary, contains various 

definitions, which include references 

to "physical" examinations of various 

things, including persons, premises, or 

installations. The word "investigate 11 

is defined as follows: 11 to observe or 

69 
I conclude that the Act does not permit 

a section 104(d)(2) order to be based on 

an investigation, as here, but rather 

the order must be based on and it must 

have been a product of an inspection of 

the site. Section 104(d)(2) provides 

that an order may be issued only if, 

upon an inspection of the mine, the 

Secretary finds a violation of a safety 

or health standard. Where an inspector 

does not inspect the site but only 

learns of the alleged violation from the 

statements of miners a section 104(d)(2) 

order may not be issued. 

The foregoing decision was not appealed. 

Again, most recently in Southwestern Portland Cement Company, 

7 FMSHRC (November 25, 1985) Judge Morris also issued an Order 

employing-The same rationale and reaching the same result as 

Judqe Steffey. Judge Morris concluded his discussion on this 

issue as follows: 

* * * * * 

I agree with Judge Steffey and I conclude that the Act does not permit a 

Footnote .JJ./ (continued) 

study closely: inquire into systematically: examine, scrutinize (the whole 

brilliance of this novel lies in the 

fullness with which it investigates 

a past) (a commission to investigate 

costs of industrial production ••• )." 

One concludes from reading these 

definitions that an investigation is 

more applicable to the study or scrutiny 

of some past event or intellectual subject, whereas an inspection relates more 

generally to looking at some physical 

thing. This common distinction between 

these phrases is consistent with the 

congressional usage of the term "investigate," for example, in section 103(b) of 

the Act and for the use of both terms in 

section 104(a) of the Act. 

70 
section 104(d) order to be based on an 

investigation. But rather the order 

must be based on and it must have been 

.a. product .of an inspection of .the site. 

Section 104(d) provides that an order 

may be issued only if, upon an inspection of the mine, the Secretary finds a 

violation of a safety or health standard. Where an inspector does not 

inspect the site but only learns of the 

alleged violation from the statements 

of miners a section 104(d) order may 

not be issued. 

As previously noted, when it intended 

to permit MSHA enforcement actions to 

proceed on the basis of an inspection 

or an investigation, Congress so pro- vided. The section 104(d) requirement of an inspection cannot be dismissed as 

mere semantic inadvertence on the part 

of Congress. 

Section 104(d) sets forth the sanctions 

that may be imposed against an operator under the specific conditions discussed 

in that section. It follows that the 

inspector authorized on a miner's complaint by section 103(g)(l) cannot 

reduce the safeguar~s Congress intended 

to provide in section 104(d). The 

Secretary 1 s reliance on section 

103(g)(l) is~ accordingly, rejected. 

There is little that can or needs to be added to Judge Steffey•s decision which thoroughly addresses the question of 

what section 104(d) means and how it should be interpreted in a 

case such as this. This decision is persuasive and the instant 

matter falls squarely within it. The recent decisions of Judges Lasher and Morris also follow Judge Steffey•s rationale and result. In this case there is no dispute that when the inspector 

went to the mine he was looking into the circumstances of a past 

event. The cited violative event of the continuous miner operator going beyond supported roof occurred and ended several days before the inspector visited the mine. The unsupported roof was 

bolted later on the same day the violation occurred which was 

long before the inspector arrived •. Because the inspector here 

was engaged in the investigation of a past happening rather than 

an inspection of an existing situation he could not issue a (d) 

citation. Since the inspector could not issue a (d) citation, 

the sub-district manager could not do so either. The power to 

modify exercised by the sub-district manager pursuant to section 

104(h) does not mean that he, a step further removed from the 

71 
actual situation, could do what the statute forbids the investigating inspector from doing in the first instance. And section 

103(g) cannot change the conditions so clearly required by section 104(d) for issuance of an unwarrantable citation. 

I have not overlooked Judge Koutras' decision holding that 

walk-around pay was due when a miner representative accompanied 

an inspector on a roof control technical 11 investigation 11 • 

Monterey Coal Company, 5 FMSHRC 1223 (1983). As the decision 

makes clear, the term "investigation" in that case was the result 

of MSHA computer code labels rather than the statute itself and 

the Judge expressed difficulty in understanding any real distinction between a spot inspection and activity to determine whether 

an operator was complying with its roof control plan. That there 

was no real distinction in that case is apparent because the inspector there was looking into and observing on-going and present 

events unlike this case which involved only looking back into a 

specific past happening. Even more importantly, as Judge Koutras 

explained, the walk-around pay provision is governed by its 

unique legislative history and by judicial decisions which interpret it in light of that history. Section 104(d) which has its 

own terms arid legislative history must be governed by them. 

Accordingly, Monterey is distinguishable from this case. 

In light of the foregoing, I hold that the (d) citation 

cannot stand and must be modified to an (a) citation. 

Mention must also be made of the manner in which the 

sub-district manager proceeded. He ordered a supervisory inspector to order the issuing inspector to change the (a) citation 

to a (d) citation (Tr. 351-352). And he testified that his decision to modify the citation was based upon prior safety meetings 

he had held with the operator and upon certain MSHA policy memoranda regarding the issuance of 104(d) citations and orders for 

roof control violations (Gx-5, Gx-6, Gx-7, Tr. 358-368). Finally, he never spoke to the issuing inspector and he did not know 

or care what was done by the section foreman who was in charge 

when the violation occurred (Tr. 351-352, 399). The sub-district 

manager, is of course, a duly authorized representative of the 

Secretary with power under section 104(h) to modify citations. 

But he cannot exercise this power based solely upon blanket administrative fiat which indiscriminately decrees that all section 

foreman must have known or should have known of this type of violation regardless of what actually occurred in the particular 

case. I do not read the MSHA memoranda as requiring such an 

approach (Gx-5, GX-6, GX-7). In any events the sub-district 

manager followed such a policy here and his action must be disapproved of because the result reached by a duly authorized 

representative> whatever his administrative level, must be based 

upon the facts of the case involved. There is a dispute between 

the sub-district manager and the operator's mine manager over 

what was discussed at their meetings, but this makes no difference because unwarrantable failure can in no wise be based on 

these meetings and general policies without reference to the 

72 
circumstances of the violation itself {Tr. 358, 376-377, 920, 

933, 1077). Nevertheless, because a full and complete de novo 

hearing was held before an administrative law judge of this Commission, the basis upon which the sub-district manager acted 

would not in and of itself provide grounds for modifying the (d) 

citation in this case unless the evidence on the merits showed no 

unwarrantable failure which it does not. See the discussion of 

negligence, infra. If an operator wishes to successfully challenge an intermediate administrative action such as the 

sub-district manager's, it would be better advised to make the 

attempt where it can prevail on the merits. I set forth my views 

on the propriety and effect of the sub-district manager's action 

so that if an appeal is taken and the Commission disagrees with 

my determination regarding the 11 inspection" requirement of 

section 104(d), further remands will be unnecessary. 

There remains for consideration the penalty case. As set 

forth above, the operator admits the violation and has not contested that the violation was serious. I take official notice 

that roof falls remain a major source of serious accidents in the 

mines. 

Next, negligence must be determined. In this connection an 

exposition of the facts is appropriate. Near the end of the hoot 

owl shift on the morning of May 30, 1985, the section foreman, 

Mr. Sikora, assigned the continuous miner operator, William 

Palmer, the task of cutting coal in the crosscut going from the 

No. 3 entry towards the No. 2 entry (Tr. 615-618). This was the 

second cut into the crosscut. The first cut previously had been 

taken by someone else (Tr. 437, 440). According to the engineer's map and the witnesses, the first cut was very much off 

sight and on an angle (Tr. 189, 197, 269, 297-298, 324, 878-879) 

(Op. Exhibit 4). But Sikora did not notice this and he said he 

did not check because it was the end of the shift and he was in a 

hurry to go home (Tr. 659-660, 718). Palmer also did not look to 

see if the first cut was straight or on an angle (Tr. 451). The 

crosscut could not have been holed through under supported roof 

with just one cut and this was especially true because of the 

angled first cut (Tr. 670, 719, 451). However, Palmer did hole 

through to the No. 2 entry on one cut, but to do so he went at 

least several feet beyond supported roof in violation of the roof 

control plan (Tr. 867, 858, 954). Not only did Palmer go beyond supported roof to cut through but he pushed the coal into a pile 

to the further side of the No. 2 entry (Tr. 447, 677). As shown 

by the engineer's map, pushing the coal required Palmer to go far 

beyond where he should have stopped (Tr. 858, 995) (Op. Exhibit 

4). Sikora stated that at the time Palmer was improperly cutting 

through the crosscut, he (Sikora) was doing his pre-shift examination for the next shift (Tr. 617-618). He stated that when he 

returned, Palmer was cleaning up and he (Sikora) did not notice 

73 
the wide and deep cut because a danger sign had been hung 

(Tr. 623, 626, 655). Therefore, he did not go into the crosscut 

(Tr. 620-627). However, testimony of others demonstrates that 

the improperly deep and wide cut was visibly obvious as was the 

pile of coal (Tr. 177, 869). Sikora said it was 11 funny 11 he did 

not notice the improper cut but again gave the excuse he was in a 

hurry to go home (Tr. 687). The on-coming day shift was a maintenance shift and the roof was bolted on the afternoon shift of 

May 30 (Tr. 105-106). 

The foregoing facts demonstrate an egregious lack of reasonable and due care by the section foreman. When Sikora told 

Palmer to cut coal in this crosscut, the cut previously taken was 

way off sight. Yet Sikora gave Palmer no instructions about how 

to proceed and did not supervise him (Tr. 617-618). Indeed, by 

his own admission Sikora did not even recognize the existing cut 

was wide because it was the end of the shift and he was in a 

hurry to go home (Tr. 659-660, 718). Yet it was Sikora himself 

who set the sight lines for the crosscut and as he admitted, it 

was his responsibility to see Palmer did not make wide cuts (Tr. 

638-639, 661). Moreover, Sikora acknowledged he had heard Palmer 

cut a little wide (Tr. 632). In addition, the union safety committeeman testified Palmer was a fast worker who did not bother 

to clean up and who had a tendency to go to the limit to get as 

much coal as he could (Tr. 306, 334-335, 341). Palmer's own 

testimony demonstrates his unreliability both as a continuous 

miner operator and as a witness. Thus, Palmer admitted he did 

not pay much attention to excessively wide or deep cuts (Tr. 

427-428). His attempt to excuse his wide cuts because of a 

missing lug was contradicted by every other witness who addressed 

the issue {Tr. 422-424, 455, 632-633, 740, 950). So too, his 

general justification of his conduct on the grounds the company 

encouraged such actions is undercut by his acknowledgment that 

management did not tell him to take wide or deep cuts (Tr. 461, 

484, 486-487). Finally, Palmer described himself as one of the 

fastest workers there is (Tr. 428). The picture is, therefore, 

clear. Palmer was a fast and careless worker who gave little, if 

any, thought to safety and whose excuses are unsupported by 

anyone else and are lost in a maze of self-contradictions. 

It was to such an individual that Sikora assigned the task 

of cutting coal in the crosscut near the end of the shift. But 

Sikora turned his back on the time element and on the off sight 

nature of the pre-existing first cut, both of which increased the pre~sure on the continuous miner operator to complete the 

crosscut on that shift in one cut. When the circumstances under 

which this task was assigned are combined with the nature of the 

individual to whom the job was given, what happened was all but 

inevitable, i.e. the taking of all coal on one cut and the continuous mine operator in violation by going far beyond supported 

roof. The union safety committeeman testified the circumstances 

made it "tempting" to take all the coal on one cut (Tr. 329). To 

an individual like Palmer it would be virtually irresistible to 

get the extra 10 tons in the one cut (Tr. 720). Sikora must have 

realized this. He knew Palmer and he knew the conditions under 

74 
which he was assigning him this task. Sikora's conduct is far 

worse than mere lack of supervision. It was he who created the 

circumstances under which the violation was all but bound to 

happen. And it was he whose first priority was not safety but 

getting home as fast as he could at the end of the shift. The 

operator put Sikora in his position of supervisory and managerial 

responsibility. His careless, reckless and wilful behavior is 

attributable to the operator which must bear the consequences. 

Southern Ohio Coal Company, 4 FMSHRC 1459 (1982). I conclude the 

operator is guilty of gross negligence.~/ 

Clearly too, Palmer was extremely negligent and since his 

work habits were well known, his conduct was foreseeable and 

therefore also attributable to the operator, A. H. Smith, 5 

FMSHRC 13 {1983). However, for purposes of determ1n1ng assessment of the amount of the penalty in light of negligence, 

consideration of Sikora's behavior is sufficient. 

The operator's size is large {Tr. 972, 980). In absence of 

evidence to the contrary I find imposition of a penalty will not 

affect its ability to continue in business. The parties agreed 

that since October 1982 there were two violations at this mine, 

for going under unsupported roof (Tr. 380). Overall, the 

operator had a worse than average history of violations but it 

was improving by the time of the hearing, and the operator was 

now showing a positive attitude toward safety (Tr. 384-387). I 

accept the evidence regarding prior history, but as appears 

herein evidence of improvement is after-the-fact insofar as this 

case is concerned. Finally, in absence of any evidence to the 

contrary I find there was good faith abatement. 

In light of the foregoing considerations and in accordance 

with the statutory criteria in section llO(i) a penalty of $5,000 

is assessed. 

ORDER 

It is Ordered that the subject 104(d) citation is Modified 

to a 104(a) citation. 

£! I have not overlooked testimony regarding the operator's 

generally cooperative and positive attitude. But that 

evidence cannot overcome what occurred in this case. 

75 
It is further Ordered that a penalty of $5,000 is assessed 

which the operator is ORDERED TO PAY within 30 days from the date 

of this decision. 

Chief Administrative Law Judge 

Distribution: 

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

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

Cleveland, OH 44199 (Certified Mail) 

Paul W. Reidl, Esq., Nacco Mining Company, Crowell and Moring, 

1100 Connecticut Avenue, N.W., Washington, DC 20036 (Certified 

Mai 1 ) 

Thomas M. Myers, Esq., UMWA District 6, 56000 Dilles Bottom, 

Shadyside, OH 43947 (Certified Mail) 

/gl 

76 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

January 15, 1986 

TURRIS 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. 

TURRIS COAL COMPANY, 

Respondent 

. . 

CONTEST PROCEEDINGS 

Docket No. LAKE 85-12-R 

Citation No. 232.3276; 10/16/84 

Docket No. LAKE 85-31-R 

Citation No. 2491962; 12/12/84 

Docket No. LAKE 85-32-R 

Citation No. 2491965; 12/12/84 

Docket No. LAKE 85-35-R 

Citation No. 2491973; 12/18/84 

Elkhart Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 85-53 

A.C. No. 11-02664-03547 

Docket No. LAKE 85-68 

A.C. No. 11-02664-03551 

Docket No. LAKE 85-70 

A.C. No. 11-02664~03552 

Elkhart Mine 

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

On January 13, 1986, Petitioner filed a motion to dismiss 

these proceedings and approve a settlement reached between 

the parties. 

Four alleged violat.ions are involved. The first is included 

in Order 2323276 which charges a violation of 30 C.F.R. 

§ 75.200 because of an alleged inadequately supported roof. · 

The violation was originally assessed at $900, and the parties 

propose to settle for $750. The motion states that the 

violatioh resulted from a high degree of negligence-~nd that 

"if a roof fall would have occurred two miners could have 

been killed." The order indicates that the occurrence 

77 
of the event against which the cited standard is directed 

was highly likely. The motion states that the proposed 

assessment is reduced because of an amendment to the order 

which presumably (this is not clear) reduces the area 

of unsupported roof. In my judgment this is not a sufficient 

reason for the proposed reduction. 

The two other roof control violations contained in 

Docket No. LAKE 85-70, the parties propose to settle for 

the amount originally assessed. 

Order 2491973 (issued under section 104(d) (2)) was 

originally assessed at $850. It charged a violation of 30 

C.F.R. § 75.503 because of a permissibility violation on a 

battery powered scoop. The motion states that the violation 

resulted from a high degr~e of negligence and that one miner 

could have been killed,fiom.operating equipment not in 

permissible condition. The motion further states that 

Petitioner has agreed to amend the citation from a 104(d) (2) 

order to a 104(a) citation and that Respondent "did not 

intentionally operate its machine in violation of the Act. 

In my judgment, the motion does not show justification for 

the reduction in the penalty, based on the criteria in 

section llO(i) of the Act. 

Therefore, the motion to dismiss and approve settlement 

is DENIED. The matter will be rescheduled for hearing by 

a subsequent notice. 

Distribution: 

., 

J

;/, 4 . . l ,.,,f _/ ,. j ti,/., v :.:_, !;, /Jff1 v Ir f:.' CJ.g-:, '! c:/t 

James A. Broderick 

' Administrative Law Judge 

Kathleen A. Phillips, Esq., Turris Coal Company, P.O. Box 

576, Houston, TX 77001 (Certified Mail) 

Rafael Alvarez, Esq., U.S. Department of Labor, Office of 

the Solicitor, 230 s. Dearborn St., 8th Floor, Chicago, IL 

60604 (Certified Mail) 

slk 

78 

II 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION· 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

JAN 16 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent. 

. . CIVIL.PENALTY PROCEEDING 

Docket No. SE 85-134 

A.C. No. 01-01401-03609 

: No. 7 Mine . . 

. 

. 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve a settlement for the two violations involved in this matter. The 

originally assessed amounts totalled $2,500 and the proposed 

settlements are for $1,200. 

The first citation was issued for failure to make a 

diligent search for a fire after cutting operatipns. After 

an acetylene and oxygen torch was used to cut a belt header, 

employees checked for fire and found nothing. But several 

hours after again searching and using appropriate measuring 

instruments a fire was found. The Solicitor states inter 

alia, that the only evidence he has that a diligent search 

was-not made was the failure to find the fire immediately. I 

have some difficulty understanding the Solicitor's representations but interpret him to be saying that the degree qf diligence shown by the operator was not as great as it should 

have been rather than the inspector's original thought that 

there was no diligent search. On.th~s'basis I accept the 

Solicitor's representation and approve the recommended 

settlement of $300. 

The second citation·was issued for an accumulation of 

combustible materials. The Solicitor states .that although an 

accumulation admittedly existed, MSHA does not know its 

extent. On this basis I accept the recommended settlement 

which is a substantial amount and adequately reflects the 

described gravity of the violation. 

79 
Accordingly, the recommended settlements are Approved 

and the operator is Ordered to Pay $1,200 within 30 days from 

the date of this decision. 

: 

Distribution: 

\ 

\ • 

Paul Merlin 

Chief Administrative Law Judge 

L. K. Cooper, Esq., Office of the Solicitor, U.S. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Harold o. Rice, Esq., Jim Walter Resources, Inc., P.O. Box 

C-79, Birmingham, AL 35283 (Certified Mail) 

Robert Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. 

Box C-79, Birmingham, AL 35283 (Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter corporation, P.O. Box 

22601, Tampa, FL 33622 (Certified Mail) 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, 

N.W., Washington, DC 20006 (Certified Mail) 

rbg 

80 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

January 16, 1986 

SECRETARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v • 

SOUTHWESTERN PORTLAND CEMENT 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-64-M 

A. C. No. 04-04230-05506 

Quarry~Quarry Plant 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlements of 

the three violations involved in this matter. The original 

assessments totaled $1,800, and the proposed settlements tota1 

$600. 

Citation No. 2364967 was issued for a-violation of 

30 C.F.R. § 56.14-1 when an inspector observed that the clinker 

belt conveyor tail pulley was not guarded. The original assessment for this violation was $600, and the proposed settlement is 

$200. ·The original assessment was based on the operator's 

failure to abate the violation which had been previously reported 

to management by the company's safety department. The Solicitor 

advises however, that the violation itself was of low gravity and 

that the operator which is large has an exceptionally small prior 

history of violations. Also the proposed settlement is almost 

twice as much as would have been assessed under the regular 

formula. I accept the Solicitor's representations and approve 

the proposed settlement. Howeve~. a failure to abate promptly is 

a matter for concern and the operator should take steps to see 

this does not happen again because if it does. I wi11 not accept 

such a settlement from the So1icitor regarding this operator. 

Citation Nos. 2364968 and 2364969 were issued for violations 

of 30 C.F.R. § 56.9-7 and 30 C.F.R. § 56.11-12, respectively. An 

inspector observed lack of an emergency stop cord on the clinker 

belt and unguarded openings at the tail pulley area of the belt. 

The Solicitor advises that the same considerations already set 

forth apply here as well. Accordingly, I approve the proposed 

settlements of $200 for each of these violations. 

81 
Accordingly, the operator is ORDERED TO PAY $600 within 30 

days of the date of this decision . 

....-.:-----~r( Paul ~ Merlin 

, 

Chief Administrative Law Judge 

Distribution: 

Joseph Bednarik, Esq., Office of the Solicitor, U. S. Department of Labor, Room 3247 Federal Building, 300 North Los Angeles· 

Street, Los Angeles, CA 90012 (Certified Mail) 

Mr. Norris M. Overly, Safety & Training Director, P. O. Box 937, 

Victorville, CA 92392-0623 (Certified Mail) 

/gl 

82 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

l C; 1~ •. 

' ' ...... ' ~ i " " 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: 

: Docket No. KENT 85-98 

: A.C. No. 15-13881-03555 

v. . . 

PYRO MINING COMPANY, 

Respondent 

: ·Pyro No. 9 Slope 

William Station 

Appearances: 

Before: 

DECISION 

Thomas A. Grooms, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Petitioner; 

Bruce Hill, Director of Safety and Training, 

Pyre Mining Company, Sturgis, Kentucky, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

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

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

§ 820(a). Petitioner seeks a civil penalty assessment in the 

amount of $206 against the respondent for an alleged violation 

of mandatory safety standard 30 C.F.R. § 75~1103-4(a)(l). The 

respondent filed a timely answer contesting the alleged violation, and a hearing was convened in Evansville, Indiana, on 

December 3, 1985. The parties waived the filing of posthearing briefs. However, I have considered the oral arguments 

made by the parties during the hearing in the adjudication of 

this case. 

Issues 

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

conditions or practices cited by the inspector constitute a 

violation of the cited mandatory health standard, and (2) the 

appropriate civil penalty to be assessed for the violation, 

83 
taking into account the statutory civil penalty criteria 

found in section llOCi) of the Act • 

.Applicable Statutory and Regulatory Provisions 

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

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

2. Section llOCi> of the 1977 Act, 30 u.s.c. § 820Ci). 

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

Stipulations 

The parties stipulat~d that at all times relevant to 

this case, the overall coal production for the respondent 

operating company was 5,020,840 tons, and that the production 

for the Pyro No. 9 William Station Mine was 2,041,542 tons. 

The parties stipulated that the payment of the assessed 

civil penalty will not adversely affect the respondent's ability to continue in business. They also stipulated that the 

violation was abated in good faith by the respondent (Tr. 

26). 

Discussion 

section 104Ca> 11 S&S 11 Citation No. 2505477, issued on 

January 7, 1985, cites a violation of 30 C.F.R. 

§ 75.1103-4(a)(l), and the condition or practice is stated as 

follows: 

A violation was observed on the No. 3 

unit, I.D. 003 in that the automatic fire sensor line was not installed the entire length 

of the beltline going to the unit 3 tailpiece. 

The automatic fire sensor line was installed 

up to within two crosscuts outby the tailpiece 

(140 ft. from the end of the sensor line to 

the tai lp iece > • 

Petitioner's Testimony 

MSHA Inspector George Siria testified as to his background and experience, and he identified exhibit P-7 as a 

copy of the citation issued by Inspector F'rank R. Gerovac on 

January 7, 1985.. Mr. Siria stated that Mr. Gerovac was relatively new in the area and was not familiar with the mine or 

MSHA's policies and that he accompanied Mr. Gerovac in order 

84 
to be available should any problems arise. He confirmed that 

Mr. Gerovac has retired for health reasons and is presently 

residing somewhere in Michigari (Tr. 33-41). 

Mr. Siria confirmed that he also conducted an inspection 

of the mine on January 7, 1985, while he was with Mr. Gerovac, 

and that he issued a citation for some violative conditions. 

He identified exhibit P-5 as an official copy of an MSHA 

inspection report which indicates that he and Mr. Gerovac 

inspected the mine and issued citations. He confirmed that 

the report verifies that Mr. Gerovac issued the citation for a 

violation of section 75.1103-4(a)(l) after finding that the 

fire sensor line had not been installed for the entire length 

of the beltline on the number three unit (Tr. 43). 

Mr. Siria stated that,the hazard associated with the 

violation concerns a lack of warning in the event of a fire 

on the beltline. The fire sensors are activated by a sensoring head located at 125-foot distances, and they are required 

to alert miners in the event of a fire on the conveyor belt. 

The sensors are interconnected with the warning device boxes 

which sound an alarm in the event of a fire. Possible 

sources of ignition along the beltline would be loose coal, 

coal dust, and float coal dust (Tr. 45-57). 

