APRIL 1994 

CCHoJISSIQN DECISIONS AND ORDERS 

L & J Energy Company, Inc. 

AMI Construction 

Thunder Basin Coal Company 

04-05-94 

04-06-94 

04-08-94 

04-11-94 

04-11-94 

04-11-94 

04-21-94 

04-21-94 

04-21-94 

04-22-94 

04-25- 94 

04-25-94 

Allan Goode employed by Consolidation Coal 

Jerry Ike Harless Towing, Inc. 

Dolese Brothers Company 

Spurlock Mining & Sarah Ashley Mining Co. 

Broken Hill Mining Company 

w. J. Bokus Industries, ;rnc. 

J . A. L. Coal Company, Inc. 

Consolidation Coal Company 

Jim Walter Resources, Inc. 

AI:MINISTRATIVE LAW JUDGE DECXSICJiS 

04-05-94 James Boyd for Local 1468, UMWA v. Trojan 

04-05-94 

04-05-94 

04-06-94 

04-07-94 

04-07-94 

04-07-94 

04-07-94 

04 - 12 - 94 

04-12-94 

04-12-94 

04-13-94 

04-13-94 

04-15-94 

04-15-94 

04-18-94 

04-18-94 

04-18-94 

04-20-94 

04-20-94 

04-22-94 

04-22-94 

04-25-94 

04-25-94 

04-25-94 

04-26-94 

04-28-94 

Mining Company 

Shannopin Mining Company 

Talon Resources, Inc., et al. 

Robert W·. Shel ton v. Nevada Gold Mining 

Morris Sand & Gravel 

Bryan ·Wimsatt v. Green Coal Company Inc. 

Dow Sand and Gravel 

Sec. Labor on behalf of Robert McCartney v. Bridger Coal Company 

R. B. Coal Company, Inc . 

L & J Energy Company, Inc. 

Doss Fork Coal Company, Inc. 

Larry Addair employed by JAMB Mining Inc. 

Energy West Mining Company 

Napoleon Sand and Gravel 

United States Steel Mining Co. 

Cedar Lake Sand & Gravel Co. 

Energy West Mining Company 

Jim Walter Resources, Inc. 

Keystone Coal Mining Corp. 

(Respirable Dust Sample) 

Island Creek Coal Company 

Sec. Labor on behalf of Michael Billings 

Alcoa, Aluminum Company of America 

John Cullen Rock Crushing & Gravel 

Lion Mining Company 

Sec. Labor on behalf of Thomas Allen 

and Alan Boe v. L. H. Sowles company 

Explo-Tech Incorporated 

BethEnergy Mines, Inc. 

W.S. Frey Company, Inc. 

AIHINISTRATIVE LAW JUDGE ORDERS 

03-07-94 Sec. Labor on behalf of Danny Shepherd 

v. Irishman Elkhorn Coal Company 

03-15-94 Madison Branch Management 

03-25-94 Thunder Basin Coal Company 

i 

v. 

PENN 

WEST 

WEST 

WEVA 

CENT 

CENT 

KE.NT 

KENT 

YORK 

WEVA 

WEVA 

SE 

93-15 

93-604-M 

94-238-R 

91-2096 

92-276-RM 

92-110-M 

92-380 

93-410 

92-106-M 

93-312 

92-922 

94- 306 

KENT 92-51-C 

PENN 92-385 

WEVA 93-16 

WEST 93-573-DM 

CENT 92-195-M 

KENT 93-735-D 

YORK 93-14-M 

WEST 94-72-D 

KENT 

PENN 

WEVA 

VA 

WEST 

CENT 

WEVA 

LAKE 

WEST 

SE 

PENN 

93 - 715 

93-15 

93-129 

93-87 

94-22-R 

93-46-M 

92-783 

93-64-M 

93-169 

93-56-R 

91-451-R 

Pg. 

Pg. 

Pg. 

Pg . 

Pg. 

Pg. 

Pg. 

Pg . 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg . 

Pg . 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

~g. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

667 

670 

671 

674 

683 

689 

697 

702 

704 

710 

713 

721 

725 

726 

727 

761 

770 

785 

786 

788 

789 

796 

797 

815 

816 

826 

829 

834 

835 

851 

Master No . 91-1 Pg . 

WEVA 91-1231 Pg . 

857 

907 

CENT 

WEST 

PENN 

WEST 

YORK 

PENN 

VA 

93-157-DM 

93-172-:M 

93-490 

94-71-D 

93-134-M 

93-247-R 

93-59-M 

KENT 94-396-D 

WEVA 93-218-R 

WEST 94-238-R 

Pg. 

Pg. 

Pg. 

Pg . 

Pg. 

Pg. 

Pg . 

908 

909 

921 

925 

931 

935 

975 

Pg . 1025 

Pg. 1027 

Pg. 1033 

APRIL 1994 

Review was granted in the following cases d.uring the month of AI;>ril : 

Secretary of Labor, MSHA v. Morton International, Inc., Morton Salt, Docket 

No. CENT 93-237-RM, etc. (Judge Melick, February 24, 1994). 

Secretary of Labor, MSHA v. L & J Energy Company, Inc., Docket No. PENN 93-15. 

(Judge Weisberger, February 24, 1994). 

Secretary of Labor, MSHA v. AMI Construction, Docket No. WEST 93-604-M. 

(Chief Judge Merlin, Default Decision of March 3, 1994 - unpublished). 

Thunder Basin Coal Company v. Secretary of Labor, MSHA, Docket No. 

WEST 94-238-R. (Judge Amchan, Order Denying Temporary Relief, March 25, 1994 

- published in this volume) 

Secretary of Labor, MSHA v. Broken Hill Mining Company, Docket No. KENT 93-

410, etc. (Judge Weisberger, March 17, 1994). 

Secretary of Labor, MSHA v. J.A.L. Coal Company, Inc., Docket No. WEVA 93-312. 

(Chief Judge Merlin, Default Decision of March 28, 1994 - unpublished) . 

secretary o'f Labor, MSHA v. Jim Walter Resources, Inc., Docket No. SE 94-306. 

(No previous ALJ decision) 

The following is a list of cases in which review was denied: 

Secretary of Labor, MSHA v. Huntington Piping Inc . , Docket No. WEVA 93-57 . 

(Judge Barbour, February 22, 1994) 

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No . 

SE 93-370-M. (Judge Hodgdon, February 25, 1994) . 

Secretary of Labor, MSHA v. Buck Creek Coal, Inc., Docket No. LAKE 93-215. 

(Judge Maurer, March 7, 19 94) . ·t 

ii 

\ 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

L&J ENERGY COMPANY, INC . 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 5: 1994 

Docket No. PENN 93- 15 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION 

DIRECTION FOR REVIEW 

Petitioner L&J Energy Company, Inc., (•L&J•) has filed a Petition for 

Discretionary Review and/or Motion for Remand for Correction of the Record 

and Reconsider~tion of Decision. 

\ 

L&J asserts that the decision of Administrative Law Judge Avram 

Weisberger, issued February 24, 1994, is contrary to law, and •contains legal 

conclusions which are erroneous, and findings of material facts which are not 

supported by substantial evidence, some of which are the result of a critical 

clerical error in the record which is recited in the decision.# 

In response, the Secretary moved for a remand to the judge, who •is in 

the best position to address and resolve the issues raised by L&J Energy.• 

Essentially L&J asserts that a particular stipulation of record does not 

reflect the agreement as to that stipulation reached by counsel and the judge 

in an off-the-record conference, in chambers. (TR 2-4, Aug. 24, 1993). There 

is no allegation, however, that the stipulation read by the judge was 

inaccurately transcribed. Therefore, L&J's assertion of clerical error is 

without support and its Motion for Correction of the Record is denied. See 

Fed. Rule Civ. Pro. 60(a). 

Although the alleged error is not clerical, given L&J's assertion that 

the stipulation does not reflect the parties' agreement and the Secretar y's 

motion to remand, in the interest of justice we gr a nt the Petition for 

Discretionary Revi ew. We remand t h is matter to the judge , who shall determine 

667 
whether the stipulation in. question is complete and correctly represents the 

agreement of the parties. Upon so doing, the judge may reconsider his 

decision, if that should be necessary. 

Arlene Holen, Chairman 

!Jistrihution 

Henry Chajet, Esq . 

Jackson & Kelly 

2401 Pennsylvania Ave., N.W . 

Suite 400 

Washington, D.C. 20037 

Laurance B. Seaman, Esq. 

Gates & S-=:aman 

P.O. Box 846 

Clearfield, PA 16830 

Linda Henry, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

7 

Richard V. Backley, 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

668 

c~ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION ~ \ . 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner, 

v. 

AMI CONSTRUCTION, 

Respondent. 

April 6, 1994 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 93-604-M 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq. (1988) ("Mine Act"). On March 3, 

1994, Chief Administrative Law Judge Paul Merlin issued an Order of Default to 

AMI Construction ("AMI") for failing to answer the proposal for assessment of 

civil penalty filed by the Secretary of Labor and the judge's January 4, 1994, 

Order to Show .cause. The judge assessed the civil penalty of $1700 proposed 

by the Secretary. For the reasons that follow, we vacate the default order 

and remand for further proceedings. 

on March 8, 1994, the Commission received a letter from AMI, addressed 

to Judge Merlin, stating that AMI objected to the proposed fine as excessive. 

AMI attached a letter, addressed to the Department of Labor's San Francisco 

regional office, in which AMI had stated more fully its objections. AMI 

further stated that it had heard nothing in over four months, until receiving 

the default order at its new address. 

The judge's jurisdiction in this matter terminated when hie decision was 

issued on March 3, 1994. Commission Procedural Rule 69(b), 29 C.F.R. 

S 2700.69(b) (1993). Under the Mine Act and the Commission's procedural 

rules, relief from a judge's decision may be sought by filing a petition for 

discretionary review within 30 days of its issuance. 30 u.s.c. S 823(d)(2); 

29 C.F.R. S 2700.70(a). We deem AMI's letter to be a timely filed Petition 

for Discretionary Review, which we grant. See, ~, Middle States Resources, 

Inc., 10 FMSHRC 1130 (September 1988). 

669 
On the basis of the present record, we are unable to evaluate the merits 

of AMI's position. In the interest of justice, we remand this matter to the 

judge, who shall determine whether default is warranted. See Hickory Coal 

Co., 12 FMSHRC 1201, 1202 (June 1990). 

For the reasons set forth above, we vacate the judge's default order and 

remand this matter for further proceedings. 

Distribution 

Les Warr 

AMI Construction 

P.O. Box 2030 

Winnemucca, NV 89446 

Susan Lewald, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

71 Stevenson St., Suite 1110 

San Francisco, CA 94105 

A~oi.4rrman 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington,'D.C. 20006 

670 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

THUNDER BASIN COAL COMPANY 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 8, 1994 

Docket Nos. WEST 94-238-R 

WEST 94-239-R 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION (MSHA) 

On March 28, 1994, Thunder Basin· Coal Company ('Thunder Basin') filed a 

Motion for Expedited Consideration and a Petition for Discretionary Review of 

Administrative Law Judge Arthur J. Amchan's Order Denying Temporary Relief, 

issued March 25, 1994. The Secretary of Labor informed the Commission by 

letter dated March 29, 1994, that he did not object to Thunder Basin's 

petition for rev~ew, but objected to its request for a stay contained therein. 

We grant the petition and affirm, in result, the judge's denial of 

temporary relief. 

The judge based his decision on two grounds: first, on his conclusion 

that the Commission does not have authority under section 105(b)(2) of the 

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

815(b)(2)(1988), to grant applications for temporary relief from section 

104(b) orders designated as •no area affected.• Dec. at 3-5. The judge 

erred. The Mine Act places no limitation on the applicability of section 

105(b)(2) except that *[n)o temporary relief shall be granted in the case of a 

citation issued under subsection (a) or (f) of section 104.• Thunder Basin's 

challenge to the order is separate and distinct from any challenge to the 

validity of the underlying citation. 1 Thunder Basin asserts that the order 

was issued because the time given for abatement of the citation was 

unreasonable (fifteen minutes to post the designation of the miners' 

representative) and because MSHA unreasonably refused to extend the abatement 

time. 

Section 105(b)(2) provides that the Commission may, in its discretion, 

grant temporary relief from an order issued under section 104 if a hearing has 

been held, the requested relief will not adversely affect the health and 

safety of miners, and the applicant shows that there is •substantial 

likelihood• that the findings of the Commission will be favorable to him. 30 

u.s.c. § 815(b)(2). 

~ Clinchfield Coal Co., 11 FMSHRC 2120, 2128 {November 1989). 

671 
We agree with the judge's second conclusion, that Thunder Basin has 

failed to qualify for temporary relief because it has not demonstrated a 

substantial likelihood that the Commission's findings will be favorable to it. 

Dec. at 5-6. Thunder Basin has not shown that the Commission is likely to 

determine that the time allowed for abatement of the violation was 

unreasonable or that it was unreasonable not to extend that time. 

For the foregoing reasons we affirm, in result, the j udge ' s decision to 

deny Thunder Basin's application for temporary relief. 2 

Arlene Holen, Chairman A / / 

./.:/ - ./ /J /,. <, < / /l , . -·, ~ /.~ / · . ,,.. L ,. .. ~. // // / .Y..._,-:...-:, · :,. ~r..---- ·.:;/ / . l o::- -{/~~ 

Richard V. Backley, Commissioner ;};» 

<le.~.~;..i~ 

2 In light of our disposition, we need not address Thunder Basin ' s 

Motion for Expedited consideration. 

672 
Distribution 

Timothy M. Biddle, Esq . 

Thomas C. Means, Esq . 

Crowell & M.:.ring 

1001 Pennsylvania Ave., N.W. 

Washington , D.C. 20004 

Thomas F. Linn , Esq. 

Atlantic Richfield Company 

555 Seventeenth St. , 20th Floor 

Denver, CO 80202 

Colleen Geraghty, Esq . 

Office of the Solicitor 

U. S. Department of Labor 

4015 Wilson Blvd., 4th Fl. 

Arlington, VA 22203 

Margaret A. Miller, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1999 Broadway~ Suite 1600 

Denver, CO 80202 

Mr. Ray Mcintosh 

Representative of Miners 

P. O. Box 414 

Wright, WY 82723 

Mr. Everett Kraft 

Representative of Miners 

Box 127 

Upton, WY 82730 

673 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 11, 1994 

SECRETARY OF I.ABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEVA 91-2096 

ALLAN GOODE, employed by 

CONSOLIDATION COAL COMPANY 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners 1 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arising under the Federal Mine Safety and 

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

presents the issue of whether Allan Goode "knowingly authorized, ordered or 

carried out" a violation of the roof control plan of his employer, 

Consolidation Coal Company ("Consol") . Following an evidentiary hearing, 

Administrative Law Judge William Fauver determined that Goode had knowingly 

violated the roof control plan within the meaning of section llO(c) of the 

Mine Act. 2 14 FMSHRC 2106 (December 1992). For the reasons that follow, we 

reverse the judge's decision. 

1 Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we 

have designated ourselves as a panel of three members to exercise the powers 

of the Commission. 

2 Sectidn llO(c) provides, in part: 

Whenever a corporate operator violates a 

mandatory health or safety standard ... , any director, 

officer, or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation, 

... shall be subject to the same civil penalties, 

fines, and imprisonment that may be imposed upon a 

person under subsections (a) and (d) of this section. 

30 U.S.C. § 820(c). Section llO(c) was carried over without significant 

change from section 109(c) of the Federal Coal Mine Health and Safety Act of 

1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act"). 

674 
I. 

Factual and Procedural Background 

When the alleged violation occurred, Goode was a section foreman at 

Consol's Ireland Mine in Moundsville, West Virginia. On the midnight shift of 

March 8-9, 1990, Goode's crew was building an overcast. The crew consisted of 

George Holmes, the continuous miner operator; Donald Conner, the left roof 

bolter; Charles Minor, the right roof bolter; and Donald "Page• 'Whorton, the 

loading machine operator. They had cut a portion of the roof higher to make 

room for the overcast and were installing permanent roof support. The crew 

was using a Jeffrey Continuous Miner equipped with an automated temporary roof 

support ("ATRS") system. Under the roof control plan, the crew was required 

to temporarily support the roof with the ATRS system during the roof bolting 

process. 3 Permanent roof support was installed using the roof bolting 

component built into the continuous miner. 

The continuous miner was equipped with four ATRS jacks, two near the 

front and two near the back. When activated, these jacks press against and 

temporarily support the roof so that the crew can bolt the roof with the 

augers on the continuous miner. The miner is also equipped with two plank 

jacks, which are used to press planks, wire mesh and cribbing against the 

overcast roof so that roof bolts can be installed through the planks. The 

judge described the process used to build an overcast as follows: 

Permanent roof support in the overcast required 

double planks with wire mesh and, if necessary, 

cribbing boards to fit irregular places in the roof. 

To build an overcast, the continuous miner cuts down 

existing roof support and cuts into the roof to raise 

the height for the overcast. The miner is then backed 

up to a supported roof area, where a double plank, a 

section of wire mesh, and if necessary cribbing boards 

are stacked on the plank jacks. The miner is then 

trammed forward and the ATRS jacks are raised firmly 

against the roof. After that is done, the roof 

bolters raise the plank jacks, drill the roof holes 

and install roof bolts pinning the double plank and 

materials to the roof. The ATRS is then lowered and 

the cycle is repeated. 

14 FMSHRC at 2107. 

On the night in question, Goode's crew was installing a set of planks 

when a small section of the roof fell, knocking down the mesh, cribbing boards 

and a plank. Goode arrived in the area while the miners were trying to free 

the wire mesh from the material that had fallen. Conner testified that Goode 

3 The mine's roof control plan provides, in part, that "operators of 

integral roof drills will not advance inby the last permanent support until 

the ATRS system is placed firmly against the roof." Ex. G-5. 

675 
became "a little bit upset." Tr. 126. Minor testified that Goode 

"scream[ed]" at the crew and stated that "one man could do this job." Tr. 91 . 

After the fallen material had been removed from the mesh, Goode climbed on top 

of the miner to position the planks, cribbing and mesh on the plank jacks. 

Whorton testified that this procedure was not unusual when installing planks 

and wire mesh. Tr. 171. -AB Goode was stacking this material on the plank 

jacks, some of it fell and hit Minor in the head. Tr. 80, 172. Minor then 

told Goode that "this was unsafe as hell.a Tr. 113, 222. Minor testified 

that Goode replied that 8 so is walking down the street, but you've got to do 

it. 8 lsL.. Goode testified that he became •a little disturbed" and he does not 

dispute that he had an argument with Minor. Tr. 222-23. 

After Goode repositioned the planks and cribbing on the plank jacks, the 

miner was trammed forward and the ATRS jacks were raised. The crew then 

raised the plank jacks to press the mesh, cribbing and planks against the 

roof. Next, the crew raised the roof bolting augers and Goode made sure that 

the materials were positioned correctly so that the crew could drill through 

the planks and install the bolts. AB soon as the crew started to drill, Goode 

left the area. 

Whorton testified that, when the crew raised the ATRS jacks, as 

described above, the jacks on the left side of the miner did not press against 

the roof. Tr. 172-73. Because the roof fall had created.a small cavity along 

the left side of the miner, two ATRS jacks were about 12 to 18 inches from the 

roof. Tr. 197. He. stated that he told Conner that the ATRS jacks were not 

pressurized against\ the roof, but that he did not hear Conner's response 

because of the loud noise . He also testified that he saw Conner speak to 

Goode shortly thereafter but that he could not hear their conversation. 

Minor testified that he had observed that the left rear jack was not 

pressurized against the roof. Tr. 94-95 . He stated that he had not told 

Goode because he thought that Goode had seen it from his position on top of 

the miner. Tr·: 87. The crew installed roof bolts through the planks despite 

the fact that the ATRS system was not fully pressurized. In a written 

statement made to the Department of Labor's Mine Safety and Health 

Administration ("MSHA") on December 8, 1990, Minor said that, under normal 

circumstances, he would not install roof bolts if he observed that the ATRS 

jacks were not in place, but that, "because of Goode's actions and the way he 

was screaming I was intimidated and afraid he was going [to] begin screaming 

again and lose control, so I did install the roof bolt. " Ex. G-9 p . 3. 

Conner testified that "maybe one 8 of the jacks did not press against the 

roof. Tr. 155. In his statement to MSHA dated December 14, 1990, he said 

that, if he had noticed that the jacks were not touching the roof; he would 

have told Goode. Ex. G-13 p . 4 . He testified that he did not know whether 

Goode saw that the jacks were not fully supporting the roof because the planks 

and cribbing may have blocked his view of the jacks. Tr. 131, 143. Conner 

testified that Goode should have been able to determine whether the jacks were 

in contact with the roof by listening for the wire mesh to crunch against the 

roof when the jacks were fully pressurized. Tr. 143. Conner also testified 

that, shortly after he arrived, he asked Goode if there were any extensions 

676 
for the ATRS jacks on the section and that Goode replied that the crew would 

have to use what was available. Tr. 130. 

Goode testified that he did not know that some of the ATRS jacks had not 

reached the roof. Tr. 223 , 227 . He testified that the planks and cribbing 

prevented him from seeing whether the jacks were supporting the roof. Tr. 

227-28. He stated that, if anyone had told him that all of the jacks were not 

pressed against the roof, corrective measures would have been taken. Tr. 224-

25, 227. He testified that built-in extensions on the ATRS jacks could have 

been raised or cribbing could have been used to support the roof. · Tr. 223-25. 

After receipt of a request for an inspection under section 103(g) of the 

Act, MSHA Inspector Lyle Tipton investigated this incident. 4 Following his 

investigation, he issued a section _104(d)(2) order of withdrawal charging 

Consol with a violation of its roof control plan. 5 Consol paid a civil 

penalty of $1,300, without contest. The Secretary also proposed a civil 

penalty of $1,000 against Goode, which is the subject of this proceeding. 

Consol sought to discharge Minor and Conner for their violation of the 

roof control plan. There is no dispute that they knew that installing roof 

4 Section 103(g) provides, in pertinent part: 

\Whenever a representative of the miners . . . has 

reason~ble grounds to beli~ve that a violation of this 

[Act] or a mandatory health or safety standard exists, 

... such ... representative shall have a right to 

obtain an immediate inspection by giving notice to the 

Secretary or his authorized representative of such 

violation .. .. 

30 u.s.c. § 813(g). 

5 

part: 

The condition or practice section of the order states, in pertinent 

Based on the conclusion of a [103(g)] 

investigation, it has been determined that the 

approved roof control plan, (page 21 C, line 1, Basic 

ATRS cycle) was not being complied with on March 9, 

1990, where the continuous mining machine was cutting 

an overcast utilizing integral roof bolting machines 

with an approved ATRS system which was not in contact 

with the mine roof. Interviews with the crew members 

and the Foreman indicated that the ATRS jacks were 

from 12 to 18 inches from the mine roof during the 

installation of 2 to 5 roof planks where the foreman 

assisted the crew in the bolting process. 

Ex. G-4. The record in this case demonstrates, and the Secretary does not 

dispute, that only one set of planks was installed in violation of the roof 

control plan rather than two to five as alleged in the order. 

677 
bolts when the ATRS jacks were not supporting the roof violated the roof 

control plan. Minor and Conner invoked the grievance process under the mine's 

labor agreement and the matter was arbitrated. The arbitrator determined that 

Minor and Conner had violated the roof control plan, but he concluded that 

"compelling extenuating circumstances• mitigated against discharge. Ex. G-12 

p. 14. Instead, he ordered the miners suspended, for about two weeks. He 

reached this conclusion after determining that the miners' failure to follow 

the roof control plan was caused in part by Goode's angry demeanor. 