On cross-examination, Mr. Siria confirmed that 

Mr. Gerovac's prior experience was in metal and non-metal 

inspections, and he did not know the extent of his experience 

in underground coal mining. He confirmed that he did not 

travel the belt with Mr. Gerovac during his inspection, and 

petitioner's counsel stipulated that Mr~ Gerovac did not 

issue any citations for coal spillage on the beltline during 

his inspection (Tr. 49). Counsel also stipulated that no 

citations were issued for lack of water or rock dust on the 

beltline CTr. 52-53). 

Mr. Siria did not know when the belt was last added on 

the unit in question, and could not state whether it was 

installed within 24 hours of the issuance of the citation by 

Mr. Gerovac (Tr. 54). When asked to explain his understanding of an exception found in section 75.1103-4Ca)(l), 

Mr. Siria responded as follows at (Tr. 54-56): 

Q. Based on what you just read, if the belt 

hypothetically speaking -- if the belt had 

been put on in the past twenty-four hours, 

would there be a citation associated with what 

was written. 

85 
A. Really. 

book • • • 

you can't always go by the 

MR. HILL: Just tell me yes or no. 

WITNESS: Repeat the question. 

Q. If, according to the standard, the belt 

had been put on within twenty-four hours of 

the citation and it was within a hundred and 

twenty-five feet, would there be a violation. 

A. I didn't make the belt. 

BY THE COURT: No, -h~ ~ants you to assume that 

it was. In other words, what he 1 s trying to 

establish is whether or not this section would 

apply in this case given the assertion that 

• • • the argument that twenty-four hours 

hadn't elapsed yet and, therefore, they 

weren't required to have the belt sensors at 

the places where Mr. Gerovac thought they 

should be. 

WITNESS: Your Honor, it's hard to answer that 

question yes or no. There's always extenuating circumstances. 

BY THE COURT: All right, you can explain whatever ••• go ahead and explain that. 

A. If the ••. if I felt that there was a 

danger with the beltline being back, with the 

fire sensor line being a ••• ah, more than a 

hundred twenty-five outby ••• really, I 

mean, I'm not meaning argumentative and I'm 

not trying to be smart, but I wouldn't care 

when the belt had been moved if I thought 

there was a danger to a coal miner, I would 

require the belt be ••• the sensoring line 

to be moved up if there was any • • • this is 

a dust problem area and, like I previously 

stated, • 

Q. Based on what has already been stipulated, 

do you know of any problems in that area that 

would have dictated that to be considered a 

problem area to the point a citation would be 

written beyond the standard of the law. 

86 
A. I'm sure if ••• with Mr. Gerovac's observation and his judgment, if there had been 

another violation of the standard, he would 

have issued additional citations. 

Q. So if there would have been additional 

problems that would have warranted writing the 

citations above and beyond the standard of the 

law, he would have also written citations to 

correspond with that. 

A. In his judgment. 

Q. And within his-j~dg~ent, he did not. 

A. We don't see them. 

Mr. Siria stated that the presence of coal dust mixed 

with fire clay on the unit did not present an ignition problem, and even though he independently found an exposed cable 

wire in another area during his inspection, any fire resulting from that condition would not be detected by the required 

sensor in question in the area cited by Mr. Gerovac because 

the cable was too far from the cited belt <Tr. 58) •. Mr. Siria 

found no excessive levels of methane on the unit CTr. 60), and 

he confirmed that he did not personally observe the conditions 

cited by Mr. Gerovac CTr. 61). 

Respondent's Testimony . Ray Taylor, respondent's chief electrician testified 

that his responsibilities include the operation of the beltlines at the mine and to insure that they are properly 

installed. He was on the unit on the day of Mr. Gerovac's 

inspection. He stated that the belt extension was installed 

during the 2:00 a.m. shift on January 6th, and it was moved 

two or three crosscuts for a dis~ance of approximately 

120 _feet. The fire sensors were installed by his crew during 

the day shift on January 7th within 24 hours of the extension 

and installation of the belt, and he believed they were 

installed before 4:00 p.m. that day (Tr. 62-70). 

Mr. Taylor stated that based on his interpretation of 

the regulation, once a belt extension is completed, the 

respondent has 24 hours within which to install the sensors. 

In hi~ view, regardless of the number of feet that the belt 

is extended, the respondent would still have 24 hours within 

which to advance and install the sensor line. He confirmed 

87 
that he was present when the mechanic arrived to install the 

sensor, but was not present when he completed the job (Tr. 

71-72). He confirmed that the first sensor line was installed 

within 24 hours of the installation of the belt (Tr. 74). The 

belt extension was installed by the morning of January 7, and 

the installation of the sensor line began before he left the 

unit that day, and the citation was aba~~d on January 8 (Tr. 

75). 

Mr. Taylor described the fire sensor system and the 

installation procedures, and he confirmed that in the event 

of a malfunction of one of the sensors, the entire system 

will malfunction and a warning light or alarm will indicate 

that the faulty sensor needs to be repaired (Tr. 103-104). 

Arguments Presented by 0the Parties 

Petitioner's interpretation of the standard is that it 

requires that belt sensors be installed at the beginning and 

end of a beltline regardless of its length. Petitioner maintains that the regulatory exception allowing 24 hours for the 

installation of sensors only applies to the distances between 

the beginning and end of a beltline and does not apply to the 

requirement that a sensor be at the end of the beltline 

regardless of its distance. Assuming a beltline is 375 feet 

long, petitioner argued that a sensor must be installed at 

the beginning and end at the time the belt or any extension 

is installed, and that the remaining sensors in between the 

beginning and end may be installed within 24-hours (Tr. 84, 

92, 128-129). 

Petitioner argued that since there is electrical power 

at the belt tailpiece, and since shuttle cars are operating 

in that area, there is a likelihood of coal accumulations and 

a potential £ire at that location, and the rationale of an 

interpretation that a sensor is required at the end of the 

belt is a reasonable one (Tr. 96). 

Assuming that the regulatory exception is applicable to 

the end of the belt line, which had been extended for a distance of 140 feet, petitioner concedes that the respondent 

would be allowed 24 hours within which to install a sensor at 

the 125 foot location (Tr. 98). Petitioner agrees that the 

inspector was apparently concerned about the lack of a sensor 

at the end of the 140 foot extended belt, and it took the 

position that subparagraph (1) of the regulation required a 

sensor at the end notwithstanding the 24 hour exception found 

in subparagraph (3) (Tr. 99). 

88 
Inspector Siria explained that the respondent's beltlines begin as belt headers and extend to the tailpiece. As 

the belt is further extended, the tailpiece is advanced in an 

inceremental series of headers and tailpieces (Tr. 108-109). 

Respondent explained that the belt is advanced by its production personnel, and once this is done, its maintenance personnel will advance the fire sensor line CTr. 116-117). 

The respondent explained that its belts are advanced for 

distances of 120, 180, or 210 feet at a time depending on the 

crosscut centers. The fire sensors are purchased in 500 foot 

rolls, with sensors at 75 foot intervals. The sensors are 

premeasured, and the sensor li·ne is uncoiled and advanced for 

installation after the belt has been advanced (Tr. 103). 

Assuming the belt is advaQceμ 140 feet, as it was in this 

case, the sensors would' be.advanced for this same distance up 

to the tailpiece end of the extended belt, and respondent 

believes that the regulatory exception permits a 24-hour 

period for this to be done (Tr. 87). 

The respondent does not dispute the fact that the fire 

sensor line was not immediately advanced for 140 feet at the 

time the belt was extendeq that distance. However, respondent takes the position that when the distance from the tailpiece to the loading point reaches 125 feet, it has 24 hours 

to advance the sensor heads to the end loading point (Tr. 

127). On the facts of this case, the respondent points out 

that Inspector Gerovac arrived at the scene four hours after 

the belt had been extended, and even though it had been 

extended for more than 125 feet, the respondent believes that 

it was not required to immediately advance the fire sensor 

line because of the 24 hour "grace period" exception found in 

subparagraph C3> of section 75.1103-4(a) (Tr. 85-851 101). 

The respondent points out that the fire sensor line had 

been extended up to the point where the belt extension 

started, and that automatic fire suppression devices were 

located at the tailpiece feeders (Tr. 113). In response to 

the petitibner's assertion that the regulatory exception 

applies only to the 125 foot belt increments, or the points 

between the beginning and end, respondent points out that 

requiring the immediate installation of a sensor at the end 

of the belt while allowing 24 hours to install one in the 

middle makes no sense because the sensors operate in sequence 

and not independently of each other. A sensor located at the 

end of a belt will not operate until such time as the middle 

one is installed CTr. 94). 
Inspector Siria was recalled as the court's witness and 

he was asked to ·explain his interpretation of the exception 

found in section 75.1103-4(a)(l). He stated that he personally preferred the application of subsection (1) which 

requires sensors at the "beginning and end of each belt 

flight," and that he did not fully understand the application 

of the exception found in subparagraph (3) {Tr. 106). When 

asked to give an opinion as to what the standard writers had 

in mind when the regulation was promulgated, he responded "I 

don't know what this guy was thinking about when he wrote 

that" (Tr. 107-108). 

Mr. Siria candidly conceded that accepting the petitioner's argument that the 24 hour exception applies only to 

the sensors between the-b~g~nning and end of a beltline could 

result in a 500 foot· belt without fire sensors between the 

beginning and end of the belt over a 24-hour period. When 

asked to explain the logic of requiring an immediate sensor 

at the end of the belt and not in the middle, he responded 

"because that's the most likely place for a fire to begin, at 

the tailpiece" <Tr. 108). 

When asked for his opinion about the theory of the 

respective positions of the parties in this case, Mr. Siria 

responded "I think they're both right" (Tr. 110), and he 

explained further as follows (Tr. 113-114); 

I think you have twenty-four hours to get 

the sensoring head if it's in excess of a 

hundred and twenty-five feet. But I think the 

sensoring are supposed to be from the beginning to the end of the belt like it states in 

the first part of the paragraph. But like the 

guy ••• like I said, maybe the guy that wrote 

this said • • • when they extend their sensoring wire, they're automatically on a hundred 

and twenty-five, they don't have to put them on. 

Ray said now they're seventy-five. So they 

don't have to add these sensoring heads. But 

I'm sure that when the law first came into 

effect, they put a line in and they added sensoring heads later. But I think, like the 

first paragraph, like Tom, Mr. Grooms said, it 

should be from the beginning to the end. And I th~nk ••• like Bruce says that it should be 

• • • they should have twenty-four hours to put 

that in, any in between. Now, this would be an 

exception to them because they don't have to 

90 
put them in: they're already built in, they 

come built in. 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 75.1103-4(a)(l), which provides 

as follows: 

(a) Automatic fire sensor and warning 

device systems shall provide identification of 

fire within each belt flight (each belt unit 

operated by a belt_d7ive). 

' Cl) Where used, sensors responding to 

temperature rise at a pGint (point-type sensors) shall be located at or above the elevation of the top belt, and installed at the 

beginning and end of each belt flight, at the 

belt drive, and in increments along each belt 

flight so that the maximum distance between 

sensors does not exceed 125 feet, except as 

provided in paragraph (a)(3) of this section. 

(Emphasis added.) 

The exception referred to in paragraph (a)(l), provides 

in relevant part as follows: 

(3) When the distance from the tailpiece 

at loading points to the first outby sensor 

reaches 125 feet when point-type sensors are 

used, such sensors shall be installed and put 

in operation within 24 production shift hours 

after the distance of 125 feet is reached. 

* * * (Emphasis added.) 

The parties agreed that the respondent's belt fire sensors are point-type sensors. The term "flight" as applied to 

a belt system is defined by the Dictionary of Mining, 

Mineral, and Related Terms, U.S. Department of the Interior, 

1968 Edition as "a term sometimes applied to one conveyor in 

a tandem series." 

Inspector Gerovac noted in his citation that the required 

fire sensor line in question had been installed up to the 

flight connection point in question at the time he viewed the 

cited condition. The parties assumed and agreed that the • 

91 
respondent was in compliance up to the point of the newly 

installed belt flight connection, and that the sensor line up 

to that point was in place and functional (Tr. 97). They also 

agreed that at that point in time the newly extended belt 

extension or "flight" had been extende4 in excess of 125 feet 

for a distance of 140 feet and the fire sensor line had not 

been immediately extended to the end of the newly advanced 

belt flight. The termination notice issued by Inspector 

Gerovac states that the violation was abated by extending the 

fire sensor line to the belt tailpiece. Since the fire sensor 

line is one that is simply uncoiled and advanced as the belt 

flight is advanced, I assume that the respondent uncoiled it 

and extended it for 140 feet to the end of the newly extended 

tailpiece and loading point location to achieve abatement and 

compliance. 

It seems to me that the starting point for the application of the regulatory language found in section 75.1103-4(a) 

is the newly installed belt flight connection location. 

According to the credible testimony the belt flight was 

installed on the immediate shift prior to the inspector's 

arrival, and it had been in place some 4 hours prior to his 

arrival. The parties agreed that the fire sensor line was in 

place up to and including th~ belt flight connection location, but disagree as to what was required from that point on. 

The petitioner relies on the language. found in paragraph (1) 

which requires the installation of sensors at the beginning 

and end of each belt flight and in increments along each belt 

flight so that the maximum distance between sensors does not 

exceed 125 feet. The petitioner's interpretation of this 

regulatory language is that it imposes a requirement that 

sensors be installed at the beginning and end of each belt 

flight. Since there was no sensor at the end of the newly 

extended belt flight in question, petitioner maintains that a 

violation has been established. 

With regard to the application of the 24 hour exception 

found in paragraph (3), petitioner's interpretation is that 

it only comes into play when the extended belt flight tai·lpiece reaches a point 125 feet from the last outby sensor at 

the flight connecting point. In the instant case, petitioner 

agrees that the respondent had 24 hours from the time the 

belt flight in question was installed to advance the fire 

sensor 125 feet in order to comply with the requirement that 

sensors be located at distances not to exceed 125 feet, but 

insis_ts, that the sensor at the end of the 140 foot belt 

flight should have been installed immediately upon completion 

of the installation of the advanced belt flight. In short, 

the petitioner suggests that the sensor line should have been 

92 
extended up to and including the end of the 140 flight extension when that work was completed. 

The respondent's interpretation of the regulatory language found in paragraphs Cl) and (3) of section 75.1103-4Ca), 

is that the 24 hour exception applies to the sensors at the 

beginning and end of a belt flight as well as the sensors 

which are required at intervals of 125 feet along the belt 

flight. Respondent's representative conceded that when the 

belt was advanced 140 feet, sensor's were required at the 

beginning and end of that belt flight. However, he took the 

position that the fire sensor line would be advanced to the 

beginning of the flight when the belt is advanced, and that 

the respondent would still have 24 hours within which to 

advance the line to the ·end ~f the flight (Tr. 87-88). 

Respondent's representative argued that section 75.1103-4 

does not impose any time period within which the sensors must 

be located at the beginning and end of a belt flight, and he 

asserted that since the regulation does not differentiate as 

to when sensors must be installed at the beginning and end of 

a belt flight, the respondent is free to rely on the 24 hour 

for the installation of sensors at both locations (Tr. 

99-100). His interpretation of the exception noted in paragraph Cl) is that it also applies to the end of a belt flight 

(Tr. 101). 

Respondent argues that requiring a sensor at the end of 

the belt flight immediately upon the completion of the installation of the belt flight, while permitting 24 hours to 

install one at the beginning, is inconsistent because the 

beginning and intervening 125-foot locations will be without 

fire sensor protection for a 24-hour period, while the end of 

the belt will be immediately protected. Petitioner maintains 

that requiring a sensor at the end immediately within the 

completion of the belt flight will insure fire protection at 

the critical tailpiece loading point where equipment is operating and coal accumulations or spillage are most likely to 

occur. Since the remaining portion of the belt will be protected with sensors located at intervals of 125 feet, petitioner maintains that requiring the immediate location of the 

sensor at the end of the belt will simply insure that the 

entire belt flight has fire sensoring devices when it is 

installed and operational. 

Petitioner maintains that the acceptance of the respondent's interpretation of the standard will result in the use 

of an unprotected belt flight during coal production. Since 

the 24 hour exception applies to production hours, petitioner 

93 
points out that the respondent could be operating a belt during two or more production shifts with no fire sensor at the 

end loading point, and that the standard was never intended 

to be interpreted in such a way as to permit such a hazard to 

exist. 

The respondent asserts that allowing 24 hours to install 

intervening sensors on a belt flight while at the same time 

insisting that a sensor be immediately installed at the end 

when the flight is installed is illogical because its belt 

sensors operate in sequence or in tandem much like a "string 

of Christman lights," and that in the event one sensor malfunctions, the entire sensor system will not work. In support of this claim, the respondent relies on the testimony of 

its Chief Electrician Ray~.Tc9;ylor .. 

Mr. Taylor's testimony does not support the respondent's 

suggestion that one malfunctioning sensor along a belt flight 

will render the entire sensor system useless or cause it to 

shut down. Mr. Taylor testified that if one sensoring device 

should fail at one location along a belt flight it will trigger an alarm or signal to indicate that there is a malfunction or fault in the system which needs attention. He specifically stated that one malfunctioning sensor will not shut 

down the entire sensoring apparatus, but will simply give an 

alert that repairs are required (Tr. 103-104). The only malfunction which will shut the entire system down is one caused 

by the cutting of the sensoring cable itself (Tr. 104). 

Paragraph (1) states that where used, sensors must be 

located at the beginning and end of a belt flight. This language is clear and unequivocal. In my view, once a belt 

flight is installed sensors must be located at the beginning 

and end of the belt flight regardless of the length of the 

flight. If the flight is 100 feet long, two sensors are 

required; one at the beginning and one at the end. If the 

flight is 150 feet long, three sensors are required; one at 

the beginning, one at the end, and one at an intervening location not in excess of 125 feet from the first one. As additional belt flights are added, the requirements for additional 

sensors must be determined by using the last installed sensor 

at the new tailpiece location as a new starting reference 

point. 

With regard to the exception found in paragraph (3), I 

agree with the petitioner's interpretation that it applies 

only to the location of sensors which must be located at 

intervening locations along a belt flight not in excess of 

94 
125 feet of the last installed sensoro In my view, paragraph 

(1) imposes two separate requirements for the installation of 

fire sensors along a belt flight. The first requirement is 

that sensors be located at the beginning and end of a belt 

flight, and a second requirement is that sensors be located 

in increments and distances not to exceed 125 feet. The regulatory exception in my view modifies the requirements for 

locating sensors at locations which exceed 125 feet, and does 

not affect the requirement that they be at the beginning and 

end of a belt flight. The first sentence of the exception 

found in paragraph (3) provides that when the distance from a 

belt tailpiece to the first outby sensor reaches 125 feet 

such sensors shall be installed and put in operation within 

24 production shift hours after the 125 feet distance is 

reached. Thus, I conclud~ ~hat the phrase "such sensors" 

only applies to the sen'sors which are required at 125 . foot 

intervals along a belt flight, and not to those required at 

the beginning and end of the flight. 

On the facts of this case, I conclude and find that the 

petitioner's interpretation and application of the standard 

in question is correct, and I reject the interpretation 

advanced by the respondent. I conclude and find that a sensor was required at the point where the cited belt flight 

reached a distance of 125 feet as well as at the end of the 

flight. Since the flight had been installed 4 hours prior to 

the arrival of the inspector on the scene, I conclude that 

the exception found in paragraph (3) of section 75.1103-4 

allowed the respondent an additional 20 production shift 

hours within which to advance and install a sensor at the 

125 foot distance, but did not allow the respondent any additional time within which to advance and install a sensor at 

the end of the flight. I conclude that a sensor at the end 

of the belt flight was required immediately upon the installation of the operational belt flight. Since the belt flight 

was in use and operational at the time the citation was 

issued, and since there is no dispute that a sensor was not 

located at the end of the flight, I conclude that a violation 

has been established and the citation IS AFFIRMED. 

History of Prior Violations 

Exhibit P-1 is a computer print-out summarizing the 

respondent's complian·ce record for the period January 1, 1983 

through January 6, 1985. That record reflects that the 

respondent paid civil penalty assessments totalling $75,033 

for 800 violations, 29 of which were for violations of the 

fire sensor requirements found· in 30 C.F.R. § 75.1103, 

75.1103-1, 75.1103-4, and 75.1103-5. Taking into account the 
size of the respondent's mining operations, I do not consider 

the respondent's history of compliance to be a particularly 

good one, and I have considered this in the civil penalty 

assessment made for the violation in question in this case. 

Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business 

The parties have stipulated ·as to the scope of the 

respondent's mining operations and agreed that the payment of 

civil penalty will not adversely affect the respondent's ability to continue in business. I adopt these agreements as my 

findings on these issues. 

Good Faith Abatement 

The parties stipulated that the conditions cited as a 

violation in this case were corrected in good faith by the 

respondent within the time fixed by the inspector. I agree 

and conclude that the respondent exercised good faith in abating the violation. 

Negligence 

I conclude and find that the respondent knew or should 

have known of the requirement for locating the sensor at the 

end of the belt flight in question and that its failure to 

advance the sensor line before the inspector found the violative condition is the result of its failure to exercise 

reasonable care. Although I have taken into account the testimony of Chief Electrician Taylor that work had begun to 

advance the sensor line during the shift when the violation 

was issued, the fact is that the line was not extended to the 

end after the belt flight was installed. Considering 

Mr. Taylor's interpretation of the standard, there is a 

strong inference that had the shift ended, the respondent 

would have waited until subsequent shifts to advance the line 

to the end of the belt. 

Gravity 

I conclude and find that the violation was serious. 

Failure to extend the fire sensoring device to the end of the 

belt flight after it was installed presented a hazard in that 

in the event of a fire at the end of the belt, there would be 

no warning device available to alert the miners of such a 

hazard. Although the respondent's representative asserted 

that a fire suppression device was installed at the end of the 

belt, there is no credible testimony to support his assertion. 

96 
Even if the fire suppression device was present, the lack of a 

warning device still presented a hazardous condition. 

Significant and Substantial Violation 

There is no credible testimony to support a finding that 

the violation in this case was significant and substantial. 

The burden of proof in this regard is on the petitioner, and 

since the inspector who issued the citation did not testify 

as to any factors which could contribute to an accident, I 

have no factual basis, other than the fact that the sensor at 

the end of the belt was missing, to support an '

1 S&S" finding. 

Inspector Siria did not view the cited conditions, and he was 

not with Inspector Gerovac when the citation was issued. 

Under the circumstances; t.h~ "S&S" finding in this case IS 

VACATED. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

respondent is assessed a civil penalty in the amount of $175 

for section 104(a) Citation No. 2505477, issued on January 7, 

1985, for a violation of 30 C.F.R. § 75.1103-4(a)(l). 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $175 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. 

/~~~~~ Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 {Certified Mail> 

Mr. Bruce Hill, Safety Manager, Pyro Mining Company, P.O. 

Box 267, Sturgis, KY 42459 (Certified Mail) 

/fb 

97 
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, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA) 

Petitioner 

. • 

: Docket No. KENT 85-181 

: A.C. No. 15-13881-03568 

v. : 

. • 

PYRO MINING COMPANY, 

Respondent 

. 

• 

Pyro No. 9 Slope 

William Station 

Appearances: 

Before: 

DECISION 

Thomas A. Grooms, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the petitioner1 

Bruce Hill, Director of Safety and Training, 

Pyro Mining Company, Sturgis, Kentucky, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

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

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

§ 820(a). Petitioner seeks civil penalty assessments against 

the respondent for three alleged violations of certain mandatory safety standards found in Part 75, Title 30, Code of 

Federal Regulations. The respondent filed a timely answer 

contesting the alleged violations, and a hearing was convened 

in Evansville, Indiana, on December 3, 1985. The parties 

waived the filing of posthearing briefs. However, I have 

considered the oral arguments made by the parties during the 

hearing in the adjudication of this case. 

Issues 

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

conditions or practices cited by the inspector constitute 

violations of the cited mandatory safety standards, and 

98 
(2) the appropriate civil penalty to be assessed for the violations, taking into account the statutory civil penalty 

criteria found in section llOCi> of the Act. 

Applicable Statutory and Regulatory Provisions 

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

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

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

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

Stipulations 

The parties stipul1ated ·that at all times relevant to 

this case, the overall coal production for the respondent's 

operating company was 5,020,840 tons, and that the production 

for the Pyro No. 9 William Station Mine was 2,041,542 tons. 

The parties stipulated that the payment of the assessed 

civil penalties will not adversely affect the respondent's 

ability to continue in business. They also stipulated that 

the violations were abated in good faith (Tr. 26). 

Procedural Ruling 

During the course of the hearing in this case, the parties raised the question of the validity of the section 

104(d)(2) unwarrantable failure order issued by the inspector. 

In a bench ruling, I held that the "unwarrantable failure" 

issue in connection with the order is not an issue in a civil 

penalty case. I also ruled that the validity of the underlying order is irrelevant, and I advised the parties that the 

issue here is whether or not a violation of mandatory safety 

standard 30 C.F.R. § 75.316 occurred, and if so, the appropriate civil penalty which should be assessed taking into 

account the civil penalty criteria found in section llOCi) of 

the Act. 

Discussion 

Section 104{d)(2) Order No. 25C8809, issued on May 16, 

1985, cites a violation of 30 C.F.R. § 75.316, and the condition or practice is stated as follows: 

The approved ventilation, methane and 

dust control plan (approved 2/28/85 see page 1 

paragraph A) was not being followed on the 

99 
No. 5 unit, I.D. 005 because permanent stoppings were not installed up to the loading 

point Ctailpiece of the belt) on the intake 

side. The permanent stoppings terminated two 

crosscuts outby the loading point. 

Section 104(a) "S&S" Citation No. 2508577, issued on 

June 3, 1985, cites a violation of 30 C.F.R. § 75.400, and 

the condition or practice is stated as follows: 

A violation was observed on the No. 3 

unit Sec. ID 003 in that an accumulation of 

loose coal approximately 4 feet wide, 14 feet 

long and 18 inches in depth was present on the 

north side of the Fatio feeder. The accumulation of loose coai was ·an a trailing cable of 

one of the joy shuttle cars. 

Section 104Ca) "S&S" Citation No. 2508574, issued on 

May 23, 1985, cites a violation of 30 C.F.R. § 75.400, and 

the condition or practice is stated as follows: 

A violation was observed on the No. 3 

unit ID No. 003 in that an accumulation of 

loose coal approximately 3 to 8 inches in 

depth, 10 feet wide, and 30 feet long was 

present in front of the ratio feeder in the 

belt entry of this unit. Loose coal also had 

accumulated around side of feeder on and 

around the main contact switch panels. 

Petitioner's Testimony 

MSHA Inspector James Franks testified that he conducted 

a section 103(i) spot inspection of the mine on May 16, 1985, 

and confirmed that he issued section 104(d)(2) Order No. 

2508809 because of a violation of the respondent's ventilation and methane and dust-control plan. The mine was on a 

"spot inspection" status because it liberates in excess of 

200,000 cubic feet of methane in a 24-hour period. He identified exhibit P-9 as the applicable plan in question and confirmed that the respondent failed to install permanent stoppings up to the loading points between the intake aircourse 

and beltline as required by Paragraph A, pg. 1 of the plan. 

Two crosscuts had been developed and no stoppings were 

installed as required by the plan. 

Mr. Franks identified exhibit J-1, as a sketch of the 

area where the violation occurred. The sketch was made from 

100 
notes that he took during the inspection, and he identified 

the two stoppings or brattices which were not installed as 

required by the plan. He indicated that the stoppings were 

required to be constructed with concrete blocks and mortar up 

to the loading point in order to provide a smoke-free intake 

escapeway for the use of miners in the event of an emergency 

such as a mine fire. The failure to provide the required 

stoppings increased the chances of a fire spreading. One of 

the crosscuts had no curtain across it, and it was possible that the other one did. The stoppings are also required to 

isolate the belt in the event of a fire, and to insure adequate ventilation and air control on the beltline (Tr. 

135-143). 

Mr. Franks stated th~t .coal was being mined at the time 

of his inspection, and that four entries were being driven to 

develop a longwall. He observed no stopping materials or 

work being performed to erect the stoppings in question, and 

he discussed the matter with the face boss and with respondent's safety manager Tom Hughes. They informed him that 

they intended to install the stoppings, but Mr. Franks saw no 

evidence of any work being done to accomplish this (Tr. 145). 

Mr. Franks explained the reasons for issuing a section 

104(d)(2) order, and while he believed that the respondent 

was going to install the stoppings, he saw no evidence of any 

materials in the area and saw no work taking place which 

would indicate when this would be done. His impression was 

that the respondent wanted to run coal and build the stoppings 

when they got around to doing it. Under the circumstances, he 

believed that there was a high degree of negligence and that 

is why he issued the order (Tr. 147). 

Mr. Franks confirmed that he did not consider the violation to be "significant and substantial" because the ventilation was good and he found no dangerous amounts of methane 

present at the faces. He did not believe that the circumstances presented indicated a reasonable likelihood of an 

accident (Tr. 147). 

Mr. Franks stated that coal production ceased at 

2:00 a.m. on May 16, 1985, but would have continued again at 

7:00 a.m. Five people were on the unit for the purpose of 

installing a beltline and the stoppings, and he estimated 

that it would take 45 minutes to an hour to install a stopping at one crosscut, assuming the materials were at the 

location (Tr. 149). 

101 
On cross-examination, Mr. Franks confirmed that he found 

an adequate supply of air and no dangerous amounts of methane 

on the unit. He confirmed that five men were used to install 

the beltline between 2:00 a.m. and 7:00 a.m. on May 16, and 

while he agreed that it may not have been practical to put 

the stoppings in before the beltline was installed, he 

believed that it could have been done. He confirmed that 

other mines install stoppings before a beltline is completed, 

but conceded that the respondent's longwall system presents 

some problems in this regard, particularly when shuttle cars 

are used (Tr. 154). 

Although Mr. Franks could not recall the presence of an 

air lock by the beltline, he conceded that one could have 

been present. The purpos~ qf the air lock is to control the 

air current and to keep the air from going away from the 

faces and down the beltline. Mr. Franks confirmed that the 

two required stoppings were installed and abatement was 

achieved within an hour of the issuance of the violation (Tr. 

157). Although he could not recall a scoop at the end of the 

track with cement blocks on it when he first arrived at the 

scene, he conceded that it was possibly present and that his 

delay in arriving at the scene of the violation could have 

been caused by the fact that the travelway was blocked by the 

scoop and blocks. He did not know how long it took to bring 

the blocks to the stopping areas, and he could not recall 

seeing anyone working in one of the breaks before he issued 

the order {Tr. 157-160). 

Mr. Franks confirmed that he marked the gravity section 

of the order "unlikely" and did not consider the violation to 

be "significant and substantial" (Tr. 163-164). 

In response to further questions, Mr. Franks confirmed 

that coal was being loaded on the beltline, and that a continuous miner and possibly three shuttle cars were being used 

during the time he was at the scene. He expressed surprise 

that production was not halted in order to construct the stoppings. He did not consider the use of temporary brattice 

curtains to be dangerous (Tr. 170). Petitioner's counsel 

confirmed that an air lock was in fact installed as shown on 

the sketch and that Inspector Pranks was simply unclear as to 

this (Tr. 172). 

Respondent's Testimony 

Thomas E. Hughes, respondent's safety manager, testified 

that he was familiar with the cited conditions and he confirmed that the beltline had been installed on the morning of 

102 
May 16. He confirmed that he travelled with Inspector Franks, 

and when they arrived at the end of ·the track· of the number 

five unit, the third shift was leaving, and a supply trip and 

a scoop added to the congestion in the area. He and the 

inspector were held up because of this congestion. Mr. Hughes confirmed that the unit was running and that Mr. Franks was 

concerned that it was running with two open stoppings. The 

unit was then shut down. Although he recalled some blocks in 

one of the "open holes" on the unit, he could not recall that 

any brattice men were on the unit. However, preparations were 

being made to construct the stoppings (Tr. 176), and the brattice men would be assigned to do this work (Tr. 177>. 

On cross-examination, Mr. Hughes confirmed that he was 

not present when the be1tii~e was installed, and he explained 

that someone could have told him that it was installed the 

evening before, or he may have read that in a report (Tr. 

178-179). 

Findings and Conclusions 

Fact of Violation - Order No. 2508809 

The respondent does not dispute the fact of violation in 

this case (Tr. 183-184). In mitigation of the violation, 

respondent's representative argued that the respondent 

intended to install the stoppings regardless of the presence 

of the inspector on the scene (Tr. 184). In support of this 

argument, respondent asserted that the blocks for the con- . struction of the stoppings were either stored on the unit or 

about to be transported to the stopping areas while the inspector was at the scene CTr. 165-166). Respondent candidly 

admitted that it contested the violation in order to mitigate 

the proposed $1,000 penalty assessment levied by MSHA for the 

violation (Tr. 164). 

The unrebutted testimony of Inspector Franks clearly 

establishes that the required permanent stoppings were not 

installed up to the loading point or tailpiece of the beltline on the intake side of the unit in question. The respondent's approved ventilation and methane and dust-control plan 

required that permanent stoppings be installed at that location, and the failure by the respondent to follow its plan 

constitutes a violation of mandatory safety standard 30 C.F.R. 

§ 75.316 as charged in the order issued by the inspector. 

Accordingly, the violation IS AFFIRMED. 

103 
Section 104(a) Citation Nos. 2508577 and 2508574 

During the course of the hearing, the respondent stated 

that it no longer wished to contest the coal accumulations 

violations and admitted that they occurred as stated by the 

inspector in the citations. Respondent requested that it be 

permitted to pay the full amounts of the proposed civil penalty assessments made by MSHA for the violations, and petitioner's counsel agreed to this proposed disposition (Tr. 

7-8). 

The respondent agreed to the negligence and gravity findings made by the inspector at the time the citations were 

issued, and I took note of the fact that the cited coal accumulations were cleaned up ~nq abated within 30 minutes of the 

issuance of the citations., 

I considered this matter as a joint settlement proposal 

pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, and 

after consideration of the six statutory criteria found in 

section llO(i) of the Act, the settlement was approved from 

the bench, and it is herein reaffirmed. 

History of Prior Violations 

Exhibit P-2 is a computer print-out summarizing the 

respondent's compliance record for the period June 4, 1983 

through June 3, 1985. That record reflects that the respondent paid civil penalty assessments totaling $93,693 for 918 

violations. Eighty-three of these prior violations were for 

violation of mandatory safety section 75.316, and 187 are for 

violations of section 75.400. 

Taking into account the size of this respondent, I do 

not consider its history of compliance to be a good one, and 

I believe that the respondent needs to pay closer attention 

to its coal accumulations cleanup procedures and the requirements of its ventilation and methane and dust-control planso 

I have considered the respondent's compliance record in 

assessing the civil penalties in this case. 

Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business. 

The parties have stipulated to the size and scope of the 

respondent's mining operations and they agreed that the payment of civil penalties will not adversely affect the respondent's ability to continue in business. I adopt these stipulations as my findings on these issues. 

104 
Good Faith Abatement 

The parties stipulated that all of the conditions and 

practices cited as violations in this case were corrected in 

good faith by the respondent within the time fixed by the 

inspectors. The stopping violation was abated within an hour 

of its issuance, and as previously noted, the coal accumulations violations were abated within 30 minutes of the issuance of the citations. I conclude that the respondent 

exercised rapid good faith abatement of the violations. 

Negligence 

With regard to the.stopping violation, Inspector Franks 

believed that the respondent exhibited a high degree of negligence in failing to construct them before the unit was placed 

in operation. In mitigation of its negligence, the respondent argued that it fully intended to construct the stoppings 

and had the materials available. Although this may be true, 

the inspector believed that the available manpower on the 

unit was insufficient for such a project, and he saw no evidence of any actual work in progress to construct the stoppings. However, he conceded that constructing the stoppings 

on an operating longwall section presented some practical 

problems, and he believed the respondent's contention that it 

fully intended to construct the stoppings. The inspector's 

view is that the stoppings should have been constructed when 

the section ceased operating on the shift prior to his 

arrival on the scene, and I am convinced that the inspector's 

arrival prompted the immediate movement of materials necessary for the construction of the stoppings. I conclude that 

at the time the violation was discovered, the respondent had 

made preparations for the construction of the stoppings, and 

that the arrival of the inspector simply speeded up the 

process. Once the work began, the stoppings were completed 

within an hour. 

I have considered the respondent's preparatory efforts 

in constructing the stoppings, including the presence of materials for this work on the unit, as factors mitigating the 

civil penalty assessed for the violation. However, I conclude and find that the respondent knew or should have known 

of the stopping requirements of its own ventilation plan, and 

that its failure to construct the required stopping before 

the inspector found the violative condition is the result of 

its failure to exercise reasonable care. 

105 
Gravit;: 

I conclude and find that the failure by the respondent 

to construct the required stoppings in question constitutes a 

serious violation. While it is true that the inspector did 

not consider the violation to be "significant and substantial," found no dangerous amounts of methane, and that adequate air and an air lock were present on the unit, the 

stoppings were required to maintain a smoke-free escapeway in 

the event of a fire and to insure the adequate control of air 

ventilation on the beltline. 

Civil Penalty Assessments 

The respondent has-agr~ed to pay the full $168 assessment 

for Citation No. 2508574, May 23, 1985, 30 C.F.R. § 75.400, 

and the full $168 assessment for Citation No. 2508577, June 3, 

1985, 30 C.F.R. § 75.400. 

On the basis of the foregoing findings and conclusions 

with respect to Order No. 2508809, May 16, 1985, 30 C.F.R. 

§ 75.316, respondent is assessed a civil penalty in the 

amount of $900. 

ORDER 

The respondent IS ORDERED to pay the civil penalties in 

the amounts indicated above within thirty (30> days of the 

date of this decision. 

J 

'(I If / ~ .z;;;; 

ge • ~u~~ ~ative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Mr. Bruce Hill, Safety Manager, Pyro Mining Company, P.O. 

Box 267, Sturgis, KY 42459 (Certified Mail) 

/fb 

106 
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 HEA.LTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

ROBERT RIBEL, 

Complainant 

v. 

EASTERN ASSOCIATED COAL 

CORPORATION, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 84-33-D 

MSHA Case No. MORG CD 83-18 

Federal No. 2 Mine 

SUPPLEMENTAL DECISION AND ORDER 

Before: Judge Koutras 

On December 18, 1985, the Commission issued its decision in 

this matter affirming my decision of September 24, 1984, 7 FMSHRC 

2203, and my supplemental decision on remand of July 10, 1985, 

7 FMSHRC 1059, that the respondent discriminated against the 

complainant in violation of section 105(c) (1) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c} (1). With 

regard to the issue of attorneys' fees for the complainant's 

private counsel, the Commission ruled that Mr. Ribel's counsel 

is entitled to a limited attorney's fees award, and it remanded 

the matter to me for further limited adjudication of this issue. 

In response to my order of December 31, 1985, the parties 

have submitted a stipulation with respect to the amount of 

attorneys' fees due to Mr. Ribel, and it states as follows: 

That the amount of attorneys' fees due to 

Mr. Ribel in connection with the participation 

of his private attorney in obtaining an award 

of costs in the amount of six hundred and five 

dollars ($605) is seven hundred and twenty one 

dollars and fifty cents ($721.50); 

107 
That this Stipulation is without prejudice 

and shall not constitute a waiver of the right 

of either party to petition for review of the 

aforementioned decisions of Judge Koutras and 

the Commission, including specifically the 

disposition by Judge Koutras and the Commission 

of Mr. Ribel's motion for an award of attorneys' 

fees and costs. 

ORDER 

The respondent IS ORDERED to pay to Mr. Ribel 1 s private 

attorney the agreed upon amount of $721.50, and payment is to 

be made within thirty (30) days of the date of this supplemental 

decision and order. · 

A~~/7,f//,ff/ 'ef51!ge/l'A.. Ii Koutras J::~ Administrative Law Judge 

Distribution: 

Barbara Fleischauer, Esq., 258 McGara Street, Morgantown, WV 

26505 (Certified Mail) 

Ronald s. Cusano, Anthony J. Polito, Esqs., Corcoran, Hardesty, 

Ewart, Whyte & Polito, P.C., Suite 210, Two Chatham Center, 

Pittsburgh, PA 15219 (Certified Mail) 

Sally s. Rock, Associate General Counsel, Eastern Associated 

Coal Corp., One PPG Place, Pittsburgh, PA 15222 (Certified Mail) 

/fb 

108 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

0 .' i ; 1 , It l ,,. ....... 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: Docket No. KENT 85-187 

: A.C. No. 15-13881-03570 

v. . 

. 

. . PYRO MINING COMPANY, 

Respondent 

. . Pyro No. 9 Slope 

William Station 

Appearances: 

Before: 

DECISION 

Thomas A. Grooms, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Petitioner1 

Bruce Hill, Director of Safety and Training, 

Pyro Mining Company, Sturgis, Kentucky, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

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

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

§ 820Ca). Petitioner seeks civil penalty assessments against 

the respondent for two alleged violations of certain mandatory safety itandards in Part 75, Title 30, Code of Federal 

Regulations. The respondent filed a timely answer contesting 

the alleged violations, and a hearing was convened in 

Evansville, Indiana, on December 3, 1985. The parties waived 

the filing of posthearing briefs. However, I have considered 

the oral arguments made by the parties during the hearing in 

of this case. 

Issues 

The issues presented in this case are Cl) whether the 

conditions or practices cited by the inspector constitute 

violations of the cited mandatory safety standards, and 

109 
(2) the appropriate civil penalty to be assessed for the violations, taking into account the statutory civil penalty 

criteria found in section llO(i) of the Act. 

Applicable Statutory and Regulatory Provisions 

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

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

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

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

Stipulations 

The parties stipulated that at all times relevant to 

this case, the overall coal production for the respondent's 

operating company was 5,020,840 tons, and that the production 

for the Pyro No. 9 William Station Mine was 2,041,542 tons. 

The parties stipulated that the payment of the assessed 

civil penalties will not adversely affect the respondent's 

ability to continue in business. They also stipulated that 

the violations were abated in good faith within the time 

allotted (Tr. 26). 

Procedural Ruling 

The subject of this civil penalty proceeding is a section 104(d)C2J "unwarrantable failure" order issued by Inspector Stanley on May 21, 1985. The petitioner seeks a civil 

penalty assessment for a violation of mandatory safety standard 30 C.F.R. § 75.316, as stated on the face of the order. 

In support of his order, Inspector Stanley made reference to 

a previously issued section 104(d)(l) Order No. 2508757, 

issued at the mine on May 9, 1985 (Exhibit P-10). 

The parties stipulated that there was no intervening 

"clean inspection" of the mine during the period May 9, 1985, 

the date of the underlying order, and May 21, 1985, the date 

the order in this case was issued. 

Petitioner's counsel asserted that since the underlying 

order of May 9, 1985, has been contested by the respondent, 

he was unclear as to whether or not the validity of that 

order had to be first established in order to support the 

order issued by Inspector Stanley on May 21, 1985. 

In a ruling made from the bench, I advised the parties 

that the "unwarrantable failure" aspect of the order which is 

110 
the subject of this civil penalty case is not in issue in 

this proceeding. I ruled that the validity of the order is 

not an issue to be determined in a civil penalty case, and 

that the validity of the preceding underlying order is irrelevant. The parties were advised that the issue here is whether 

or not a violation of mandatory standard section 75.316, has 

been established, and if so, the appropriate civil penalty 

which should be assessed for that violation, considering the 

civil penalty criteria .found in section llOCi) of the Act. 

Discussion 

Section 104Cd)(2) Order No. 2507449, issued on May 21, 

1985, cites a violation of 30 C.F.R. § 75.316, and the condition or practice is statep ~s follows: 

The ventilation and methane and dust control plan was not being followed in the working section in south entries off 2 east off 

2 north of main east CID 0030) in that 

permanent-type stoppings were not erected up 

to and including the third connecting crosscut 

outby the faces between the intake and return 

as required. There were 3 open crosscuts 

which had no permanent stopping in them an~ 

the faces were driven far enough through the 

crosscuts. 

Section 104Cd)(2) Order No. 2507452, issued on May 20, 

1985, cites a violation of 30 C.F.R. § 75.400, and the condition or practice is stated as follows: 

Loose coal was permitted to accumulate on 

the floor of the Nos. 1 through 5 entry in the 

working section in east entries off 4 north 

(ID 002-0). The coal was from rib to rib and 

8 to 14 inches deep. The accumulation was 

from the faces outby for 50 to 60 feet. In 

the feeder entry the coal was accumulated from 

the face to the feeder (120 feet.). 

Petitioner's Testimon¥ 

MSHA Inspector Louis w. Stanley testified as to his background and experience, and he confirmed that he inspected the 

mine on May 16, 1985, and issued the order in question. He 

stated that he inspected the return side of the number three 

unit and found that permanent type stoppings had not been 

erected up to and including the third connecting crosscut 

111 
outby the faces. He identified exhibit P-9 as the applicable 

ventilation and methane and dust~control plan, and exhibit 

P-17 as a sketch of the area where the violation occurred. 

He testified that he found a line curtain installed where the 

permanent stopping should have been erected, and he confirmed 

that he discussed the violation with Mr. Doug Harris, the 

respondent's safety representative who was with him during 

the inspection (Tr. 192-197). 

Mr. Stanley testified that the section foreman admitted 

that he was aware of the fact· that the required stoppings had 

not been installed and advised him that men had been assigned 

to obtain material to build the stoppings. Mr. Stanley saw 

no evidence of any construction taking place, and there were 

four or five men on the-s~c~ion. The section was a conventional mining section, ·and. coal was drilled, shot, and then 

loaded out. When Mr. Stanley arrived on the section, the 

power was on all of the equipment, and a loading machine and 

coal drill were at the face, and a cutting machine was outby. 

Although someone advised him that no work had been done that 

morning, the section foreman admitted that coal had been shot 

at one place in the number four entry. Mr. Stanley stated 

that he found 2.4 percent methane in the number four entry 

and issued a section 107(a) imminent danger order because of 

the methane. The methane was cleared up after a curtain was 

hung across the last open break through and into the number 

four entry (Tr. 200). 

Mr. Stanley stated that he issued the unwarrantable failure order because of the admission by the section foreman 

that an entire shift had been worked without installing the 

required permanent stoppings. He confirmed this by noting 

that the face had been advanced past the third crosscut and 

coal had been removed from these areas inby the last open 

crosscut (Tr. 201). The reason for requiring the stoppings 

is to insure positive air ventilation at the faces, and to 

prevent curtains being torn down, thereby short circuiting 

the air. Failure to maintain proper ventilation will allow 

methane and coal dust to accumulate, thereby presenting a 

hazard of an ignition or explosion (Tr. 201-203). 

Mr. Stanley confirmed that he did not consider the violation to be "significant and substantialn because his air readings indicated a sufficient quantity of air present in the 

area and he did not believe that an accident was likely (Tr. 

203). He confirmed that coal had been mined on the previous 

shift and he did so by checking the onshift mine records (Tr. 

205). The required stoppings were erected within 35 minutes 

of the issuance of the violation CTr. 205)~ 

112 
On cross-examination, Mr. Stanley testified to the air 

readings which he took, and he confirmed that the unit was 

not "running" when he first arrived. He confirmed that coal 

had been mined during the previous shift and that the mine 

foreman admitted that had he not appeared on the scene coal 

would have continued to be mined and the stoppings would have 

been constructed on the intake. Mr. Stanley also determined 

that coal had been extracted from the last open crosscut inby 

for a distance of 50 to 60 feet, and he confirmed that 

2.4 percent methane is not within an explosive range (Tr. 

209-211). He confirmed that only one required stopping had 

not been constructed, and he identified the location by placing an "X" on his sketch (exhibit P-17) (Tr. 213). 

Mr. Stanley identified.a previous citation he issued at 

the mine on March S, 1985, citing a violation of section 

75.316, for a missing brattice and he explained why he considered that one to be "S&S," and the one in issue in this case 

to be unwarrantable (Tr. 213-215). 

Respondent's Testimony 

David Winebarger, respondent's Director of Support, identified exhibit R-2 as a sketch of the operating unit as it 

appeared on the day the violation was issued. He stated that 

the belt was installed that same morning, and confirmed that 

the line brattices shown on the sketch were required to be 

installed on the return when there are three open breaks. He 

also confirmed that there were no permanent brattices on the 

intake up to the loading point, and that five or seven brattices had to be installed that day. He stated that no coal 

had been loaded up to the time Inspector Stanley arrived on 

the scene, but that power was on the equipment, and adequate 

air was present across the last open crosscut. The belt was 

running in order to load out coal which needed to be cleaned 

up. He indicated that he ordered the crew not to run coal 

until the brattices were installed, and also instructed them 

to build seven brattices (Tr. 217-224). 

On cross-examination, Mr. Winebarger stated that Inspector Stanley arrived on the unit after he (Winebarger> had 

been there and that he informed Mr. Stanley that coal was not 

being run and that he intended to install the brattices. 

Mr. Winebarger testified as to the activities taking place 

both before and after Mr. Stanley's arrival (Tr. 224-229). 

113 
Findings and Conclusions 

Fact of Violation - Order No. 2507449 

Respondent's representative conceded that the ventilation plan required the installation of a permanent stopping 

at the location noted by Inspector Stanley, and that the failure to install the stopping in question constituted a violation of the plan. However, he took the position that as long 

as coal is not being mined, there is no requirement for the 

stoppings. He argued that since no coal had been mined immediately prior to the arrival of Inspector Stanley, the respon- dent was not required to construct the stoppings. He also 

argued that construction of the stopping could not take place 

while coal was being mine9 b.ecause this would violate the 

plan, but he conceded that· the stopping was required to be 

constructed before the start of any coal production (Tr. 