The judge found Goode liable under section llO(c) because he had reason 

to know that at least some of the jacks would protrude into the cavity created 

by the roof fall and might not press against the roof. 14 FMSHRC at 2111. 

The judge assessed a civil penalty of $1,000. 

II. 

Disposition 

Goode argues that the judge erred in adopting the labor arbitrator's 

holding that the crew's failure to notify Goode that the ATRS jacks were not 

supporting the roof was caused by Goode's demeanor. He maintains that the 

evidence shows that he did not have actual knowledge of or reason to know of 

the violation. Goode contends that the judge improperly concluded that Goode 

had reason to know of the violation as a result of his allegedly intimidating 

demeanor. He argues that the judge's decision ignores the fact that it was 

the crew's responsibility to ensure that the ATRS jacks were pressurized 

against the roof. Thus, Goode contends that the evidence presented by the 

Secretary is too tenuous to support a finding that he knowingly authorized, 

ordered or carried out the violation. 

The Secretary argues that substantial evidence supports the judge's 

finding that Goode had reason to know of the violation because: (1) his unsafe 

conduct intimidated the" crew, (2) he knew that the cavity caused by the roof 

fall created a reasonable likelihood that the ATRS jacks would not reach the 

roof, and (3) he knew that the wire mesh on the left side of the miner did not 

audibly crunch against the roof. The Secretary maintains that Goode, having 

voluntarily taken over control of the roof bolting crew, should have made it 

his business to ascertain for himself whether the ATRS jacks were supporting 

the roof. The Secretary argues that, by intimidating the crew into haste and 

silence, Goode created a safety risk that the roof bolters would install the 

roof bolts without the ATRS jacks supporting the roof. 

The judge did not base his conclusion that Goode was liable under 

section llO(c) on a finding that Goode knew that the ATRS jacks were not 

supporting the roof. The judge found that the record did not make clear 

whether, from his crouched position on top of the miner, Goode could have seen 

that the ATRS jacks did not reach the roof. 14 FMSHRC at 2110-11. Further, 

678 
the judge found no evidence that anyone on Goode' s crew told him that some of 

the jacks were not in place. Id. at 2110. 6 

Instead, the judge concluded that Goode knowingly authorized, ordered or 

carried out the violation of the roof control plan because he had reason to 

know the plan was being violated. 14 FMSHR.C at 2111. He found that Goode had 

a reasonable duty to listen for the wire mesh to crunch against the roof when 

the ATRS jacks were pressurized. lfL_ He also found that "Goode's unsafe 

conduct, combined with a reasonable likelihood that the ATRS jacks in the 

cavity would not reach the roof and the fact that the wire mesh on the left 

side did not audibly 'crunch' against the roof, gave Goode reason to know that 

the roof control plan was being violated." Id. (footnote omitted). In this 

regard, the judge found that: · 

Ordinarily, [Goode] could expect the roof bolters to 

observe the ATRS jacks and to be sure that they were 

pressed against the roof before they advanced to raise 

and bolt the plank. However, by his demeanor in (1) 

screaming at employees and displaying intense anger at 

the crew's delay in installing the second double 

plank, and (2) angrily climbing up on the continuous 

miner to steady the plank while waiting for the 

bolters to raise the plank, drill the roof and bolt 

the plank, Goode created a safety risk that his crew 

woul~ be intimidated and not tell him if the ATRS 

[jacks] did not reach the roof. 

14 FMSHRC at 2111. Thus, the judge concluded that Goode had reason to know 

that the roof control plan was being violated. 

The judge's conclusion that Goode knowingly authorized, ordered or 

carried out a violation of the roof control plan as a result of his 

intimidating demeanor is based on two key findings. These findings are not 

supported by substantial evidence. The judge found that "Goode was known for 

having a short temper" and that "Minor and other members of the crew ... had 

come to recognize Goode's displays of temper as permitting no response or 

explanation from a subordinate, evoking only silence and motivation to 'keep 

out of his way.'" 14 FMSHRC at 2108. There is no record ·evidence to support 

the judge's finding that the crew had previously been subjected to 

intimidating displays of temper or that they had previously been afraid to 

respond to him. 

6 Although Whorton testified that he told Conner that the left ATRS 

jacks did not reach the roof and that Conner immediately spoke to Goode, 

Conner did not testify that he had a conversation with Whorton or that he told 

Goode about the left ATRS jacks. Indeed, in his statement to MSHA, Conner 

said that if he had noticed that the ATRS jacks were not reaching the mine 

roof, he would have told Goode and would not have installed the roof bolts. 

Ex. G-13 p. 4. 

679 
The judge relied on the decision in the labor arbitration in making 

these findings. The arbitrator determined that the grievants "committed a 

violation of the Ireland Mine Roof Control Plan and the Company Conduct 

Rules." Ex. G-12 p. 3. He found, however, that Goode spoke to the crew "in 

the angry tone and manner which all stated they had come to recognize as 

permitting no response or explanation, evoking only silence and 'keeping out 

of his way' as much as possible." Ex. G-12 p. 11. The arbitrator concluded 

that "a part, at least, of the responsibility for the events leading to the 

discipline of the Grievants lies with the actions and demeanor of Goode at the 

time." Ex. G-12 p. 15 . As consequence, the arbitrator assessed a 

disciplinary suspension in lieu of discharge. Id. 

The Commission has adopted the approach to arbitration findings 

developed by the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36 

(1974). In adopting this approach, the Commission held that "according weight 

to the findings of arbitrators may aid the Commission's judges in finding 

facts." Secretar.y o(b/o Pasula y. Consolidation Coal Co., 2 FMSHRC 2786, 2795 

(October 1980). The Commission stated: 

As Gardner-Denver indicates, there are several 

factors that must be considered in determining the 

weight to be accorded to arbitral findings: the 

congruence of the statutory and contractual 

provisions; the degree of procedural fairness in the 

arbitral ~orum; the adequacy of the record; and the 

special competence of the particular arbitrator. 

Arbitral findings may be entitled to great weight if 

the arbitrator gave full consideration to the 

employee's statutory rights; the issue before the 

judge is solely one of fact; the issue was 

specifically addressed by the parties when the case 

was before the arbitrator; and the issue was decided 

by the arbitrato'r on the basis of an adequate record. 

The judge did not evaluate the Pasula factors in adopting the 

arbitrator's findings. The issue before the arbitrator was whether Minor and 

Conner should be discharged for violating the roof control plan. He 

considered Goode's actions only because he determined that his conduct 

"suppl[ies] mitigating circumstances which provides some explanation for 

Grievants' failures, albeit not excuse." Ex. G-12 p. 15 (emphasis in 

original). Thus, the arbitrator did not give any consideration to Goode's 

procedural or statutory rights. Although Goode testified as a rebuttal 

witness on behalf of Consol at the arbitration hearing, Goode was not a party 

and did not have cross-examination rights. Moreover. a number of individuals, 

including the continuous miner operator on the crew and several safety 

committeemen and other miners who testified on behalf of the grievants before 

the arbitrator did not testify at the Commission hearing. Thus, Goode bad no 

opportunity to cross-examine these witnesses. After consideration of the 

factors set forth in Pasula, we conclude that the judge erred in according 
weight to the arbitration findings. Cf. Dayid Hollis v. Consolidation Coal 

Co., 6 FMSHR.C 21, 26-27 (January 1984), 

The Secretary also argues that Goode was aware of the cavity and knew 

that, if the distance between the floor and the roof were great enough, the 

ATRS jacks would not reach the roof. Whorton, however, testified that, 

because the floor of the entry had been cut on a previous shift, the distance 

was greater than normally encountered when cutting overcasts. Tr. 194. He 

stated that the crew "had never actually been in a situation quite like that 

before" and that he would have thought that the jacks would reach the roof. 

Tr. 195. Indeed, Minor and Conner testified that they had never bolted 

without the ATRS jacks fully in place and did not know of any instances when 

anyone else had. Tr. 115-16, 154. Thus, the fact that a cavity was present 

in the roof does not establish that the ATRS jacks were unlikely to reach the 

roof or that Goode knowingly authorized, ordered or carried out a violation of 

the roof control plan. The Commission has held that supervisors are not 

permitted to "close their eyes to violations, and then assert lack of 

responsibility for those violations because of self-induced ignorance." 

Secretary v. Roy Glenn, 6 FMSHR.C 1583, 1587 (July 1984). Knowledge that 

miners might perform a task in an unsafe manner, however, is "too contingent 

and hypothetical to be legally sufficient." Id. at 1588. 

The Secretary also seeks to prove Goode's liability under section llO(c) 

based on his know\edge that the wire mesh on the left side of the mining 

machine did not au4ibly crunch against the roof. The judge determined that 

"Goode had a reasonable duty to listen for the crunch." 14 FMSHR.C at 2111. 

Conner testified, however, that noise from the mining machine makes it 

difficult to hear, so that he must look up at the mesh to ensure that it is 

being pressed against the roof. Tr. 144-45. In addition, the four jacks may 

press against the roof at the same time so that distinct sounds may not be 

audible. Thus, Goode's failure to notice that the left jacks did not crunch 

against the roof cannot be the basis of section llO(c) liability. 

681 
III. 

Conclusion 

For the foregoing reasons, the judge's decision is reversed, and the 

section llO(c) civil penalty proceeding against Goode is dismissed. 

Distribution 

David J. Hardy, Esq. 

Jackson & Kelly 

P.O. Box 553 

Charleston, WV 25322 

for Allan Goode 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Holen,tChairlllan 

~~/ Richard V. Backley, Commissioner 

Administrative La~ Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

682 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

April 11, 1994 

JERRY IKE HARLESS TOWING, INC. 

and HARLESS, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. CENT 92-276-RM 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners1 

DECISION 

BY THE COMMISSION: 

'\ 

This contest proceeding arising under the Federal Mine Safety and Health 

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

issue of whether the sand-dredging operation of Jerry Ike Harless Towing, Inc. 

("Harless Towing") is subject to the jurisdiction of the Mine Act. Following 

an evidentiary hearing, Administrative Law Judge Jerold Feldman determined 

that Harless Towing's dredging operation is subject to Mine Act jurisdiction. 

15 FMSHRC 1052 (June 1993). For the reasons that follow, we affirm the 

judge's decision. 

I. 

Factual and Procedural Background 

On May 12, 1992, Inspectors John Ramirez and Steve Montgomery of the 

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

the main office of Jerry Ike Harless Towing, Inc. ("Harless Towing") and 

Harless Inc., in Lake Charles, Louisiana. They spoke with Mr. Harless, the 

chief executive officer of Harless, Inc. and Harless Towing, about the Mine 

Act's requirement that all mines file a legal identity report with MSHA. 2 

1 Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we 

have designated ourselves as a panel of three members to exercise the powers 

of the Commission. 

2 Section 109(d) of the Mine Act provides, in pertinent part: 

Each operator of a coal or other mine subject to 

this Act shall file with the Secretary the name and 

683 
Mr. Harless stated that Harless Towing did not operate a mine and questioned 

MSHA's jurisdiction. Nevertheless, Mr. Harless permitted the MSHA inspectors 

to inspect Harless Towing's dredging operation on the Calcasieu River. They 

found no violations of MSHA's safety and health standards. Mr. Harless 

refused to complete the MSHA legal identity form and on May 19, Inspector 

Ramirez issued a citation, 3 alleging a violation of 30 C.F.R. § 56.1000. 4 

Harless Towing employs from four to eight workers and dredges sand from 

a designated section of the Calcasieu River, a navigable waterway, pursuant to 

an Army Corps of Engineers permit. It has been extracting sand from the river 

bed four to six months a year for about 30 years, apparently without 

inspection by MSHA. 

Harless Towing dredges the sand using a vessel containing dredging 

machinery, with several barges in tow. The dredge hydraulically suctions 

sand, sediment and water from the river bottom through a piping system that 

directs the material onto a screen barge. On that barge, the material is 

pumped through a % inch mesh screen that removes debris. From the screen 

barge, the sand and water are pumped through a flume to another barge, the 

heart barge, where the sand and water are separated. 

The heart barge is towed to one of two off-loading terminals, owned by 

Harless, Inc. The sand is removed by Harless, Inc. and stockpiled. Harless, 

Inc. sells the sand to customers, including large industrial operations. The 

river sand is used 'frimarily for fill under foundations and for various 

address of such mine and the name and address of the 

person who controls or operates the ~ine. 

30 u.s.c. § 819(d). 

3 The citation was issued to Harless, Inc. rather than Harless Towing 

because the MSHA inspector was not aware of the two corporate entities. 15 

FMSHRC at 1052 n.l. At the hearing, the judge ruled that Harless Towing was 

subject to the jurisdiction of the Mine Act but that Harless, Inc. was not. 

Id. at 1058-59 & n.8. No objection was raised at the hearing and this issue 

is not before the Commission on review. 

4 Section 56.1000 states, in pertinent part: 

The owner, operator, or person in charge of any 

metal and nonmetal mine shall notify the nearest Mine · 

Safety and Health Administration and Metal and 

Nonmetal Mine Safety and Health Subdistrict Off ice 

before starting operations, of the approximate or 

actual date mine operation will commence. The 

notification shall include the mine name, location, 

the company name, mailing address, person in charge, 

and whether the operations will be continuous or 

intermittent. 

684 
industrial applications. Harless, Inc. also sells limestone aggregate, 

gravel, and other types of sand, all of which it purchases from other 

suppliers. 

The judge determined that Harless Towing is engaged in .commerce as tha't 

term is used in section 4 of the Mine Act. 5 15 FMSHRC at 1056. He concluded 

that, by dredging in the navigable waters of the United States under permit of 

the U.S. Corps of Army Engineers, Harless Towing engaged in commerce. IQ.... In 

addition, he found that, when the sand produced by Harless Towing is sold, 

commerce is affected. IQ.... 

Relying on Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3d 

Cir. 1979), cert. denied, 444 U.S. 1015 (1980), 6 the judge also concluded 

that Harless Towing's extraction and preparation of sand are included within 

the Mine Act's definition of "coal or other mine" in section 3(h)(l). 15 

FMSHRC at 1058. He rejected Harless Towing's argument that sand is not a 

mineral as well as their alternative argument that the sand is extracted in 

liquid form without the use of underground workers. .IQ.._ The judge dismissed 

Harless Towing's contest of the citation and the Commission granted its 

petition for discretionary review. 

II. 

Disposition 

A. Effect on Coinmerce 

Harless Towing argues that its facilities are not subject to Mine Act 

jurisdiction because it is not engaged in commerce, as that term is defined in 

section 3(b) of the Act. 7 It maintains that all the sand it produces is sold 

5 Section 4 of the Mine Act states: 

Each coal or other mine, the products of which 

enter commerce, or the operations or products of which 

affect commerce, and each operator of such mine, and 

every miner in such mine shall be subject to the 

provisions of this Act. 

30 u.s.c. § 803. 

6 In Stoudt's Ferry, the court held that a business that processes and 

sells sand and gravel from material that has previously been dredged from a 

river operates a mine under the Mine Act. 

7 Section 3(b) of the Mine Act states: 

"commerce" means trade, traffic, commerce, 

transportation, or communication among the several 

States;· ·or between a place in a State and any place 

outside thereof, or within the District of Columbia or 

685 
in Louisiana and doe·s not affect interstate commerce. The Secretary contends 

that, because Harless Towing operates a sand-dredging operation on a navigable 

waterway, he has jurisdiction over its operation under section 4 of the Mine 

Act. The Secretary further maintains that it has long been established that 

Congress has authority to regulate dredging activities in beds of navigable 

waters. 

The Commerce Clause of the Constitution has been broadly construed for 

over 50 years. Commercial activity that is purely intrastate in character may 

be regulated by Congress under the Commerce Clause, where the activity, 

combined with like conduct by others similarly situated, affects commerce 

among the states. Fry v. United States, 421 U.S. 542, 547 (1975); WicJsard v. 

Filburn, 317 U.S. 111 (1942)(growing wheat solely for consumption on the farm 

on which it is grown affects interstate commerce). Congress intended to 

exercise its authority to regulate interstate commerce to the "maximum extent 

feasible" when it enacted section 4 of the Mine Act. Marshall v. Kraynak, 604 

F.2d 231, 232 (3d Cir. 1979), cert. denied 444 U.S. 1014 (1980); United States 

v. Lake, 985 F.2d 265, 267-69 (6th Cir. 1993). In Lake, the mine operator 

sold all its coal locally and purchased mining supplies from a local dealer. 

985 F.2d at 269. Nevertheless, the court held that the operator was engaged 

in interstate commerce because "such small scale efforts, when combined with 

others, could influence interstate coal pricing and demand." Id. 

The judge correctly determined that Harless Towing's sand-dredging 

operation affects interstate commerce. Because Congress, in the Mine Act, 

intended to exercise the full reach of its authority under the Commerce 

Clause, the Secretary has a minimal burden to show that Harless Towing's 

operations or products affect interstate commerce. It dredges sand from a 

navigable waterway of the United States. In addition, the sand produced by 

Harless Towing is sold to corporations that operate in more than one state, 

such as Gulf States Utilities, Pittsburgh Plate Glass Co. and Occidental 

Petroleum. 15 FMSHRC at 1056. The sand is transported on public highways and 

waterways and is used in manufactured products, such as glass, that are sold 

outside Louisiana. Id. Thus, Harless Towing's products enter interstate 

commerce. The sale of its sand by Harless, Inc., does not change that. As a 

consequence, Harless Towing's sand-dredging operation affects commerce as that 

term is used in the Mine Act. 

B. Definition of "coal or other mine" 

Harless Towing argues that its operation is not a mine, as that term is 

defined in section 3(h)(l) of the Act, because it is not "an area of land from 

which minerals are extracted in nonliquid form." Harless Towing maintains 

that a floating dredge that suctions sand from a river is not a mine, since 

the operation takes place, not on an area of land, but on a river and since 

its extraction of liquid minerals does not employ workers underground. 

a possession of the United States, or between points 

in the same State but through a point outside thereof. 

30 u.s.c. § 802(b). 

686 
Finally. it argues that the judge's reliance on Stout's ferry is misplaced 

because that case dealt with the processing of coal and other material after 

it had been dredged from a river and did not address whether the dredging of 

sand is subject to Mine Act jurisdiction. The Secretary argues that Harless 

Towing operates a mine because its sand-dredging facilities consist of 

"structures, facilities, equipment, machines [and] tools" that are "used in 

the work of extracting [such} minerals from their natural deposits." S. 

Br. 11 quoting Section 3(h)(l). 

The term "coal or other mine" is defined broadly in the Mine Act. 8 The 

definition is not limited to an area of land from which minerals are 

extracted, but also includes facilities, equipment, machines, tools and other 

property used in the extraction of minerals from their natural deposits and in 

the milling or preparation of the minerals. See, !t.&.&o-· Donovan y. Carolina 

Stalite Co,, 734 F.2d 1547 (D.C. Cir. 1984); Oliver M. Elam. Jr, Co,, 4 FMSHRC 

S (January 1982). In determining coverage. we must give effect to Congress' 

clear intention in the Mine Act, discerned from "text, .structure, and 

legislature history." Coal Employment Project y. Dole, 889 F'.2d 1127, 1131 

(D.C. Cir. 1989). Congress determined to regulate all mining activity .. The 

Senate Committee stated that "what is considered to be a mine and to be 

regulated under this Act [shall] be given the broadest possibl[e] interpretation, and ... doubts [shall] be resolved in favor of inclusion of a 

facility within the coverage of the Act." S. Rep. No. 181, 95th Cong .• 1st 

Sess. 14 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess . , Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 602 (1978). 

This broad interpretation has been adopted by the courts. See, .!L.&.t.,, 

Carolina Stalite Co., 734 F.2d at 1554. The definition of "coal or other 

mine" has been applied to a broad variety of facilities that are not "an area 

of land from which minerals are extracted. " See,~. Happan Mining Corp, v. 

FMSHRC, 671 F.2d 794 (4th Cir. 198l)(operator loaded previously extracted and 

prepared coal onto railroad cars for''transportation); Stoudt' s Ferry, 602 F. 2d 

589 (3d Cir. 1979)(operator separated sand and gravel from material that had 

been dredged from a river by the Commonwealth of Pennsylvania) ; Carolina 

Stalite, 734 F.2d 1547 (D.C. Cir. 1984)(operator heated previously mined slate 

8 Section 3(h)(l) states, in pertinent part: 

"coal or other mine" means (A) an area of land 

from which minerals are extracted in nonliquid form 

or, if in liquid form, are extracted with workers 

underground, ... and (C) ... structures, facilities, 

equipment, machines, tools or other property ... on 

the surface or underground, used in, or to be used in, 

or resulting from, the work of extracting such 

minerals from their natural deposits in nonliquid 

form, or if in liquid form, with workers 

underground .... 

30 u.s.c. § 802(h)(l). 

687 
in a rotary kiln to create a light-weight material used in making concrete 

blocks). 

Harless Towing extracts sand, a mineral, from its natural deposit. The 

fact that Harless Towing's sand is transported in a slurry froJn a river does 

not make the sand a liquid mineral. We conclude that Harless Towing's sanddredging facilities are covered by the Mine Act. 

III. 

Conclusion 

For the foregoing reasons, we affirm the judge's decision. 

Distribution 

James P. Gaharan, Jr., Esq. 

Attorney at Law 

724 Moss Street 

Lake Charles, LA 70601 

for Harless Towing 

Tana M. Adde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd ., Suite 400 

Arlington, VA 22203 

Arlene Holen, Chairman _., /; 

Richard V. Backiey, Commissioner 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety & Health Review Commissiou 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

688 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DOLESE BROTHERS COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 11, 1994 

Docket No. CENT 92 - 110-M 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners1 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arising under the Federal Mine Safety and 

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

presents the issue of whether Dolese Brothers Co. ("Dolese") violated 30 

C.F.R. § 56.142ll(d) 2 and, if so, whether the judge assessed an appropriate 

1 Pursuant to section.113(c) of the Mine Act, 30 .U.S.C. § 823(c), we 

have designated ourselves as a panel of three members to exercise the powers 

of the Commission. 

2 Section 56.14211, entitled "Blocking equipment in a raised position," 

provides, in pertinent part: 

(a) Persons shall not work on top of, under, or 

work from mobile equipment in a raised position until 

the equipment has been blocked or mechanically secured 

to prevent it from rolling or falling accidentally. 

(b) Persons shall not work on top of, under, or 

work from a raised component of mobil e equipment until 

the component has been blocked or mechanically secured 

to prevent accidental lowering. The equipment must 

also be blocked or secured to prevent rolling. 

(c) A raised component must be secured to 

prevent accidental lowering when persons are working 

on or around mobile equipment and are exposed to the 

hazard of accidental lowering of the component. 

689 
civil penalty. Following an evidentiary hearing, Administrative Law Judge 

William Fauver upheld the citation and assessed a civil penalty of $8,000. 15 

FMSHRC 1590 (August 1993)(ALJ). For the reasons that follow, we affirm the 

violation but remand for further analysis as to the civil penalty. 

I. 

Factual and Procedural Background 

On January 12, 1991, William Allen, an employee of Dolese, was stringing 

overhead electric cable from a manbasket that was suspended from the load line 

of an 18 ton hydraulic crane at the Hartshorne Rock Quarry near McAlester, 

Oklahoma. The manbasket was attached to the hook at the end of the crane's 

load line and was not directly connected to the boom of the telescopic crane, 

which could extend 72 feet. The operator of the crane extended the boom, 

causing the load block (the pulleys and hook at the end of the load line) to 

be pulled against the boom block (the end of the boom where the load line is 

drawn across pulleys). As a result of the pressure exerted on the load line, 

it broke and the manbasket fell about 19 feet to the ground. Allen suffered 

multiple broken bones in his feet and a broken rib. 

The crane was equipped with check valves and flow-restrictors to prevent 

the boom from falling in the event of a hydraulic failure. The hydraulically 

powered winch that\ raised and lowered the load.line was also equipped with 

devices to prevent sudden movement of the load line in the event of a 

hydraulic failure. The crane was not equipped with a device to prevent a 

"two-block" situation from breaking the load line and causing the manbasket to 

fall. As described above, a two-block occurs when the load block is pulled up 

against the boom block. A crane equipped with an anti-two-block device stops 

all movement when the load block reaches the boom block, thereby preventing 

the load line from breaking. 

· Dolese reported the accident to the Department of Labor's Mine Safety 

and Health Administration ("MSHA"). Following an investigation, MSHA issued a 

citation charging Dolese with a significant and substantial violation of 

section 56.142ll(d). 

The judge found that the manbasket was a "raised component of mobile 

equipment" within the meaning of section 56.1421l(d). 15 FMSHRC at 1594. As 

a consequence, he found that the safety standard required the manbasket to be 

protected against accidental falling. Id. The judge then determined that 

MSHA Program Policy Letter No. P90-IV-4 (September 5, 1990)("Crane PPL") was a 

"reasonable application of section 56.142ll(d) in prescribing alternative 

methods of protecting a manbasket from free and uncontrolled descent." Id. 

He stated that the Crane PPL allows an operator to comply with the standard 

(d) Under this section, a raised component of 

mobile equipment is considered to be blocked or 

mechanically secured if provided with a functional 

load-locking device or a device which prevents free 

and uncontrolled descent. 

690 
by: (1) attaching the manbasket directly to the boom, if it was equipped with 

a device to prevent accidental descent of the boom; or (2) attaching the 

manbasket to the load line, if the crane was equipped with an anti-two-block 

device that would prevent the load line from breaking. Id. He further found 

that Dolese had actual or constructive knowledge of the requirements of the 

Crane PPL. Id. at 1596. The judge held that Dolese violated section 56.14211 

ttby suspending the manbasket solely from the load line without providing a 

safety device to prevent the line from breaking in a 'two block' situation." 

l!L.. at 1594. The judge assessed a civil penalty of $8,000, rather than the 

$5,000 penalty proposed by the Secretary. The Commission granted Dolese's 

petition for discretionary review. 

II. 

Disposition of Issues 

A. Reguirements of the Safety Standard 

Dolese argues that the judge's finding that it violated section 

56.142ll(d) is contrary to law. It contends that the manbasket was not a 

"constituent part" of the crane and, thus, did not fall within the standard's 

coverage of raised components . Dolese maintains that, in any event, it 

complied with the standard because both the boom and the winch on the crane 

were protected ~gainst uncontrolled descent ._ It argues that the Crane PPL did 

not prohibit Do1~se from suspending a manbasket from the boom using the load 

line. Dolese als°<> argues that section 56 .142ll(d) is unconstitutionally vague 

and does not give notice to a person of reasonable intelligence that a work 

platform suspended from a mobile crane is considered to be a raised component 

of the crane· or that an anti-two-block device is required for such a platform. 

The Secretary argues that the judge's findings are supported by 

substantial evidence and accord with law. He maintains that the manbasket was 

a raised component of the crane ~nd the standard was therefore applicable. He 

contends that section 56.142ll(d) and the Crane PPL require an anti-two-block 

device where a manbasket is attached to the load line of a crane . He argues 

that the safety standard provided Dolese with sufficient notice of its 

requirements. 

We reject Dolese's assertion that the manbasket was not a raised 

component of the crane and that it did not have notice to that effect. The 

manbasket was attached to the hook on the load block at the end of the load 

line. Thus, as the crane was being used, each part was in fact, a constituent 

element, or component, of the mobile equipment. The load block. and manbasket 

were in a raised position and, thus, were raised components of the crane at 

the time of the accident. 

Sections 56.142ll(a) through (c) provide that a raised component of 

mobile equipment must be blocked or mechanically secured to prevent accidental 

lowering when persons are working on top of, under or from the raised 

component, or are working on or around mobile equipment and are exposed to the 

accidental lowering of the component. Section 56.1~2ll(d) provides that the 

raised component is considered to be blocked or mechanically secured if it is 

691 
provided with "a functional load-locking device or a device which prevents 

free and uncontrolled descent." Thus, although it describes how the 

requirements of subsections (a) through (c) must be implemented, subsection 

(d) does not expre~sly require the use of an anti-two-block or similar 

device. 3 

Dolese contends that it was complying with the standard because both the 

boom and the winch were protected by check valves and flow restrictors to 

prevent uncontrolled descent of the boom and load line. These devices would 

have prevented the free fall of the manbasket in the event of a failure in the 

crane's hydraulic systems. It is undisputed, however, that these devices 

offered no protection in the event of a two-block situation. 

Because the standard does not set forth the precise requirements 

relating to the use of the load line to support a work platform, we review the 

Secretary's interpretative materials. We are mindful that the Commission and 

the courts are obliged to give weight to the Secretary's interpretation of his 

regulations. S. Rep. No. 181, 95th Cong., 1st Sess. 25 (1977), reprinted in 

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

Sess. 49, I.egislatiye History of tbe federal Mine Safety and Health Act of 

1211.. at 637 (1978). 

MSHA's Program Policy Manual ("Manual") provides clarification of the 

standard. The Manual states, in pertinent part: 

\ 

\ 

Standards 56/57 . 14211 prohibit persons from working 

on, under, or from raised portions of mobile equipment 

or a component of mobile equipment until the equipment 

has been blocked or mechanically secured. The 

standards specifically require blocking of raised 

components to prevent a "free and uncontrolled 

descent" in the event of a sudden failure of the 

system holding up the raised component. Hydraulic 

telescoping boom cranes with flow restrictions or 

check valves in the hydraulic system will prevent a 

free and uncontrolled descent of the boom and attached 

work platform. 

Compliance with 56/57.14211 can also be achieved by 

mine operators if the following ... safety features 

are implemented when hoisting personnel with cranes: 

3 Dolese argues that the judge erred in finding that it "violated 30 

C.F.R. § 56.1421l(a), as qualified by§ 56.14211(d)," because MSHA did not 

charge Dolese with a violation of subsection (a). D. Br. at 3, quoting 15 

FMSHRC at 1597. Dolese's argument is misplaced. Subsection (d) of section 

56.14211 does not stand alone but, rather, relates back to the previous 

subsections. As the judge noted, subsection (d) explains the requirements 

"provided in subsection 56.142ll{a) and other parts of§ 56.14211." 15 FMSHRC 

at 1592. 

.692 
l. use of an anti-two-block device with 

automatic shutdown capabilities that will 

prevent breaking of the load or whip line 

in the event of a two-block condition (a 

horn or light warning in lieu of automatic 

shutdown is not sufficient); 

Manual Volume IV, Part 56/57, p . 5Se (emphasis added). 4 

The Manual thus provides that, if a work platform is attached directly 

to the boom of a crane, flow restrictors or check valves in the hydraulic 

system will fulfill the standard's requirements because the work platform 

would be protected against an uncontrolled descent. The alternative 

compliance method is applicable if, as in this case, the work platform is not 

attached to the boom, but is, instead, attached to the load line by the hook 

on the load block. The Manual explains that, under these circumstances, the 

standard requires the use of an anti-two-block device. The language in the 

Manual is taken directly from and is identical to the Crane PPL. 

Prior to the issuance of the Crane PPL, the Secretary had required that 

all work platforms be attached directly to the boom of hydraulic telescoping 

cranes and had prohibited operators from suspending work platforms from load 

lines . .fil Program Policy Letter No. P90-IV-2 (June 4, 1990). The Crane PPL 

gave operators the , option of attaching a work pl~tform to the load line of a 

crane, so long as ~~ anti-two-block device was provided and the other 

requirements set forth in the Crane PPL were met. 

The Secretary's interpretation of the standard is reasonable and 

furthers the safety objectives of the Mine Act. 5 A safety standard "must be 

interpreted so as to harmonize with and further ... the objectives of" the 

Mine Act. Emery Minin& Co. v . Secretary of Labor, 744 F.2d 1411, 1414 (10th 

Cir. 1984). Thus, we reject Dolese's assertion that it complied with the 

standard. ., 

Dolese also argues that section 56.142ll(d) does not provide clear and 

sufficient notice that use of an anti-two-block device is required when a 

manbasket is suspended from the load line. Some standards are "simple and 

brief in order to be broadly adaptable to myriad circumstances.a Kerr-McGee 

4 The Commission considers the Manual as evidence of MSHA's policies and 

practices. See,~. Mettiki Coal Corp., 13 FMSHRC 760, 766-67 & nn.6 & 7 

(May 1991). The U.S. Court of Appeals for the D.C. Circuit has stated that, 

although the Manual is not binding on the Secretary, it is 8 an accurate guide 

to current MSHA policies and practices." Coal Employment Proiect y. Dole, 889 

F.2d 1127, 1130 n.5 (D.C. Cir. 1989). 

5 We note that the Occupational Safety and Health Administration 

("OSHA") requires the use of anti-two-block devices in similar circumstances. 

29 C.F.R. § 1926.5SO(g)(3)(ii)(C) . Further, OSHA prohibits the use of cranes 

to hoist personnel except where there is no ~afe alternative. 29 C.F.R. 

§ 1926.SSO(g)(~). 

693 
Corp., 3 FMSHRC 2496, 2497 (November 1981); Alabama By-Products Corp., 4 

FMSHRC 2128, 2130 (December 1982). "[I]n interpreting and applying broadly 

worded standards, the appropriate test is not whether an operator had explicit 

prior notice of the specific prohibition or requirement, but whether a 

reasonably prudent person familiar with the mining industry and the protective 

purposes of the standard would have recognized the specific prohibition or 

requirement of the standard." Ideal Cement Co. 12 FMSHRC 2409, 2416 (November 

1990). Because section 56.1421l(d) does not specifically require the use of an 

anti-two-block device when the load line of a crane is used to hoist miners, 

it is appropriate to apply the objective standard of the reasonably prudent 

person test in this instance. 

We agree with the judge's conclusion that the Crane PPL is clear as to 

the requirement that an anti-two-block device with automatic shutdown 

capabilities must be used when a work platform is attached to the load line of 

a crane rather than to the boom. Thus, a reasonably prudent person familiar 

with the mining industry would have recognized the requirement of the 

standard. Consequently, we reject Dolese's notice argument. 

B. Assessed Penalty 

Dolese contends that the judge failed to base his penalty assessment on 

the Secretary's civil penalty regulations set forth in 30 C.F.R. Part 100. 

Specifically, it ·?rgues that the accident did not qualify for a special 

assessment under lO C.F.R. § 100.5. 

The Commission has consistently held that, in assessing penalties based 

on the record developed in adjudicatory proceedings, the Commission is not 

bound by the Secretary's Part 100 regulations. Those regulations are intended 

to assist the Secretary in proposing penalties. Sellersburg Stone Co., 5 

FMSHRC 287, 291 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); 

Youghiogheny & Oh~? Coal Co., 9 FMSHRC 673, 678 (April 1987). 

Dolese also argues that the judge did not adequately consider and apply 

the six statutory criteria set forth in section llO(i) of the Act. 6 The 

6 Section llO(i) provides: 

The Commission shall have authority to assess 

all civil penalties provided in this [Act]. In 

assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous 

violations, the appropriateness of such penalty to the 

size of the business of the operator charged, whether 

the operator was negligent, the effect on the 

operator's ability to continue in business, the 

gravity of the violation, and the demonstrated good 

faith of the person charged in attempting to achieve 

694 
judge determined that the gravity of the violation was high. 15 FMSHRC at 

1597. He found that the miner in the manbasket was seriously injured and that 

the violation could have resulted in death or permanent disabling injuries. 

Id. at 1596. Contrary to the assertion of Dolese, the judge's consideration 

of the potential for death or serious injury posed by the viol~tion is 

appropriate in applying the gravity criterion. 

The judge considered factors indicative of negligence. He found that 

two-blocking predicaments are foreseeable and mechanically preventable . 15 

FMSHRC at 1597. He also found that Dolese had actual or constructive 

knowledge of the anti-two-block requirement and that Dolese's failure to 

install an anti-two-block device "reflects a serious disregard for employee 

safety ... Id. at 1596-97. However, we cannot determine from the decision 

whether he specifically applied the negligence criterion in assessing the 

penalty. 

Moreover, the judge did not discuss the history of previous violations, 

the size of the business, Dolese's ability to continue in business or Dolese's 

good faith abatement. In addition, it appears that the judge considered a 

factor that is not applicable under the Mine Act. He stated that "mental 

anguish should be considered when an employee is jerked by a manbasket, hears 

threatening sounds, looks up , and sees his one support (the cable) snap in 

two, and then immediately crashes to the ground." 15 FMSHRC at 1596. 

Congress did not ipclude mental anguish as a factor to be considered in 

assessing civil peri~lties . · 

The Commission has held that, when an operator contests the Secretary's 

proposed penalties, thereby obtaining the opportunity for a hearing before the 

Commission, findings of fact on the statutory criteria must be made by the 

judge. Sellersburg Stone, 5 FMSHRC at 292. In Pyro Mining Co. y. fMSBRC, 3 

Mine Safety & Health Cas.(BNA) 2057, 2059, O.S.H. Dec.(CCH) ! 27,599, 785 F.2d 

310 (Table)(6th Cir. 1986), 7 the court remanded a proceeding to the 

Commission because the judge articulated findings of fact on only four of the 

criteria. The court held that "[n]ot only must the Commission consider [the] 

criteria, it is our opinion that the Commission must provide in its order 

findings of fact on each of the statutory criteria." Id. Findings are 

critical if the judge is assessing a penalty that differs significantly from 

that proposed by the Secretary. Here the judge increased the penalty by 60X. 

rapid compliance after notification of a violation. 

In proposing civil penalties under this [Act], the 

Secretary may rely upon a summary review of the 

information available to him and shall not be required 

to make findings of fact concerning the above factors. 

30 u.s.c. § 820(i). 

7 The Sixth Circuit's decision in Pyro Mining was not selected for fulltext publication by the court. 

695 
We remand this proceeding to the judge for consideration of the 

statutory penalty criteria. The judge shall enter findings for each criterion 

and, based on his findings, assess an appropriate penalty. 

III. 

Conclusion 

For the foregoing reasons, we affirm the judge's conclusion that Dolese 

violated 30 C.F.R. § 56.1421l(d). We vacate that portion of the judge's 

decision discussing the assessment of a civil penalty and remand for 

reconsideration on this record consistent with this decision. 

Distribution 

Peter T. Van Dyke, Esq . 

Lytle, Soule & Curlee 

119 North Robinson, Suite 1200 

Oklahoma City, OK 73102 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Ernest A. Buford, Esq. 

Office of the Sqlicitor 

U.S. Department of Labor 

525 Griffin St., Suite 501 

Dallas, TX 75202 

Doyle, Commissioner 

Administrative Law Judge William Fauver 

Federal Mine Safety & H~allh Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

696 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF l.ABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 21, 1994 

Docket Nos. KENT 92-380 

KENT 92 -419 

KENT 92-420 

SPURLOCK MINING COMPANY, INC. Docket Nos. KENT 92-306 

KENT 92-307 

KENT 92-323 

KENT 92-324 

KENT 92 - 608 

KENT 92-609 

KENT 92-701 

KENT 92-836 

KENT 92-837 

KENT 92-838 

KENT 92 - 889 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SARAH ASHLEY MINING COMPANY, INC . 

\ 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners 1 

DECISION 

BY THE COMMISSION : 

These consolidated civil penalty proceedings arising under the Feder al 

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

or "Act"), raise the issue of whether Commission Administrative Law Judge Gary 

Melick, in assessing penalties, properly considered the effect of a penalty on 

an operator's ability to continue in business, one of the penalty criteria set 

forth in section llO(i) of the Act, 30 U.S.C. § 820(i). 2 15 FMSHRC 629 

1 Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we 

have designated ourselves as a panel of three members to exercise the powers 

of the Commission. 

2 Section llO(i) provides in relevant part: 

In assessing civil monetary penalties, the 

Commission shall consider the operator's history of 

previous violations, the appropriateness of such 

penalty to the size of the business of the operator 

charged, whether the operator was negligent, the 

697 
(April 1993)(AIJ). The judge determined that Spurlock Mining Company 

("Spurlock") and Sarah Ashley Mining Company ("Sarah Ashley")("the 

operators"), were no longer in business, and directed them to pay penalty 

assessments of $1,197 and $7,382, respectively, as proposed by the Department 

of Labor's Mine Safety and Health Administration ("MSHA"). Id: at 633. The 

Commission granted the operators' petition for discretionary review, which 

challenges the penalties. For the reasons set forth below, we affirm the 

judge's decision in result. 

I . 

Factual and Procedural Background 

This case involves 28 citations issued to Spurlock and Sarah Ashley. 

The parties did not dispute the violations and a hearing was held solely on 

penalty issues. 

Hobart Anderson, who represented both operators and was the only witness 

at 'the hearing, is founder, president and chief operating officer of Spurlock 

and Sarah Ashley. 15 FMSHRC at 631. Both operators are closely-held 

corporations, wholly owned by Hobart Energies Corporation, Inc. ("Hobart"). 

Id. Anderson and David Griffith, Anderson's former accounting partner, are 

directors and offi~ers of both operators. Id. They, along with two other 

individuals, own al~ the stock in Hobart. 

Neither operator was producing coal at the time of the hearing. 

Spurlock ceased mining in November, 1991, and Sarah Ashley did so in April, 

1992. Anderson testified that the companies had not been dissolved and that 

he hoped to make them operational in the future. Tr. 67. 

Before the judge, the operators asserted that the proposed penalties 

would affect their ability to continue in business. The judge found that, 

because the companies were .no longer in business, the penalty criterion of 

ability to continue in business was not relevant. 15 FMSHR.C at 630. He 

determined that the operators were liable for the penalties and that the 

financial condition of the operators was "only an issue of collection" for the 

Secretary. Id. at 630-31. 

The judge stated that, if the criterion were applicabie in this case, 

"the relevant operating enterprise for evaluating the criterion ... must 

include not only Spurlock and Sarah Ashley but also, under either an equity 

... or . . . alter ego theory, the individual shareholders of the larger 

operating enterprise." Id. at 631 . In reaching this conclusion, · the judge 

applied Kentucky law to "pierce the corporate veil." Id. He then found that 

Spurlock and Sarah Ashley had failed to prove that the proposed penalties 

effect on the operator's ability to continue in 

business, the gravity of the violation, and the 

demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after 

notification of a violation. 

698 
would affect their ability to remain in business and directed them to pay the 

penalties proposed by MSHA. ..I!L.. at 633. 

II. 

Disposition 

The operators contend that the judge erred by failing to take into 

consideration the effect of the proposed fines upon their ability to continue 

in business because "either company could re-open existing mines ... if 

suitable financing arrangements could be made. 11 PDR at 2. The operators also 

object to the judge's decision to pierce their corporate veils. PDR at 3. 

They ask the Commission to either eliminate or reduce the penalties. PDR at 

3. In response, the Secretary argues that no reduction of penalties is 

warranted when an operator, no longer in business, has substantial remaining 

assets. S. Br. 8, 11. The Secretary also asserts that the operators failed 

to prove that the assessed penalties would have an adverse effect on their 

ability to continue in business sufficient to warrant a reduction in 

penalties. S. Br. 12. 

We note, preliminarily, that the penalties may not be eliminated, as 

requested by the operators, because the Mine Act requires that a penalty be 

assessed for each\ violation. 30 U.S.C. § 820(a); Tazco. Inc., 3 FMSHRC 1895, 

1897 (August 1981)"., 

We reject the judge's finding that the operators were out of business 

because that finding is not supported by substantial evidence in the record. 3 

Neither Spurlock nor Sarah Ashley has been dissolved. Tr. 67. Anderson 

testified that he planned to resume operations at both mines if financing 

could be secured. Tr. 67; see also PDR at 2. At the time of the hearing, 

Sarah Ashley's equipment was valued at approximately $80,000 and Spurlock's at 

approximately $86,000. Tr. 77. While the operators were not then producing 

coal, there is no evidence that they would not res\lme mining operations in the 

future. Compare Iron Mountain Ore Co., 8 FMSHRC 1840, 1849-50 (November 

1986)(ALJ); CRD Coal Co., 2 FMSHRC 2247 (August 1980)(AL.J). 

We conclude that the penalty criterion of ability to continue in 

business applies in this case and we look to relevant case law for guidance in 

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

substantial evidence test when reviewing an administrative law judge's factual 

determinations. 30 U.S.C. § 823(d)(.2)(A)(ii){I). The term "substantial 

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

adequate to support [the judge's] conclusion." Rochester & Pittsburgh Coal 

Co., 11 FMSHRC 2159, 2163 (November 1989), quoting Consolic1ated Edison Co. v. 

NLRB, 305 U.S. 197, 229 (1938). While we do not lightly overturn a judge's 

factual findings and credipility resolutions, neither are we bound to affirm 

such determinations if only slight or dubious evidence is present to support 

them. See, ~. Krispy Kreme Doughnut Corp. v. NI.RB, 732 F.2d 1288, 1293 

(6th Cir. 1984); Midwest Stock Exchange. Inc. v. NLRB, 635 F.2d 1255, 1263 

(7th Cir. 1980). 

699 
applying it. In Sellersburg Stone Co., 5 FMSHR.C 287 {March 1983), the 

Commission held, "(i]n the absence of proof that the imposition of authorized 

penalties would adversely affect [an operator's] ability to continue in 

business, it is presumed that no such adverse effect would occur." Id. at 

294. See also Pegg's Run Coal Co., 1 FMSHR.C 350, 351-52 {May 1979). 

The operators contend that the penalties would affect their ability to 

resume operations because it would be "impossible to get ... financing if 

there are outstanding judicial liens upon equipment and accounts receivable 

that could come in front of the claims of any such lender." PDR at 2. We 

decline to reduce the penalties based on the operators' mere speculation that 

the penalties would result in the imposition of judicial liens and that those 

liens would foreclose financing. 

The operators failed to introduce specific evidence to show that the 

penalties would affect their ability to resume operations and to continue in 

business. At the hearing , Anderson submitted the operators' 1990 tax returns 

as well as their 1991 balance sheets and a number of tax liens and judgments 

against the operators. Exs. R-1, A, B, D, F, H, I, K, L, M; R-2, A-1, A-2, B, 

E, F; G. Ex. 1. The tax returns indicate that, while Spurlock had gross 

receipts of $900 , 000 for the year and Sarah Ashley had gross receipts of 

$1,400,000, both incurred losses. Ex. R-1, D; Ex . R-2, B. Neither the tax 

returns nor the financial statements, which Anderson testified might not be 

correct (Tr. 113-15), prove that payment of $1,197 by Spurlock and $7,382 by 

Sarah Ashley would ~dversely affect their ability to continue in business if 

they chose to do so . See Peggs Run Coal Co., 3 IBMA 404, 413-14 (November 

1974)(financial statements showing a loss were not sufficient to reduce 

penalties). 

For the foregoing reasons, we affirm the judge's decision in result. 

Consequently, we do not reach the issue of whether the criterion of the effect 

of a penalty on an operator's ability to continue in business applies to an 

operator who is out of business, nor do we reach the issues related to 

piercing the corporate veil. 