231-232). 

When asked to explan his position that a stopping ·is not 

required unless coal is being produced, respondent's repre·sentati ve ref erred to Paragraph A, pg. 1 of the plan (Tr. 232 > .• 

The plan provision in question, exhibit P-9, provides as 

follows: "Permanent stoppings shall be maintained up to and 

including the third crosscut outby the face on the return 

side and up to the loading point on the intake side." 

Mr. Winebarger was asked to point out the plan provision that provided for the construction of stoppings only when 

coal was being mined, and he responded "I don't know" (Tr. 

237). Mr. Winebarger stated that coal was last produced on 

the unit on the 4:00 p.m. to 12:00 shift on May 20, 1985, the 

day before the citation was issued, and on the midnight shift 

of May 21, 1985 (Tr. 234). Although the morning shift from 

7:00 a.m. to 5:00 p.m. on May 21, was a production shift, 

Mr. Winebarger insisted that no coal was produced, but he 

confirmed that at 8:50 a.m., work was being performed on the 

unit, including the cleaning up and loading out of coal by 

means of the belt, a loader, and shuttle cars (Tr. 235-236). 

Respondent's representative stated that three crosscuts 

were mined several days prior to the issuance of the violation, and that the last one was opened up during the second 

night shift prior to the inspector's arrival on the scene. 

He conceded that the opening of these crosscuts constituted 

the mining of coal- CTr. 238)1 but believed that the stopping 

was required to be constructed when the crosscut is cleaned 

up and travelable (Tr. 239). 

114 
Respondent's representative conceded that the third 

crosscut had been completely mined through at the time the 

inspector arrived on the scene. He argued that in the normal 

course of business the required stopping would have been constructed before further coal production took place and that 

this indicates good faith on the respondent's part (Tr. 243, 

253). In response to questions from the bench, respondent's 

representative stated further as follows (Tr. 256-257): 

BY THE COURT: • • At the time the inspector 

arrived on the scene, it was clear to him that 

the third crosscut outby the face, there was 

no permanent stopping there, is that correct. 

MR. HILL: That's co~r~ct. 

BY THE COURT: Technically, that was a violation or realistically that was a violation in 

his eyes correct. 

MR. HILL: Correct. 

BY THE COURT: You agree with that. 

MR. HILL: That's correct, he wrote it. 

BY THE COURT: Given those facts, it was a 

violation, wasn't it. 

MR. HILL: That's correct. 

BY THE COURT: You were three crosscuts out by 

the face and no permanent stopping had been 

erected. 

MR. HILL: Correct. 

BY THE COURT: That violates the ventilation 

plan, doesn't it. 

MR. HILL: That's correct. 

Petitioner's counsel took the postion that when the 

third crosscut was mined through, it became a crosscut, and 

that at that point in time the third stopping was required to 

be constructed. Since it was not constructed when the inspector viewed it, a violation has been established and the fact 

that coal was not being produced at that precise moment is 

irrelevant Tr. 240-242). 

115 
• 

Inspector Stanley was recalled and he confirmed that the 

last open crosscut outby the face was completely opened and 

travelable at the time he issued the violation. Had it not 

been opened, but simply cut into, he would not have issued 

the violation. He confirmed that once he determined that the 

last open crosscut was completed, he then determined the location of the third crosscut outby the face where the stopping 

was required, and when he found that it was not constructed 

as required by the plan, he issued the violation. Mr. Stanley 

stated that the fact that coal was not being mined is irrelevant, and he believed that the respondent raised this issue 

only to support its contention that it intended to construct 

the stopping in question {Tr. 264-265). In his opinion, had 

the respondent intended·t9 c.onstruct the stopping, the 

required materials woultl have been present and it would have 

been constructed when the crosscut was opened up. Instead, 

the respondent ran the previous production shift for four or 

five cuts of coal without the stopping being constructed in 

violation of the plan during the previous shift (Tr. 266-267). 

After careful consideration of all of the testimony and 

evidence adduced in this case, I conclude and find that the 

petitioner has established by a preponderance of the evidence 

that the failure by the respondent to construct the stoppings 

in question constituted a violation of the requirements of 

its approved ventilation and methane and dust-control plan. 

It is clear that the stopping up to and including the third 

connecting crosscut outby the faces between the intake and 

return was not constructed as required by the plan, and the 

respondent conceded that this was the case. A violation of 

the requirements of the plan constitutes a violation of mandatory safety standard 30 C.F.R. § 75.316 as charged in the 

order issued by Inspector Stanley. 

I find nothing in the plan to support the respondent's 

contention that the active mining of coal has to be taking 

place before the stopping requirements come into play, and 

this defense is REJECTED. The evidence establishes that at 

the time the inspector arrived at the scene, coal had been 

produced on the immediate preceding shift, the critical crosscut had been completely mined through and developed, and work 

was taking place on the unit when the inspector viewed the 

violative conditions, including the loading out of coal on 

the belt and with the use of shuttle cars and a loader. At 

that point in time, the plan required the stopping in question to be completed and in place. Under all of these circumstances, the violation IS AFFIRMED . 

116 
Order No. 2507452 

With regard to Order No. 2507452, respondent's representative stated that the respondent does not contest the violation and admits that it occurred as alleged by the inspector 

(Tr. 8). Respondent requested that it be permitted to pay 

the full amount of the proposed civil penalty assessment made 

by MSHA for the violation, and the petitioner's counsel 

agreed to this proposed disposition. The respondent agreed 

to the negligence and gravity findings made by the inspector 

at the time the order was issued. Under the circumstances, I 

considered the matter as a joint settlement proposal pursuant 

to Commission Rule 30, 29 C.F.R. § 2700.30, and after consideration of the six statutory criteria found in section llO(i) 

of the Act, the settlemen~ ~as approved from the bench and it 

is herein reaffirmed. 

History of Prior Violations 

Exhibit P-2 is a computer print-out summarizing the 

respondent's compliance record for the period June 4, 1983 

through June 3, 1985. That record reflects that the respondent paid civil penalty assessment totalling $93,693 for 918 

violations. Eighty-three of these prior violations were for 

violation of mandatory safety section 75.316, and 187 are for 

violations of section 75.400. In addition, exhibit P-1, which 

is a computer print-out of the respondent's compliance record 

for the period January 1, 1983 through January 6, 1985, 

reflects six additional violations which occurred within 

2 years of the violations issued in this case, two of which 

are for violations of section 75.316, and one for a violation 

of section 75.400. 

Taking into account the size of this respondent, I do 

not consider the respondent's history of compliance to be a 

particularly good one, and I believe that the respondent needs 

to pay closer attention to its coal accumulations cleanup procedures and the requirements of its ventilation and methane 

and dust control plans. I have taken the respondent's compliance record into account in the civil penalty assessments made 

for the violations in question. 

Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business 

The parties have stipulated as to the scope of the 

respondent's mining operations and agreed that the payment of 

civil penalties will not adversely affect the respondent's 

117 
ability to continue in business. I adopt these agreements as 

my findings on these issues. 

Good Faith Abatement 

The parties stipulated that all of the conditions and 

practices cited as violations in this case were corrected in 

good faith by the respondent within the time fixed by the 

inspectors •. I agree and conclude that the respondent exercized good faith in abating the violations. 

Negligence 

With regard to Order No. 2507449, I conclude and find 

that the respondent knew 9r should have known of the stopping 

requirements of its own ventilation plan, and that its failure to construct the required stopping before the inspector 

found the violative condition is the result of its failure to 

exercise reasonable care. 

Gravity 

With regard to Order No. 2507449, I conclude and find 

that the failure of the respondent to construct the stopping 

in question was a serious violation. Although the inspector 

found an adequate supply of air on the unit, the failure to 

install the stopping presented the possibility of improper 

ventilation in the unit, thereby contributing to a possible 

ignition or explosion hazard. 

Penalty Assessments 

Respondent has agreed to pay the full $1,000 assessment 

for Order No. 2507452, issued on May 30, 1985, for a violation of 30 C.F.R. § 75.400. 

On the basis of the foregoing findings and conclusions 

with respect to Order No. 2507449, issued on May 21, 1985, 

for a violation of 30 C.F.R. § 75.316, respondent is assessed 

a civil penalty in the amount of $975. 

ORDER 

The respondent IS ORDERED to pay the civil penalties in 

the amounts shown above within thirty (30) days of the date 

118 
of this decision. Payment is to be made to MSHA, and upon 

receipt of same, this proceeding is dismissed. 

/ ~~ge 14~4~~ • I(o~tras Admin strative Law Judge .. 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Cert.if ied mail> 

Mr. Bruce Hill, Safety'Manager, Pyro Mining company, P.O. 

Box 267, Sturgis, KY 42459 (Certified Mail> 

/fb 

119 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

CLIMAX MOLYBDENUM COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: 

CONTEST PROCEEDING 

Docket No. WEST 85-98-RM 

Citation No. 2358527; 3/21/85 

Climax Mine 

DECISION APPROVING WITHDRAWAL 

Appearances: Richard W. Manning, Esq., Climax Molybdenum Company, 

Greenwich, Connecticut, 

for Contestant; 

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

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

for Respondent. 

Before: Judge Carlson 

This contest case was consolidated for hearing with dockets 

WEST 85-96-RM, WEST 85-97-RM, WEST 85-99-RM, and WEST 85-120-M. 

During the hearing, the parties presented extensive evidence concerning WEST 85-98-RM. Before the presentations were complete, 

however, the contestant, Climax Molybdenum Company, moved for 

leave to withdraw its notice of contest of the single citation in 

that docket. The Secretary did not oppose the motion. 

Accordingly, Climax's motion is granted. The contest proceeding, docketed as WEST 85-98-RM (citation 2358527), is severed 

from those cases with which it was earlier consolidated, and is 

hereby ORDERED dismissed. 

Distribution: 

Richard W. Manning, Esq., Climax Molybdenum Company, a division of 

AMAX Inc., One Greenwich Plaza, Greenwich, Connecticut 06836-1700 

(Certified Mail) 

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 
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. 

YOUGHIOGHENY & OHIO COAL 

co., 

Respondent 

: 

: 

. • 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 84-98 

A. C. No. 33-00968-03568 

Nelms No. 2 Mine 

Appearances: Patrick M. Zohn, Esq., Office of the 

Solicitor, U. S. Department of Labor, 

Cleveland, Ohio, for Petitioner 

Robert C. Kota, Esq., St. Clairsville, Ohio, 

for Respondent 

Before: Judge Kennedy 

Foreword 

Without passing on the sufficiency of the findings of 

fact and conclusions of law set forth in the bench decision 

of May 31, 1985 as confirmed and incorporated in the final 

order issued August 8, 1985, 7 FMSHRC 1185, the Commission 

by its order of September 17, 1985, 7 FMSHRC 1335, remanded 

this matter to the trial judge for issuance of his bench 

decision as a written decision as required by Rule 65 or 

issuance of a new decision setting forth the trial judge's 

findings on all the material issues of fact, law or discretion presented by the record. 

Thereafter, the trial judge issued an order dated 

October 4, 1985, setting forth in a signed writing the 

tentative bench decision together with his reasons for 

declining to sit as a board of review on the sufficient of 

the record made by MSHA in support of its Part 100.S special 

assessments. The trial judge found that since the 

Commission had refused to acquiesce in the proposition that 

its trial judges are bound by the penalty point formula of 

121 
penalty assessment set forth in Part 100, it was unnecessary 

to make findings for determination of penalty amounts as 

outlined in 30 C.F.R. 100.3 and 100.5. See Sellersburg 

Stone Company, 5 FMSHRC 287, 2 MSHC 2010 (1983), aff'd sub 

nom. Sellersburg Stone Company v. FMSHRC, 736 F. 2d 1147, 

1150-1153 (7th Cir. 1984), rehearing en bane denied July 24, 

1984; United States Steel Mining Company, Inc. 6 FMSHRC 

1148, 3 MSHC 1362 (1984). 

Ignoring the fact that Cl) the operator's reliance on 

Allied Products v. FMSHRC, 666 F. 2d 890, 894-896 (5th Cir. 

1982) was misplaced, if not frivolous, and (2) that the 

operator had failed to avail itself of the opportunity to 

challenge the sufficiency of the trial judge's findings on 

any other ground, the Commission refused to treat the 

written transcript of the judge's bench decision, which 

contained his findings of fact, conclusions of law and the 

bases therefor, as part of his final order and remanded the 

matter for the insufficiency of 'the final order which 

adopted and confirmed the findings and conclusions set forth 

in the written transcript of the bench decision. 

Accepting the Commission's curious remand in good 

grace, the trial judge include~ in his order of October 4, 

1985, a direction to the parties to file post-hearing 

briefs, including their proposed findings of fact, annotated 

to the record, with respect to the material issues of fact, 

law and discretion presented by the record. On October 31, 

1985, one day before its post-hearing brief was due, counsel 

for the operator filed a second petition for review with the 

Commission seeking vacation of the trial judge's order to 

file a post-hearing brief. The only ground asserted was the 11 futility" of attempting to attack the trial judge's bench 

decision. On November 1, 1985, the Commission denied 

Youghiogheny & Ohio's second petition ·for interlocutory 

review and thereafter on November 25, 1985, the trial judge 

issued an order to show cause why counsel's failure and 

refusal to file a post-hearing brief should not be deemed a 

default and a summary order entered assessing as final the 

penalties assessed in the bench decision of May 31, 1984. 

Counsel for Youghiogheny & Ohio made no response and offered 

no execuse for his contemptuous refusal to file a posthearing brief. 

The premises considered, therefore, it is ORDERED that 

the operator be, and hereby is, determined to be in DEFAULT. 

It is FURTHER ORDERED that the penalties assessed in my 

decision of May 31, 1985 as adopted and confirmed in my 

final order of August 8, and my supplemental order of 

122 
October 4, 1985 in the amount $1,950 be, and hereby are, 

deemed final and directed to be paid. 

Finally, I find the penalties assessed were not arbitrary, capricious, excessive or an abuse of discretion for 

the reasons set forth in the findings and conclusions contained in the written transcript of my bench decision of 

May 31 as adopted and confirmed in my final order of 

August 8, 1985 and reiterated in my supplemental order of 

October 4, 1985. 

Under section 557(c) of the APA and Commission Rule 65 

a judge's decision must be in writing and must "include 

findings of fact, conclusions of law, and the reasons and 

bases for them, on all the material issues of fact, law or 

discretion presented by the record." The written transcript 

of May 31, 1985 and my supplemental order of October 4, 1985 

both set forth in writing the findings, conclusions and 

reasons in support of my penalty assessments, including (1) 

the fact of violation, which in each instance was never 

disputed, and (2) the six statutory criteria which, except 

for gravity and negligence, were the subject of stipulations 

and/or undisputed documentary evidence. 

In Sellersburg Stone, supra, the court held that a 

judge's decision complies with the APA and Rule 65 if it 

considers a contention and discusses it, whether or not the 

judge makes a specific finding on it. Further, the court 

held that the Commission should not overturn or remand a 

case if the judge's position on a contention is "reasonably 

to be discerned." Indeed, the court commended to the 

Commission the practice of modifing a judge's decision to 

include undisputed record evidence. In Sellersburg the 

Commission did this as to four of the statutory criteria on 

which the judge had made no findings. The undisputed record 

evidence here showed that Youghiogheny & Ohio is a medium 

sized coal operator and that its ability to continue in 

business would not be impaired by any penalty found appropriate. The other four criteria (1) prompt abatement, (2) 

gravity, C 3) negligence--and ( 4) history of prior violations 

are all set forth in the findings, conclusions, and discussion of the tentative bench decision which the operator 

declined the opportunity to challenge. What more the 

Commission may want is impossible for me to discern at this 

time. 

To insure compliance with the order of remand and 

because the circumstances of this case provide a unique 

·123 
opportunity to consider what a trivial, if dangerous, pursuit MSHA's $20 penalty assessment program has become, I 

provide the following supplemental findings and conclusions. 

Ventilation at Nelms #2 

For years, ventilation has been a problem at the Nelms 

#2. More specifically, between March 14, 1982 and March 13, 

1984, the mine was cited for 83 ventilation violations, for 

an average of 3.5 violations a month. If the violations 

found by the UMWA safety committeemen were included the rate 

would be even higher. Despite the dangerous pattern established, 87 percent or 72 of the cited violations were 

allegedly harmless and assessed single penalties of $20. 

Ten others were assessed penalties that averaged approximately $100 and one was vacated. 

Ventilation problems continued throughout 1984 and up 

to the time of the hearing in May 1985. ~n the areas that 

are the subject of this case, this was principally due to 

the fact that the sections being developed were almost a 

mile, 4,000 feet, from the main air shaft and because the 

air had to travel over or around many obstacles and obstructions to reach the working faces. A new air shaft was under 

construction but its completion was not expected until late 

1985 or early 1986. Because MSHA had been tolerant of the 

problem and the Union had not pressed the matter, most, 

approximately 90 percent, of the violations were treated as 

minor and insignificant. 

It came as a distinct shock therefore that within a 

period of less than 30 days MSHA suddenly decided to upgrade 

enforcement and specially assess the recirculation violations that occurred on March 14, and April 5, 1985. Upset 

over this crackdown, Youghiogheny & Ohio took both citations 

to conference. When the district manager held fast and 

refused to rescind or vacate his staff's recommendations for 

special assessments and when they were later assessed a 

total of $1,800 Youghiogheny & Ohio filed a notice of 

contest. · 

Youghiogheny & Ohio admitted the existence of both violations. Its contest was bottomed on the claim that because 

the violations were not serious the special assessment determination was clearly erroneous and the amounts assessed 

excessive, arbitrary, capricious and an abuse of discretion. 

Citing Allied Products v. FMSHRC, supra, counsel for the 

operator insisted that the penalties were assessed erroneously because the District and Assessment Offices failed to 

make the findings required by Part 100 or that such findings 

124 
as were made were not supported by the evidence. Counsel 

wanted a de novo review of only the MSHA administrative 

(Part 100) record not a de novo determination of the merits 

based on the evidence adduced at the hearing. Counsel 

obdurately refused to recognize that under Rule 29(a) and 

section llO(i) of the Mine Act the Commission and its trial 

judges exercise their independent judgment in applying the 

six criteria and are in no way bound by the determinations 

made by MSHA. 

More specifically, however, the operator's challenge 

was to the time allowed for abatement of Citation #2203748; 

to its special assessment since the inspector had initially 

characterized it as non-S&S; and, most importantly, to the 

finding that a special assessment was warranted because of 

management's negligent failure to prevent a recurring recirculation problem in the northern sections of the mine. 

Nothing causes management to send its legal gladiators into 

the adversarial arena faster or with greater forensic ferocity than a finding that top management was guilty of 

negligence, especially a "high" degree of negligence, with 

respect to a safety violation. 

Cognizant of the sensitivity of this issue, the 

Commission early on decided to assiduously avoid making findings as to the degree of management's culpability. Penn 

Allegh Coal Co., Inc., 4 FMSHRC 1224, 1127, 2 MSHC 1781, 

1783; Monterey Coal Company, 7 FMSHRC 996, 1002, 3 MSHC 

1833, 1836 (1985). This refusal to "quantify the degree of 

the operator's negligence," no matter how great, tends to 

minify violations in a way that is contrary to the intent of 

Congress. 

With respect to Citation #2327363, issued April 5, 1985, 

the operator specifically challenged the findings of negligence, gravity, S&S, and the alleged failure to give it the 

30 percent discount allowable for prompt abatement.. Finally 

there was the bold assertion, summarily denied, that despite 

the record made at the hearing the judge must remand the 

matter to the Assessment Off ice for reassessment because the 

narrative findings were not in accord with Part 100.5. 

The Youghiogheny & Ohio Coal Company 

Youghiogheny & Ohio, a subsidiary of Panhandle Eastern 

Corporation, is a medium sized coal operator with production 

of approximately 900,000 tons of bituminous coal a year. 

Its home office is in St. Clairsville, Ohio. The Nelms #2 

Mine is located in Hopedale, Harrison County, Ohio. It is 

the only mine operated by Youghiogheny & Ohio. At the time 
of the violations in question, the mine employed 312 contract miners and 57 management or supervisory employees. 

Youghiogheny & Ohio's counsel agreed that any penalty found 

warranted would not adversely affect its ability to continue 

in business. 

Walking the 013 Section 

Because of recurring complaints and problems with the 

recirculation of return air in the northern part of the 

Nelms #2 Mine, two MSHA inspectors, Robert Cerena, a ventilation specialist, and Mark Eslinger, a supervisory mining 

engineer and ventilation expert, were sent to make a ventilation technical inspection of the mine on March 14, 1984. 

Both worked out of District 8 in Vincennes, Indiana. Both 

were experienced underground coal mine inspectors. 

Cerena and Eslinger arrived at the mine at 0745 hours, 

and at 0800 hours, went underground accompanied by Larry 

Ward, a UMWA safety committeeman, and Lawrence (Ozzie) Wehr, 

a member of Youghiogheny & Ohio's safety compliance staff. 

The four men traveled to the 013 section. The inspectors 

picked this section because recirculation citations had been 

written on this section in January and February. Nine 

miners worked the section with a continuous mining unit. 

Other electrically energiz,ed machinery on the section consisted of ram cars, a roof bolting machine, a battery 

powered scoop, and an auxiliary ventilation fan. 

The inspection party approached the face area through 

the "A" entry. Mr. Wehr testified the mathane reading at 

the working face was one to two tenths of one percent, well 

within safe limits. The mine emitted 1.5 million cubic feet 

of methane every 24 hours which put it in the category of a 

gassy mine with a pervasive extrahazardous condition. The 

party then proceeded through the last open crosscut to the 

"B" entry. In the "B" entry Cerena found a ram car with a 

permissibility violation. After the citation for the 

permissibility violation was abated, the party inspected the 

face of the "B" entry where a continuous miner was producing 

coal in the last crosscut to the left off the "B" entry. 

Exhaust tubing was installed on the right rib. The tubing 

extended from the working face down the right rib and outby 

the "B" entry into the last open crosscut between the "B" 

and "C" entries. At this point the exhaust tubing was 

attached to an auxiliary fan. 

Intake air which came down the "A" entry became return 

air once it swept across the working face. The return air 

was then exhausted through the last open crosscut, the vent 

126 
tubing and the auxiliary fan across the inactive faces in 

the "C" and "D" eritries and out the "D" entry. In the last 

open crosscut between the "B" and "D" entries Eslinger and 

cerena could see float coal dust in suspension and at this 

point suspected a recirculation problem. Proceeding outby 

in the "C" entry the inspectors and the others observed 

perceptible amounts of float coal dust in the 11C11 entry. At 

the first man door along the return stoppings Cerena made a 

smoke tube test and confirmed that return air was coming 

through the cracks in the man door. This air was then being 

drawn up the "C" entry to the check curtain and diverted 

through the second crosscut (8 plus 28) outby the face area 

and drawn up the "B" entry where it was recirculating across 

the working face to be vented out the tubing through the 

auxiliary fan and once again into the return. 

At this time, 1015 hours, Cerena advised the section 

foreman, Clifford Bolen, that a recirculation condition 

existed for which a citation would be written. Since no 

methane was detected in the "C" entry or along the stopping 

line, Cerena, following standing instructions, permitted 

coal production to continue and considered the violation not 

reasonable likely to result in a serious injury or illness 

if abated within the time set, 1215 hours. Because this was 

the third recirculation violation cited in as many months 

and others had been reported on this and other sections, 

·Eslinger and Cerena believed management should have been 

more alert to discover the problem, had failed to exercise 

the high degree of care imposed by the Mine Act, and could 

point to no mitigating circumstance. They also believed 

that if the hazards against which the standard is directed 

occurred they could result in permanently disabling 

injuries. 

Because at 1015 hours Cerena and Eslinger were not 

aware of the total extent of the recirculation and did not 

consider the condition an immediate hazard they did not 

press for rapid abatement. They apparently believed that 

allowing 2 hours and 15 minutes for abatement would permit 

the section foreman to mesh his production with his abatement effort without undue interruption of production. All 

the members of the inspection party agreed that abatement 

should have been accomplished within 45 minutes to 1 hour. 

The inspection party continued to walk outby in the 11C" 

entry. Recirculation was discovered again at the next two 

man doors outby. The man doors were installed at every five 

crosscuts along the stopping line. Thus, the recirculation 

problem extended over an area of 10 or more crosscuts outby 

the last open crosscut along the stopping line. 

127 
The float coal dust encountered, while clearly visible 

and palably perceptible, was not so dense as to impair 

vision. It apparently resembled a fine mist and was determined to be filtering through all three man doors and some 

of the permanent stoppings. It was steadily accumulating on 

the surface of the rock dust. Because the standard prohibits "any recirculation of air at any time," neither 

Eslinger nor Cerena nor the operator made any attempt to 

measure the actual volume or velocity of air recirculating. 