700 
III. 

Conclusion 

Spurlock is directed to pay civil penalties in t he amount of $1,197 , a nd 

Sarah Ashl ey is directed to pay civil penalties in the amount of $7 , 382. 

Distribution 

Hobart W. Anderson, President 

Sarah Ashley Mining Company 

Spurlock Nining Company 

P.O. Box 989 

Ashland, KY 41105 

Coll een A. Geraghty , Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wil son Blvd . , Suite 400 

Arlington, VA 22203 

Richard V. Backley, Commissioner 

J 

Administrative Law Judge Gary Melick 

Federal Hine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

701 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON. D.C. 20006 

April 21, 1994 

BROKEN HILL MINING CO., INC. 

Docket Nos. KENT 93-410 

KENT 93-550 

KENT 93-633 

KENT 93-634 

This civil p~nalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977,· 30 u.s.c. § 801 et seq. (1988) (•Mine Act•). On March 

17, 1994, Administrative Law Judge Avram Weisberger issued a Default Decision 

to Broken Hill Mining Company, Inc. (•Broken Hill•) for failing to answer the 

judge's November 19, 1993 Order tci Show cause. The judge assessed the civil 

penalty of $1829 proposed by the Secretary. For the reasons that follow, we 

vacate the default order and remand for further proceedings. 

On March 31, 1994, the Commission received a letter from Broken Hill's 

President, Hobart w. Anderson, stating that the company, which is not 

represented by counsel, responded to the Show Cause order on January 24, 1994, 

by filing its Answer. Mr. Anderson stated that in so doing they believed they 

were complying with the judge's order. 

The judge's jurisdiction in this matter terminated when his decision was 

issued on March 17, 1994. Commission Procedural Rule 69(b), 29 C.F.R. 

§ 2700.69(b)(l993). Under the Mine Act and the Commission's procedural 

rules, relief from a judge's decision may be sought by filing a petition for 

discretionary review within 30 days of its issuance. 30 u.s.c. § 823(d)(2); 

29 C.F.R. § 2700.?0(a). We deem Broken Hill's letter to be a timely filed 

Petition for Discretionary Review, which we grant. See, ~, Middle States 

Resources. Inc., FMSHRC 1130 (September 1988). 

702 
On the basis of the present. record, we are unable to. evaluate the merits 

of Broken Hill's position. In the interest of justice, we remand this matter 

to the judge, who shall determine whether default is warranted. See Hickory 

Coal Co., 12 FMSHRC 1201, 1202 (June 1990) 

For the reasons set forth above, we vacate the judge's default order and 

remand this matter for further proceedings. 

Richard v. Backley, Conunissioner 

Distribution 

Hobart W. Anderson, President 

Broken Hill Mining Company, Inc . 

P.O. Box 356 

Sidney, KY 41564 

Mary Sue Taylor, Esq . 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville, TN 37215 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

703 

..' ,· · .,; 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

W.J. BOKUS INDUSTRIES, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 21, 1994 

Docket Nos. YORK 92-106-M 

YORK 92-107-M 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners1 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding against W.J. Bokus ~ndustries, Inc. 

("Bokus Industries") arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The issue is 

whether equipment in a garage used by both the operator's sand and gravel mine 

and an asphalt plant was subject to Mine Act jurisdiction. Administrative Law 

Judge Avram Weisberger vacated a citation and orders issued to Bokus 

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

( 11MSHA") because, in the judge's view, the Secretary of Labor had not 

established Mine Act jurisdiction over the cited equipment. 15 FMSHRC 1321 

(July 1993)(ALJ). The Commission granted the Secretary's petition for 

discretionary review. We reverse and remand. 

I. 

Factual and Procedural Background 

William Bokus ("Bokus"), the president and owner of Bokus Industries, 

owns a 63-acre tract of land in Warren County, New York, which is divided by a 

stream. Bokus Industries operates a sand and gravel mine on the west side of 

the stream. On the east side of the stream is an asphalt plant, leased to 

Pallette Stone Corporation ("Pallette Stone") by High Peaks Asphalt, Inc. 

("High Peaks"), another entity owned by Bokus. 

1 Commissioner Nelson participated in the consideration of the case. He 

passed away before the decision was issued. Pursuant to section 113(c) of the 

Mine Act, 30 U.S.C. § 823(c), we have designated ourselves as a panel of three 

members to exercise the powers of the Commission. 

704 
Until 1990, off-site mines supplied the asphalt plant with "aggregate," 

the raw material composed of sand and gravel used to make asphalt. In that 

year, Bokus Industries' sand and gravel mine began supplying High Peaks with 

aggregate. A screen on the east side of the property separates the gravel by 

size and the material is then crushed in a secondary, non-permanent crusher. 

15 FMSHRC at 1322; Tr. 185-88. 

High Peaks also owns and leases to Pallette Stone a maintenance and 

storage garage adjacent to the asphalt plant. The garage is used primarily 

for the support of the asphalt plant. 15 FMSHRC at 1322; Tr. 133. Under its 

lease with High Peaks, Pallette Stone has joint use of the garage with Bokus 

Industries. B. Post-hearing Br. at 2. Employees of both entities use the 

garage to store, repair and maintain equipment used in both operations. 15 

FMSHRC at 1324; Tr. 108-15, 194-97. Crushing and screening equipment for the 

sand and gravel operation is also fabricated there. Tr. 196-97. Next to the 

garage is an office staffed by a Bokus Industries employee. Truck drivers 

transporting raw material from the mine weigh their trucks at a scale and 

report the weight at the adjacent office. 15 FMSHRC at 1323; Tr. 215-16. 

On October 22, 1991, MSHA Inspector Randall Gadway conducted a regular 

inspection of the mining operation and issued a number of withdrawal orders 

pursuant to section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l). 2 He 

also inspected th~ garage, where a miner employed by Bokus Industries and a 

Pallette Stone emp~oyee were working. The inspector observed seven unsecured 

compressed gas cylinders and issued a section 104(d)(l) order to Bokus 

Industries alleging a significant and substantial ("S&S") violation of 

30 C.F.R. § 56.16005 caused by its unwarrantable failur~ to comply with the 

standard. 3 Two of the cylinders were without valve covers and the inspector 

issued another section 104(d)(l) order alleging a violation of 30 C.F.R. 

§ 56.16006. 4 A third section 104(d)(l) order alleging a violation of 30 

C.F.R. § 56.14115 was issued because the peripheral hood and tool rest had 

2 Pursuant to a 1979 interagency memorandum of understanding between MSHA 

and the Occupational Safety and Health Administration ("OSHA"), the sand and 

gravel facilities are inspected by MSHA and the asphalt plant is inspected by 

OSHA. 44 Fed. Reg. 22827, 22829-30 (April 17, 1979); see Tr. 13, 293-94. 

3 Section 56.16005 provides: "Compressed and liquid gas cyiinders shall 

be secured in a safe manner." 

The S&S and unwarrantable failure terminology, taken from section 

104(d)(l) of the Act, are special findings referring to more serious types of 

violations. 

4 Section 56.16006 provides: "Valves on compressed gas cylinders shall 

be protected by covers when being transported or stored, and by a safe 

location when the cylinders are in use." 

705 
been removed from a grinder. 5 The inspector also issued an imminent danger 

order pursuant to section 107 of the Act, 30 U.S.C. § 817, with an 

accompanying citation, alleging a violation of 30 C.F.R. § 56.12030 because a 

wire leading to a fan mounted on a wood stove was exposed. 6 Puring the same 

inspection and on a return visit the next day, the inspector issued further 

withdrawal orders and a citation alleging a defective loader and a hole three 

feet deep near the walkway between the office and the scales. See 15 FMSHRC 

at 1325-30. 

The Secretary proposed civil penalties against Bokus Industries for the 

alleged violations. Bokus Industries contested the proposals and the matter 

was heard by Judge Weisberger. 

The judge concluded that the Secretary had failed to establish that the 

cited cylinders, grinder, and stove fan were subject to Mine Act jurisdiction. 

Referencing the definition of "mine" in section 3(h)(l) of the Act, the judge 

reasoned that "structures, facilities, machines, tools, or equipment are 

considered a mine . .. only if they are used in ... the extraction, milling, or 

preparation of minerals." 15 FMSHRC at 1323-24. 7 The judge stated that, 

5 A grinding machine is used for sharpening tools. See Tr. 223-24. A 

peripheral hood e~closes the grinding wheel to contain the wheel if it breaks 

apart. Tr. 218. 'A tool rest is a piece of metal placed in front of the 

grinding wheel to prevent objects from being drawn into the moving wheel. Tr. 

219, 224. 

Section 56.14115 provides: 

Stationary grinding machines .. . shall be equipped with --

(a) Peripheral hoods capable of withstanding the force of a 

bursting wheel ... ; 

(b) Adjustable tool rests set so that the distance between 

the grinding surface of the wheel and the tool rest [is] not 

greater than 1/8 inch .. .. 

6 Section 56.12030 provides: "When a potentially dangerous condition is 

found it shall be corrected before equipment or wiring is energized." 

7 In relevant part, section 3(h)(l) of the Act provides: 

"[C]oal or other mine" means ... an area of land 

from which minerals are extracted in nonliquid form ...• 

and ... lands, ... structures, facilities, equipment, 

machines, tools, or other property ... , on the surface 

or underground, used in, or to be used in, or resulting 

from, the work of extracting such minerals from their 

natural deposits ... , or used in, or to be used in, the 

milling of such minerals, or the work of preparing ... 

minerals .... 

706 
although it was "possible" that miners "might" use the cylinders or grinding 

machine, the Secretary had failed to establish that such use "was more likely 

than not." Id. at 1324. 8 The judge also found insufficient evidence 

establishing Bokus Industries' ownership of the cylinders. Id. Accordingly, 

the judge vacated the citation and the four orders related to items in the 

garage. Id. at 1330 . With respect to the loader and the hole near the 

walkway, he found that the loader and the office-scale area were integral to 

the mining operation and concluded that the operator had violated the cited 

standards. Id. at 1325-30. 

II. 

Disposition 

On review, the Secretary contends that it is not necessary to establish 

jurisdiction over the individual pieces of equipment in the garage because the 

garage is subject to Mine Act jurisdiction as a "structure" or "facility" 

within the meaning of section 3(h)(l) of the Act. 9 He reasons that, if a 

facility is a "mine" within the meaning of section 3(h)(l), then everything 

within it is subject to the Act under section 4. 10 Alternatively, the 

Secretary argues that, even if he were required to establish jurisdiction over 

the individual items, he proved that they were used in mining. Bokus 

Industries did not file a brief on review. 

\ 

Section 3(h)(l)(n.7 supra) broadly defines "mine" to include "equipment, 

machines, tools, or other property . . . used in. or to be used in, ... the work 

of extracting ... minerals ... or ... the milling of such minerals, or the 

work of preparing ... minerals . . . . " (Emphasis added.) The legislative 

history indicates that the Act's definition of "mine," although not without 

limits, is to be interpre t ed expansively. The Senat e Committee largely 

responsible for drafting the Mine Act stated: "[W]hat is considered to be a 

mine and to be regulated under this Act [shall] be given the broadest possible 

interpretation, and ... doubts [shall] be resolved in favor of ... coverage of 

the Act." S. Rep. No. 181, 9Sth Cong., 1st Sess. 14 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 9Sth Cong., 2d 

30 u.s.c. § 802(h)(l). 

8 The judge did not expressly rule on whether the garage was a 

facility subject to Mine Act jurisdiction. The parties' arguments below 

addressed whether the cited equipment in the garage was subject to Mine Act 

jurisdiction. See 15 FMSHRC at 1323-24. 

9 The Secretary asserts that the judge "accepted that MSHA had 

jurisdiction over the garage." He infers that the judge would not have 

examined jurisdiction over items in the garage unless he assumed that MSHA had 

jurisdiction over the garage itself. S. Br. at 4 & n.7. 

10 Section 4 provides broadly that each mine involved in commerce, and 

each operator of, and miner in, such mine, is subject to the Act. 30 U.S.C. 

§ 803. 

707 
Sess., I.egislative History of the Federal Mine Safety and Health Act of 1977, 

at 602 (1978). See also, &.a..&.a.· Donovan y. Carolina Stalite Co., 734 F.2d 

1541, 1551-55 (D.C. Cir. 1984); Cyprus Industrial Minerals Co. y. FKSJ:IRC, 664 

F.2d 1116, 1118 (9th Cir. 1981); Marshall y. Stoudt's Ferry Preparation Co., 

602 F.2d 589, 591-92 (3d Cir. 1979), cert. denied, 444 U.S. 1015 (1980). 

Moreover, such questions of statutory coverage must be resolved within the 

Act's overall purpose of protecti~g miners' safety and health. .Ka.&,.., Carolina 

Stalite, 734 F.2d at 1553-55. 

We reject the judge's analysis and his conclusion as a matter of law. 

The judge imposed upon the Secretary an inappropriate evidentiary burden by 

requiring that he prove it was "more likely than not" that miners would use 

the equipment in question. See 15 FMSHRC at 1324. Further, the judge's 

application of such a test is inconsistent with the protective purposes of the 

Act. Under section 3(h)(l), the Secretary need only establish that the items 

in issue were used or to be used in mining. 

We find that the record supports the Secretary's assertion of Mine Act 

jurisdiction. It is undisputed that Bokus Industries miners worked in the 

garage on mining-related tasks. The gas cylinders in the garage were 

essentially indistinguishable. Bokus Industries owned some of them and its 

miners used any available cylinder to perform their work. See Tr. 59-61, 67-

69, 77-81, 195. The judge based his determination, in part, on insufficient 

evidence of owners~ip of the cylinders. 15 FMSHRC at 1324. However, the 

record reflects that formality of title to the cylinders was not observed. We 

also note the inspector's testimony that a defective cylinder could become a 

"missile" striking anyone in the garage. See, ~. Tr. 23-24, 211. The 

evidence thus shows that all the cylinders were used or to be used in mining 

and that, irrespective of ownership, the cited conditions could affect miners 

in the garage. 

The grinder and the exposed wire on the stove fan present similar 

considerations. The grinder was so situated that it was used or to be used in 

maintaining mining equipment. Further, the grinder's cited defect could 

injure miners working in the garage. Likewise, the stove warmed the garage 

where miners worked and, thus, is an item of equipment used or to be used in 

mining. The exposed fan wire could also injure miners working in the garage. 

Accordingly, we reverse the judge's de~ermination as to Mine Act 

jurisdiction. Our conclusions harmonize with the judge's other findings that 

a loader and a walkway between the scales and the office were properly subject 

to Mine Act jurisdiction. See 15 FMSHRC at 1325, 1327. Given the basis of 

our disposition, we need not reach the issue raised by the Secretary, that the 

garage was a "structure" or "facility" used in mining and, therefore, a "mine" 

within the meaning of section 3(h)(l) of the Mine Act. 

708 
III. 

Conclusion 

For the reasons discussed above, we reverse and vacate the judge's 

determination as to jurisdiction. We remand for resolution of the remaining 

issues as to the merits of the citation and orders in question, special 

fi~dings and appropriate penalties for violations found. 

Distribution 

Tana M. Adde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

W. J. Bokus, President 

W. J. Bokus Industries, Inc. 

30 Mill Road 

Greenfield Center, MY 12833 

Arlene Holen, Chairman 

,,/-/ /7 /_ {/~ - <---<~ //. I )t..,, =:--J--- -·Ric~ard V. Backley, Commissioner 

Doyle, Commission 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

709 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

J.A.L. COAL COMPANY, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 22, 1994 

Docket No. WEVA 93-312 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners1 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988). On March 28, 1994, Chief 

Administrative Law Judge Paul Merlin issued an Order of Default to J.A.L. Coal 

Company, Inc. ("J.A.L."), for its failure to answer the Secretary of Labor's 

proposal for assessment of civil penalty and the judge's August 19, 1993, 

Order to Show Cause. The judge ordered the payment of a civil penalty of 

$3,900. For the reasons that follow, we vacate the default order and remand 

this matter for further proceedings. 

In a letter to the Secretary of Labor's Mine Safety and Health 

Administration ("MSHA") dated March 31, 1994, which was forwarded to the 

Commission and received on April 7, 1994; John A. Laurita, President of 

J.A.L., in effect, requests that the order of default be vacated because 

J.A.L. understood that a hearing would be held. 

The judge's jurisdiction over this case terminated when his decision was 

issued on March 28, 1994. Commission Procedural Rule 69(b), 29 C.F.R. § 

2700.69(b)(l993). Under the Mine Act and the Commission's procedural' rules, 

relief from a judge's decision may be sought by filing a petition for 

discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 

29 C.F.R. § 2700.70(a). We deem J.A.L.'s letter to be a timely filed Petition 

for Discretionary Review, which we grant. See, ~. Mi<idle States Resources. 

Inc., 10 FMSHR.C 1130 (September 1988). 

1 Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we have 

designated ourselves as a panel of three members to exercise the powers of the 

Commission. 

710 
On the basis of the present record, we are unable to evaluate the merits 

of J .A.L. 's position. In the interest of justice, we remand this matter to 

the judge, who shall determine whether default· is·warranted. ~Hickory Coal 

Co., 12 FMSHRC 1201, 1202 (June 1990). 

711 
Distribution 

John A. Laurita, President 

J A L Coal Company 

130 Fayette St. 

Morgantown, WV 26505 

Caryl A. Casden, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Nerlin 

Federal Mine Safety & Health Review Comi11ission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

\ 

712 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CONSOLIDATION COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 25, 1994 

Docket No. WEVA 92-922 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners 1 

DECISION 

BY THE COMMISSION: 

In this civil\ penalty proceeding, arising under the Federal Mine Safety 

and Health Act of 19.77, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), 

the issue is whether a mine operator may prohibit the miners' representative, 

who is an employee, from accompanying an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA") if the operator has a 

good faith,, reasonable belief that the area to be inspected is too dangerous 

to permit such walkaround. 2 Administrative Law Judge Roy J . Maurer held that 

an operator may not restrict the walkaround right in such circumstances. 15 

FMSHRC 768 (April 1993)(ALJ). For the reasons set forth below, we affirm the 

judge's decision. 

1 Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we 

have designated ourselves as a panel of three members to exercise the powers 

of the Commission. 

2 Section 103(£), the Mine Act's "walkaround" provision, provides in 

relevant part: 

Subject to regulations issued by the Secretary, a representative 

of the operator and a representative authorized by his miners 

shall be given an opportunity to accompany the Secretary or his 

authorized representative during the physical inspection of any 

coal or other mine made pursuant to the provisions of subsection 

(a) of this section, for the purpose of aiding such inspection and 

to participate in pre- or post-inspection conferences held at the 

mine. 

30 u.s.c. § 813(f). 

713 
I. 

Factual and Procedural Background 

On January 13, 1992, MSHA inspector Thomas May arrived at Consol's 

Humphrey No. 7 Mine and advised Robert Smith of Consol's safety department and 

Sam Woody, the miners' representative, that he was going to travel to the 

mine's northwest longwall panel to inspect the northwest bleeder. Tr. 17-19. 

The inspector's action was prompted by a disparity between the methane 

readings he had obtained on the surface and those reflected in Consol's 

records. Tr . 20, 82. 

Until April 1991, the northwest bleeder had been traveled weekly to 

check methane levels. By letter dated March 28, 1991, Consol had requested 

that MSHA waive the underground evaluation and allow it to monitor the fan's 

effectiveness by taking methane readings from the surface. In its letter, 

C.E. Bane, Consol's Regional Safety Manager, expressed his concern that 

individuals were traveling old underground areas, because "a potential hazard 

can exist." Gov. Ex. 4. On April 22, 1991, MSHA agreed to the waiver. No 

underground examinations of the northwest bleeder had been performed in the 

eight months preceding Inspector May's January 13 inspection. 

Consol's general mine superintendent, John Higgins, was notified of 

May's intention to .inspect the northwest bleeder. By May's account, Higgins 

told him that he would not permit either the walkaround representative or the 

company representative to accompany the inspector past the man door at the six 

northwest cut-through because the area had not been pre-shifted and because of 

Higgins' belief that the area was dangerous. Tr. 26-27. 

During the course of the inspection, Smith and Woody accompanied May 

only to the man door at the six northwest cut- through and May proceeded alone 

to the Brock Fan area. He returned about an hour later. Based on the methane 

concentrations in the area, he issued a section 107(a) imminent danger order, 

shutting down the longwall. Tr. 35 . 

That evening, after Consol called to tell him that the methane problems 

had been corrected, Inspector May returned to the mine. He met with John 

Webber, also of Consol's safety department, and with miners' representative 

Richard Matthews. Mine superintendent Ron Weaver told May that no miners' 

representative could accompany the inspector to the northwest bleeder but that 

Consol shift foreman Rick Pauley would be going to the bleeder with him. Tr. 

38. The inspector and Pauley then went to the northwest bleeder . . Finding the 

methane level there to be less than two percent, the inspector terminated the 

order. Tr. 41 . 

Two days later, May issued the section 104(a) citation at issue for 

Consol's failure to all ow the miners' representative to accompany him on h is 

inspection. The citation stated: 

The operator did not give the representative, authorized by the 

miners, the opportunity to accompany an authorized representative 

of the Secretary. On day .shift and afternoon shift on 01- 13- 92 

714 
the miner representative was not permitted to accompany me on my 

physical inspection of the northwest bleeder system .... 

Gov. Ex. 2. 

At the hearing, inspector May testified that he did not find the entry 

unsafe, although he did acknowledge that methane is generated in the gob. Tr. 

56-58. He found the area to be well cribbed, with very little pressure on the 

cribs and with very little rib sloughage. Inspector May further testified 

that he took safety precautions before going beyond the man door. Tr. 74. 

The inspector also stated that, if he had encountered an unsafe area, he would 

have stopped and would also have stopped the miners' representative . Tr. 74. 

Consol's witness, general mine foreman Eldon Hagedorn, stated that 

employees were not permitted to travel into the northwest bleeder. Tr. 90. 

Foreman Hagedorn explained the dangers that motivated Consol first to prohibit 

the company and walkaro.und representatives from accompanying the inspector and 

later to prohibit the walkaround representative from accompanying him: 

Tr. 91. 

Well, that area back in there was approximately 8,000 

feet behind the existing longwall face. There's roof 

conditions in there that constantly change. There 

could be methane in certain areas that they could 

wander ··.into. By not being examined you're just not 

sure wh~t changes are made back there. And we just 

feel it's unsafe to send anybody into that area. 

Consol safety supervisor Stanley Brozik also testified as to dangers 

that could be present: 

Tr. 103. 

The area had~'t been examined [by anyone] for the last 

--- roughly eight and a half, nine months ... [a]nd in 

an area such as that, over 4,000 feet, there could be 

numerous things, bad top, gas, shortage of oxygen. A 

lot of dangers that could be encountered . . .. 

Consol employee Robert A. Smith testified that he considered inspector 

May ' s visit to the Brock Fan area to be unusual because the area was not 

traveled by Consol employees. Tr. 112. In his view, the dangers .in that area 

were the absence of an intake escapeway , methane liberation, the potential for 

oxygen deficient air and bad roof. Tr. 113 - 114. 

In affirming the citation, Judge Maurer stated: 

The Commission has emphasized repeatedly that the 

walkaround rights granted miners' representatives by 

section 103(f) of the Mine Act are a vitally important 

statutory right granted to miners and their 

715 
representatives by the Act. And I can find no 

authority, nor has respondent been able to cite me 

any, for the proposition that the opportunity to 

engage in walkaround can be restricted by the operator 

based on potential danger to the employee/miner's 

representative. 