30 C.F.R. 75.302-4(a). Eslinger, when pressed, estimated 

the volume at up to 3,000 cfm which would be approximately 

half the amount of air, 6,700 cfm the operator's engineer 

calculated to be sweeping the working face. 

The estimate of the amount of air recirculating seems 

reasonable, because, as the inspection party later discovered, return air was also recirculating over two battery 

charging stations in the "C" entry at the 3 plus 50 station. 

The air vents for the battery chargers measured 8 x 8 or 9 x 

9 inches. It is obvious that a considerable volume of air 

could recirculate through these large vents. A citation was 

written for this condition because impermissible battery 

chargers located on intake air must be ventilated through 

return air vents to remove any hydrogen gas fumes and to 

preclude the circulation of any noxious gases, including 

carbon monoxide, to the face area in the event of a fire or 

explosion. Overall Cerena estimated the area affected by 

recirculation extended from the working face in the "B" 

entry across the other two face areas and down the "D" entry 

outby and back to the working face for a distance of approximately 1,300 feet. 

The inspection party completed its observations and 

returned to the face area around 1100 hours. At that time, 

they found that Bolen, the section foreman had been unsuccessful in his attempts to abate the recirculation. Bolen 

said he first tightened the check curtain in the "C" entry 

and when this did not help installed a tail tube on the 

exhaust end of the auxiliary fan and extended it down the 

crosscut into the return. The effort was designed to reduce 

the auxiliary fan pressure and keep it from overriding the 

mine pressure. At the time, the intake air was measured at 

14,000 cfm and the return at 19,800 cfm. 

As Eslinger pointed out, a system wide deficiency in 

the amount of air available to the section markedly contributed to the problem. This had been corrected previously by 

adjusting the regulators so as to rob air from one section 

to make up for a deficiency in another. This is a temporary 

128 
and, at times, a very dangerous solution. The immediate 

problem here, however, was caused by the fact that the auxiliary fan which was exhausting air at a velocity of 5,000 

feet per minute in an ambient air atmosphere of 170 feet per 

minute was "robbing" or short circuiting intake air from the 

"B" and "C" entries. This created a negative air pressure 

or vacuum along the return stoppings line of the 11 0 11 or 

return entry. As Eslinger explained: 

" ••• there was a higher pressure in the return entry, 

which is the "D" entry than the "C" entry and what was 

causing the higher pressure in the "D" entry than the 11 c 11 entry was due to the velocity pressure or the velocity of the air exiting from the fan. Okay. 

That pressure created a higher pressure in the "D" 

entry than the "C" entry; therefore air flows from a 

high pressure to a low pressure, it was flowing from 

the 11 D11 entry to the 11C11 entry. Once back in the "C" 

entry, the fan was wanting air and, therefore, it was 

drawing it from the "B" entry. Well, air that's in the 

"C" entry fills into the "B" entry and, therefore, part 

of the [recirculated] air was going back through the 

tubing." Tr. 157. 

Wehr pitched in trying to help Bolen. The fan was 

repositioned and the tail tubing changed twice. All 

curtains were tightened and curtains were hung in the 

crosscuts where the return air was leaking through the man 

doors. But nothing seemed to work. Bolen believed he asked 

Cerena if he could suggest a solution. Cerena said he was 

not asked but that in any event he would not have known of a 

solution. Eslinger, the most expert of all present, said he 

was never asked for a suggestion and did not believe he 

should volunteer. Operators, of course, are rightly jealous 

of their perogative of managing their mines. An inspector 

who volunteers a plan of abatement can find himself compromised if the plan does not work. Since the section was 

reasonably clean, dry and rock dusted and the methane 

readings remained within a safe tolerance there was no 

reason, the inspectors believed, not to permit the abatement 

effort to proceed as the operator saw fit. 

For reasons not disclosed by the record, the section 

foreman did not seek assistance from his shift foreman. He 

said he was not authorized to contact anyone else. Finally, 

when the abatement time expired, the section foreman advised 

Eslinger and Cerena he had exhausted his knowledge and 

resources and had given up trying to abate the condition. 

At this point, the inspectors decided the only thing they 

129 
could do was issue a 104Cb) closure order. The section 

foreman did not ask for an extension of the time to abate 

and testified he believed the time given was reasonable and 

issuance of the closure order proper. Mr. Wehr agreed and 

immediately called out to his supervisor, Mr. Wood, who 

apparently communicated the problem to the mine foreman and 

the mine superintendent. 

Shortly thereafter the mine foreman and superintendent 

arrived on the section. Mr. Wμrschum, the mine superintendent and a former MSHA inspector, immediately recognized 

that the recirculation problem was resulting from the 

venturi effect of the auxiliary fan. He had discussed such 

a problem with Mr. Jay Haden of MSHA's district office in 

Pittsburgh in February. Haden told him the solution was to 

install baffle curtains between the exhaust end of the fan 

and the return entry to deflect and slow the velocity and 

negative pressure on the air along the stopping line. With 

this done, the recirculation abated and the closure order, 

written at 1230 hours, was conditionally terminated at 1330 

hours. The conditional termination allowed production to 

resume pending an evaluation of the adequacy of the operator's ventilation plan for the entire section. This 

evaluation never occurred as the operator idled the section 

on March 16, 1984 and the order was terminated unconditionally on April 4, 1984. 

Negligence 

I find the mine superintendent was negligent in failing 

to pass on to the section foreman and his safety compliance 

staff the information given him in February by Mr. Haden of 

MSHA. Both Bolen and Wehr testified they had never been 

told that baffle curtains could be used to decrease the 

negative pressure caused by an auxiliary fan. In view of 

the number and frequency of citations and complaints of 

ventilation problems, including recirculation problems, the 

mine superintendent should have promptly disseminated all 

the corrective action information available to him and 

directed the holding of training sessions to insure section 

foreman and other line personnel were capable of detecting, 

recognizing, and abating hazardous recirculation conditions. 

Mr. Ingold, the operator's mine engineer, indicated 

Mr. wurschum sought a solution to localized negative 

pressure problems because the condition was fairly pervasive 

in the mine. He further stated that as of the time of the 

hearing the operator was still experiencing problems with 

diffusing the pressure from its auxiliary fans and building 

baffles on its fans to diffuse the pressure on its return 

130 
airways. The preponderant evidence clearly established that 

in failing to train its section foreman in the methods and 

practices for abating a venturi effect on a return airway 

top management at the Nelms #2 was highly negligent. 

Gravity 

The operator claims the inspector's evaluation of the 

violation as non-S&S and the gravity as "unlikely" as of the 

time it was discovered, 1015 hours, is conclusive of the 

fact that the violation was not serious, indeed was harmless, and any penalty in excess of $20 unwarranted. 

This, of course, is nonsense, but dangeFous nonsense 

because it finds support in MSHA's practice of treating 

violations that do not pose an immediate or imminent danger 

as insignificant and insubstantial. Both inspectors 

testified they initially considered the recirculation 

condition a non-S&S violation because the concentration of 

methane, one to two tenths of one percent, was well within 

safe limits. Both realized, of course, that if normal 

mining operations continued, as they did, and the condition 

remained unabated, as it did, it could make a significant 

and substantial contribution to a mine fire or explosion. 

What MSHA's training apparently overlooks is the provision 

of the law that makes even a nonserious or seemingly 

harmless conditions S&S if, as must be assumed, mining 

operations were to continue with the condition ignored or 

undiscovered and unabated. 

Thus, despite the fact that the citation in question 

reflected the inspectors' belief that if unabated the condition "could reasonably be expected" to result in "permanently 

disablingli injuries to the nine miners working on the section, the controlling finding, absent the closure order, insofar as the penalty assessment was concerned was the erroneous 

non-S&S finding. 

Many violations, considered in isolation, are not 

serious in the sense that they present no immediate or 

imminent danger of a permanently disabling or fatal injury. 

But that does not mean that, if not detected and abated, 

they could not in the course of continued mining operations 

"significantly and substantial contribute to the cause and 

effect of a mine safety or health hazard." The Commission 

has made clear that if a violation is of such a nature as to 

create a recognizable health or safety hazard that in the 

course of continued mining operations could reasonable be 

expected to contribute to a serious injury or fatality it 

should be classified as S&S, regardless of the seriousness 

131 
of the condition or practice "at the precise moment of 

inspection." United States Steel Mining Co., Inc. 6 FMSHRC 

1573, 1574, 3 MSHA 1445 (1984); United States Steel Mining 

Co., Inc. 6 FMSHRC 2058, 2069-2070, 3 MSHC 1622 (1984). 

Thus, all violations are to be evaluated in terms of 

the probable consequences of the continued existence of the 

violation under normal mining operations, without any assumptions as to the time of abatement. In other words, for a 

violation to be deemed significant and substantial, S&S, it 

need not be one. The sole requirement is that its "contribution" be S&S. United States Mining co., Inc. 7 FMSHRC.1125, 

1129, 3 MSHC 1871, 1872 (1985). 

The corollary of this interpretation is that an operator is entitled to mitigation for prompt abatement but not 

for getting caught. An operator is not to be accorded 

leniency because the inspector found the violation before it 

made a possibly lethal contribution to a fatal hazard but 

only to consideration for moving quickly and effectively to 

abate the condition found and cited. United States Steel 

Mining Co., Inc., supra 7 FMSHC 1130, 3 MSHC 1974. 

The passage of time and the failure to abate while 

mining operations continued increased the inspectors' 

apprehension over what at first blush and under the erroneous standard applied appeared to be an inconsquential 

violation. At 1215 hours, Cerena and Eslinger reevaluated 

the situation and, as noted, at 1230 hours issued a 104Cb) 

closure order. This, of course, guaranteed the safety of 

the section until the condition was corrected and the order 

terminated. It also had the effect of superseding the 

non-S&S finding and making the violations immediately 

eligible for a regular or special assessment. 30 C.F.R. 

100.4. Counsel apparently overlooked the fact that one of 

the circumstance that justifies special assessment of a 

citation designated as non-S&S is the failure to abate the 

condition cited within the time set by the inspector. 

Belatedly, if inadvertently, sensing this hole in its 

non-S&S defense to the amount of the penalty, the operator 

asserted but never proved that the time allowed for abatement was unreasonable and the issuance of the closure order 

arbitrary, capricious and unwarranted. To the contrary, 

neither the mine superintendent nor the mine foreman protested issuance of the closure order and both the section 

foreman and the operator's walkaround, Mr. Wehr, testified 

that in their opinion the time for abatement was reasonable 

and issuance of the closure order proper. 

132 
The rapidity of the attention given the problem by top 

management after issuance of the closure order demonstrates 

the striking difference between the tokenism of the $20 

single penalty enforcement scheme and meaningful enforcement. The comparison in reaction was not unlike that which 

Mark Twain made between lightning and lightning bug. The 

mine superintendent, who almost never appeared underground, 

and the mine foreman appeared on the scene within a very 

short period of time and quickly directed installation of 

the three baffle curtains. By 1330 hours the curtains had 

been installed, the fan restarted and the air along the 

return stoppings tested to show that the pressure was now 

positive from the intake to the return. 

Inspector Eslinger remarked upon the aclarity with 

which top management gave its time and attention to the 

condition after the closure order issued. While he considered the means adopted a mere "band-aid" upon a problem 

endemic to the operator's entire ventilation system, he 

believed the closure order much more "attention getting" 

than allowing the operator to "eat $20 penalties" 

indefinitely while largely ignoring the gravity of the 

systemic problem. 

The operator's history of prior violations shows that 

during the 2-year period March 1982 to March 1984 only 92 

out of 552 violations were designatd S&S. In other words, 

for 83 percent of the violations cited during this period 

the operator got off with a $20 penalty. As noted, during 

this same period the operator was cited for 83 ventilation 

violations 87 percent of which were designated non-S&S and 

assessed only $20. Of these 83 violations 9 involved 

recirculation problems 7 or 75 percent of which were 

designated non-S&S and assessed at $20. At least five 

additional recirculation violations occurred in 1984, only 

one of which was designated S&S. A recirculation violation 

was also cited on February 5, 1985. The record shows no 

further specifics but the testimony by Mr. ward, the Union 

safety committeeman, indicated recirculation violations were 

frequent and expected to continue until the new air shaft 

was completed. 

As Inspector Eslinger noted the ease with which operators "eat" $20 penalties shows it is not a credible 

deterrent. When coupled with MSHA's misapplication of the 

non-S&S designation, enforcement becomes a largely trivial 

pursuit. Top management was well aware of the ventilation 

problem in the northern sections of the mine. But top 

management also knew it was more cost effective to just pay 

the $20 fines and get on with producing coal than to train 

133 
the work force in the procedures necessary to insure safe 

production methods. 

The recirculation ceased when the baffle curtains were 

installed. These curtains were available to the section 

foreman but he had never been trained in their use. Management's failure to train the section foreman in the use of 

this device for abating a serious reciculation problem was 

negligence clearly and directly imputable to the mine superintendent. It measureably increased the gravity of the 

violation as every hour of delay in abatement measureably 

contributed to the risk of a major mine hazard. 

On gravity, therefore, I find that by the time the 

closure order issued the likeihood of a major mine hazard if 

mining operations continued was high and the severity of the 

consequences for the nine miners, two inspectors, and two 

walkarounds serious to extreme. 

The Special Assessment 

The operator's attack on the MSHA's special assessment 

procedures is without merit. The Commission has repeatedly 

held that the procedures by which penalty assessments are 

proposed by the Secretary of Labor are irrelevant and 

immaterial to a penalty assessment by the Commission or its 

trial judges. Black Diamond Coal Company, 7 FMSHRC 1117, 

1121-1122, 3 MSHC 1889, 1892-1893 (1985). Had counsel done 

his homework he would have known that his reliance on Allied 

Products Company v. FMSHRC 666 F. 2d 890 (5th Cir. 1982) was 

misplaced. As the court pointed out in Sellersburg Stone 

Company v. FMSHRC, 736 F. 2d 1147, 1152 (7th Cir. 1984), 

rehearing en bane denied, the reasonableness of penalties 

assessed in Commission penalty proceedings are not measured 

by the penalty point formula set forth in Part 100. I note 

in passing, however, that a special assessment in the amount 

of $850 for a ventilation violation that significantly and 

substantially contributed to hazards similar to those 

involved in this violation was made and upheld in Monterey 

Coal Company, 7 FMSHRC 996, 999, 3 MSHC 1833, 1834 (1985). 

The violation in this case was S&S. In addition a 

closure order was necessary to get sufficient attention from 

top management to bring about abatement. Short of issuing a 

closure order there was no way to do this. By 1230 hours, 

the inspectors knew they had a serious problem on their 

hands, especially since the section foreman stated he had 

exhausted his resources for abating the condition. At this 

point, and to their credit, Cerena and Eslinger concluded 

134 
that enough was enough and that management's recidivism justifie4.th~ closure •. As Eslinger testified, 

" ••• the frequency of occurrence ••• was probably 

the key factor ••• the fact that it was a reoccuring 

problem that seemed to be happening again and again and 

only band-aid type solutions were being applied to it." 

Tr. 165. 

On March 29, 1984, Eslinger wrote a memorandum to the 

District Manager in which he made an independent evaluation 

of the violation and concluded that to overcome the operator's "reluctance" to provide sufficient intake air and 

encourge compliance a special civil penalty assessment was 

in order. 

My only disagreement with the inspectors is over the 

degree of the operator's culpability. They found "high" 

negligence. I find the operator's failure to provide the 

necessary preventive training and instruction to the section 

foreman when, as the record shows, the mine superintendent 

was possessed of that information demonstrated a reckless 

disregard for safety that warrants an increase in the 

penalty from $850 to $1,000~ 

Walking the 021 Section 

Three weeks later, on the morning of April 5, 1984, 

Inspector Cerena accompanied by a union walkaround and 

company escort, made another ventilation technical 

inspection in the 021 section of the Nelms #2 Mine. The 

undisputed facts show the inspector found a recirculation 

violation that involved the last open crosscut and two 

crosscuts outby in the "B" entry involving an area of about 

300 feet. The recirculation resulted from the removal of a 

tail tube from the auxiliary fan. The methane reading at 

the working face was sS percent. Recently an outburst of 

1.8 percent had occurred. 

The inspector issued a 104(a), S&S citation because he 

believed the potential for a methane buildup was reasonably 

likely if mining operations continued and therefore the condition could significant and substantially contribute to the 

hazard of a mine fire or explosion. He also believed the 

amount of float coal dust in suspension presented a respirable dust hazard that could significantly and substantially affect the health of miners working or traveling in 

the area. 

135 
The inspector believed the section foreman was negligent in failing to discover the condition; that he had 

alerted the foreman to watch for a recirculation problem 

when a mean air violation was corrected by removing the tail 

tube; and that the mine sup~rintendent was "highly" negli~ 

gent in failing to instruct and train the section foreman in 

the use of baffle curtains to diffuse the venturi effect 

caused by the high velocity of air coming from the exhaust 

fan. 

Because this was the fourth occurrence of a serious 

recirculation violation in as many months, and followed 

closely after the closure order issued on March 14, 

Inspector Eslinger recommended the violation be specially 

assessed. In his judgment the mine superintendent was 

highly negligent in failing to give his ventilation problems 

the time and attention they deserved; was applying only 

band-aid remedies to a systemic problem of considerable 

magnitude; and had aggravated the problem by his failure to 

train and instruct his section foreman in the use of baffle 

curtains to relieve the negative pressure created by use of 

high velocity auxiliary fans. 

The operator admitted the violation but claimed the 

special assessment, $950, was, in view of mitigating circumstances, excessive. The record shows the condition was 

timely, but not rapidly, abated only because the inspector 

told tbe foreman to use baffle curtains. Counsel failed to 

prove the existence of any mitigating circumstances. 

I find the preponderant evidence supports the inspector's finding that the violation was serious and could 

significantly and substantially contribute to a mine health 

or safety hazard. 

Gravity and Negligence 

With respect to the special finding, the record shows 

the hazards associated with inadequate ventilation, of which 

recirculation is a symptom, are among the most serious 

encountered by the mining industry. A basic reason for the 

total prohibition on recirculation of return air is the 

danger of an ignition of an explosive concentration of 

methane, either alone or mixed with coal dust, liberated at 

the face during mining operations. When coal is freshly 

cut, methane can be liberated in dangerous amounts in short 

periods of time. Although methane itself becomes explosive 

at a 5 percent concentration, even a smaller percentage 

concentration of the gas mixed with float coal dust can 

generate an explosion. Crickmer and Zegeer Ced.), Elements 

136 
of Practical Coal Mining, 264-265, 296-298, 312-315 {1981)1 

R. Lewis & G. Clarke, Elements of Mining 695 C3d ed. 1964). 

The legislative history of the Mine Act shows Congress 

was acutely aware of these, and related, dangers associated 

with inadequate ventilation. s. Rep. 181, 95th Cong., 1st 

Sess. 41 {1977). The Nelms #2 is a gassy mine that 

liberates excessive amounts of methane and is under the 

extrahazardous inspection cycle required by section 103{i). 

The citation was issued at a working face where coal was 

being cut. The discrete hazard contributed to by the 

recirculation of return air was a potential buildup at the 

face of methane and coal dust that could result in a 

possible methane ignition or that could propogate a dust 

explosion. 

I further find that if the hazards contributed to 

occurred it was reasonably likely that one or more miners 

would suffer fatal or disabling injuries. As the inspector 

testified, methane in an explosive concentration could have 

been liberated at any time and with the turbulence caused by 

the recirculation could have achieved an explosive concentration within a relatively short time. The continuous mining 

machine, the operation of which may cause arcing and 

sparking, was a ready and potential source of ignition. I 

conclude MSHA carried its burden of showing a discrete 

safety hazard contributed to by the violation, namely the 

possible accumulation of mathane and coal dust in the 

presence of a potential ignition source. 

Finally, I find the inaction of the mine superintendent 

in the face of the recurring recirculation problems at the 

Nelms #2 demonstrated a reckless disregard for the safety of 

the miners. Indeed, management of the Nelms #2 developed a 

pattern of ventilation violations which fully warranted 

application of the sanctions provided in section 104{e) of 

the Mine Act. As the Senate Committee Report observed, "The 

existence of such a pattern should signal to both the operator and the Secretary that there is a need to restore the 

mine to effective safe· and healthful conditions and that the 

mere abatement of violations as they are cited is insufficient." Sen. Rep., 95-181, 33 {1977). 

Under section 104{e) of the Act, the Secretary of Labor 

was authorized to issue a pattern of violations notice to a 

mine operator if the mine showed a pattern of S&S violations. 

Congress established this provision to address the problem 

of mine operators who have recurring violations of health 

and safety standards. The principle expressed was that a 

104(e) pattern of violations notice should be available as 

137 
an enforcement tool against chronic violators. Congress 

made clear that chronic violators demonstrate a reckless 

disregard for the safety and health of miners by allowing 

the same mine hazards to occur again and again without 

addressing the underlying problems. Id, at 32-33. That 

describes this case precisely. 

Had the sanctions of 104Ce) been applied, a pattern of 

violations notice would have been issued to Youghiogheny & 

Ohio long before March 14 or April 5, 1984. Consequently, 

by that time the chronic ventilation deficiency would either 

have been abated or 10.4Ce> closure orders would have brought 

the condition forcefully to the attention of management. 

This did not and could not happen because section 

104(e) of the Mine ~ct is a dead letter. For the past 8 

years, since its enactment and through the administrations 

of two Presidents, four Secretaries of Labor, and four 

Assistant Secretaries of Labor for Mine Health and Safety, 

the Executive Branch's duty to "take care that" section 

104(e) "be faithfully executed" and enforced has been 

ignored. 

After considering the other statutory criteria as set 

forth in my findings and as stipulated to by the parties, I 

find the amount of the penalty warranted for this violation 

is $950. 

ORDER 

To impress upon the operator the need to address in a 

more urgent and resolute manner chronic problems with the 

ventilation system at the Nelms i2 Mine it is ORDERED that 

the operator pay the penalties assessed in the total amount 

of $1,950, on or before Friday, February 21, 1986. 

Disciplinary (Rule 80) Reference 

Rule 80 of the Commission's rules provide for the. 

imposition of disciplinary sanctions for violations of the 

standards of professional conduct. Except as provided in 

Rule 80(e), however, a trial judge is required to refer such 

matters to the Commission which, by majority vote, determines whether the circumstances reported warrant disciplinary 

action. Having carefully reviewed the record in this 

matter, I find the following circumstances warrant 

reference: 

1. Counsel for the operator refused to comply with the 

trial judge's order to file a post-hearing brief 

138 
and persisted in that refusal even after the 

Commission denied his appeal from the judge's 

order. 

2. Before, during, and after the trial, counsel for 

the operator persisted in citing Allied Products v. 

FMSHRC, supra, as the controlling precedent on the 

issue of the alleged excessiveness of the 

penalties, ignoring and failing to distinguish in 

any way controlling precedent to the contrary. 

3. Throughout the trial of this matter, counsel for 

the operator persisted in badgering the witnesses 

and the trial judge with the totally erroneous 

claim that Part 100.3 of the Secretary's penalty 

assessment formula was controlling of the amount of 

the penalties properly to be assessed. 

4. Throughout the trial of this matter, counsel for 

the operator persisted in badgering the witnesses 

and the trial judge with the clearly erroneous 

claim that MSHA misapplied Part 100.5 when 

resonable inquiry would have demonstrated that by 

virtue of issuance of the closure order on 

March 14, 1984, special assessment of the citation 

in question was mandated by Part 100.5. 

5. Throughout the trial of this matter, counsel for 

the operator persisted in ignoring controlling 

precedent on the definition of an S&S violation. 

6. Counsel for the operator persisted throughout the 

trial of this matter in advancing frivolous 

arguments and claims with respect to both the facts 

and the law as the findings on the merits 

demonstrate. 

With respect to specification 1, Disciplinary Rule 

7-106 of the Code of Professional Responsibility provides: 

"CA) A lawyer shall not disregard ••• a ruling of a 

tribunal made in the course of a proceeding, but 

he may take appropriate steps in good faith to 

test the validity of such ••• ruling." 

Despite this clear injunction, counsel for the operator 

failed and refused, after denial of his appeal, to comply 

with the trial judge's order to file his post-hearing proposals and brief. While, under appropriate circumstances, 

it is not uncommon for a party to waive the filing of a 

139 
brief, Bradford Coal Company, 7 FMSHRC 862, 3 MSHC (1985), 

in this case counsel's appeal from the trial judge's order 

requiring a brief was denied. While the basis for the 

denial was not stated, it followed closely upon the 

Commission's earlier grant of counsel's appeal from the 

trial judge's claimed failure to consider the arguments he 

wished to present in support of his position. 