15 FMSHRC at 771-772. 3 

The Commission granted Consol's petition for discretionary review and 

permitted the National Coal Association ( "NCA" ) to participate as amicus 

curiae. 

II. 

Disposition 

On review, Consol, referencing section 2(a) and (e) of the Mine Act, 

contends that construing section 103(£) to provide the walkaround 

representative with an absolute right to accompany the inspector conflicts 

with the mine operator's primary obligation to protect its employees from 

harm. 4 Consol asserts that, in light of this obligation, it should be able 

to refuse the walkaround representative access to areas it "reasonably 

considers to be to() dangerous to enter." Consol Br. 3. 

\ \ 

The Secretary" of Labor ("Secretary") asserts that an operator's good 

faith, reasonable belief that a mine area is hazardous is not sufficient 

grounds to deny a miners' representative the right to accompany the inspector 

because such a construction of section 103(£) is contrary to its plain 

language, its legislative history and its underlying purpose. The .Secretary 

states that, alternatively, if the language is considered ambiguous , deference 

is due to his interpretation of the provision. 

3 The judge did not reach the issue of whether the northwest bleeder 

system was too dangerous to inspect or dangerous at all on the day in 

question. 15 FMSHRC at 771. Nor do we. 

4 Section 2 provides, in part: 

Congress declares that --

(a) the first priority and concern of all in the coal 

or other mining industry must be the health and safety 

of its most precious resource -- the miner; 

(e) the operators of . . . mines with the assistance of 

the miners have the primary responsibility to prevent 

the existence of such conditions and practices in such 

mines; 

30 U.S.C. § 80l(a), (e). 

7i6 
Amicus NCA, referring to Chevron. U.S.A .. Inc. y. Natural Resources 

Defense Council. Inc., 467 U.S. 837 (1984), argues that the Secretary's views 

are not entitled to "Chevron-based deference" because the Secretary has failed 

to issue regulations or policies to fill the gap left by Congress on this 

issue. NCA Br. 7 . NCA notes other restrictions that have been applied to 

section 103(f): its being subject to regulations and an interpretative 

bulletin issued by the Secretary; limits on walkaround compensation; filing 

requirements as to walkaround representatives; and nonemployees' walkaround 

rights being contingent upon waivers of liability. Thus, NCA asserts that the 

103(f) right is subject to reasonable restrictions and, because the walkaround 

at issue in this case involves an unsafe practice, barring the representative 

is reasonable. NCA Br. 8. 5 

We note preliminarily that the walkaround right provided in section 

103·(f) existed under the Federal Coal Mine Health and Safety Act of 1969, 30 

U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act"). That provision stated: 

At the commencement of any inspection of a coal mine 

by an authorized representative of the Secretary, the 

authorized representative of the miners at the mine at 

the time of such inspection shall be ·given an 

opportunity to accompany the authorized representative 

of the\ Secretary on such inspection. 

30 U.S.C. § 813(h) (1976)(amended 1977)(emphasis added). 

In enacting the Mine Act, Congress continued the Coal Act's broad 

application of the walkaround right and expanded rights incident to it. The 

Conference Report on S.717, the Senate's version of the bill, explained: 

The conference substitute expands the concept of 

miners' participation in inspections by authorizing 

miners' representatives to participate not only in the 

actual inspection of a mine, but also in any pre- or 

post-inspection conferences held at that mine. 

R.R. Conf. Rep. on S. 717, 95th Cong., 1st Sess. (1977), reprinted in Senate 

5 Although NGA has referenced MSHA's letter granting Consol a waiver of 

the underground examination of the bleeder as evidence that the area was 

extremely dangerous, we note that Consol's letter expressed concern only that 

a "potential hazard can exist" (Gov. Ex. 4) and that MSHA's approval of the 

request did not express concurrence in Consol's assessment of potential 

hazards. MSHA granted the waiver without comment. (Gov. Ex. 3) 

NCA further argues that exercise of the walkaround right would have 

conflicted with other safety standards such as 30 C.F.R. § 75.364, which 

allows only certified persons in the bleeders, and 75.303(a) and 75.314, which 

require a pre-shift examination before others enter underground areas. We do 

not reach these issues because they were not raised before the judge. Section 

ll3(d)(2)(A)(iii). 

717 
Subcommittee on Labor, Committee on Human Resources , 95th Cong., 2d Sess. , 

Legislatiye History of the Federal Mine Safety and Health Act of 1977, at 1361 

(1978). In addition to adding a right of the miners' representative to 

participate in inspection conferences, the Mine Act added a compensation 

provision in section 103(f). The Mine Act did not restrict the types of 

inspections to which the walkaround right applies. 

The only qualification to the walkaround right in section 103(f) is that 

it is subject to regulations issued by the Secretary. The Secretary's 

regulations have not limited the walkaround right in the manner urged by 

Consol. 6 Moreover, although Congress recognized that a walkaround 

representative could be exposed to danger, (the inspections enumerated in 

section 103(a) include inspections to determine whether an imminent danger7 

exists as well as inspections of especially hazardous conditions), it did not 

curtail the walkaround right in dangerous situations. 8 Thus, upon "employing 

traditional tools of statutory construction, including text, structure and 

legislative history," Coal Employment Project v. Dole, 889 F.2d 1127, 1131 

(D.C. Cir. 1989) ; Chevron at 842-43, we conclude that Congressional intent is 

clear on this issue . Accordingly, we hold that section 103(f) precludes 

denying the walkaround right on the basis of an operator's good faith, 

reasonable belief that the area to be inspected is too dangerous to be 

6 The Secretary has issued an Interpretative Bulletin which, in essence, 

excludes from section 103(f) walkaround rights certain inspection activities 

that are unrelated to enforcement. 43 Fed. Reg. 17546-48 (April 25, 1978). 

7 An "imminent danger" is defined in section 3 (j) of the Act as "the 

existence of any condition or practice in a coal or other mine which could 

reasonably be expected to cause death or serious physical harm before such 

condition or practice can be abated." 30 U.S.C. § 802(j). 

8 Section 103 provides, in relevant part: 

(a) Authorized representatives of the Secretary ... 

shall make frequent inspections . . . in coal or other 

mines each year for the purpose of .. . (3) determining 

whether an imminent danger exists 

(i) Whenever the Secretary finds that a coal or other 

mine liberates excessive quantities of methane or 

other explosive gases during its operations, ... or 

that there exists in such mine some other especially 

hazardous condition, he shall provide a minimum of one 

spot inspection by his authorized representative of 

all or part of such mine during every five working 

days at irregular intervals. 

30 U.S.C . § 813(a), (i) . 

718 
entered. 9 

The right of a miners' representative to accompany the inspector on all 

section 103 inspections has been consistently recognized by the. Commission and 

the courts. It has been uniformly held that the wal karound right includes the 

right to accompany the inspector during section 103(i) "spot inspections" 

which, significantly, occur in mines that liberate excessive quantities of 

explosive gases or that present some other especially hazardous condition. 

See,~. Helen Mining Co . , 1 FMSHRC 1796 (November 1979), rev'd on other 

grounds, sub nom. United Mine Workers v . FMSHRC, 671 F. 2d 615 (D .C. Cir), 

cert. denied, 459 U.S. 927 (1982). In that case, the Court of Appeals for the 

D.C. Circuit concluded that all safety inspections are made pursuant to 

section 103(a) of the Mine Act, and include inspections carried out to 

determine whether an imminent danger is present . 671 F.2d at 619, 623-24. 

Other circuit courts have also held that the walkaround right applies to 

spot inspections. See, ~. Consolidation Coal Co. v . FMSttRC 740 F.2d 271 

(3d Cir. 1984). In Monterey Coal v. FMSHRC 743 F.2d 589 (7th Cir. 1984), the 

court held that, under the Coal Act, "an authorized representative of miners 

was entitled to accompany a federal mine inspector on any mine inspection ... 

[and that] [n]othing in the legislative history [of the 1977 Mine Act] 

indicates any intent to restrict the pre-existing right under the Coal Act to 

accompany the inspe,ctor on 'any inspection.'" lQ.... at 590, 593. 

\ 

We note that the Secretary does not assert an absolute requirement that 

~he miners' representative be permitted to accompany the inspector without 

regard to the circumstances. The Secretary recognizes that mine inspectors 

are responsible for the safe exercise of the walkaround right and that there 

may be instances when an inspector, in the course of conducting an inspection, 

will decide against permitting the walkaround representative to enter a 

particular area of a mine "where necessary to protect the safety of miners." 

Sec . Br. 15-16 n.9 . 

9 Because we have decided this case based on Congress' clear intent, we 

do not address the Chevron deference arguments made by the Secretary and 

amicus NCA. 

719 
III. 

Conclusion 

For the reasons discussed above, we affirm the judge's determination 

that an operator may not prohibit a miners' representative from accompanying 

the inspector during a section 103(a) inspection on the basis of a good faith, 

reasonable belief that the repres.entative would be exposed to a hazard. 

Arlene Holen, Chairman 

.P , .:" .. -; ,. . . . ..;~. ,..,:::_ :_.-.-,;:,1/ ;,.,/ l ·• ··<. .. :.:,.- V.._"'• .. J' 

/ /; 

,:.. ~:;: t~-;,~ .2>.:.....-.....--~, ..... 

Richard V. Backley, Commissioner /, 

,_, 

Distribution 

Elizabeth Chamberlain, Esq . 

Consolidation Coal Company 

1300 ~ashington Road 

Pittsburgh, PA 15241 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S . Department of Labor 

4015 Wilson Blvd . 

Arlington, VA 22203 

Michael F. Uuffy, Esq . 

~ationa l Coal Assn. 

1130 17th Street, N.W. 

Washington, D.C . 20036 

Administrative Law Judge Roy J. Maurer 

Federal Hine Safety & iiealth Review Commissio11 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

720 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

JIM WALTER RESOURCES, INC. 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 25, 1994 

Docket No. SE 94-306 

A.C. No . 01-01247-04106 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners 1 

ORDER 

BY THE COMMISSION: 

\ 

In this matter arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C . § 801 et seq . (1988)( "Mine Act" or "Act"), Jim Walter 

Resources, Inc. ("JWR") filed with the Conunission a motion seeking to reopen 

an uncontested civil penalty assessment that became a final order of the 

Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a). As 

the basis for its motion, JWR relies upon Fed. R. Civ. P. 60(b) ("Rule 

60(b)"). The Secretary of Labor filed a response requesting an evidentiary 

hearing before an administrative law judge to determine whether JWR's motion 

should be granted. For the reasons that follow, we grant JWR's motion in 

part. 

The Commission received JWR's Motion for Relief from Final Order on 

March 14, 1994. JWR states that it failed to file with the Department of 

Labor's Mine Safety and Health Administration ("MSHA") a "Green Card" notice 

of contest challenging MSHA's proposed civil penalty within the required 30-

day period set forth in 30 U.S.C. § 815(a). JWR asserts that its counsel had 

an unusually heavy case load at the time and that there was an interoffice 

delay in the transmittal of the penalty assessment to him. JWR asks the 

Commission to · reopen this matter pursuant to Rule 60(b) so that it may file 

its notice of contest. The proposed penalty has not been paid. 

The Secretary's response requests a hearing to determine, inter alia, 

whether the Commission has jurisdiction to reopen the case and, if so, whether 

JWR has satisfied the requirements for reopening under Rule 60(b). 

Section lOS(a) of the Mine Act requires that, after issuing a citation 

1 Pursuant to section 113(c) of the Mine Act, 30 U. S.C. § 823(c) , we have 

designated ourselves a panel of three members to exercise the powers of the 

Commission. 

721 
or withdrawal order to a mine operator for an alleged violation, the Secretary 

.notify the operator of "the civil penalty proposed to be assessed." 30 U.S .C. 

§ 815(a). Section lOS(a) allows the operator 30 days to contest the proposed 

penalty and further provides that, if the operator fails to contest it, the 

assessment "shall be deemed a final order of the Commission and not subject to 

review by any court or agency." Id. 

JWR failed to contest the proposed assessment within 30 days, and, 

accordingly , it became a final order of the Commission. The Commission has 

held that in appropriate circumstances and pursuant to Rule 60(b), it 

possesses jurisdiction to reopen uncontested assessments that have become 

final under section 105(a). Jim Walter Resources. Inc., 15 FMSHRC 782, 787-90 

(May 1993) . Rule 60(b) relief from a final order is available in 

circumstances such as a party's mistake, inadvertence, or excusable neglect, 

but cannot be used to relieve a party from the consequences of its "deliberate 

litigation choices." Id. at 790. 

On the basis of the present record, we are unable to evaluate the merits 

of JWR's position. In the interest of justice, we reopen this matter and 

remand it for assignment to a judge to determine whether JWR has met the 

criteria for relief under Rule 60(b). The judge shall take evidence with 

respect to the reasons for JWR's failure to file a timely contest. If the 

judge determines tpat relief under Rule 60(b) is appropriate and permits JWR 

to file a notice ~ contest, this case shall proceed pursuant to the Mine Act 

and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

For the foregoing reasons, JWR's motion is granted in part and this 

matter is remanded for assignment. 

Arlene Holen: Chairman 

~~_-, d ,A,,~~ Richard V. Backley, Commission~ 

722 
Distribution 

R. Stanley Morrow, Esq . 

Jim Walter Resources, Inc . 

P.O. Box 133 

Brookwood , AL 35444 

William Lawson, Esq. 

Office of the Solicitor 

u.S. Department of Labor 

150 Chambers Buildin3 

100 Centerview Drive 

Birmingham, AL 35216 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U. S. Department of Labor 

4015 Wilson Blvd . 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Sa,fety and Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

723 
724 
ADMINISTRATNE LAW JUDGE DECISIONS 

PBDBRAL JIIRB SAPBTY A1ID BRAilPlf RBV1BW CC ....-CSS'IOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEES8URG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 5 1994 

JAMES BOYD, on behalf of 

LOCAL UNION 1468, UMWA 

Complainants 

: COMPENSATION PROCEEDING 

Docket No. KENT 92-51-C 

v. 

TROJAN MINING COMPANY , Respondent 

: 

: Mine No. 1 

. . ORDER OF DISMISSAL 

Before: Judge Melick 

15-11726 

On February 24, 1994, an order was issued directing 

complainants to show cause on or before March 18, 1994, 

why this case ·should not be dismissed. To date no response 

to the order has been received. Accordingly, thi• case is 

DISMISSED. ; \ 

~ 

.'/ 

, \ I i \_,, , 

,, \ I 

I 

Gary Meli 

Acbninistr tive 

Distribution: 

Mr. James Boyd, Local Union 1468, 

Elkhorn city, KY 41522 (Certified 

v 

Box 596, 

Judge 

c. Tom Anderson, President, Trojan Minlng Company, 

P.O. Box 280 , Ashcamp, KY 41512 (Certified Mail) 

/lh 

725 
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 . 

SHANNOPIN MINING COMPANY, 

Respondent 

APR 5 1994 

CIVIL PENALTY PROCEEDING 

: Docket No. PENN 92-385 

A.C. No . 36-00907-03792 

Shannopin Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

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

and Health Act of 1977 (the Act). Petitioner has filed a motion 

to approve a settlement agreement and to dismiss the case. A 

reduction in penalty from $206 to $144 is proposed. I have considered the representations and documentation submitted in this 

case, and I conclude that the proffered settlement is acceptable 

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

WHEREFORE·, the motion f o' approval and it is ORDERED that Respon nt pay a 

!\ of se tlement is GRANTED, 

30 days of this order. 

I 

l · 

Distribution: 

penal y of $144 within 

/\I\ I : •I 

Melick 

nistrati 

I 

\ ' l : ~{\ (\1'\_ I \ · ... .../ \j ,, 

Judge 

Gayle M. Green, Esq., Office of the Solicitor, U.S. Department 

of Labor, 14480 Gateway Buildi ng, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Joseph A. Yuhas, Attorney for Shannopin Mining Company, 

P.O. Box 25, Barnesboro, PA 15714 (Certified Mail) 

/lh 

726 
OFFICE OF ADMINISTRATIVE LA~ Jll>GES 

2 SKYLINE, 10th FLOOR 

5203 LEESIURG PIKE 

FALLS CllURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

TALON RESOURCES, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. \ 

RICHARD GARRETT, EMPLOYED BY 

TALON RESOURCES 

INCORPORATED, A/K/A 

WYNCHESTER MINING COMPANY, 

INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

RICHARD ABRAHAM, EMPLOYED BY 

TALON RESOURCES 

INCORPORATED, A/K/A 

WYNCHESTER MINING COMPANY, 

INCORPORATED, 

Respondent 

APR 5 1994 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 93-16 

A.C. No. 46-07445-03534 

: Campbell's Creek No. 2 . . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 93-393 

A.C. No. 46-07445-03551-A 

Campbell's Creek No. 2 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 93-402 

A.C. No. 46-07445-03549-A 

Campbell's Creek No. 2 

DECISIONS 

Appearances: Heather Bupp-Habuda, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

the Petitioner; 

Before: 

Dina M. Mohler, Esq., Kevin A. Nelson, Esq., Kay, 

Casto, Chaney, Love & Wise, Charleston, West 

Virginia, for the Respondents. 

Judge Koutras 

727 

... 
Statement of the Proceedings 

These consolidated proceedings concern proposals for 

assessment of civil penalties filed by the petitioner against the 

respondent pursuant to the Federal Mine Safety and Health Act of 

1977. Docket No. WEVA 93-16, concerns a civil penalty proposal 

filed by the petitioner against the respondent Talon Resources, 

Inc., for an alleged violation of mandatory safety standard 

30 C.F.R. § 75.1701. The petitioner seeks a civil penalty 

assessment of $2,000, for the alleged violation. 

Docket Nos. WEYA 93-393 and WEVA 93-402 concern civil 

penalty proposals filed by the petitioner against the named 

individual respondents pursuant to section llO(c) of the Act 

for allegedly "knowingly" authorizing, ordering, or carrying 

out the alleged violation served on Talon Resources in Docket 

No. WEVA 93-16. The petitioner seeks civil penalty assessments 

of $1,000, against each of the individual respondents for the 

alleged violations. 

The respondents filed timely answers denying the alleged 

violations, and a consolidated hearing was held in Charleston, 

West Virginia. The parties filed posthearing briefs and I have 

considered their arguments in the course of my adjudication of 

these matters. 

Issues 

In Docket No. WEVA 93-16, the issues include (1) whether the 

corporate operator Talon Resources Incorporated (hereinafter 

Talon), violated the cited mandatory safety standard~ (2) whether 

the violation was "significant and substantial" (S&S), (3) 

whether the violation was the result of an unwarrantable failure 

by Talon to comply with the cited standard; and (4) the 

appropriate civil penalty to be assessed, taking into account the 

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

Act. 

In the two individual section llO(c) cases, the principal 

issue is whether or not the named respondents knowingly 

authorized, ordered, or carried out the alleged violation, and 

if so, the appropriate civil penalties that should be assessed 

for the violation taking into accoun~ the relevant criteria found 

in section llO(i) of the Act. Also in issue is whether or not 

the violation was "S&S" and whether or not it was the result of 

an unwarrantable failure to comply with the requirements of the 

cited standard. 

728 
Applicable Statutory and Regulatory Provisions 

l. The Federal Mine Safety and Health Act of 

1977, P.L. 95-164, 30 u.s.c. §§ 801, et seq. 

2. The presiding Judge has jurisdiction to hear 

and decide this matter. 

3. Commission Rules, 29 C.F.R. § 2700.l ~ seg. 

Discussion 

The Section 104(d)(l) "S&S" citation No. 2729003, issued on 

July 14, 1992, at 11:00 A.M. , by MSHA Inspector Leo R. Inghram, 

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

§ 75 . 1701, and it states as follows: 

The No. 3 entry of the No. 4 panel section 002-0 mined 

into an abandoned coal mine which could contain 

dangerous accumulations of water and gases. The mine 

was inac6essible and could not be examined for hazards. 

Test hole's had not been drilled in any of the faces of 

the No. 4 panel prior to cutting into the abandoned 

mine. The mine operator continued to mine near the 

area where he cut into the abandoned mine without 

drilling test holes. A cross cut was mined between 

No . 4 and 5 entries which is within 200 feet of the 

abandoned mine (approximately 80 feet). Also, rooms 

were started to the right in the No. 5 entry of the 

No. 4 panel, and No. 1 room was approximately 175 feet 

away from where No. 3 entry cut into abandoned mine. 

The mine operator did not have a map showing the 

abandoned mine and did not know how· far or near the 

rest of the abandoned mine was to the No. 4 panel 

section, yet the operator continued to mine in the 

general area of the abandoned mine without drilling 

test holes. The operator cut into the abandoned mine at 

approximately 0930 on 7-13-92, and was observed mining 

in the general area near the abandoned mine at 0900 on 

7-14-92. The mine operator has since (about 1000 A.M. 

7-14-92) obtained an uncertified map of the abandoned 

mine, but has not transposed it on to his certified map 

of the Campbell's Creek No. 2 mine. 

MSHA Inspector r.eo R. Inghram. Jr. confirmed that he 

conducted a mine inspection on July 14, 1992 , and issued a 

violation because of the failure by Talon to drill test holes 

while mining on an active section near an abandoned coal mine 

that could not be inspected (Tr. 10) . He stated that he arrived 

729 
at the mine at 7:20 A.M., and that two state mine inspectors were 

there. They told him that the respondent had cut into an old mine 

and they proceeded underground to the number four panel section 

to investigate the situation. Mr. Inghram found that the number 

three entry had cut into an abandoned coal mine and that Talon 

and JllSHA were unaware that the mine was there and it was not 

shown on a map that had been submitted to MSHA (Tr. 12). 

Mr. Inghram testified that he c i ted a violation of 

section 75.1701, after determining that mining was conducted 

within 200 feet of the abandoned adjacent mine without 

drilling the required test bore holes. Referring to a mine map 

(Exhibit G-2), he identified the area where the number three 

entry cut through into the abandoned mine. He stated that he was 

informed by the respondent operator that the breakthrough 

occurred the previous day, July 13, at approximately 9:00 A.M. 

(Tr. 15). 

The inspector stated that after the breakthrough, mining 

continued in t~e last open crosscut between the number four· and 

five entries, and rooms were started to the right off the number 

five entry. Although the entry numbers are not shown on the mine 

map, he stated that it was a common industry practice to number 

the entries from left to right, and he marked the map accordingly (Tr. 17). He believed that mining was taking place and he 

observed a mining machine loading a shuttle car, but was not 

sure whether it was in the crosscut or in the number one room 

(Tr. 18) • 

The inspector stated that he determined that the crosscut 

that was mined between the number four and number five entries 

was within 200 feet of the abandoned mine by taking into account 

the fact that the entries were on SO-foot centers, as shown by a 

map of the number four panel that was obtained by the state 

inspector from Talon and then given to him by the State inspector 

(Exhibit G-3; Tr. 19). The inspector explained that the drawings 

on the map were made "to try to determine a two hundred foot 

length from where they cut into the old mine", and that he and a 

state inspector (Gillian) used a rule or scale to make their 

calculations while "trying to determine the probable two-hundred 

foot limit line" (Tr. 21). 

The inspector stated that the calculations shown on the map 

were made the same day the citation was issued, and that the 

calculations were made to determine how far the respondent would 

have to retreat away from the abandoned mine in order to continue 

•ining without drilling the required test holes (Tr. 21). He 

explained that the solid line drawn on the map (Exhibit G-3), 

indicates where the breakthrough occurred, and the broken line 

reflects where mining could legally continue outby that line. He 

determined that mining could legally continue in the number two, 

three, and four rooms, and any areas outby the number two room, 

730 
without drilling test holes. Mining could have been done inby 

the number two room but only if test holes were drilled in 

advance (Tr. 22-23). 