As Ethical Consideration 7-22 notes, "Respect for 

judicial rulings is essential to the proper administration 

of justice." By failing to comply with the trial judge's 

order, counsel not only showed his disrespect for this 

tribunal but failed in his duty to protect the interests of 

his client by pressing his argument, if legitimate, that the 

tentative bench decision was erroneous. If, on the other 

hand, he had no legitimate argument to present he should 

have accepted the bench decision and avoided waste of the 

Commission's time and resources by filing a frivolous 

appeal. The Preamble to the Code of Professional Responsibility states that the Disciplinary Rules are mandatory in 

character and "state the minimum level of conduct below 

which no lawyer can fall without being subject to disciplinary action." 

With respect to specifications 2 through 6: 

Rule 1.1 of the Model Rules of Professional Conduct 

impose a duty of competence on a lawyer that includes a duty 

to make thorough and adequate preparation for the trial of a 

matter. The record in this proceeding shows that counsel 

for the operator failed to make the necessary inquiry and 

analysis of the factual and legal issues controlling of the 

outcome with the result that much time, effort, and expense 

was incurred by both parties and the Commission in disposing 

of a matter that should never have been contested. 

Rule 3.1 of the Model Rules provides that "A lawyer 

shall not bring or defend a proceeding, or assert or 

controvert an issue therein, unless there is a basis for 

doing so that is not fri~olous ••• " An action is 

"frivolous" if it cannot be supported by a "a good faith 

argument for an extension, modification ·or reversal of 

existing law." Counsel for the operator never advanced a 

legitimate argument for modifying or reversing the law 

governing the assessment of civil penalties in Commission 

proceedings. An advocate has a duty to use legal procedure 

to the fullest benefit of a client's cause, but also a duty 

not to abuse legal procedure, including the Commission's 

administrative process. The litigation process may, of 

140 
course, be abused for reasons other than delay. See 

Advisory Committee Note to amended Rule 11 of the FRCP 

(1983). 

Rule 3.3 of the Model Rules provide that "A lawyer 

shall not knowingly ••• (3) fail to disclose to the 

tribunal legal authority in the controlling jurisdiction 

known to the lawyer to be directly adverse to the position 

of the client and not disclosed by opposing counsel." The\ 

record shows that with the exercise of reasonable diligence, 

as required by Rule 11 of the Federal Rules of Civil 

Procedure, counsel for the operator should have known that 

Allied Products, supra, was not controlling precedent in 

this Commission proceeding. 

Under the circumstances presented, the trial judge 

recommends that if the Commission finds the unprofessional 

conduct alleged warrants disciplinary action, Robert c. 

Kota, Esq., a member of the bar of the State of west 

Virginia, be publicly reprimanded for contempt of the 

Commission and suspended from practice before the Commission 

for 6 months. 

The premises considered, therefore, it is ORDERED that 

the actions heretofore specified as violative of the 

standards of professional conduct by Robert C. Kota, Esq., a 

member of the bar of the State of West Virginia, be, and 

hereby are, REFERRED to the Commission pursuant to Rule 80 

for such disciplinary action as Commission deems 

appropriate. 

Distribution: 

Patrick M. Zohn, Esq., ·Office of the Solicitor, u. s. 

Department of Labor, 1240 East Ninth Street, Cleveland, OH 

44199 <Certified Mail) 

Robert c. Kota, Esq., The Youghiogheny & Ohio Coal Co., 

P. o. Box 1000, St. Clairsville, OH 43950 (Certified Mail) 

dcp 

141 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

, .:·i ?~: i 

. ..: \>""" ,t\ 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Complainant 

Docket No. CENT 85-47-DM 

Docket No. CENT 85-68-DM 

v. MD 85-04 

EISENMAN CHEMICAL COMPANY, 

Respondent 

Corpus Christi Mine 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

,Jack F. Ostrander, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Dallas, Texas, for Complainant 

Steven R. Baker, Esq., Houston, Texas, 

for Respondent 

Judge Maurer 

STATEMENT OF THE CASE 

This is a consolidated discrimination proceeding initiated 

by the complainant against the respondent pursuant to Section 105(c) 

of the Federal Mine Safety and Health Act of 1977, charging the 

respondent with unlawful discrimination against Mr. Juan 

Gilberto Pena, for exercising certain rights afforded him under 

the Act. A hearing in this matter was convened in Corpus Christi, 

Texas on December 18, 1985. At that time the parties advised 

me of a proposed settlement disposition of the dispute. 

Counsel for the Secretary read the settlement into the 

record as follows: 

MR. OSTRANDER: Comes now the Secretary of Labor, 

Complainant, and Eisenman Chemical 

Company, Respondent in the above styled 

case, and agree to settle this case 

A. 

on the basis of the following stipulations: 

Respondent agrees to pay Complainant, 

Juan G. Pena, the sum of $13,000 in 

full and complete satisfaction of back 

wages due to Complainant under Section 105(c) 

142 
B. 

c. 

D. 

E. 

F. 

of the Act, without admitting a 

violation of the Act. 

Secretary agrees to waive a civil penalty 

in this case upon payment of the sum of 

$13,000 to Juan G. Pena. 

the intent of this agreement is to 

settle all claims Complainant may be 

due under the provisions of Section 

105{c) of the Act. 

C0.mplainant waives any right to reinstatement and any right to reapply for a 

position. 

Eisenman Chemical will remove from the 

personnel file any references of Juan G. 

Pena's termination, including the letter 

of discharge. Such documents and/or 

references, however, may become a part 

of any relevant litigation file, and 

this agreement in no way prejudices 

Respondent's rights to use any such 

documents and/or references in any 

relevant litigation or investigation. 

Respondent will give Juan G. Pena neutral 

references in the future. 

CONCLUSION 

After careful review and consideration of the settlement 

terms and conditions proposed by the parties in this proceeding, 

I conclude and.find that it reflects a reasonable resolution 

of the complaint. Further, since it seems clear to me that all 

the parties, including Mr. Pena personally, 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. Respondent IS ORDERED 

AND DIRECTED to fully comply with the terms of the agreement. 

143 
Upon full and complete compliance with the terms of the 

agreement, this matter is dismissed. 

Roy J 

Administrative Law Judge 

Distribution: 

Jack F. Ostrander, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Federal Building, Dallas, TX 75202 

(Certified Mail) 

Steven R. Baker, Esq., Fulbright and Jaworski, 800 M. Bank 

Building, Houston, TX 77002 (Certified Mail) 

Mr. Juan Gilberto Pena, 2038 Rockford Drive, Corpus Christi, 

TX 78416 (Certified Mail) 

/db 

144 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

January 22, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v • 

JIM WALTER RESOURCES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 85-132 

A. C. No. 01-00328-03585 

Bessie Mine 

DECISION APPROVING SETTLEMENTS 

ORDER TO PAY 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlements of 

the three violations involved in this matter. The originally assessed amounts were $15,000, and the proposed settlements are 

for $9,500. 

Order No. 2482343 cites the operator for a violation of 30 

C.F.R. § 77.500 because work was performed inside a wall-mounted, 

520-volt, a.c., three-phased switchbox while the box was enerqized and the violation contributed to a fatal accident. An 

employee was working on energized terminals inside the box when 

he was electrocuted. Had the box been deenergized and locked 

out, the accident would not have occurred. A settlement is recommended for the original amount of $5,000. I approve this 

settlement. 

Citation No. 2483515 cites the operator for a violation of 

30 C.F.R. § 77.505 because a cable, supplying power to a distribution center at the motor pit, had not been installed through 

proper fittings. This violation was serious because it contributed to the accident. However~ the Solicitor advises that if 

the wall mounted switchbox had been deenergized and locked out, 

(the first vio1ation discussed above) there would have been no 

electrical exposure to the electrician who was killed. In other 

words, this citation is part and parcel of the entire situation 

for which Order 2482343 sets forth the principal violation. I 

accept the recommended settlement of $2,000. 

145 
Order No. 2482352 cites the operator for a violation of 

30 C.F.R. § 77.501 because the pole-mounted power-disconnecting devices which controlled the power to the safety switchbox, w~~ 

not disconnected •. Here again, the Solicitor advises. that this. 

condition would not have been a violation if the wall mounted 

switchbox had been deenergized and locked out (the first violation discussed above). For the reasons already set forth I 

accept the recommended settlement of $2,500. 

The operator is ORDERED TO PAY $9,500 within 30 days from 

the date of this decision. 

,,,,_ ................ , .............. 

\ 

• 

Judge 

Distribution: 

George D. Palmer, Esq., Office of the Solicitor, U. S. Department of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Harold D. Rice, Esq., Jim Walter Resources, Inc., Post Office B~x 

C-79, Birmingham, AL . 35283 (Certified Mail) 

Robert Stanley Morrow, Esq., Jim Walter Resources, Inc., Post 

Office Box C-79, Birmingham, AL 35283 (Certified Kail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation, P. O. Box 

22601, Tampa, FL 33622 (Certified Mail} 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W., 

Washington, OC 20006 (Certified Mail) 

/gl 

146 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE ' ... FALLS CHURCH, VIRGINIA 22041 ' ) 1 ' . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FRONTIER-KEMPER CONSTRUCTORS, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-76 

A.C. No. 46-05121-03501 

Wayne Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This case is before me upon a petition for assessment 

of civil penalties under section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 3·0 U.S.C. 801 et seq. The 

parties have filed a motion to approve a settlement 

agreement and to dismiss the case. I have considered the 

representations and documentation submitted and I conclude 

that the proffered settlement is consistent with the 

criteria in section llO(i) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and Respondent shall pay the approved 

penalties in the amount of $7,500 within 30 days of this 

Decision. Upon such payment this proceeding is DISMISSED. 

Distribution: 

(J)~ -:;a.u vie/LI 

William Fauver 

Administrative Law Judge 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

William H. Howe, Esq., Loomis, Owen, Fellman & Howe, 2020 K 

Street, N.W., Suite 800, Washington, DC 20006 {Certified Mail) 

Mr. Robert Pond, General Manager, Frontier-Kemper Constructors, 

P.O. Box 6548k, 1695 Allen Road, Evansville, IN 47712 (Certified 

Mail) 

kg 

147 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

' '. 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

Docket No. CENT 85-43-M 

A. C. No. 41-03162-05504 

v. 

EL PASO SAND PRODUCTS, INC., 

Respondent 

Chadwick Pit 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlements 

of the eight violations involved in this matter. The originally assessed amounts were $3,600 and the proposed settlements are for $3,600. The Solicitor's motion is wholly 

inadequate because it does not analyze the violations or 

demonstrate why the proposed settlements should be allowed 

beyond reciting the bare conclusion that they are fair and 

reasonable. Moreover, the Solicitor erroneously refers to 

section 105(b) (1) (B) of the Act which concerns the Secretary's 

assessment of civil penalties instead of section llO(i) which 

sets forth the Commission's authority. However, MSHA's 

narrative findings fully explain and justify the violations 

and penalty amounts in light of the statutory criteria set 

forth in section llO(i). Ori the basis of MSHA's analysis, 

I accept the recommended proposals. 

Accordingly, the recommended settlements are Approved 

and the operator having paid, this matter is Dismissed. 

-----~--~?cS- Paul Merlin 

• 

Chief Administrative Law Judge 

Distribution: 

James J. Manzanares, Esq., Office of the Solicitor, u. s. 

Department of Labor, 525 Griffin Square Bldg., Rm. 501, 

Dallas, TX 75202 {Certified Mail) 

Ralph Scoggins, Esq., El Paso Sand Products, Inc., No. 1 

McKelligon Canyon Rd., El Paso, TX 79930 (Certified Mail) 

yh 148 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

J/HJ : 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 85-160-M 

A.O. No. 15-00034-05506 

v. Greenville Quarry and Mill 

GREENVILLE QUARRIES I . INC • ' 

Respondent 

Appearances: 

Before: 

DECISION APP.ROVING SETTLEMENT 

William F. Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN for 

Petitioner, 

Rees Kinney, Esq., Jnrvis, Payton and Kinney, 

Greenville, KY for Respondent 

Judge Maurer 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977 (the Act). Subsequent to their 

opening statements at the hearing on December 6, 1985 at 

Nashville, Tennessee, the parties jointly moved for approval of 

a settlement agreement and dismissal of the case. The 

violations in this case were originally assessed at a total 

of $1600 and the parties propose to reduce the penalty to a 

total of $800. I have considered the representations and 

documentation submitted in this case, and I conclude that 

the proffered settlement is appropriate under the criteria 

set forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of a settlement is 

GRANTED, and it is ORDERED that Respondent pay a penalty 

of $800 within 30 days of this decision. Upon payment, 

these proceedings are DISMISSE:~~r~~ 

Administrative Law Judge 

149 
Distribution: 

William F. Taylor, Esq., Office of the Solicitor, U.S. 

Department of Labor, Rm. 208. U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Rees Kinney, Esq., Jarvis, Payton and Kinney, 118 O'Bryan 

Street, P.O. Box 569, Greenville, KY 42345 (Certified Mail) 

/db 

15C 
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, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), · Petitioner 

v. 

. • 

: Docket No. PENN 85-236 

: A .. c.- No. 36-02713-03509 . . 

: Frenchtown Strip Mine 

POWER OPERATING COMPANY, INC.,: 

Respondent : 

SUMMARY DECISION 

Before: Judge Koutras 

Statement of the Case 

This case concerns a civil penalty proposal initiated by 

the petitioner against the respondent pursuant to section 

llOCa) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820Ca>, seeking a civil penalty assessment of $20 

for an alleged violation of the reporting requirements of 

30 C.F.R. § 50.20Ca). The alleged violation is stated in a 

section 104(a) citation served on the respondent's representative by an MSHA inspector on April 15, 1985. 

The matter was scheduled for a hearing on the merits. 

However, the hearing was subsequently cancelled after the 

parties agreed to submit the matter to me for summary decision pursuant to Commission Rule 64, 29 C.F.R. § 2700.64. 

The parties have filed cross-motions for summary decision, 

with supporting stipulations and arguments. 

Issue 

The issues presented here is whether the respondent violated the requirements of 30 C.F.R. § 50.20(a}, and if so, 

the appropriate civil penalty which should be assessed taking 

into account the requirements of section llO<i> of the Act. 

151 
Applicable Statutory and Regulatory Provisions 

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

Pub. L. 85-164, 30 U.S.C. § 801 et seg. 

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

3. Commission Rules, 29 C.F.R. § 2700.1 et seg. 

4. 30 C.F.R. § 50.20(a). 

Discussion 

Section 104(a) Citation No. 2403692, issued on April 15, 

1985, cites a violation of 30 C.F.R. § 50.20Ca), and the cited 

condition. or practice is stated as follows: 

The operator has omitted on Section A, 

the company name. Section C, No. 9, the condition contributing to the accident. No. 10, 

equipment involved. No. 11, name of witness 

to accident, if any, on the Mine Accident and 

Injury and Illness Report, MSHA Form 7000-1, 

for accident that occurred on 3-21-85. 

The facts in this case are not in dispute. The parties 

have stipulated that on March 21, 1985, at 9:30 a.m., 

Mr. John J. Podliski, a miner employed by the respondent, 

slipped while on duty and bruised his right knee. He continued to work the remainder of the work day on March 21, but 

was off from work on March 22, for reasons associated with 

the injury he sustained. 

The parties stipulated that the respondent filed the 

required accident report with MSHA on March 25, 1985, and 

there is no dispute that when it was filed the company name 

was omitted from Section A, line two of the report, and that 

items 9, 10, 11 of Section C were left blank. Item 9 is the 

space provided for the full description of the conditions 

contributing to an accident; item 10 is the space for describing any equipment involved in an accident1 and item 11 is the 

space for listing the name of any witness. The citation was 

issued because of these omissions. 

In support of the citation, petitioner argues that the 

reporting requirements of 30 C.F.R. Part 50 implements sections 103(a) and (b) of the Act, and are intended to achieve 

the statutory objective or acquisition and analysis of accident, injury, and illness data for the purpose of reducing 

152 
mine safety and health hazards. Petitioner states that the 

reporting requirements established by Part 50 provide a mechanism for the identification of those aspects of mining which 

need intensified attention through health and safety regulation. 44 Fed. Reg. 52827 (1979). Part 50 requires the reporting of all occupational injuries irrespective of whether there 

exists a causal nexus between the miner's work and the injury 

sustained. Secretary of Labor v. Freeman United Coal Mining 

Company, 3 MSHC 1447 (1983). 

The petitioner points out that the form in question 

requires the respondent to fully describe the conditions contributing to an occupational injury a"nd to quantify the resulting damage or impairment. Petitioner maintains that the 

failure of the respondent to complete question No. 9 on the 

form on its face violates 30 C.F.R. ·§ S0.20(a), and directly 

impinges upon MSHA's ability to comprehensively compile data 

on injury causation factors. Petitioner also believes that a 

delay in the reporting and description of an occupational 

injury can .impede the investigative capability of MSHA, and 

that an omission on the reporting form def eats the twin goals 

of the reporting requirements of Part 50-- swift investigation 

of accidents and compilation of injury causation factors. 

since these objectives are central to MSHA's efforts at health 

and safety regulation, petitioner concludes that the partially 

completed form violated 30 C.F.R. § S0.20(a) as a matter of 

law. 

The respondent concedes that the purpose and scope of 

Part 50 is to implement MSHA's authority to investigate, to 

obtain and utilize information pertaining to mine accidents, 

injuries, and illnesses, and that the information received 

will be used to develop the rates of injury occurrence, and, 

data respecting injury severity. 

Respondent acknowledges that 30 C.F.R. § 50.20-4 sets 

forth the criteria for completion of Section A of the form, 

and that this includes identification data such as the mine 

identification number CI.D.), and the min~ and company name. 

Conceding that the obvious purpose for this information is to 

identify the mine location and name for investigation purposes, the respondent argues that the information should be 

read together with the information at the end of the form 

which requires the name of the person completing the form, 

the title, date, and the area code and phone number. The 

respondent asserts that when it provided the mine I.D. number, 

the location of its mine, the name of its clerk, and its phone 

number, MSHA had all the information it needed to promptly 

investigate. Respondent suggests that had MSHA dialed the 

153 
listed phone number, the first thing which would be learned is 

the company's name, and coupled with its listed I.D. number, 

the respondent's involvement would have been readily 

identified. 

With regard to item No. 9, section C of the form, the 

respondent points out that 30 C.F.R. § 50.20-6 states that 

the condition contributing to the accident should be 

described, and that this means stating what happened, the 

reasons therefor, and the factors which contributed to the 

injury and damage. Respondent asserts that these requirements should be read together with item Nos. 20, 21, and 22 

of the form. Respondent points out that in the report which i~ filed on March 25, 1985, it was stated that the employee 

slipped and bruised his right knee. The amended form which 

MSHA accepted as abatement stated that the employee was "walking around the dozer and sprained knee," and the information 

provided in the initial report stated the same "slipping and 

bruising the knee" information, and that nothing more could 

be said. 

With regard to item No. 10 as to "equipment," respondent 

states that it was left blank since no equipment was involved. 

Item No. 11 as to "witnesses" was left blank because no witnesses were involved. Respondent suggests that when all of 

the information it submitted on its initial form is read 

together, MSHA had all the information necessary to carry out 

the purposes of the Act and regulations. Respondent points 

out that even with the amended form which was accepted by 

MSHA to abate the violation, nothing more was added. 

Respondent asserts that the alleged violation and proposed $20 civil penalty assessment is based on a de minimus 

and highly technical construction of the regulations. Respondent concludes that the information provided was in substantial compliance with the regulation, and was sufficient for 

MSHA to perform its information gathering duties. 

Findings and Conclusions 

I conclude and find that the injury suffered by 

Mr. Podliski was an "occupational injury" as defined by 

30 C.F.R. § 50.2Ce), and that it was required to be reported 

on MSHA Form 7000-1, as stated in 30 C.F.R. § S0.20(a). 

While I agree with the respondent's assertion that the information furnished on the form as originally filed with MSHA 

was in substantial compliance with the reporting requirements 

of section S0.20Ca), I conclude and find that the failure of 

the respondent to fully describe the conditions conttibuting 

154 
to the accident in question, coupled with the total omission 

of the information required in question No. 9, constitutes a 

violation of section 50.20(a). While it is true that the 

information submitted by the respondent indicated that the 

accident victim slipped and bruised or sprained his knee, 

there is no information to explain how it occurred, what 

caused the slip, etc. The applicable criteria found in section 50.20-6(a)(3), required that this information be 

supplied. 

Respondent suggests that since the form was filled out 

by one of its office clerks, the omissions were the result of 

clerical oversight. While this may be true, I take note of 

the fact that section 50.20Ca) requires that the form in question be completed or reviewed by the respondent's principal 

officer in charge of health and safety at the mine or the 

supervisor of the mine area in which the accident or injury 

occurred. I find nothing in this case to suggest that this 

was done. It seems to me that the preparation or review of 

the form by the mine safety officer, or some supervisory foreman at the area where the accident occurred, before it was 

submitted may have resulted in the full completion of the 

form and may have prevented the issuance of the citation. 

With regard to the respondent's assertion that its failure to, include the name of the operator and to complete item 

Nos. 10 and 11 were de minimus oversights, while it may be 

true that no equipment or witnesses were involved in the 

accident, MSHA has no way of knowing that unless the person 

submitting the form clarifies it by indicating "none" or otherwise explaining it. MSHA may wish to clarify its instructions 

to preclude future oversights and omissions of this kind. 

With respect to the omission of the company name, while it is 

true that the mine I.D. and telephone number were supplied, 

the requirement that the company name be included on the form 

seems like a rather basic and innocuous requirement that 

should be complied with. 

In view of the foregoing, I conclude and find that a 

violation has been established, and the citation IS AFFIRMED. 

Civil Penalty Assessment 

The parties have filed no information concerning the six 

statutory criteria found in section llO(i) of the Act. However, I take note of the fact that the violation was assessed 

as a "single penalty" by MSHA. The information contained in 

the pleadings and proposed assessment made by the pleadings 

reflects that the respondent is a small operator. I conclude 

155 
that a civil penalty of $10 is appropriate and reasonable for 

the violation in question. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $10 for the violation in question, and payment is 

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

this decision. Upon receipt of payment, this matter is 

dismissed. 

/::!~; ~e/A7Ko~ t:?. ~ ~ Administrative Law Judge 

Distribution: 

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

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

John W. Blasko, Esq., McQuaide, Blasko, Schwartz, Fleming & 

Faulkner, Inc., 811 University Drive, State .College, PA 16801 

(Certified Mail) 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

LADY JANE COLLIERIES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LADY JANE COLLIERIES, INC., 

Respondent 

: 

CONTEST PROCEEDINGS 

Docket No. PENN 85-116-R 

Citation No. 24036261 2/5/85 

Docket No. PENN 85-117-R 

Citation No. 24036271 2/5/85 

: Docket No. PENN 85-151-R 

: Order No. 24036441 2/21/85 . . 

; Docket Noe PENN 85=152-R 

Order No. 2403645; 2/21/85 . . 

: Stott No. 1 Mine . . 

: CIVIL PENALTY PROCEEDING 

: 

: Docket Nb. PENN 85-216 

A.C. No. 36-00880-03533 

Stott No. 1 Mine 

SUMMARY DECISIONS 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern two citations issued to the 

contestant/respondent Lady Jane Collieries (hereinafter 

Lady Jane), on February 5, 1985, for two alleged violations 

of mandatory health standard 30 C.F.R. § 90.103(b). The citations were issued pursuant to section 104(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 814Ca), 

because of the alleged failure by Lady Jane to maintain the 

pay status of two "Part 90 11 miners who were transferred to 

other jobs. The citations were timely contested by Lady Jane 

in Docket Nos. PENN 85-116-R and PENN 85-117-R. 

157 
On February 21, 1985, two section 104(b) orders were 

issued to Lady Jane because of its alleged failure to timely 

abate the previously issued section 104(a) citations. 

Lady Jane timely contested the issuance of these orders in 

Docket Nos. PENN 85-151-R and PENN 85-152-R. MSHA subsequently filed a proposal for assessment of civil penalties 

pursuant to section llO(a) of the Act seeking civil penalty 

assesments of $90 for each of the alleged violations. 

The parties mutually agreed to waive a hearing on the 

merits, and agreed to submit the matters to me for summary 

decisions pursuant to Commission Rule 64, 29 C.F.R. § 2700.64. 

The parties have filed cross motions for summary decision, a 

joint stipulation of facts, and briefs in support of their 

respective positions. 

Issues 

The principal issue presented in these proceedings is 

whether or not Lady Jane violated the provisions of 30 C.F.R. 

§ 90.103(b) by failing to adequately compensate the two "Part 

90 miners" in question. Additional issues raised by the 

parties are disposed of in the course of these decisions. 

Stipulations 

The parties have stipulated to the issuance of the citations and orders, the size and scope of Lady Jane's mining 

activities, and to the relevant civil penalty assessment criteria found in section llO(i) of the Act. The joint stipulation of facts with respect to the remaining issues in these 

proceedings are as follows: 

1. The Stott No. 1 Mine was a medium 

sized mine producing approximately 200,000 

tons annually. 

2. Lady Jane Collieries, Inc., is ultimately owned by Pennsylvania Power and Light 

Company. Captive coal mines owned by 

Pennsylvania Power and Light Company produced 

2,925,361 tons of coal in 1984. 