The inspector stated that the 200 foot limits as ·•hown on 

the •ap (Exhibit G-3), were drawn at an angle because •where they 

had cut through into the old mine, you could only see a short 

distance back in there and it appeared that the entry from the 

abandoned mine was coming in at this angle", as shown by the 

solid line (Tr. 23). He explained that his calculations were 

made "by visually looking at it" because he had no way of going 

into the area (Tr. 23). He confirmed that at the time the map 

was prepared, he and the state inspector did not have a map 

relating to _the abandoned mine, and no one at the mine had such a 

map (Tr. 24) . However, he recalled that he may have seen a copy of the abandoned mine map on the day the citation was issued, or 

the next day, but his notes reflect that the abandoned mine, 

identified as the "Big Bottom Coal Company," had not been 

recorded on the mine map at the time of his inspection (Tr. 27) . 

The insp~ctor stated that previous to the breakthrough the 

abandoned mine'. was not part of the respondent's mine, but he 

believed that it would now be considered part of the mine because 

during his last visit there the old mine was being ventilated 

from the Campbell Creek mine breakthrough, and he has taken air 

samples at the old mine entries, and noticed "a small stream of 

water" coming out of one of the entries (Tr. 32-35). He 

confirmed that he has never entered the old Big Bottom mine from 

inside the Campbell's Creek Mine, and has no knowledge of anyone 

else going into the old mine (Tr. 36). 

The inspector described the condition of the breakthrough on 

July 14, as follows at (Tr. 36-37): 

A. The number three entry had cut through into 

the old mine in the left-hand corner of the 

entry. And you could shine -- You could see 

back in there a little ways with your light, 

but the area was unsupported and it couldn't 

be examined at that particular time. 

Q. Okay. How big a hole, as far as feet or 

inches, would you say there was when you 

arrived on the fourteenth? 

A. I'm not 

Q. Approximately. 

A. Approximately, I would say maybe right to ten 

feet. I'm not sure. 

731 

;.· 
Q. Eight to ten feet high? 

A. Wide. 

Q. And how high? Again, approximately. 

A. This is speculation. Normally, the coal in 

this mine runs about ten foot high . So I 

would say on the Campbell's Creek Number two 

side , it was probably about ten feet high, 

something like that. 

The inspector stated that he could not approach close enough 

to look into the old mine entry because the roof at the breakthrough area and corner were unsupported. Looking from a 

distance, he estimated that there was probably two or three feet 

of fallen rock on the old mine floor and that the height of the 

entry appeared to be "six feet or so", but he could not get close 

enough to look back into the old mine (Tr. 37-38). 

The inspector stated that he based his "S&S" finding on the 

fact that the old abandoned mine was not being ventilated other 

than with the ai~ leaking through from the Campbell mine, and 

that old mines can contain-low oxygen levels and have water 

accumulations when they are not worked and water is not being 

pumped out. He confirmed that he made some tests at the mi ne 

opening during his i nspection and he found no methane, and the 

oxygen was good . He explained that he was measuring the air 

coming from the Campbell's Creek mine and going into the 

abandoned mine, and he confirmed that air was being coursed 

through the old mine from a blowing fan in the Campbell mine. He 

determined that seven miners were affected by the citation, and 

he identified the respondent Richard Garrett as the day shift 

section foreman (Tr. 39-40). The inspector confirmed that old 

abandoned mines that are not ventilated or pumped of water, 

"could possibly contain dangerous accumulations of gas and water" 

(Tr. 41) . 

The inspector stated that after the initial breakthrough, 

mining continued for approximately three shifts, and he assumed 

that there were no hazardous conditions on the section while this 

mining was taking place (Tr. 42). After the initial breakthrough, mining continued "off to the right" and no further 

breakthroughs were made during this time (Tr. 44). The inspector 

described the areas where mining continued and he marked the 

entries and rooms on the mine map, and explained that the areas 

that are "blackened in" on the map are the areas and rooms that 

were mined after the breakthrough (Exhibit S-2; 45-46). 

The inspector stated that he spoke with' foreman Garrett on 

July 14, about the breakthrough, and informed him that he saw no 

evidence of any test holes being drilled while mining was still 

732 
going on in the vicinity of the abandoned mine . Mr. Garrett 

informed him that no test holes were drilled and stated that "we 

don't have anything to drill with", and this is recorded in his 

notes (Exhibit S-4, pg. 8, Tr. 48). Mr. Garrett also informed 

him that he was aware of the fact that test holes were required 

to be drilled when near an old mine , and that he had called 

Mr. Abraham who told him to "start the mining to the right, off 

number five entry", and the inspector assumed that Mr. Garrett 

contacted Mr. Abraham on July 13, the day of the breakthrough into the abandoned mine (Tr. 48-49). 

The inspector stated that he decided to cite the violation 

as a section l04(d) (1) unwarrantable failure citation because of 

Talon's high negligence for continuing to mine in close proximity 

to the abandoned mine without drilling test holes, and because 

there was no map indicating the extent of the abandoned mine and 

whether they were heading toward the old mine again (Tr. 49). 

The inspector stated that according to his calculations the 

number one room off the number five entry was approximately 

175 feet from the original breakthrough at the number three 

entry, and that the "probable two-hundred foot limit" shown by 

the solid and broken lines on Exhibit S-3, was based on the 

calculations that he and the state inspector made . He stated 

that "as far as actually knowing the limits of the old mine, no, 

we didn't know. And I don't think anybody else did either" 

(Tr. 50). 

The inspector confirmed that the initial breakthrough was an 

accident and was not a violation. The violation was issued 

because of the mining that continued within 200 feet of the 

breakthrough area without drilling test holes to determine the 

location of the old abandoned mine (Tr. 51) . 

The inspector further explained the hazards associated with 

the failure to test drill within 200 feet of an abandoned mine 

(Tr. 51-57) . He stated that the date on the map showing the Big 

Bottom Coal mine reflects that the last known date of mining was 

December 10, 1925 (Tr. 57). He further explained his "S&S" and 

"reasonably likely" gravity findings (Tr. 58-62). 

The inspector stated that at the time of his inspection he 

did not ask anyone whether or not they had entered the old 

abandoned mine, and he saw no visible evidence that anyone had 

entered that mine. He believed that there was enough room from 

the size of the breakthrough for someone to go into the old mine 

(Tr. 63). 

In response to further questions, the inspector confirmed 

that he did not speak to Mr. Abraham when the citation was 

issued, but he was not sure whether he spoke with him later that 

day. The inspector stated that "there was a lot of confusion 

733 
going on outside. People were scurrying around, hunting a map" 

(Tr. 64). He further stated that "they were looking for a map to 

try to determine the location and extent of that old mine in 

relation to where they were mining so they would have a general 

idea of where to mine, probably away from that mine, I would say" 

(Tr. 64) . 

In response to a bench question as to whether he would have 

issued a violation if Talon had produced a map showing that the 

abandoned mine was further than 200 feet from where mining was 

taking place on July 14, the inspector stated that "I think we 

still had a violation because that mine was unsafely examined. 

The roof was not supported in that mine. It was driven many 

years ago" (Tr. 65). He explained that "the law requires them to ex~mine an area of an abandoned mine when they approach within 

two hundred feet of this mine" (Tr. 66). He explained further 

that he would not have issued a violation if the respondent had 

produced a certified map showing that the abandoned mine was 

500 feet away (Tr. 66). 

The inspector reiterated that no one, including Mr. Abraham, 

informed him that anyone had entered the old mine and examined it 

and found it safe. He stated that he first learned about someone 

stating that they had entered the old mine during the taking of a 

deposition in this case (Tr. 68). 

on cross-examination, Inspector Inghram stated that Talon 

was never required to drill test holes at the mine, and it was 

not required to do so after he issued the citation (Tr. 72). He 

confirmed that there was a second breakthrough approximately a 

month after the initial one, and that he went to the mine to 

examine the second incident and took notes. He confirmed that 

the second breakthrough occurred on August 17, 1992, and that the 

dotted line shown on map Exhibit S-2, showing the extension of 

the 200 foot limit from the old mine was "essentially a 

theorization of where that mine extends now" (Tr. 74). He 

confirmed that after the second breakthrough the previous map 

of the old mine received by Talon was not entirely accurate 

(Tr. 74) • 

The inspector confirmed that the conditions of the second 

breakthrough were the same as the first one, but he never 

required any test drilling, and he found no hazardous amounts of 

water, methane, or oxygen. However, mining was discontinued in 

the area and moved to a different area away from the breakthrough 

(Tr. 75-76). 

The inspector stated that the highlighted solid line shown 

on •ap Exhibit G-3, is his estimation of the location of the 

abandoned mine on July 14, 1992. He confirmed that he and the 

state inspector drew this line based on "our observation of the 

old mine, it appeared it was going in that general direction . 

734 
This is probable. This is not a survey", and that it was his 

"best quess as to where the mine lay" (Tr. 77) . When asked if he 

was wrong, he replied "I may be wrong about the direction , but 

the mine was within that areas, according to the map that you 

submitted to us" (Tr. 77) . He explained that map EXhibit s-2, 

submitted to MSHA, clearly shows a broken line labeled "200 ft . barrier", and that it falls within the crosscut at the No. one 

room (Tr. 78) . He confirmed that this line does not go in the 

direction of the entry that cut into the old mine, and that it 

starts at the right-hand side of the Number three entry, and that 

the place that was actually mined through and opened up was on 

the left side of that entry (Tr. 79). 

The inspector stated that he made no actual measurements to 

determine that the number one room was within 200 feet of the 

breakthrough, and that his calculations were based on the map submitted to MSHA, and that the calculations made at the time the 

citation was issued was based on an "imaginary line" of where he 

believed the mine was located (Tr. 80) . 

The inspector stated that he received no telephone call 

reporting the initial breakthrough and that he was unaware of any 

call made to MSHA by Mr . Abraham, or any calls to the state 

inspectors. He confirmed that these inspectors were at the mine 

because they knew about the breakthrough (Tr. 81). He confirmed 

that he issued the citation becaus e mining was taking place 

within 200 feet of the abandoned mine that could not be examined 

tor accumulations of water and gases and no test holes were being 

drilled (Tr. 82). He confirmed that his notes do not reflect the 

exact location where mi ning was taken place on July 14, "other 

than they were mining to the right, in rooms to the right" 

(Tr. 82-83) . 

The inspector confirmed that the Campbell's Creek mine has 

no history of dangerous accumulations of methane and that he did 

not issue the citation out of concern that dangerous levels of 

methane would be encountered during mining. With regard to the 

possibility of cutting into dead-end entries, the inspector 

stated "I don't know how the old mine lay and we still don't 

know for sure" (Tr. 89). He agreed that once the breakthrough occurred, the air from the Campbell mine was going ou·t the old 

mine (Tr. 90). 

The inspector testified about possible water hazards in the 

old mine, and confirmed that he found no dangerous accumulations 

of water (Tr. 91) . He stated that he was not sure of the mine 

elevations, and confirmed that he saw water coming out of the 

mouths of the abandoned mine. He believed that it was possible 

that dangerous water levels would be encountered by mining into 

the old mine because the respondent did not know the actual 

extent of the mine . He stated that he could not examine the mine 

in any detail, but based on his past experience, he believed that 

735 
water can accumulate in a mine that is not being maintained 

(Tr. 94). He confirmed that he did not know what ~he conditions 

were in the abandoned mine other than what he could see through the breakthrough (Tr. 93-94, 96). 

The inspector stated that he based his "S&S" finding "on the 

probability that they could cut in this mine at another location 

away from this original breakthrough and then possibly encounter 

accumulations of water or low oxygen or whatever" {Tr. 97). He 

further stated that he based his finding "on what was possible", 

and "not this particular fifty or sixty or eighty here that I 

could see" (Tr. 97) . He confirmed that he did not include the 

Number 2, 3, and 4 rooms off the Number 5 entry as part of the 

affected areas described in his citation for the following 

reasons (Tr. 99) : 

THE WITN.ESS: Because when I obtained the mine map and 

the calculations on the mine map made by the state 

inspector and myself, it was determined that those 

rooms -- And this is a probable two-hundred-foot limit -- it was determined by Mr. Gillian and myself that 

those Number two, three and four rooms were not within 

the two-hundred-foot limit and were very unlikely to 

cut into that mine. 

We didn't know the extent of this. We don't know the 

extent -- I can't say that two, three and four entries 

were within two hundred feet of that old mine . But I 

could say with a little calculation on the mine map and 

things that the crosscut between number four and number 

five entry and number one room was probably within two 

hundred feet of that old mine. 

The inspector confirmed that when he was at the breakthrough 

area on July 14, a curtain may have been installed at that 

location, but he was not sure (Tr. 101). He confirmed that when 

he took the air samples shown in Exhibit R-1, the Big Bottom Mine 

had been incorporated as part of the Campbell's Creek Mine 

(Tr. 102). He explained where he took one of the samples at the 

surface of the Big Bottom Mine. He confirmed that the citation 

was terminated without the drilling of any test holes, and that 

after the second breakthrough, he still did not require the 

drilling of any test holes (Tr. 104). 

In response to further questions, the inspector stated that 

when the August 17, 1992 , accidental breakthrough occurred, he 

did not believe that the 200 foot barrier lines shown on map 

Exhibit S-2, were shown on that map, and no citation was issued 

at that time because based on the map, the breakthrough was not 

736 
within 200 feet of the abandoned mine, and it was an accident 

because the respondent had no knowledge of the old mine area and 

mining had ceased in that area (Tr. 107). 

With regard to the highlighted 200 foot line shown on 

Exhibit S-3, the inspector explained that he drew it at an angle 

toward the top of the map rather than to the left or right in 

another direction because "to the right is where they were mining 

or wanting to mine on this panel, starting these rooms off the 

Number five entry. So we drew the line to the right and our twohundred-foot line to the right so that they could come outby 

there and continue mining. They were wanting to continue mining" 

{Tr. 108). He stated further that "we were calculating on this 

map to determine whether they could go ahead and mine, so that 

they could be within two hundred feet -- or would be two hundred 

feet away from that old mine, so they could go ahead and continue 

production that day" (Tr. 109). 

The inspector stated that the breakthrough entry was "driven 

straight ahead where they cut through", and that the entry of the 

old mine "was going to the right, as near as I remember". When 

asked if it wa~ on an angle to the right, he replied "I don't 

know how radical, but it was going to the right, according to 

this, not as much as I thought, well, it's still a pretty good 

angle" (Tr. 109). 

MSHA Special Investigator Charlie M. Meadows testified that 

he conducted a combined investigation of the two individual 

respondents, beginning in August, 1992, and ending on December 2, 

1992. He stated that he interviewed nine individuals, including 

Keith Stephens, and the two respondents in these proceedings 

(Tr. 116-119). He stated that after speaking "with mine 

management and associates of management" it was determined that 

after cutting through into the old mine, which was not a 

violation, "they elected to go ahead and mine in a close 

proximity of the old mine that they cut into, not knowing what 

was there at that point in time" (Tr. 120). 

With respect to respondents Abraham and Garrett, Mr. Meadows 

stated that based on the "testimony" he received, which was 

"pretty close", "each one of them stated that they cut into the 

old mine" (Tr. 120). Mr. Meadows sated that Mr. Abraham and 

Mr. Garrett had a telephone conversation and "they elected to 

go ahead and mine the breakthrough and turn the rooms". When the 

second shift came on, shift foreman Stephens was instructed by 

Mr. Garrett "to go ahead and mine in that area" (Tr. 121). 

Mr. Meadows stated that Mr. Stephens was also "Charged with 

a civil penalty". However, the petitioner's counsel confirmed 

that this was not the case, and that no civil penalty proceeding 

was filed against Mr. Stephens (Tr. 122). 

737 
Mr. Meadows stated that Mr. Garrett told him that after the 

initial breakthrough was made he called Mr. Abraham, who was not 

aware of the old mine, and Mr. Abraham told him to mine through 

the crosscut and to start mining to the right off the number five 

room (Tr. 122). 

Mr. Meadows stated that he spoke with Mr. Abraham and was 

informed that when Mr. Garrett called him Mr. Abraham checked 

the available mine map at the mine off ice and the old mine was 

not shown. Mr. Abraham then called the lessee of the coal seam 

and an old map was obtained from an engineering company and it 

was plotted onto the mine map. Mr. Meadows stated that 

Mr. Abraham explained to him that "he didn't think he was in 

violation of the law when they started to the right because he 

wasn't going toward the old mine", and Mr. Garrett stated that he 

was following Mr. Abraham's instructions (Tr. 123). 

Mr. Meadows explained further that he was told by 

Mr. Garrett that after he informed Mr. Abraham that "he worked 

the crosscut between number four and five", Mr. Abraham told him 

to "pull the equipment back and start the section to the right" . Mr. Meadows also believed that Mr. Garrett told Mr. Abraham that 

air was going into the old mine , that there was no water at the 

area that was cut through, and that Mr. Garrett believed he could 

turn the crosscut between four and five because the entries was 

up ahead of where the crosscut would be (Tr. 125). Mr. Meadows 

stated that as far as he knew, Mr. Garrett and Mr. Abraham did 

not discuss any test drilling (Tr. 126). 

Mr. Meadows stated that Mr. Garrett told him that "he knew 

he should have been drilling test holes in that area" but that he 

didn't have a drill to use (Tr. 126-127). Mr. Meadows stated 

that he prepared a separate memorandum (Exhibit 5-a) concerning 

Mr. Garrett's Admission that he knew that mining without test 

drilling was a violation, but Mr. Garrett did not want this 

statement to be in his signed statement (Exhibit 5; Tr. 127-128). 

Mr. Meadows stated further that he prepared a memorandum of his 

interview with Mr. Abraham from his notes recording what 

Mr. Abraham told him (Exhibit S-6). Mr. Meadows also identified 

a statement taken from second shift foreman Keith M. Stevens 

(Exhibit S-7). 

On cross-examination, Mr. Meadows explained what occurred 

and what was said when he conducted his interviews with 

Mr. Garrett and Mr. Abraham (Tr. 154-173). In response to 

certain bench questions, Mr. Meadows stated that Mr. Abraham 

never admitted that he knew that test holes needed to be drilled. 

Mr. Meadows confirmed that Mr. Abraham was not aware of the 

existence of the old mine before the initial breakthrough was 

made , and that he recommended that Mr. Abraham be charged 

pursuant to section llO(c) of the Act because he knew about the 

old mine after the breakthrough, directed that mining continue in 

738 
that area, and admitted that he instructed Mr. Garrett to 

continue mining (Tr. 173-174) . He further explained his reasons 

for recommending a section liO(c) proceeding against Mr. Garrett 

(Tr. 175-176) . 

Keith M. Stephens, employed at the mine as an evening shift 

section foreman, testified that he was working on the second 

shift in July, 1992 , and that there were ten miners on his crew. 

He confirmed that he worked on July 13 and 14, 1992, and changed 

shifts with first shift foreman Richard Garrett. He stated that 

on July 13, Mr. Garrett told him that he had cut into the old 

mine at the number three entry but did not encounter any gas or 

water (Tr. 184) . Mr. Stephens stated that he asked Mr. Garrett 

about test driling, and Mr. Garrett replied "no, we're going to 

back up and go to the right", and instructed him "to finish the 

breakthrough between four and five, back the miner back and mine 

on the rooms on the right . He already had them marked off with 

red paint" (Tr. 184) • 

Referring to map Exhibit s-2, Mr. Stephens explained where 

he continued mining after his discussion with Mr. Garrett. He 

stated that he asked Mr. Garrett about test drilling because "I 

didn't know if we were going straight ahead or what we was going 

to do" (Tr. 188) . 

Mr. Stephens identified his prior signed statement given to 

special investigator Meadows (Exhibit S-7), and he stated that he 

did not tell Mr. Meadows that "I felt we should test drill the 

crosscut" , and that he does not use the word "basically" 

(Tr. 189-192) . He further explained what Mr. Garrett told him 

as follows at (Tr. 191): 

THE WITNESS: The way he told me was after I asked him, I said, "What about test drilling?" He said, "Finish 

the break, back up and start the rooms to the right." 

THE WITNESS: Yes, Sir, I asked him, "What about test 

drilling?" But I didn't know -- At that time, I didn't 

know if we were going on or what we was going to do. 

JUDGE KOUTRAS: And he just said, "Turn to the right 

and continue on. " 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Do you remember hi m specifically 

telling you, "Forget test drilling"? 

THE WITNESS: He .said, "No, we ' re not going to drill. 

We're going to pull back to the right. " 

739 
Mr. Stephens further explained the testimony that he gave 

during his deposition of October 12, 1993, (Exhibit S-10: 

Tr. 195-197). He agreed that he testified that during his 

discussion with Mr. Garrett he told him that "he feltw test 

holes should be drilled, and he did so because "it's the law" 

(Tr. 198) . 

Mr. Stephens confirmed that on July 13, 1992, the respondent 

did not have a drill for drilling test holes, and that he at no 

time entered the abandoned mi ne because the top was not supported (Tr. 201). He stated that at the start of his shift he looked 

into the number three entry where he cut the crosscut between 

four and five and that he took an air reading and tightened the 

curtain to prevent too much air from going into the old mine. 

Although two or three feet of roof had fallen at the breakthrough 

area, the roof was "smooth looking" (Tr. 202) . 

on cross-exami nation, Mr. Stephens stated that he was able 

to see approximately 100 to 150 feet into the old mine and 

observed no water. From his visual observation, it appeared to 

him that the direction of the old mine was "at a slight angle to 

the right" (Tr. 203 ). He confirmed that he made methane tests 

and found none present, and stated that he would not have 

continued mining the crosscut or rooms if he believed it was not 

safe to do so, and that "I just went ahead and knocked it 

through" (Tr. 204). He explained that he did not hesitate to 

mine the crosscut between the four and five entries because "they 

were past where the breakthrough was, and the angle of the entry 

of the old mine that had breakthrough" (Tr. 205). He "guessed" 

that the crosscut was mined approximately 25 to 30 feet back from 

the face of four and five, and confirmed that he did not mine the 

number one room (Tr. 205 ) . 

Mr. Stephens confirmed that Mr. Meadows came to his home to 

interview him and take his statement and he explained what 

transpired. He also explained what occurred when there was a 

second breakthrough in August, 1992, and confirmed that the mine 

was never placed under a drill plan (Tr. 206-210). 

Respondent's Testimony and Evidence 

Richard Garrett testified that he has been employed by Talon 

Resources, Inc., as a mine foreman for 17 years, and that he had 

14 years of mining experience prior to thi s job. He confirmed 

that July 13, 1992, was his first day of official duty at the 

Number 2 mine, and that he had served at another mine as foreman 

on different shifts (Tr. 219). 

Mr. Garrett described the prevailing mine conditions at the 

number three entry breakthrough area on July 13, and the 

conditions immediately prior to that event, and he stated that 

everything was normal and there were no indications that they 

740 
were about to cut through into an old mine. He confirmed that he 

was with the miner operator when he cut into the old mine, and he 

indicated that the coal seam was "level to the eye" but sloped toward the working face of the area where they were working 

(Tr. 220-223) . 