3. Lady Jane employed approximat~ly 100 

employees, while operating two active working 

sections. 

158 
4. The mine operated 5 days a week on 

three production shifts and produced approximately 1,000 tons of coal per day. 

5. In the middle 1970's, the company 

built a cleaning plant which processed the 

coal from the mine and also from coal purchased from neighboring operations. 

6. During 1983, it was determined that 

the workable coal seam was being exhausted and 

would in fact be depleted sometime late in 

1984. 

7. In April 1983, the company met with 

its employees and informed them of the fact 

that the mine's life was nearing an end. 

8. It then indicated to the employees 

that at the conclusion of the underground 

reserves Lady Jane would remain as a surf ace 

facility. 

9. The surface facility would consist of 

a preparation plant which would handle coal 

purchased locally from various operators. 

10. The employees were informed that 

fewer jobs would be available at the plant, 

probably 15 or 20 as a maximum. 

11. The employees were further advised 

that they would be informed in the near future 

as to who was chosen to remain at Lady Jane. 

12. Additional employees would be 

afforded opportunities, if they so chose, at 

either construction jobs at Pennsylvania Power 

and Light Company or at mining positions with 

Pennsylvania Mine Corporation and its various 

related companies. 

13. Additionally, the opportunity for 

severance pay and for early retirement was 

discussed at a meeting with the employees. 

14. On May 23, 1983, a list of personnel 

to remain at Lady Jane was published. That 

list included names of personnel and the jobs 

159 
for which they had been selected. Selection 

was done on the basis of seniority and ability 

to perform the position in question 

(Exhibit 1). 

15. Shortly thereafter, some employees 

who were not designated to remain at Lady Jane 

began to take advantage of jobs with PP&L or 

PMC. Exhibits 2 and 3 show employee displacement activity as of June 24, 1983 (Exhibit 2) 

and January 28, 1985 (Exhibit 3). 

16. Exhibits 4 and 5 show organization 

charts of Lady Jane as it existed in 1982 

(Exhibit 4) and in August 1984 (Exhibit 5). 

17. The underground mining operations at 

Lady Jane ceased on December 14, 1984. 

18. At that time, all underground coal 

production ceased at Lady Jane; the only underground activity which remained was the recovery of the equipment and the mine sealing work. 

19. The equipment recovery took a relatively short time while the mine sealing work 

currently continues, and it is estimated that 

the sealing project will be completed sometime 

prior to the end of 1985. 

20. On December 17, 1984, a reorganization took place at Lady Jane. That reorganization is exemplified by an organizational chart 

(Exhibit 6) which shows the structure of the 

organization effective December 17, 1984. 

21. At that time, Lady Jane began functioning as a coal preparation facility. Coal 

from various local suppliers was trucked into 

Lady Jane, processed through its preparation 

plant and shipped via Conrail to the Sunbury 

Power Plant of PP&L. The only underground 

activity that continued was the sealing project which would continue well into 1985. 

22. On December 14, 1984, a number of 

employees were displaced from Lady Jane. Each 

was given an option election in which they 

could chose the following: 

160 
Option 1 - Possible employment with 

PP&L or PMC 

Option 2 - Early retirement with 

severance allowance 

Option 3 - Severance allowance 

Each employee had 30 days following the date 

of his layoff to make his determination. 

23. Prior to December 14, 1984, Arnold 

McCracken had been employed as the general 

outside foreman. His job responsibilities 

were those as listed on Exhibit 7. With the 

closing of the underground mining operation, 

many of Mr. McCracken's duties as outside shop 

foreman were eliminated since a majority of 

his activities had to do with the repair of 

underground mining equipment which was no 

longer called for. Based upon the completion 

of underground mining, Mr. McCracken's position and that of a number of other employees 

were terminated as no longer needed. 

24. In May 1983, Mr. McCracken had been 

designated to stay at Lady Jane as a sampler 

(Exhibit 1). The rate on the sampler position 

was $10.78 per hour. That rate did not become 

effective for Mr. McCracken until January 2, 

1985, since from December 17 until January 2, 

he was on vacation (Exhibit 8). 

25. In 1983, when positions were assigned 

for the surface facilities, it was determined 

by management that Mr. McCracken did not have 

the necessary experience to perform the position of plant foreman. He had never performed 

that task in the past, and the incumbent, Clair 

Ireland, was designated to perform that task 

subsequent to the termination of underground 

mining operations at Lady Jane. 

26. Some tasks formerly done by 

Mr. McCracken were now assigned as additional 

responsibility to Mr. Clair Ireland or other 

Lady Jane employees; other tasks formerly 

161 
assigned to Mr. McCracken were completely eliminated due to the closing of the underground 

facilities. (Exhibit 9 •hows those tasks 

involved). 

27. On January 2, 1985, Arnold McCracken 

assumed the position of coal sampler which had 

been designated to him since May 23, 1983. 

During that period of time, Mr. McCracken would 

have had opportunities to move to other f acilities of PP&L or PMC had he so chosen. Even 

though he designated to stay at Lady Jane, he 

could have opted to transfer as several others 

on the designated list had done. 

28. On January 11, 1985, Mr. McCracken 

retired. 

29. He indicated in his option election 

form the option of early retirement with severance allowance. This option entitled 

Mr. McCracken to retire at full retirement 

even though he had not reached the age of 65 

and the severance option permitted him 1 week 

of severance pay for each full year of Lady 

Jane service. (Exhibit 10.) 

30. On January 15, 1985, Mr. Mccracken 

filed a discrimination complaint with the Mine 

safety and Health Administration. 

31. In November 1984, Lady Jane was notified by MSHA that Mr. McCracken was a Part 90 

Miner who must be working in an environment 

which meets the respirable dust standard 

(Exhibit 11). 

32. Mr. McCracken was sampled for dust 

and MSHA was advised by letter dated 

December 3, 1984, that he was already working 

in an atmosphere which complied with the 

reduced standard and there was no need to 

transfer him from his position as outside foreman (Exhibit Nos. 12 and 13). 

33. On January 14, 1985, Lady Jane wrote 

to MSHA informing them that Mr. McCracken had 

retired (Exhibit 14). 

162 
34. Lady Jane received a letter dated 

April 16, 1985, from Ronald J. Schell, Chief, 

Off ice ~f Technical Compliance and Investigation for MSHA, concerning Mr. McCracken's 

105(c) discrimination complaint. The Schell 

letter concluded" "A review of the information gathered during the investigation has 

been made. On the basis of that review, MSHA 

has determined that a violation of Section 

105(c) has not occurred" (Exhibit 15). 

35. On November 9, 1979, Lady Jane was 

informed that Raymond R. Graham was a Part 90 

miner (Exhibit 16). ' 

36. On August 27, 1980, Raymond R. 

Graham transferred from his position as belt 

maintenance man to the position of car 

dropper-surface, retaining his underground rate 

of pay (Exhibit 17). 

37. Pursuant to the May 23, 1983, 

reorganization plan, Mr. Graham was designated 

to stay at Lady Jane as a greaser and mechanic 

(Exhibit 1). 

38. On December 17, 1984, the Lady Jane 

facility was reorganized from a deep mine 

facility into a surface preparation facility. 

39. Immediately prior to December 17, 

1984, Mr. Graham's rate of pay was $15.12 per 

hour as a car dropper. (The normal rate of 

pay for this surface position was $13.38). 

Mr. Graham had retained his high rate from 

underground. 

40. On December 17, 1984, Mr. Graham's 

position was changed from a car dropper-surface 

to a greaser-surf ace. His new rate of pay was 

$13.38 per hour, which is the surface rate of 

pay. 

41. The car dropper-surface position was 

not eliminated but is currently filled by 

Ardell Wallace. 

163 
Discussion 

section lOl(a) of the Act authorizes the Secretary to 

"develop, promulgate, and revise as may be appropriate, 

improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other 

mines." 

Section 101Ca)(7) of the Act provides in pertinent part 

as follows: 

[W]here appropriate, any such mandatory standard shall prescribe the type and frequency of 

medical examinations or other tests which shall 

be made available, by the operator at his cost, 

to miners exposed to such hazard in order to 

most effectively determine whether the health 

of such miners is adversely affected by such 

exposure. Where appropriate, the mandatory 

standard shall provide that where a determination is made that a miner may suffer material 

impairment of health or functional capacity by 

reason of exposure to the hazard covered by 

such mandatory standard, that miner shall be 

removed from such exposure and reassigned. ~ 

miner transferred as a result of such exposure 

shall continue to receive compensation for such 

work at no less than the regular rate of pay 

for miners in the classification such miner 

held immediately prior to his transfer. In the 

event of the transfer of a miner pursuant to 

the preceding sentence, increases in wages of 

the transferred miner shall be based upon the 

new work classification. * * * (emphasis 

added). 

The mandatory health standards covering miners who have 

evidence of the development of pneumoconiosis were promulgated pursuant to section 101 of the Act, and they became 

effective on February 1, 1981, 45 Fed. Reg. 80760-80774. The 

regulations appear at Part 90, Title 30, Code of Federal 

Regulations. 

A "Part 90 Miner" is defined at 30 C.F.R. § 90.2, as 

follows: 

"Part 90 miner" means a miner employed at 

an underground coal mine or at a surface work 

164 
area of an underground coal mine who has exercised the option under the old section 203(b) 

program (36 FR 20601, October 27, 1971), or 

under § 90.3 (Part 90 option1 notice of eligibility1 exercise of option} of this part to 

work in an area of a mine where the average 

concentration of respirable dust in the mine 

atmosphere during each shift to which that 

miner is exposed is continuously maintained at 

or below 1.0 milligrams per cubic meter of 

air, and who has not waived these rights. 

The term "transfer" is defined by 30 C.F.R. § 90.2, as 

follows: 

"Transfer" means any change in the work 

assignment of a Part 90 miner by the operator 

and includes: (1) Any change in occupation 

code of a Part 90 miner1 (2) any movement of a 

Part 90 miner to or from a mechanized mining 

unit; or (3) any assignment of a Part 90 miner 

to the same occupation in a different location 

at a mine. 

30 C.F.R. § 90.3(b) and (c) provide as follows: 

(b) Any miner who is a section 203(b) 

miner on January 31, 1981, shall be a Part 90 

miner on February 1, 1981, entitled to full 

rights under this part to retention of pay 

rate, future actual wage increases, and future 

work assignment, shift and respirable dust 

protection. 

(c) Any Part 90 miner who is transferred 

to a position at the same or another coal mine 

shall remain a Part 90 miner entitled to full 

rights under this part at the new work 

assignment. 

30 C.F.R. § 90.103 <Compensation), provides in pertinent 

part as follows: 

(a) The operator shall compensate each 

Part 90 miner at not less than the regular 

rate of pay received by that miner immediately 

before exercising the option under § 90.3 

(Part 90 option; notice of eligibility1 exercise of option). 

165 
Cb) Whenever a Part 90 miner is transferred, the operator shall compensate the 

miner at not less than the regular rate of pay 

received by that miner immediately before the 

transfer. 

Cc> The operator shall compensate each 

miner who is a section 203Cb) miner on 

January 31, 1981, at not less than the regular 

rate of pay that the miner is required to 

receive under section 203Cb) of the Act immediately before the effective date of this part. 

Cd) In addition to the compensation 

required to be paid under paragraphs (a), Cb) 

and Cc) of this section, the operator shall 

pay each Part 90 miner the actual wage 

increases that accrue to the classification to 

which the miner is assigned. 

Lady Jane is charged with a failure to maintain the pay 

status of Part 90 miners Arnold M. McCracken (Citation 

No. 2403626), who was transferred from his occupation of outside shop foreman to surface coal sampler, and Raymond R. 

Graham (Citation No. 2403627), who was transferred from his 

occupation of surface car dropper to surface greaser. The 

factual stipulations provide the information upon which this 

matter arises. The stipulations reveal that in April 1983, 

Lady Jane met with the mine employees and informed them that 

the workable coal seam would soon be exhausted and at the 

conclusion of the underground reserves, Lady Jane would 

remain as a surface facility. The surface facility would 

consist of a preparation plant which would prepare coal purchased from various local operators. Arnold M. McCracken and 

Raymond G. Graham were employees at Lady Jane at that time. 

The employees were further informed that as a result of this 

change in circumstances, fewer than 15 to 20 jobs would be 

available at the preparation plant and that a list of 

employees chosen to fill those jobs would soon be posted. 

The remaining employees would be afforded the opportunity to 

go to work at construction jobs with Pennsylvania Mines 

Corporation and its various related companies. 

On May 23, 1983, a list of personnel to remain at Lady 

Jane was posted. The personnel were selected on the basis of 

seniority and ability to perform the position. Mr. McCracken's 

name appeared on the list as a sampler. Mr. Graham's name 

appeared on the list as a greaser and mechanic. On 

166 
December 14, 1984, the underground mining operations at Lady 

Jane ceased, and on December 17 1984, the reorganization as 

reflected on the May 23, 1983; list took effect. As of 

December 17, 1984, Lady Jane began functioning as a coal 

preparation facility. 

MSHA's Arguments 

In support of its position in these proceedings, MSHA 

relies on the specific wage protection provisions found in 

Part 90, as well as its comments and policy statements made 

during the rulemaking process in connection with the promulgation of the regulations. The relevant comments deal with the 

transfer and compensation rights of the affected miners, and 

one significant area of comment concerns changed circumstances 

at a mine which may require changes in job assignments. These 

comments are noted in pertinent part as follows at 45 Fed. 

Reg. 80761: 

The operator may transfer a Part 90 miner 

without regard to these job and shift limitations if the respirable dust concentration in 

the position of the Part 90 miner complies 

with the dust standard, but circumstances 

require changes in job assignments at the mine. 

Reductions in workforce or changes in operational methods at the mine may be the most 

likely situations which would affect job 

assiqnments. Any such transferred Part 90 

miners would still be protected by all other 

provisions under this Part. (Emphasis added.> 

Another relevant rulemaking comment relied on by MSBA in 

connection with section 90.3, is found at 45 Fed. Req. 80764, 

and it is as follows: 

Although the incidence of pneumoconiosis 

amonq miners in surface occupations is thought 

to be less than that of underground miners, 

dust levels in certain surface jobs, for 

example, at cleaning and preparation plants, 

may frequently exceed average respirable dust 

concentrations of 1.0 mg/m3. Accordingly, 

under this rule, any Part 90 miner who Is 

transferred by the operator to any surf ace 

position, including positions at surface coal mines~ remains a Part 90 miner In the new surface _ob and Is entitled to all Part 9o 

protections. (Emphasis added.) 

167 
MSHA also relies on the comment made at 45 Fed. Reg. 

80767, in connection with the promulgation of section 90.103, 

that "This wage protection afforded miners by this regulation 

is consistent with Section 10l(a)(7) of the Act and the legislative history pertaining to the enactment of that section." 

With regard to the circumstances in connection with the 

citation for failure to adequately compensate Arnold 

McCracken, MSHA states that prior to December 14, 1984, 

Mr. McCracken had been employed at Lady Jane as the general 

outside foreman earning $20.70 per hour. A lot of his duties 

would be eliminated during the conversion of the facility 

because as foreman he had been responsible for the repair of 

underground mining equipment. This job would no longer be 

necessary at the preparation facility. His new position in 

the reorganization would be a coal sampler, and the rate of 

pay for the sampler position was $10.78 per hour. 

By letter dated November 13, 1984, Lady Jane was notified by MSHA that Mr. McCracken was a Part 90 miner, who had 

exercised his option to work in a less dusty atmosphere. The 

letter informed Lady Jane that by the 21st calendar day after 

receipt of the letter, Mr. McCracken must be working in a low 

dust area. If however, he was already working in an atmosphere which complied with the reduce standard, there would be 

no need to lower the dust concentration or to transfer him, 

but he nevertheless retained his Part 90 rights until he 

waived them. 

In response to this letter, Lady Jane advised MSHA by 

letter dated December 3, 1984, that Mr. McCracken was already 

working in an atmosphere which complied with the reduced standard, and thus, there was no need to transfer him to another 

position. To support its position, Lady Jane took five samples of dust from Mr. McCracken from December 3, 1984 to 

December 7f 1984, which revealed low dust levels. 

On December 17, 1984, the date that the reorganization 

took effect, Mr. McCracken began his vacation. He did not 

return to work until January 2, 1985. Upon his return on 

January 2, he assumed the position of coal sampler. On 

January 11, 1985, Mr. McCracken retired pursuant to the 

option of early retirement with severance pay. 

On January 15, 1985, Mr. McCracken filed a section 

105(c) discrimination complaint with reference to his transfer. During the course of that investigation, section 104(a) 

Citation No. 2403626 was issued, because Lady Jane had failed 

to maintain Mr. McCracken's pay status as an.outside general 

168 
foreman. He had been transferred to the coal sampler position and paid the coal sampler's lower rate of pay. 

In response to Lady Jane's assertions that it had no 

obligation to continue to pay Mr. McCracken at the rate of 

pay of an outside general foreman because a year and a half 

earlier, on May 23, 1983, he was made aware of his transfer 

based upon the mine reorganization and not his Part 90 

status, MSHA submits that the preamble to Part 90 clearly 

recognizes no exceptions to the provisions found in Part 90, 

and.that any transfer of a Part 90 miner pursuant to a reduction in work force or change in operational methods does not 

negate the protections afforded by Part 90. Further, MSHA 

points out that any Part 90 miner who is transferred to any 

surface position, including positions at a surface coal mine, 

remains a Part 90 miner in the new surf ace job. MSHA concludes that upon Mr. McCracken's transfer on December 17, 

1984, his Part 90 rights remained with him, and the record is 

void of any decision on his part to waive his Part 90 rights. 

Accordingly, MSHA believes that the compensation provisions 

found at Part 90.103Cb) followed Mr. McCracken to his new 

position, and his rate of pay as a coal sampler should have 

been the same rate of pay he received as an outside general 

foreman, i.e. $20.70. MSHA concludes that Lady Jane's failure to compensate him accordingly was clearly a violation of 

Part 90.103Cb), and that the citation was appropriately 

issued. 

With regard to the issuance of the citation in connection with the failure by Lady Jane to adequately compensate 

Raymond s. Graham, MSHA states that on August 27, 1980, 

Mr. Graham was transferred from his underground position as 

belt maintenance man to the surface position of car dropper. 

This transfer occurred as a result of Lady Jane's notification on November 9, 1979, that Mr. Graham was a Part 90 miner 

who had elected to transfer. As a result of the transfer, 

Mr. Graham incurred no lost wage rate in that he retained his 

underground rate of pay. 

The May 23, 1983, reorganization plan indicated that 

Mr. Graham was to remain at Lady Jane as a greaser and 

mechanic. Prior to December 17, 1984, Mr. Graham's salary 

was that of an underground belt maintenance man, i.e. $15.12 

per hour, although he actually worked on the surface as a car 

dropper.· The normal rate of pay for the car dropper was 

$13.38 per hour. As of December 17, 1984, Mr. Graham's new 

position became effective, i.e., greaser and mechanic-surface, 

and his new rate of pay became the normal rate of pay for said 

169 
position, i.~. $13.38 per hour. Mr. Graham's former position, 

of car dropper was not eliminated during the reorganization. 

MSHA states that Mr. Graham was transferred from one 

surface position to another surface position as a result of 

Lady Jane's change in operational method, and that during 

this transition he never declined to exercise his Part 90 

option. Relying on the rulemakers comments at 45 Fed. Reg. 

80764, MSHA maintains that Mr. Graham was in fact a Part 90 

miner who was protected by the Part 90 provisions at the time 

of the proposed reorganization, as well as at the time of the 

actual reorganization. Accordingly, his rate of pay as of 

December 17, 1984, should have continued to have been that of 

an underground belt maintenance man. MSHA concludes that the 

reduction in pay which Mr. Graham incurred as a result of his 

transfer was clearly a violation of section 90.103(b), and 

that the citation was appropriately issued. 

With regard "to the issuance of the section 104(b) orders, 

MSHA argues that Lady Jane's failure to abate the violations 

within the time allowed by the inspector (February 19, 1985), 

appropriately resulted in the issuance of the orders. Citing Judge Melick's decision in Consolidation Coal Company v. 

Secretary of Labor, 3 FMSHRC 2201 (September, 1981), MSHA 

asserts that the criteria for examining the validity of the 

orders are Cl> the degree of danger that any extension would 

have caused to miners, (2) the diligence of the operator in 

attempting to meet the time originally set for abatement, and 

(3) the disruptive effect an extension would have upon operating shifts. 

Although conceding that the violation did not present 

any immediate health or safety threat to any miner, MSHA maintains that the violations presented a "chilling effect" upon 

the miner's guaranteed statutory Part 90 rights. Since 

Congress guaranteed these rights to miners affected by pneumoconiosis without exception, MSHA concludes that Lady Jane's 

lack of diligence in attempting abatement, and its continued 

failure to date to abate the violations, compounds the "chilling effect" upon statutorily guaranteed compensation rights. 

Lady Jane's Arguments 

Lady Jane states that in ·Apr 11 of 1983, it met with its 

employees and informed them that the life of the underground 

mine was coming to an end. On May 23 1983, a list of person- nel to remain at the mine along with job titles was posted. 

On that list Arnold McCracken was listed as a sampler and 

Raymond Graham was listed as a Greaser-Mechanic. Underground 

170 
mining operations ceased on December 14, 1984, and on 

December 17, 1984, a reorganization took place and the mine 

began functioning as a surface coal preparation facility. 

Lady Jane asserts that in November of 1984, it was 

notified that Mr. McCracken had Part 90 status. After 

Mr. McCracken was sampled for dust, it was determined there 

was no need to transfer him. On January 2, 1985, Mr. McCracken 

assumed the position of coal sampler-surface. Prior to the 

closing of the underground mine, he had been outside shop foreman, but that position was eliminated as of December 14, 1984. 

Prior to December 14, 1985, Mr. McCracken's rate of pay as outside shop foreman was $20.70 per hour and his rate of pay as 

coal sampler was $10.78 per hour. On January 11, 1984, 

Mr. McCracken retired, choosing an early retirement with severance pay option. On January 15, 1985, Mr. McCracken filed a 

discrimination complaint with MSHA, and by MSHA letter of 

April 16, 1985, to Mr. McCracken, it was determined that no 

violation had occurred. No appeal of that decision has been 

taken. 

Lady Jane points out that it was not notified of 

Mr. McCracken's Part 90 status until November of 1984. However, in May of 1983, Mr. McCracken had been designated to 

stay at Lady Jane as a sampler. Under the circumstances, 

Lady Jane maintains that it did not violate Part 90 in his 

case by reducing his compensation upon transfer to the sampler position because that designation had been made in May 

1983, approximately 6 months prior to Lady Jane being notified of his Part 90 status. 

Lady Jane points out that section 101Ca)(7) of the Act 

states in pertinent part that "any miner transferred as a 

result of such exposure shall continue to receive compensation for such work at no less than the regular rate of pay 

for miners in the classification such miner held immediately 

prior to his transfer." However, in Mr. McCracken's case, 

Lady Jane maintains that no transfer "as a result of such 

exposure" ever took place. In support of this argument, Lady 

Jane points out that after it was notified of Mr. McCracken's 

Part 90 status in November of 1984, he was sampled for dust 

and MSHA was advised by letter of December 3, 1984, that he 

was already working in an atmosphere which complied with the 

reduced dust standard and there was no need to transfer him 

from his outside foreman position. 

Lady Jane concedes that there is a substantial difference in the pay rate of $20.70 an hour received by 

Mr. McCracken while serving as an outside shop foreman, and 

171 
the $10.78 hourly rate he received in his coal sampler's job. 

However, Lady Jane states that the $10.78 hourly coal sampler's pay is the prevailing pay rate on that particular job 

classification, and it points out that Mr. McCracken had 

ample opportunity from May 1983 to seek other job opportunities with either Pennsylvania Power and Light Company or 

Pennsylvania Mines Corporation, but did not do so. Instead, 

he expects to be paid approximately twice as much per hour as 

of December 17, 1984, as a similarly situated employee, and 

Lady Jane believes that this is windfall which makes no 

economic sense. 

Lady Jane states that Mr. McCracken filed a discrimination complaint in which he made the following complaint: 

They transferred me from general outside 

foreman to sampler at the scales for truck 

coal and in doing this they cut my wages, and 

still have another man doing my original job. 

They said my job was no longer there so if I 

wanted to work it would be the sampling job. 

Lady Jane points out that Mr. McCracken's complaint was 

thoroughly investigated by MSHA, and that on April 16, 1985, 

MSHA made a determination that Lady Jane had not discriminated against Mr. McCracken, and that a violation of section 

105(c) the ~ct did not occur. Mr. McCracken did not appeal 

that ruling. 