Mr. Garrett stated that the miner made a 20-foot cut up the 

right side of the number three entry and when it cut the left. aide the rib fell out leaving a 3 foot-by-5 foot hole at the top 

of the coal seam, "and with all of our air gushing in it we knew 

immediately we had cut into an old mine" (Tr. 223). The 

equipment w~s deenergized and the hole into the old mine was cut 

larger to approximately 14 feet wide and to the same 8 to 10 foot 

height that was being mined at that time. The area was cleaned 

up and roof bolted, and he made air and gas tests. He detected 

no methane or water and measured 33,000 cubic feet of air going through the breakthrough. He looked through the opening with his 

light and could see approximately 100 to 150 feet and observed no 

dangerous accumulations of water (Tr. 226-227). He then 

proceeded to the surface and telephoned Mr. Abraham and explained 

to him as follows (Tr. 227-228): 

Q. What ·specifically did you tell him? 

A. I told him we had cut into an old mine and we 

had no water, no methane. And there was so 

much air going into it, you didn't have to 

worry about taking an air sample . And our 

conversation went from where can we mine and 

stay mining coal? And I told him about the 

crosscut that I could put through. 

And I was as much responsible for going ahead 

and mining as Mr. Abraham was, because I felt 

it was safe. I told him I could put the 

breakthrough through and set up on a panel of 

rooms outby in number five entry, and that is 

what we did. 

Mr. Garrett stated that after speaking with Mr. Abraham, he 

returned underground and that either he or Mr. Stephens continued 

mining the Number 1 room, and it was cleaned, rock dusted, and 

ventilated by the next day when the inspectors were there. 

Mr. Garrett stated that before any mining continued he went into 

the old mine for approximately 200 feet, or to what would be the 

first crosscut, and he marked the location with an "X" .on map 

Exhibit s-2. He stated that he went into the mine to "see what I 

had cut into and what lay around me" (Tr. 229). He stated that 

be encountered no water, and from his experience "it looked like 

the mine had been mined in front of me, the direction I cut into 

741 
it" (Tr. 230) . He explained that the old mine "ran basically in 

the same direction as the number three entry" that he had cut 

into, rather than off a small angle to the right (Tr. 230). 

Mr. Garrett stated that when he changed shifts with 

Mr. Stephens he explained the breakthrough, the conditions that 

existed, and what he planned to do next, and that Mr. Stephens 

did not object. Mr. Garrett could not recall any mention of 

drilling (Tr. 232). When the inspectors arrived the next day, 

July 14, the number one room and breakthrough areas had been 

cleaned up and he voluntarily told the inspectors about what had 

occurred. He did not believe that the inspectors would have 

known when the mining took place if he had not told them. He 

confirmed that when he spoke to Mr. Abraham on July 13, he 

(Abraham) told him that he was going to notify MSHA and/or the 

state inspectors about the breakthrough (Tr. 233). Mr. Garrett 

confirmed that MSHA never required any test drilling while he has 

been mining at the Campbell Creek mine (Tr. 236). 

Mr. Garrett confirmed that he was interviewed by MSHA 

special investigator Meadows and signed a statement, and he 

explained as follows (Tr. 237 -239 ) : 

Q. Did you ever tell Mr. Meadows during that 

conversation that you knew mining coal 

without test drilling was a violation of the 

law? 

A. I never told Mr. Meadows in no words 

to that. I'm quite sure I told Mr . Meadows, 

Mr. Inghram and plenty of people that I 

understand the law about test drilling, when 

I should and when I shoul dn't. But, no , I 

made so such statement to Mr . Meadows as 

that. 

Q. Did you tell Mr. Meadows that you knew you 

should have been test drilling when you were 

mining on July 13, but you didn't test drill? 

A. No, sir. 

JUDGE KOUTRAS: What is your understanding of the law. 

THE WITNESS: That if I am approaching an old works or 

abandoned mine that can't be preshifted or checked, 

that I'm supposed to test drill. 

JUDGE KOUTRAS : In this case, when they cut through, 

that was an old abandoned mine, was it not? 

THE WITNESS: Yes, sir. 

742 
JUDGE KOUTRAS: It couldn't be checked? 

THE WITNESS: I checked part of it after that. 

JUDGE KOUTRAS: By eyeballing. it. Before you turned 

right and started drilling, did you check 

THE WITNESS: Before I started mining? I checked it 

before I started mining, Yes, sir. 

JUDGE KOUTRAS: Did it ever cross your mind that maybe 

you should have drilled some bore holes before turning 

right and continuing mining? 

THE WITNESS: I felt with what I seen in the old mine 

and with the eye level of our mine and the abandoned 

mine I cut into, with the air that I pushed into it 

when I cut into it, if I cut into it again, there would 

be no hazard, because I felt there couldn't be no 

accumulation of water. And if did cut in where there 

was gas, I would immediately, with the air I had, I 

would flush it. I felt that I didn't have no danger. 

On cross-examination, Mr. Garrett testified further about 

his prior statement to Mr. Meadows and his breakthrough 

conversation with Mr. Stephens (Tr. 240-244). He could not 

recall mentioning test drilling, but stated that "maybe we did 

tell him we weren't going to test drill, because we weren't", and 

that "we all knew we didn't have a drill" (Tr. 242-243). He 

confirmed that when he went into the old mine another miner went 

with him "on his own" (Tr. 246). 

Mr. Garrett admitted that he told Mr. Meadows that he did 

not go into the old mine because the roof was unsupported, and 

because he had been threatened with a state personal violation, 

did not know if he could legally enter the old mine, did not want 

to bring on any more violations, and wanted to protect the men on 

his section (Tr. 248, 251). 

Mr. Garrett confirmed that in his deposition he stated that 

he had walked approximately 150 to 200 feet into the old mine. 

He estimated that the distance from the crosscut between the 

number four and five entry to the number three entry breakthrough 

into the old mine was less than 200 feet (Tr. 253-254). He 

confirmed that he had never experienced a breakthrough prior to 

July 13, 1992, and stated as follows at (Tr. 254-255): 

Q. So having no experience in this matter, how 

could you determine what made it safe to 

continue mining? 

A. If I couldn't detect any methane, if I 

743 
couldn't see any water and if I had thirty 

thousand feet of air going through it and the 

mine was eye level, what else could I look 

for? 

Q. So, are you saying that you were relying on 

your experience of seventeen years, I think 

you said, at Talon, and however many, thirty 

years, as a coal miner? 

A. Yes, Ma'am. 

JUDGE KOUTRAS: Mr. Garrett, let me ask you this: How 

can you be reasonably assured that -- Even through you 

made a determination that the conditions at the 

breakthrough area were not hazardous, how could you 

predict what the conditions would be in some other area 

if you cut through? 

THE WITNESS: I couldn't, sir, other than that the mine 

was level. I could presumably predict that there was 

no hazardous water. There might be some. 

Mr. Garrett stated that if he knew he was mining in the 

direction of an old mine he would test drill, and that he had no 

assurance that he might not accidently cut into it again, and 

while he didn't know his exact position he had a presumably good 

idea from the rooms he was in that he was going away from the old 

mine. He arrived at these conclusions after examining the old 

mine and before continuing mining (Tr. 257). 

In response to further questions, Mr. Garrett confirmed that 

he did not tell Inspector Inghram that he had gone into the old 

mine because he had a state inspector with him who had threatened 

to cite him with a personal violation and he was afraid to say 

anything. He did tell Mr. Inghram that he thought it was safe to 

mine in the direction that mining was progressing in the rooms, 

but was afraid to tell him that he had determined that the old 

mine was in the opposite direction (Tr. 262) . He confirmed that 

he was in fact cited by the state and fined $50 for mining at the 

breakthrough without test drilling (Exhibit R-8; Tr. 264) . 

Richard H. Abraham, President, Talon Resources, Inc., 

testified that he has worked in the mining industry since 1968, 

and is a certified miner, mine foreman , and electrician, and is 

certified to take respirable dust samples (Tr. 267) . He stated 

his understanding of the intent and purpose of section 75.1701, 

as follows at (Tr. 268): 

THE WITNESS: Okay. It is my general understanding of 

the law that the purpose of 75.1701 is to ascertain 

dangerous conditions of gases or water prior to the 

744 
intentional breakthrough into an abandoned area of that 

mine, abandoned area of another mine or an area of that 

mine inaccessible . 

And it does talk about three different cases; one which 

would be the same mine, which would be by certified 

engineers, then could mine within fifty feet with no 

test drilling. Or if it's the same mine that wasn't 

certified by engineers, it would be two hundred feet. 

or if it's a different mine and, I assume, different 

I . D. Number which would be the case of big bottom, 

again, it would be two hundred feet. 

Mr. Abraham also believed the the word "approaches" found in 

the statutory language of section 75.1701, is significant because 

if mining is being done in a direction opposite from the old 

mine, this would not be "approaching" the old mine (Tr. 269). 

With regard to mining "parallel" to the old mine, Mr. Abraham 

stated that at another mine where parallel mining was within 

200 feet of an abandoned mine, he and MSHA agreed to a plan 

where drilling was not required (Tr. 269-270) . He acknowledged a 

distinction between a known and unknown hazardous abandoned mine 

(Tr. 271). He also alluded to another mine where a planned 

drilling procedure is in effect {Tr. 273-274). 

Mr. Abraham stated that it is his understanding that there 

is no legal requirement for test drilling breakthroughs between 

entry ways, and that the sole purpose of drilling is to determine 

the atmosphere and presence of dangerous accumulations of water 

in an abandoned mine (Tr. 275). He confirmed that there was no 

drilling equipment at the mine at the time the breakthrough 

occurred, and that prior to speaking with Mr. Garrett on July 13, 

1992, he was not aware of the existence of the old Big Bottom 

mine (Tr. 276) • 

Mr. Abraham confirmed that Mr. Garrett called him and 

informed him that he had accidentally penetrated an old mine but 

had no inundation of water, and that the air was leaving the 

number three entry of the Campbell Creek mine and going into the 

old mine. Mr. Abraham stated that he engaged the "speaker phone" 

and went to the engineering off ice where Ken Abraham, the mine 

engineer and safety director is located, to look at a mine map 

(Exhibit R-2), and he explained the discussions that took place, 

including the mark-up of the map (Tr. 280-284). 

Mr. Abraham stated that based on the spad mark location of 

the breakthrough given to him by Mr. Garrett he knew where the 

abandoned mine had been penetrated. After further discussion 

about the conditions encountered by Mr. Garrett, and his belief 

that he had penetrated the old mine "head on", Mr. Abraham 

decided that it was safe to continue mining in a direction that 

745 
he believed was away from the old mine, and he instructed 

Mr. Garrett "to turn it on the side, ninety degrees, which would 

be that way, and mark up five rooms" (Tr. 284-287). He also 

allowed Mr. Garrett to cut the breakthrough between the No. 4 

and 5 entries so as not to leave two dead entries in.the mine, 

and he did so after instructing Mr. Garrett to take additional 

safety precautions. 

Mr. Abraham stated that based on the location of the initial 

penetration of the old mine, the distance between that point and 

the number one room where mining continued was in fact 198 feet 

(Tr. 298). Mr. Abraham explained how he calculated this 

distance, and he stated that if five rooms had been marked up, as 

he instructed, rather than six, mining in those rooms, except for 

the crosscut breakthrough which he authorizedp would not have 

been within 200 feet of the old mine (Tr. 290-291). 

Mr. Abraham stated that after his discussion with 

Mr. Garrett on July 13, he instructed him to cut the breakthrough 

and start the rooms. He then consulted with his engineer, and 

they determined that the breakthrough was not a reportable 

accident. However, he reported it to the state agency, and as a 

matter of courtesy, also reported it to MSHA. No one came to the 

mine that day, and he assumed that Inspector Inghram was there 

the next day in response to his call, but learned later that he 

was there for a scheduled inspection (Tr. 297). 

Mr. Abraham explained where mining had continued after the 

breakthrough, as follows at (Tr. 301-302): 

Q. When you went back in and mined that day, 

what area of the mine were you working in? 

Ao We worked room number two through six. 

Q. And still proceeding in the same direction 

you ' ve testified to, approximately a ninety degree angle from the breakthrough? 

A. We were approximately mining in a direction 

ninety degrees from the direction that we 

thought big bottom was in. And the number 

two, three, four, five and six are parallel 

to the number one entry which is referenced 

in the citation, yes. 

Q. Did you start mining again once you had the 

map of what everyone thought the big bottom 

mine looked like at that time? 

A. I think what happened is while the inspectors 

were there on the surface, Tom Law appeared 

746 
with the hard copy of this Big Bottom Coal 

Company . And upon examination of that or 

upon this line that Mr. Ingram and 

Mr. Gillian elected to make the boundaries 

of Big Bottom Coal Company, it was basically 

decided that the nwnber one entry was the 

only one within the two hundred feet. 

And to avoid all argument, if I would go to 

two through six, I could go mine there with 

or without a map. And Mr. Inghram seemed to 

be content to allow us to do that as long as 

we only stayed in two through six and we sent 

this hard copy to the engineers and have it 

put on to here and have it back the next 

morning as a certified map. 

Q. Were your required to test drill two through 

six? 

A. We were not. 

Mr. Abraham confirmed that he reported the second August 

breakthrough, but MSHA did not come to the mine to inspect it and 

he was not put on any test drilling program (Tr. 303). He stated 

that he advised MSHA that the map that he had was obviously 

inaccurate, that he did not want to drill in that area because it 

was non-productive, and that he would only drill if it were 

absolutely necessary for him to mine in that direction, and that 

he was abandoning the area (Tr. 303). 

Mr. Abraham stated that he did not believe that the law 

required any test drilling before mining the crosscut between the 

number 4 and 5 entries. Those entries had not cut into the old 

mine, and that by instructing Mr. Garrett to back up 30 feet to 

connect the two entries together, he believed it was very 

unlikely that he would again be cutting into the old mine while 

connecting the two entries (Tr. 307). 

Mr. Abraham stated that he was not "approaching" the old 

mine when the crosscut or nwnber one room were being mined . He 

confirmed that he knew that the crosscut would be within 

200 feet of the old mine, but that the number one room would not. 

However, he did not believe that he was required to test drill 

while mining a crosscut because that is not his interpretation of 

•action 75.1701, and he did not believe that this was MSHA's 

interpretation (Tr. 308). He stated that the mine drilling plans 

do not include the drilling of breakthroughs, and that drilling 

is only done when there is adjacent mining advancing toward an 

abandoned mine (Tr. 309). He further explained as follows at 

(Tr. 309-310); 

74 7 
THE WITNESS: We did not drill the breakthroughs. We 

only drilled those entries going toward that mine. We 

didn't drill anything going back the other way. 

JUDGE KOUTRAS: You mean to tell me. when you got within 

two hundred feet, you didn't drill holes? 

THE WITNESS: We drilled them in the faces going toward 

the old works, but not in crosscuts that were ninety 

degrees. They were not going in the direction of --

JUDGE KOUTRAS: Even though they're within two hundred 

feet . 

THE WITNESS: Even though they're within two hundred 

feet. That was the fifteen-minute dissertation I tried 

to give you in the beginning. There has been more than 

one application of this where to say that you drill in 

all areas within two hundred feet is not true. It is 

not done. 

Mr. Abraham explained the mine elevations and he believed 

that it was impossible to encounter an accumulation of water had 

they cut through again between the number four and five entries 

(Tr . 3 11-3 13 ) • 

On cross-examination, Mr. Abraham clarified his earlier 

testimony and stated that he determined the 198 feet distance 

between the abandoned mine and the crosscut between the number 4 

and 5 entries after his conversation with Mr. Garrett on July 13, 

and that it was his belief at that time that the room would be 

outside the 200 foot area (Tr. 314-316). 

Mr. Abraham reiterated his belief that it was not a 

violation to cut through a crosscut "unless you are approaching 

the old works" (Tr. 319) . He also believed that the accidental 

breakthrough told him everything he needed to know in order to 

make a complete assessment with respect to the continuation of 

mining (Tr. 320-321). He further confirmed that all mining that 

took place after the accidental breakthrough, and that was within 

200 feet of the abandoned mine, was done at ninety degrees away 

from that mine (Tr. 330). He reiterated his belief that even if 

the ninety degree direction of mining is within 200 feet of an 

adjacent mine he would still not be in violation because the 

mining is not "approaching" the abandoned mine (Tr. 331). 

Findings and Conclusions 

Preliminary Matters 

During a brief off-the-record trial conference with the 

parties prior to the taking of testimony in these proceedings, I 

748 
discussed with the parties certain proposed stipulations drafted 

by the petitioner's counsel (Tr. 7). However, the stipulations 

were inadvertently omitted from the record. In any event, based 

on the pleadings filed by the parties, including the ·respondent's 

discovery responses and posthearing proposed findings and 

conclusions, I conclude and find that the following facts and 

conclusions are not in dispute: 

1. The presiding judge and the Commission have jurisdiction 

to hear and decide these cases. 

2. The respondent Talon Resources Inc., is the owner and 

operator of the Campbell's Creek No. 2 Mine, and the operations 

of that mine are subject to the jurisdiction of the Mine Act. 

3. Respondents Richard Abraham and Richard Garrett are 

agents of Talon Resources Incorporated within the meaning of 

Section llO(c) of the Mine Act. 

4. MSHA Inspector Leo Inghram, Jr. was acting in his 

official capacity as an authorized representative of the 

Secretary of Labor on July 14, 1992 when he issued the 

section 104(d) C~tation No. 2729003. 

s. A true copy of citation No. 2729003 was served on Talon 

Resources Incorporated or its agent and the two individual 

Respondents, as required by the Mine Act. 

6. citation No. 2729003, marked Secretary's Exhibit No. 1, 

is authentic and may be admitted into evidence for the purpose of 

establishing its issuance and not for the purpose of establishing 

the accuracy of any statements asserted therein. 

7. Petitioner's Proposed Assessment Data Sheet, Exhibit 

No. a, accurately sets forth (a) the number of assessed nonsingle penalty violations charged to the Campbell's Creek No. 2 

mine for the period from January 1990 through September 1992, 

(b) the number of inspection days per month during this time 

period, and (c) the actual annual tonnage for the Campbell's 

creek No. 2 mine in 1991. 

8. Petitioner's Assessed Violations History Report, Exhibit 

No. 9, may be used in determining an appropriate civil penalty 

assessment for the alleged violations against Talon Resources 

Incorporated, Richard Abraham, and Richard Garrett. 

Fact of Violation - Docket No. WEVA 93-16 

Talon is charged with a violation of mandatory safety standard 30 c.F.R. § 75.1701, for mining near an underground 

entry that had accidently holed through into an unknown abandoned 

mine. The relevant language of statutory section 75.1701, which 

749 
was in effect at the time the citation was issued on July 14, 

1992, states as follows: 

Whenever any working place approaches within 50 feet of 

abandoned areas in the mine as show by surveys .ade and 

certified by a registered engineer or surveyor, or 

within 200 feet of any other abandoned areas of the 

•ine which cannot be inspected and which may contain 

dangerous accumulations of water or gas, or within 

200 feet of any workings of an adjacent mine, a 

borehole or boreholes shall be drilled to a distance of 

at least 20 feet in advance of the working face of such 

working place •.. . 

Section 75.1701, was redesignated as section 75.388, 

effective August 16, 1992, 57 F.R, 20914, and it states as 

follows: 

(a) Boreholes shall be drilled in each advancing working place when the working place approaches 

(1) To within 50 feet or any area located in the 

mine as shown by surveys that are certified 

by a registered engineer or registered 

surveyor unless the area has been preshift 

examined; 

(2) To within 200 feet of any area located in the 

mine not shown by surveys that are certified 

by a registered engineer or registered 

surveyor unless the area has been preshift examined ; or 

(3) To within 200 feet of any mine workings of an 

adjacent mine located in the same coalbed 

unless the mine workings have been preshift 

examined . 

Although the inspector contended that no one knew the 

extent of the abandoned mine, or whether the mining that took 

place after the breakthrough on July 13, 1992, was again heading 

toward or away from the abandoned mi ne (Tr. 51), the petitioner 

arqued in support of its case that Inspector Ingram, with State 

Inspector Gillian, determined from existing maps of the No. 2 

•ine that both of the cited locations where mining took place after the initial breakthrough were within 200 feet of the 

opening hole of the No. 3 entry where the breakthrough into· 

the abandoned mine was made. The petitioner points out that 

inspector Inghram estimated that the crosscut that was mined 

was 80 feet from the opening, and that the first room was 

175 feet from the opening, and that since Talon has maintained 

that no map of the adjacent mine was available at the time 

750 
these areas were mined, the only point from which to measure 

the 200 feet distances was the one and only No. 3 entry opening 

into the abandoned mine. The petitioner further relies on the 

testimony of respondents Garrett and Abraham admitt~ng that 

both of the mined locations after the breakthrough were within 

200 feet of that area. Since no test drilling was done prior · to the mining of these areas, the petitioner concludes that a 

violation of section 75.1701, has been established. 

Talon maintains that section 75.1701, applies only when a 

working place "approaches" to within 200 feet of any workings 

of an adjacent mine. Talon argues that in order to establish a 

violation, the petitioner must prove by a preponderance of the 

evidence that Talon was "approaching" or mining in the direction 

of the abandoned Big Bottom mine when it mined the crosscut 

between entries 4 and 5, and the No. 1 Room off of the No. 5 

entry. In support of its argument, Talon states that given 

what is now known of the parameters of the Big Bottom Mine from 

maps it obtained, mining did not approach the Big Bottom Mine 

on July 13, 1992 , after the breakthrough, and the testimony of 

respondents Abraham and Garrett demonstrates that they had a 

reasonable belief that the mining in the crosscut and the No. 1 

Room would not approach the Big Bottom Mine since that mine was 

hit "head on," 'according to Garrett, when it was cut through in 

the Number 3 entry, and based upon Abraham's assessment of where 

the old mine was likely to lay. 

Talon further argues that by retreating 20 to 30 feet from 

the faces of the No. 4 and 5 entries before mining the crosscut, 

the conditions on both sides of the crosscut were known, and that 

under these circumstances, section 75.1701, is inapplicable to 

the mining of the cross-cut because that regulation was 

promulgated to guard against mining into areas that may contain 

dangerous accumulations of water and gas. 

Talon argues further that the petitioner failed to establish 

a violation of section 75 . 1701, with respect to the mining of the 

No. 1 Room in that, at the time the citation was written , the 

inspector had no evi dence that said mining was in fact within 

200 feet of the Big Bottom Mine. Talon believes that it is clear 

from the inspector's testimony that the assertion that the No. 1 

Room was within 175 feet of the Big Bottom Mine was based upon 

his calculation of the room's distance from an imaginary line 

that he and the state inspector estimated would represent the 

extent and angle of the Big Bottom Mine , and that the inspector 

admitted that the imaginary line does not represent the actual 

extent and angle of the Big Bottom Mine . 

Citing South East Coal Co .. Inc., 3 FMSHRC 1766 (July 1981), 

Talon suggests that since the Big Bottom Mine was ventilated by 

air rushing from the Campbell's Creek Mine, and is now an 

approved part of the ventilation plan for the Campbell's Creek 

751 
Mine, and since Mr. Garrett examined the Big Bottom Mine and was 

satisfied that it presented no hazardous accumulations of water 

or gas, Talon could mine to within 50 feet of the Big Bottom Mine 

without drilling test holes. However, since the mining in both 

the crosscut and the No. Room were more than 50 feet from the 

Big Bottom Mine, Talon concludes .that no violation of 

section 75.1701, has been proved in this case. 

In response to Talon's arguments concerning the 

interpretation of the term "approaches", the petitioner states 

that it is an "absurd" position that is not encompassed in the 

plain meaning of the statutory regulation, and has no basis in 

regulatory or legislative history, or applicable case law. 