With regard to Mr. Graham, Lady Jane asserts that on 

November 9, 1979, it was informed that Mr. Graham was a Part 

90 miner. On August 27, 1980, Mr. Graham transferred from 

his underground position as belt maintenance man to the 

surface position of car dropper, retaining his underground 

rate of pay. On May 23, 1983, Mr. Graham was designated to 

stay on after the reorganization as a greaser and mechanic. 

Immediately prior to December 17, 1984, Mr. Graham's rate of 

pay was $15.12 per hour as a car dropper. (The normal rate 

of pay for this surface position was $13.38). Mr. Graham had 

retained his high rate from underground. On December 17, 

1984, Mr. Graham became a greaser-surface at $13.38 per hour. 

The car dropper surface position was not eliminated, but is 

currently filled by Ardell Wallace. The rate for that job is 

$13.38 per hour. Mr. Graham's previous· underground position 

of belt maintenance man was eliminated on December 14, 1984. 

Lady Jane maintains that the purposes of the Act are not 

served by requiring it to continue paying Mr. Graham underground pay rates after the closing of its underground mine. 

172 
Lady Jane states that although Mr. Graham transferred from 

the underground mine in August of 1980 and retained his underground rate of pay until December 14, 1984, when the underground mining operation ceased, MSHA would now require Lady 

Jane to pay him $15.12 per hour when his fellow surface 

employees are receiving $13.38 per hour for a like position. 

Lady Jane submits that as of December 14, 1984, it 

ceased underground coal mining operations and became a surf ace preparation facility only for coal from other mines. 

Since it was no longer an "underground coal mine" or a "surface work area of an underground coal mine" as stated in 

30 C.F.R. § 90.3(a), Lady Jane maintains that the cited mandatory health standard 30 C.F.R. § 90.103{b), is no longer 

applicable and the citations and orders should be dismissed. 

Lady Jane argues that the legislative history of the Act 

reflects a congressional intent that Part 90 miners be protected when they are transferred because of a dust problem, 

and not when they are transferred because of independent 

legitimate business reasons. Further, Lady Jane argues that 

MSHA's Part 90 rules must be interpreted and applied in light 

of their underlying statutory goals and purposes, and since 

it is clear in these proceedings that Mr. McCracken and 

Mr. Graham were indisputably transferred for legitimate business reasons rather than any dust problems, MSHA's policy 

determinations with respect to the interpretation and application of its Part 90 rules in·these proceedings conflict with 

the legislative intent and should not be followed. 

Lady Jane submits that MSHA's Part 90 rules should not 

be interpreted to create a class of "elite miners" who are 

immune to the economic forces that affect everyone else, and 

that simply because a miner has exercised his Part 90 option, 

does not mean that he has acquired economic invulnerability. 

Lady Jane asserts that the rules must be interpreted with an 

eye to protecting miners who may be developing black lung and 

to encourage them to exercise their right to transfer, without, in the process, "turning them into demigods." 

Lady Jane submits that so long as no discrimination is 

shown under the Act, a Part 90 miner should be able to be discharged for cause or laid off as a result of a down turn in 

employment. So too, given a reorganization from anunderground mine to a surface preparation facility and a work force 

of substantially smaller proportion, the mine,operator should 

not be required to pay a Part 90 miner a premium rate for surf ace work when the purpose for the regulation no longer 

exists. 

173 
Assuming that MSHA prevails in these proceedings, Lady 

Jane believes that any payment to Mr. Graham should only be 

the pay differential between $13.38 and $15.12 per hour from 

December 17, 1984, to the present for hours worked. Lady Jane 

does not believe that a penalty and/or interest would be appropriate under the instant circumstances. As to Mr. McCracken, 

Lady Jane believes that the pay differential would be the difference between $10.78 per hour and $20.70 per hour for hours 

worked between January 2, 1985, Cprior to this Mr. McCracken 

had been on vacation) when he took the sampler position, and 

January 11, 1985, when he retired CStip. 36, 37, 38 and 

Exhibit 10). Lady Jane does not believe that a penalty and/or 

interest would be appropriate under the circumstances. 

Findings and Conclusions 

With regard to Mr. McCracken, MSHA does not dispute the 

fact that upon elimination of Lady Jane's underground mining 

operation and the conversion to a surf ace mining coal preparation facility, many of Mr. McCracken's duties as a general 

outside foreman would be eliminated, and his prior responsibilities for the repair of underground equipment would no 

longer be necessary. MSHA concedes that Mr. McCracken's new 

position in the reorganization would be as a coal sampler at 

the regular rate of pay of $10.78 per hour for such a 

position. 

MSHA takes the position that when Lady Jane was notified 

on November 13, 1984, that Mr. McCracken was a Part 90 miner 

who had exercised his option to work in a less dusty atmosphere, his rights at a Part 90 miner vested, and the fact 

that a subsequent reduction in the work· force or change in 

operational methods resulted in the elimination of the underground mine, including Mr. McCracken's surface position, did 

not divest him of his Part 90 miner rights. 

At the time Lady Jane was advised that Mr. McCracken had 

Part 90 miner status, MSHA also advised Lady Jane that there 

would be no need to transfer Mr. McCracken if he were already 

working in an atmosphere which complied with the reduced dust 

standard. Lady Jane advised MSHA that Mr. McCracken was 

already working in an atmosphere which complied with the 

reduced dust standard, and that there was no need to transfer 

Mr. McCracken. When the reorganization took effect on 

December 17, 1984, Mr. McCracken's prior position as a general outside foreman was eliminated, and he was placed in the 

position of coal sampler. He assumed the duties of this position on January 2, 1985, when he returned from vacation, and 

174 
served in that capacity until his retirement on January 11, 

1985. 

Mr. McCracken had prior notice that his outside foreman's job would be eliminated and that he would assume the. 

job as a coal sampler when Lady Jane posted a list of 

employees who were slated to remain at the new surface facility on May 23, 1983, approximately six months prior to 

Mr. Mcracken's designation as a Part 90 miner. Under the 

circumstances, I conclude and find that Lady Jane's decision 

in connection with its reorganized operations and realignment 

of the remaining workforce was communicated to Mr. McCracken 

prior to his transfer option eligibility as a Part 90 miner, 

and there is nothing to suggest that the decision in this 

regard was other than a legitimate and good faith business 

decision made by Lady Jane in the face of changed economic 

circumstances. It seems clear to me that the placement of 

Mr. McCracken in the coal sampler position came about as a 

result of the reduction of the workforce rather than any hazardous dust exposure. · 

I conclude that Mr. McCracken was entitled to take advantage of the "wage savings" provisions of section 10l(a)(7} of 

the Act and 30 C.F.R. § 90.103(b), provided it is. established 

that his placement or "transfer" in the new position was the 

direct result of his exposure to hazardous levels of dust. I 

construe the transfer language found in section 10l(a)(7) to 

require a showing of a nexus between the dust exposure and 

the transfer. The statute requires that a miner exposed to 

hazardous levels of dust be removed from such exposure and 

reassigned. If he is transferred as a result of such expo-

.!!:!£.!, he is entitled to be compensated according to his regu- lar rate of pay for the job held immediately prior to his 

transfer. The miner's exposure to hazardous dust levels is a 

condition precedent to his removal and reassignment. 

The purpose of the protected wage provisions found in 

the Act and rule with respect to Part 90 miners is to encourage miners to exercise their transfer option to a job in a 

less dusty atmosphere. By not having to take a pay cut upon 

transfer to a position which may pay less, the miner is more 

likely to transfer to protect his health than he would be 

otherwise. In Mr. McCracken's case, at the time Lady Jane 

was advised of Mr. McCracken's Part 90 status no transfer 

took place, and Lady Jane had no duty to transfer him because 

it was In compliance with the dust exposure requirements connected with Mr. McCracken's working environment. As a matter 

175 
of fact, Mr. McCracken ended up in the position of coal sampler after a legitimate reduction in force eliminated his 

prior position. 

MSHA's argument that Part 90 recognizes no exceptions 

with respect to the reasons for a miner's transfer IS 

REJECTED. I find ·nothing in the legislative history to 

suggest that Congress intended that an eligible Part 90 miner 

or potential transferee be forever insulated from the economic realities of the mining business. Nor do I find anything to suggest that a mine operator must forever guarantee 

a miner's wages in any subsequently acquired jobs which may 

come about as the result of changed economic circumstances. 

I find nothing in the legislative history to suggest 

that when Congress enacted the remedial provisions of section 

101Ca)C7), it intended to guarantee a miner continued job 

security, or to insulate a miner from any future adverse economic consequences which may flow from a mine operator's 

legitimate business concerns and decisions. Further, I find 

nothing in the legislative history to suggest that Congress 

intended to forever penalize a mine operatqr economically in 

the case of a Part 90 miner transferee. The intent of the 

statute is to afford the miner an opportunity to remove himself from dusty work environment, and I take note of the fact 

that while a transferred miner is entitled to the pay rate of 

his old position, any future pay increases are based on his 

new position. If the new position is at a pay rate lower 

than that of the previous job held by the miner, the miner 

would only be entitled to future raises computed on the basis 

of the lower pay scale of the new job classification, notwithstanding the fact that his regular salary remains tied to his 

former job. It seems to me that had Congress intended to 

fully guarantee a miner's pay, it would have enacted a provision to ensure that any future salary increases be maintained 

at the higher rate of pay. However, rather than doing that, 

Congress placed a special limitation on any subsequent wage 

increases received by a transferred miner. 

I take note of MSHA's rulemaking comments at 45 Fed. 

Reg. 80767. In referring to the legislative history from the 

Conference committee Report, MSHA quotes language which 

reflects a Congressional concern that miners reassigned jobs 

pursuant to section 10l(a)(7) should not suffer an immediate 

financial-disadvantage. While this suggests an intent that a 

miner not be penalized economically at the time he exercises 

his option to transfer to a job in a less dusty atmosphere, 

it does not suggest that he be forever insulated from the 

prospects of receiving a lower wage in any future jobs which 

176 
come about as a result of events which are far removed from 

the conditions which placed him a Part 90 status in the first 

place. · 

I find no rational support for MSHA's suggestion that 

once transferred, a Part 90 miner is entitled to perpetual 

wage protection as long as he remains on a mine payroll, even 

though that mine may no longer fall within the parameters of 

section 101Ca)(7) of MSHA's Part 90 regulations. I note that 

during the rulemaking comment period when it was suggested 

that Part 90 miners who are so situated on the effective date 

of the rules receive retroactive wage increases, MSHA was of 

the view that there would be no benefit in terms of enhanced 

health protection to be gained from applying the rule retroactively, 45 Fed. Reg. 80767. Similarly, I cannot conclude 

that there is any enhanced health benefit to be gained by 

requiring a mine operator to forever guarantee a miner's wage 

when he finds himself in another job that is the direct 

result of changed economic circumstances rather than health 

or safety circumstances. · 

I conclude and find that Mr. McCracken's placement in 

the coal sampler's job was the result of a legitimate and 

good faith reorganization and reduction in force, rather than 

an exposure to hazardous dust levels. Under the circumstances, and in view of my findings and conclusions concerning my interpretation and application of section 10l(a)(7) 

and 30 C.F.R. § 90.103(b), I conclude that Lady Jane was 

under no obligation to maintain Mr. McCracken's pay status as 

an outside shop foreman at the time he was placed in the coal 

sampler's job. Accordingly, MSHA has not established a violation of 30 C.F.Ro § 90.103Cb), and section 104(a) Citation 

No. 2403626, February 5, 1985, and section 104Cb) Order 

No. 2403645, February 21, 1985, are VACATED. MSHA's civil 

penalty proposal for the citation IS REJECTED AND DISMISSED. 

As stated earlier, the purpose of the wage provision 

found in the Act and rule with respect to Part 90 miners is 

to encourage miners to exercise their transfer option to a 

job in a less dusty atmosphereo By not having to take a pay 

cut upon transfer to a position which may pay less, the miner 

is more likely to transfer to protect his health than he 

would be otherwise. In Mr. Graham's case, his August, 1980, 

transfer from underground belt maintenance man to surface car 

dropper was an option exercised by Mr. Graham to preclude his 

further exposure to hazardous dust, and the transfer was 

accomplished by Lady Jane in response to MSHA's earlier notification of Mr. Graham's Part 90 miner status. 

177 
At the time of his transfer to the car dropper's position, Mr. Graham retained his underground belt maintenance 

man pay rate and continued to be paid at that rate while occupying the position of surface car dropper. Although he was 

subsequently designated by Lady Jane in May, 1983, to be 

retained in its employ as a surface greaser after the effective date of the reduction in force and reorganization, Lady 

Jane continued to pay him his underground rate until 

December 17, 1984, when he actually became a surface greaser. Under these circumstances, it seems clear to me that 

Mr. Graham's initial transfer and salary retention were accomplished in full compliance with the applicable statutory and 

regulatory requirements of the law. It also seems clear that 

Mr. Graham's initial transfer in 1980 was the direct result 

of his Part 90 miner status, and his decision to exercise his 

transfer option. There is no evidence to suggest that at 

that point in time Lady Jane or Mr. Graham had knowledge of 

the subsequent chain of events which gave rise to the reorganization and reduction in force. 

With regard to Mr. Graham's subsequent placement in the 

surface greaser position, I conclude and find that it came 

about as the result of the reorganization and reduction in 

force, and not because of Mr. Graham's Part 90 miner status. 

On the effective date of the reorganization, the underground 

mine was no longer in existence, the remaining work force was 

realigned in accordance with seniority, and Mr. Graham was 

placed from one surface job to another. Even" if he had not 

been a Part 90 miner, the result would have been the same, 

and his options were somewhat limited. He could have 

resigned, taken optional retirement, or sought employment in 

other positions within Lady Jane's corporate structure. He 

obviously opted to stay on as an employee of Lady Jane, and 

had no choice as to the position for which he was selected to 

be retained in the realigned work force. 

! conclude and find that Mr. Graham's placement in the 

surface greaser 9 s position was the result of a leqitimate 

business need of Lady Jane, and that it was the result of a 

reduction in force and reorqanization, rather than a transfer 

resulting from dust exposure. For the same reasons discussed 

with respect to my findings and conclusions aoncernin9 my interpretation and application of section 101Ca>C7> and 

30 C.F.R. § 90.103(b), in Mr. MoCraoken's case, I conclude 

and find that Lady Jane was under no obligation to maintain 

Mr. Graham 1 s pay status as a greaser. Accordingly, I cannot 

conclude that MSHA has established a violation of section 

90.103(b) 1 and section 104(a) Citation No. 2403627, 

February S, 1985, and section 104(b) Order No. 2403644, 

178 
February 21, 1985, ARE VACATED. MSHA's civil penalty proposal for the citation IS REJECTED AND DISMISSED. 

Lady Jane's contentions that the citations and orders 

should be dismissed because it no longer operates ari underground coal mine or a surf ace work area of an underground 

·coal mine, and therefore 30 C.F.R. § 90.103Cb) is no longer 

applicable, ARE REJECTED. I conclude that at the time of the 

operative violations in these proceedings, Lady Jane was subject to the provisions of section 90.103Cb). When the underground mine was in operation, the surface cleaning plant 

processed coal from that mine as well as neighboring mines, 

and it was shipped to the Sunbury power plant of Pennsylvania 

Power & Light Company. When the underground mine was closed, 

the surface preparation plant continued to process coal from 

various local mine operators, and it continued to be shipped 

to the Sunbury plant. Thus, I conclude that the area of the 

new surf ace preparation plant was a surface work area of an 

underground mine at the time Mr. McCracken and Mr. Graham 

were designated and placed in their last work positions. I 

also conclude that the definition of "surface work area of an 

underground coal mine" found in 30 C.F.R. § 90.2, is broad 

enough to cover Lady Jane's surface preparation facility. 

ORDER 

On the basis of the foregoing findings and conclusions, 

Lady Jane's contests ARE GRANTED, and the citations and 

orders in question ARE VACATED. MSHA's civil penalty proposals ARE REJECTED, and the civil penalty proceeding IS 

DISMISSED. 

Distribution: 

/ §Uge f,/",fA!,i:'. ,J<. Kou 

« flrrt"~ / ~~ Administrative Law Judge 

Joseph T. Kosek, Jr., Esq., Lady Jane Collieries, P.O. 

Box 367, Ebensburg, PA 15931 {Certified Mail) 

Covette Rooney, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

/fb 

17 9 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 ·. ·7 ,.H .. I ! ;/ 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), 

Petitioner . 

. 

. 

. Docket No. WEST 84-71-M 

A.C. 04-00157-05507 

v. 

: Cushenbury Cement Plant 

KAISER CEMENT CORPORATION, 

Respondent 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

Upon Petitioner's motion for approval of a proposed settlement, and the same appearing proper and in the full amount of the . initial assessment as to 3 of the 4 violations involved, the 

settlement is approved. 

The terms of the settlement are as follows: 

Citation 

2245606 

2245607 

2245608 

2245609 

Date 

11/17/83 

11/17/83 

11/17/83 

11/17/83 

Health and Safety 

Standard Violated 

56.6-113 

56.6-117 

56.6-161 

56.5-112 

Total 

Original 

Proposed 

Penalty 

$2;000 

2,000 

1,000 

100 

$5,100 

Settlement 

Amount 

$2,000 

2,000 

650 

100 

$4,750 

In the premises, approval of the settlement is warranted. 

The documentary record in this matter reflects that while 

the violations were promptly abated by Respondent, they resulted 

from a high degree of negligence and were of a high degree of 

gravity since an injury resulted from the improper blasting procedures practiced. 

The reduction in the penalty originally proposed by the 

Secretary with respect to Citation No. 2245608 appears justified 

since it is but one of the four infractions charged arising from 

the same incident and since a question of proof exists as to such 

violation as charged. 

In the 24 months preceding the violation, no alleged 

violations were assessed against the Respondent at the facility 

involved. 

180 
The size of the Respondent, a large mine operator, ia approximately 2,025,808 man-hours per year. The size of the 

subject facility is approximately 550,000 man-hours per year. 

The ability of the Respondent to continue in business will 

not be impaired by the payment of the settlement amounts 

specified. 

In the premises, approval of the settlement is warranted. 

Respondent, if it has not previously done so, is ordered to 

pay to the Secretary of Labor within 30 days from the date hereof 

the sum of $4,750.00. 

Distribution: 

./ / p // ,,.,, /j/tv~ t/. ~C-L /'LMic hael A. Lasher, Jr. 

Administrative Law Judge 

Lyle R. Nishimi, Esq., and Rochelle Ramsey, Esq., Office of the 

Solicitor, U. S. Department of Labor, 3247 Federal Building, 300 

N. Los Angeles Street, Los Angeles, CA 90012 (Certified Mail) 

James P. Hargarten, Esq., Thelen, Marrin, Johnson & Bridges, Two 

Embarcadero Center, San Francisco, CA 94111 (Certified Mail) 

/blc 

181 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

VOLUNTEER COAL CORPORATION, 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 85-242 

A.C. No. 46-06805-03509 

: No. 1 Mine . . 

DECISION APPROVING SETTLEMENT 

Appearances: Jonathan M. Kronheim, Esq., Office of the 

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

Virginia, for Petitioner1 

William Stover, Esq., M.A.E. Services Inc., 

Beckley, West Virginia, for Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment 

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

Safety and Health Act of 1977 Cthe Act). Petitioner has 

filed a motion to approve a settlement agreement and to 

dismiss the case. Respondent has agreed to pay the proposed 

penalty of $800 in full. I have considered the representations and documentation submitted in this case, and I conclude that the proffered settlement is appropriate under the 

criteria set forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is 

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

$800 within 30 days of this order. 

; i\ 

G~ry~e~~ ~ \ 

A<;lminis_trative ~aw Judge \j ~ 

Distribution: 

·'\. i 

Jonathan M. Kronheim, Esq., Officelof the S~licitor, U.S. 

Department of Labor, 4015 Wilson Bbulevard, 'jRoom 127A, 

Arlington, VA 22003 (Certified Mail> 

William Stover, Esq., M.A.E. services Inc., 41 Eagles Road, 

Beckley, WV 25801 (Certified Mail) 

Mark M. Neil, Esq., 1800 Parker Road, Beckley, WV 25801 

(Certified Mail) 

182 

rbg 
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, . • CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH • • 

ADMINISTRATION (MSHA), . • Docket No. LAKE 84-98 

Petitioner A • c. No. 33-00968-03568 

• • 

v. Nelms No. 2 Mine . • 

YOUGHIOGHENY & OHIO COAL . . co., 

Respondent . . 

. . 

ADDENDUM TO DISCIPLINARY REFERENCE 

Appended to the trial judge's decision of January 22, 

1986, in the captioned matter was a Disciplinary (Rule 80) 

Reference on Robert c. Kota, counsel for the operator. In 

support of Specifications 2 through 6, the trial judge cited 

provisions of the Model Rules of Professional Conduct. These 

rules are reflective of the standards of professional conduct impos~d by Rule 11 of the Federal Rules of Civil Procedure as 

amended and promulgated in 1983.1 Three recent decisions 

by United States courts of Appeals show that amended Rule 11 

imposes a duty of competence and diligence that is to be 

judged by a standard of objectivity designed to deter the 

filing and prosecution of unfounded claims. 

Thus, in In Re TIC, Ltd., 769 F. 2d 441, 445 (7th Cir. 

1985), the Court held that "If a lawyer pursues a path that a 

reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively 

unreasonable and vexatious." The Court further held that 

lawyers who continue to litigate even initially plausible 

claims after it becomes clear they are unfounded violate 

Rule 11 Id. at 448-449. 

lRule l(b) of the Commission Rules of Practice provides that 

on any proc.edural question not otherwise covered by the rules 

"the Commission or its Judges shall be guided so far as 

practicable by any pertinent provision of the Federal Rules 

of Civil Procedure as appropriate." 

183 
In Eastway Construction Company, 762 F. 2d 243, 253-254 

(2d Cir. 1985), the Court admonished the bar as follows: 

No longer is it enough for an attorney to claim that he 

acted in good faith, or that he was personally unaware 

of the groundless nature of an argument or claim. For 

the language of the new Rule 11 explicitly and unambiguously imposes an affirmative duty on each attorney to 

conduct a reasonable inquiry into the viability of a 

pleading before it is signed. Simply put, subjective 

good faith no longer provides the safe harbor it once 

did. 

* * * 

In light of the express intent of the drafters of Rule 

11, and the clear policy concerns underlying its amendment, we hold that a showing of subjective bad faith is 

no longer required to trigger sanctions imposed by the 

rule. Rather sanctions shali be imposed against an 

attorney and/or his client when it appears that a 

pleading has been imposed for any improper purpose, or 

where, after reasonable inquiry, a competent attorney 

could not form a reasonable belief that the pleading is 

well grounded in fact and is warranted by existing law 

or a good faith argument for the extension, modification or reversal of existing law. 

Accord: Davis v. Veslan Enterprises, 765 F. 2d 494, 497, 

n. 4 (5th Cir. 1985). · · 

It is clear that the position taken by counsel for the 

operator in this proceeding was based on a legal theory that 

had been authoritatively rejected and sought remedies for 

which there was no precedent or statutory authority. 

The premises considered, th 

this addendum be made a part of 

this proceeding. 

it is ORDERED that 

of reference in 

eph B. Kennedy 

Administrative Law 

184 
Distribution: 

Patrick M. Zohn, Esq., Office of the Solicitor, u. s. 

Department of Labor, 1240 East Ninth Street, Cleveland, OH 

44199 (Certified Mail) 

Robert c. Kota, Esq., The Youghiogheny & Ohio Coal co., 

P. O. Box 1000, St. Clairsville, OH 43950 (Certified Mail) 

dcp 

185 
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 LA.BOR / 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

ADAMS STONE CORPORATION, 

Respondent 

Before: Judge Fauver 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-121-M 

A.C. No. 15-00056-05502 

Jenkins Mine & Mill 

This case is scheduled for hearing in Lexington, Kentucky, 

on April 7, 1986. 

Respondent has filed a statement that it will not attend 

the hearing. This statement is deemed to be a waiver of 

Respondent's hearing rights and a withdrawal of its contest 

of the Secretary's Proposal for Assessment of Civil Penalty. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The allegations in the Secretary's Order No. 2385598, 

January 16, 1985, and amended on January 20, 1985, are deemed 

to be true and are incorporated herein as Findings of Fact 

and Conclusions of Law. 

2. Considering the criteria of section llO(i) of the 

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

et seq., Respondent is ASSESSED a civil penalty of $180 for 

each of the four violations alleged in the attachments to 

the Secretary's Proposal for Civil Penalty. 

3o Respondent shall pay the above-assessed civil 

penalties in the total amount of $720 within 30 days of 

this Decision. 

Distribution: 

186 

lJ:u~~.;~ William Fauver 

Administrative Law Judge 
Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department 

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

37203 (Certified Mail) 

Mr. David Adams, Vice President, Adams Stone Corporation, P.O. 

Box 2320, Pikeville, KY 41501 (Certified Mail) 

kg 

-Q-U.S GOVERNMENT PRINTING OFFICE: I 9 8 6 - 4 9 l - 2 2 3 / 4 7 O 5 3 

187