Petitioner states that the legislative history of the 

1969 Coal Act and the 1977 Mine act do not disclose any 

commentary on the purpose or application of section 75.1701, in 

general or specifically with respect to the word "approaches." 

The petitioner states further that in three cases in which 

Commission Judges have addressed section 75.1701, the term 

"approaches" did not have a meaning or an application denoting 

an angle or direction of mining. TAC & C Energy Inc., 8 FMSHRC 

1452 {September ~986); South East Coal Co., 3 FMSHRC 1766 (July 1981); Johnson Bros. Coal co .. Inc., 2 FMSHRC 094, 916 (April 

1980) . 

Citing Webster's Ninth Collegiate Dictionary definition of 

"approaches" as "to draw closer to" or "to come very near to", 

the petitioner concludes that neither of these refer to a 

direction or angle. The petitioner further asserts that 

section 75.388(a), rewrites and clarifies section 75.1701, and 

confirms that "approaches" has no directional or anqular meaning 

or application in section 75.1701. Citing the section 75.388(a) 

language that "[b]oreholes shall be drilled in each advancing 

working place when the working place approaches -- (1) To within 

50 feet ••. ; (2) To within 200 feet •. . ; or (3) To within 200 feet 

of any mine workings of an adjacent mine .••. ", the petitioner 

concludes that by separating the language after "approaches" 

and adding the word "to" to "within," the plain meaning of 

"approaches" is emphasized. 

The petitioner takes the position that any angle or 

direction of minin~ is irrelevant because "it is the nearing 

of mining to the stated distance before the adjacent mine that 

is important." Similarly, petitioner believes that it is 

irrelevant whether Talon was mining towards the opening to the 

adjacent mine in entry three after it turned ninety degrees to 

the right of the opening to cut the crosscut and the room in 

question, because this mining occurred within 200 feet of the 

opening in entry three. Petitioner finds equally unpersuasive 

752 
Talon's contention that it was not required to test drill 

crosscuts or to drill in all mininq circumstances within 200 feet 

of an adjacent mine. 

In further support of its position, Talon cites the 

petitioner's admission that Webster's Dictionary defines 

"approach" as "to draw closer to", and its "non sequitur statement" that "any anqle or direction of mininq is irrelevant 

because it is the nearinq of mininq to the stated distance before 

the adjacent mine that is important". Talon suqgests that these 

admissions ·by the petitioner support its contention that the term 

"approaches" does indeed have a directional meaninq. Since the 

mininq that occurred on July 13, 1992, after the breakthrouqh 

was away from, rather than nearing toward or approachinq the 

abandoned Biq Bottom Mine, Talon concludes that no violation of 

section 75.1701, occurred. 

The requirement found in section 75.1701, for the drillinq 

of boreholes applies to (1) workinq places within 50 feet of 

abandoned areas in the mine that are shown on a certified mine 

survey; (2) workinq places within 200 feet of any other abandoned 

areas of the mine, which cannot be inspected; and (3) workinq 

places within 200 feet of any workinqs of an adjacent mine. on 

the facts of this case, and qiven the statutory lanquage "in the 

mine" and "of t ·he mine", I conclude and find that the first 

two borehole requirements apply only to the same Campbell's Creek 

No. 2 Mine that was inspected on July 14, 1992, and that in order 

to support a violation of either of those requirements, it must 

be established that drilling was not done within 50 or 200 feet 

of any abandoned areas in that mine. Since there is no evidence 

that the two cited locations that were mined after the cutthrough on July 13, 1992, were abandoned areas of the Campbell's 

Creek No. 2 Mine, I conclude and find that the first two drillinq requirements stated in section 75.1701, do not apply in these 

proceedings. 

With respect to the third requirement for drilling in 

working places that are within 200 feet of any workings of an 

adjacent mine, it would appear that the abandoned Big Bottom Mine 

was adjacent to the Campbell's Creek Mine. The inspector 

testified that the initial breakthrough into the abandoned 

mine was accidental and did not constitute a violation of 

section 75.1701. The inspector described two locations in the 

Campbell's Creek mine where mining continued after the initial 

breakthrough without drilling test holes. The first location was 

a crosscut between the No. 4 and 5 entries, alleqedly within 

200 feet of the breakthrough, and the second location was the 

No. l Room of the No . 4 panel, allegedly within 175 feet of the 

breakthrouqh. 

753 
Talon does not dispute the fact that the crosscut entries 

were within 200 feet of the abandoned Big Bottom Mine. With 

regard to the No~ l Room off of No. 5 entry, Talon takes issue 

with the accuracy of the inspector's calculations placing that 

location within 200 feet of the breakthrough location. However, 

Mr. Abraham confirmed that the room was within 200 feet of the 

breakthrough and he was quite precise at placing it 198 feet froa 

the breakthrough (Tr. 289-291). Mr. Garrett said it was less 

than 200 feet (Tr. 253). Under all of these circumstances, I 

conclude and find that both of the cited locations were within 

200 feet of the adjacent Big Bottom breakthrough entry. 

The thrust of the petitioner's case is that Talon continued 

mining in the general area near the abandoned Big Bottom mine 

after the initial breakthrough on July 13, 1992, without drilling 

test holes. The inspector gave three reasons for issuing the 

citation citing a violation of section 75.1701, and they are as 

follows: 

Failure to drill test holes while mining within 

200 feet of the abandoned mine (Tr. 15). 

Failure to .drill test holes while mining within 

200 feet of\ the abandoned mine that could not be 

inspec;:ted f o·r accumulations of water and gases 

(Tr. 82). 

Failure to drill test hole.s to determine the location 

of the abandoned mine while continuing to mine within 

200 feet of the abandoned mine area (Tr. 51). 

Aside from the inspector's explanations as to why he issued 

the citation, I believe the pivotal issue is Talon's interpretation of the term "approaches" found in section 75.1701, and the 

petitioner's equally vigorous position that a violation has been 

established because Talon conducted mining within a 200 foot area 

of the breakthrough without drilling test holes, regardless of 

whether the working faces were being advanced in the direction of 

the abandoned mine breakthrough area or away from that area. 

Black's Law Dictionary, Rev. Fourth Ed., 1968, defines 

"approach" as "to come nearer in space. Thus, an "approaching" · street car is one coming near to , in point of time and place". 

"Approaches" is defined as " a way, passage, or avenue by which a 

place ••• can be approached". 

In a decision issued by me on February 17, 1977, pursuant to 

the 1969 Coal Act, Mining Enforcement and Safety Aciministration 

v. Robinson i Pbillips Coal Co., Docket No . HOPE 76.113-P, I 

vacated an order that was issued for an alleged violation of 

30 C.F.R. § 75.1701, and stated as follows at pg. 16, slip 

opinion: 

754 
I believe that it is clear that the regulation requires 

the drillinq of one or more boreholes into the face A.Ii 

mining advances towards an abandoned area of the mine 

and that the purpose of this requirement is to insure 

against accidental holing through into unknown 

quantities of qas or impounded water. (Emphasis 

added) . 

In south East coal company. Inc . , 3 FMSHRC 1766 (July 1981), 

former commission Judge Richard Steffey dismissed a proposed 

penalty assessment for an alleqed violation of 30 C.F.R. 

§ 75.1701, after concludinq that MSHA had failed to prove a 

violation. At several places in his decision Judqe Steffy made references to the drillinq requirements of section 75.1701, 

in the context of the direction of mining toward abandoned 

mine areas. He stated in relevant part as follows at 

3 FMSHRC 1771-1772: 

Anyone who reads the first sentence of section 75.1701, 

••• will see that the requirement for the drilling of 

boreholes becomes increasing necessary, dependinq upon 

the amount of information one possess with respect to 

the "abandpned areas" toward which one is advancing . 

* * * 

If one advances toward abandoned areas not shown on 

certified maps, he must start drilling boreholes 

* * * • • • it was doubtful if the area toward which the rooms 

were being driven constituted "abandoned areas" • • • 

* * * 

Since the "abandoned areas" towar d which the respondent 

was advancing ••• 

(Emphasis added) 

Section 75.1701, does not unequivocally require test 

drilling under all mining circumstances. The first two 

requirements cover test drilling within 50 feet of an abandoned 

mine area that has been surveyed and certified by a registered 

engineer, and within 200 feet of any other abandoned mine which 

cannot be inspected and which ~ay contain dangerous accumulations 

of water or qas. In both of these instances, I conclude that the 

requirements for drilling are intended to prevent accidental 

755 
penetration into known abandoned mine areas where hazardous 

accumulations of water or gases may be present. The 50 foot 

"safety zone" obviously takes into consideration the fact that 

the abandoned area has been surveyed and its location is known 

with reasonable certainty. 

In the case of an unsurveyed abandoned mine area that is 

known but cannot be inspected, the margin of safety is increased 

to 200 feet, and I believe that this is based on the fact that 

the abandoned area cannot be inspected, and even though its 

general location may be known, without a survey or an inspection, it would be difficult to establish with any reasonable certainty 

whether or not mining is advancing in the direction of the 

abandoned area , or whether it is in close proximity to that area. 

With respect to any drilling within 200 feet of any workings 

of an adjacent mine, section 75.1701 does not mention surveys or 

inspections of those areas. If the location of such a mine is 

not known because it does not appear on the mine map, or because 

it has not been surveyed or inspected, one would not know whether 

mining is being conducted within 200 feet of such an area, and 

would have no .. way of knowing whether or not drilling test holes 

is necessary or required. However, once the location of the 

adjacent mine is made known, one could argue that the drilling of 

test holes would be required under all .circumstances within 

200 feet of the adjacent mine, regardless of the directional 

track of the mining taking place within this area. However, 

given the fact that the intent of section 75.1701, is to prevent the accidental holing through into adjacent mine workings, and 

considering the regulatory term "approaches" in context, and 

together with the language requiring the initial drilling of a 

test hole to a 20 foot distance in advance of the working face, 

and maintaining subsequent drilling to at least 10 feet in 

advance of the advancing working face, language that denotes the 

direction of mining, I find no logical reason to require the 

drilling of test holes as a preventive measure to preclude 

accidentally holing into a known adjacent mine area when the 

direction of mining is clearly, or with some reasonable 

certainty, taking place away from, or in the opposite direction, 

of such an area. 

The petitioner's contention that the abandoned mine "was 

completely unknown to Respondents in every respect" is not well 

taken. Although it is true that the mining which continued after 

the breakthrough was done without the benefit of a map or the 

drilling of test holes, and that Talon was unaware of the 

existence of the old mine prior to the breakthrough, the evidence 

presented in these proceedings, including Talon's credible 

testimony, supports a conclusion that Talon had enough knowledge 

756 
of the conditions in the old mine, as well as where the mine was 

located, to provide it with a reasonable basis for believing that 

it was safe to continue mining on a track away from, rather than 

in the direction of, the old mine. 

Evening shift foreman Keith Stephens, who mined the crosscut 

between the No . 4 and 5 entries, testified that he could see 100 

to 150 into the old mine after the breakthrough, and he observed 

no water and made methane tests which showed no methane present. 

He also testified that he did not hesitate to mine the crosscut 

because it was past the area of the breakthrough and the angle at 

which the breakthrough entry was made, and was approximately 

25 to 30 feet back from the No. 4 and 5 faces. He stated that he 

would not have mined the crosscut if he did not believe it was 

safe to do so. 

Respondent and mine foreman Richard ·Garrett, who was present when the initial breakthrough occurred on July 13, 1992, 

testified that he could see into the old mine for approximately 

100 to 150 feet, and that he observed no water, detected no 

methane, and measured 33,000 cubic feet of air per minute going 

through the breakthrough into the old mine. He further testified 

that after notifying Mr. Abraham of the breakthrough, and before 

continuing mining, he walked into the old mine for a distance of 

approximately 200 feet, found no water, and observed that the old 

mine lay in the same direction as the breakthrough entry, rather 

than at a small angle to the right. Based on his 31 years as 

Talon's mine foreman, and his observations of the old mine on 

July 13, Mr. Garrett believed that the mining that continued 

after the breakthrough was in the direction opposite to and away 

from the old mine . 

Although Mr. Garrett did not inform Inspector Inghram that 

he had gone into the old mine at the time of his inspection on 

July 14, 1992, and told special investigator Meadows that the had 

not gone into that mine, I find his explanations for not telling 

the inspectors to be both reasonable and plausible under the 

circumstances. Having viewed Mr . Garrett in the course of the 

hearing, he impressed me as a credible individual. I take note 

of the fact that the areas that were mined on July l~, had been 

cleaned up, ventilated, and bolted when the July 14, inspection 

took place, and that the inspectors would not have known when the 

mining occurred if Mr. Garrett had not volunteered the information. I also note that Mr. Garrett accepted the responsibility 

for the continued mining and he believed that it was safely done. 

Respondent Abraham testified that based on the spad mark 

where the breakthrough occurred, he knew where the old mine had 

been penetrated, and based on the fact that it was penetrated 

"head on", and the prevailing conditions as reported to him by 

Mr. Garrett, Mr. Abraham believed that it was safe to continue 

mining. Inasmuch as the miner machine backed up 30 feet from 

757 
the point of penetration and turned ninety degrees to the right 

to continue mining, Mr. Abraham had reason to believe that 

mining was on a track away from the old mine, was ·no longer 

"approaching" that mine, and that it was unlikely that the old 

mine would again be cut into while connecting the two entries 

and mining the No. 1 Room. This proved to be true as no further 

breakthroughs occurred in those areas. 

Inspector Inghram's calculations with respect to the 

200 foot area within which he believed mining was prohibited in 

any direction without first drilling test holes were made with 

the No. 3 entry breakthrough location as his initial point of 

reference, and the two mine maps which he marked up during his 

testimony use that location as the initial point of reference 

(Petitioner's Exhibits 2 and 3). 

Although the inspector testified that his estimation of the 

location of the old mine on July 14, 1992, as shown by the 

highlighted solid line on petitioner's map exhibit 2, was based 

on his "observation of the old mine", he confirmed that he did 

not enter the old mine. Although he stated that he could see a 

short distance into the old mine (Tr. 23), he later testified 

that he could not approach the breakthrough area close enough to 

look into the old mine and only viewed it from a distance 

(Tr. 37). He confirmed that mining continued "off to the right" 

and that no further breakthroughs occurred during this time 

period (Tr. 44). 

The inspector confirmed that his estimation of the location 

of the old mine was based on his "best guess" as to the probable 

general direction of the old mine, and that his calculation of 

the 200 foot area from the breakthrough which is labeled 

"probable 200 foot limit" on map exhibit 3, was based on an 

"imaginary line" of where he believed the old mine was located. 

He confirmed that the cited mining took place to the right of 

that location. Having examined the maps marked up by the 

inspector, it is clear to me that the cited crosscut and No. 1 

room that were mined after the breakthrough were approximately 

90 degrees and to the right of, and away from, the old mine area 

as described by the inspector. Based on this evidence, I find 

that it supports Talon's belief that it was mining away from the 

old mine after the breakthrough, and that it was not again 

"approaching" that mine. 

After careful consideration of the arguments presented by 

the parties, I agree with Talon's position concerning the 

interpretation and application of section 75.1701. I conclude 

and find that the term "approaches" modifies each of the three 

regulatory drilling requirements, and that in order to establish 

a violation it must be established by a preponderance of the 

758 
evidence that the mining taking place within the 50 to 200 foot 

areas stated in the regulation was in the directi.on of the 

abandoned or adjacent mine areas. 

On the facts of this case, I find that immediately prior to 

the breakthrough into the old adjacent mine, the mining in the 

Campbell's Creek mine was advancing in the direction of the old 

aine and that it was clearly approaching that area. However, 

after the breakthrough, I find that mining continued in the 

opposite direction and away from the old mine, and was clearly 

not again approaching that area. Since the purpose of drilling 

test holes is to determine the safeness of the area toward which 

mining is advancing, I conclude and find the drilling requirement 

found in section 75.1701, with respect to the adjacent mine in 

question did not apply, and that a violation has not been 

established. Under the circumstances, the disputed citation 

IS VACATED. 

Fact of Violation. Docket Nos. WEVA 93-393 and WEVA 93-402. 

I adopt and incorporate by reference in these two 

section 110 (C·) cases my prior findings and conclusions in Docket 

No. WEVA 93-16, concerning the mine operator Talon Resources. 

In order to establish a violation chargeable to the two 

individual respondents, it must first be established that the 

mine operator violated the cited mandatory regulation in 

question. Since I have concluded that a violation has not been 

established, the citations served on the two individual 

respondents in these proceedings ARE VACATED. 

ORDER 

In view of the foregoing findings and conclusions IT IS 

ORDERED AS FOLLOWS: 

1. Section 104(d) (1) "S&S" Citation No. 3729003, issued 

on July 14, 1992, citing an alleged violation of 30 C.F.R. 

§ 75.1701, IS VACATED, and the petitioner's proposal for 

assessment of civil penalty in Docket No. WEVA 93-16, IS DENIED 

AND DISMISSED. 

2. The petitioner's proposed civil penalty assessments 

filed against the individual respondents pursuant to section 

llO(c) of the Act in Docket Nos. WEVA 93-393 and WEVA 93-402, 

based on the vacated section 104(d) (1) "S&S" Citation 

No. 3729003, are DENIED and DISMISSED. 

~~~~ Administrative Law Judge 

759 
Distribution: 

Heather Bupp-Habuda, Esq., Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd., Rm. 516, 

A.rlinqton, VA 22203 (Certified Mail) 

Dina M. Mohler, Kevin A. Nelson, Esqs., KAY, CASTO, CHANEY, 

LOVE ' WISE, P.O. Box 2031, Charleston, WV 25327 (Certified 

Mail) 

ml 

760 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2204 1 

APR 6 1994 

ROBERT W. SHELTON, 

Complainant 

DISCRIMINATION PROCEEDING 

v . 

Docket No. WEST 93-573-DM 

WE MD 93-04 

Sleeper Mine 

NEVADA GOLD MINING, INC., 1 

Respondent 

Appearances: 

Before: 

DECISION 

Robert w. Shelton, pro se, for Complaina~t. 

Henry Chajet, Esq., and James G. Zissler, Esq., 

~ckson & Kelly, Washington, D. c. , for Respondent 

Judge Amchan 

Statement of Facts 

complainant, Robert Shelton, worked for Respondent, Nevada 

Gold Mining Company, as a truck driver at the Sleeper mine from 

August, 28, 1988, until December 22, 1992, when he was fired 

(Tr. 7). Shortly thereafter, he filed a complaint with the U. s. 

Department of Labor alleging that his termination was the result 

of retaliation for activity protected by section 105(c) of the 

Federal Mine Safety and Health Act. For the reasons stated 

herein, I find that Respondent did not violate the Act in 

terminating Mr. Shelton. 

The events leading to Mr. Shelton's termination began on 

November 23, 1992, when general mine foreman, Roy Rose, returned 

to the Sleeper mine after six months on a temporary assignment at 

another of Respondent's facilities (Tr. 205, 344). Rose was the 

supervisor of Mr. Shelton's immediate boss, shift foreman Dennis 

Brown (Tr. 34 - 35). Neither Brown nor Shelton had a good 

relationship with Rose (Tr. 206, 226, 246, 251 - 254). When. he 

learned that Rose would be returning to the Sleeper mine, Shelton 

told Brown that he (Shelton) and Brown "were history (Tr. 226)." 

1

Although this case was docketed with Respondent's name 

listed as Nevada Mining, Inc., the correct name of the company is 

Nevada Gold Mining, Inc. (Tr. 4). The caption of the case is, 

therefore, amended to reflect this correction. 

761 
Mr. Shelton also told fellow employee Sean Riley that Rose "would 

get him (Shelton)" when he returned (Tr. 285). 

Almost immediately upon Mr. Rose's return to the Sleeper 

mine, foreman Dennis Brown transferred from his job as head of 

complainant's crew to a position at the mine's crusher, where he 

did not report to Rose (Tr. 205). · At the beginning of the day 

shift on November 2 3, 1992 , Shelton's crew assembled for a lineout meeting, where the y received their work assignments. 

Mr . Rose addressed the crew briefly and announced that Mr. Brown 

had voluntarily relinquished his position as the crew's foreman 

(Tr. 34) • 

Rose then looked at Shelton and said in a hostile manner, 

"Bob, I see by that smirk on your face that you don't believe me 

(Jt. Exh . 1 , Tr . 38, 282 - 284) • 211 Mr. Shelton pointed at Rose 

and told him that he was tired of his "retributions" (Tr. 39). 

The crew then went to work (Tr. 39). 

Mr. Shelton was very upset after this confrontation (Tr. 39 , 

289) . He believed that the incident was a prelude to his 

termination by Rose (Tr. 39). Shelton made several careless 

mistakes during his workshift on November 23. He turned in front 

of another dri ver and dumped the load in his truck at the wrong 

location on two or three different occasions (Tr. 40 , 91). 

On November 23, 1993, the Sleeper mine was in the midst of 

an MSHA inspection which commenced for reasons totally unrelated 

to Mr. Shelton (Tr. 45). However, on that date Shelton asked 

Sean Riley, who was the designated employee representative for 

MSHA inspections, if he could speak with the MSHA Inspector, James Watson (Tr. 290) . 

The next day Shelton met with MSHA Inspector Watson, Riley, 

and company safety director Bill Smith (Tr. 45) . Shelton started 

off the discussion by telling Watson that "I'm going to pay for 

this big time (Tr. 47 )." He then proceeded to tell Watson that 

he presented a hazard to himself and others due to his emotional 

state and that his condition was due to his treatment by Rose 

(Tr. 4 7 , 7 5 - 7 6 ) • 

Inspector Watson was unsure as to what to do about ·shelton's 

complaint (Tr. 48). At one point Shelton's personnel file was 

brought to Watson and, at another, Shelton talked to Watson's 

supervisor, Gary Day, on the telephone (Tr. so, 3 3 2 - 333) . At 

the conclusion of the meeting Watson asked Shelton if he felt 

2It is unclear whether Mr. Shelton smiled, smirked, or made 

any facial expression that led Mr. Rose to make this comment . 

762 
that he could return to work. Shelton replied that he thought he 

could and he worked for the rest of the day without incident 

(Tr. 50 - 52). 

Watson informed Mr. Shelton that if he wanted to pursue this 

matter further with MSHA he would have to file a written 

complaint (Tr. 52). Complainant was off work from November 25 

through November 27, 1992, for the Thanksgiving holiday. On 

November 26, 1992, he wrote a letter to David Mcintosh, who had 

become general manager of the Sleeper mine in October, 1992 

(Tr. 321, Jt. Exh. 1). Copies of that letter were provided to 

MSHA, the Winnemucca, Nevada police department and others 

(Jt. Exh. 1 p. 6) . 

The letter to Mcintosh recounted Rose's comment to Shelton 

on the morning of November 23, 1993. Shelton then observed that: 

This type of verbal debasement and degradation has been 

directed at me for over four years now. I consider this 

conduct discriminatory; and it serves no purpose other than 

harassment. I have never been subjected to this kind of 

treatment anywhere else in my working life. I feel the only 

purpose of this treatment is to force me to resign. 

Shelton then proceeded to review his work experience at the 

Sleeper mine, focusing on his treatment by Rose. He also 

mentioned some problems he experienced with his foreman, 

Dennis Brown, and commented that "these problems could have been 

caused by pressure put on Dennis by Roy (Jt. EXh . 1, p . 4)." 

He complained about not having been considered for a position 

with plant security (Jt. Exh. 1, p. 5) Towards the end of his 

letter to Mcintosh, Mr. Shelton stated: 

I have worked in fear and shame now for the most part of my 

four years here. I have been denied any and all advancement 

of any kind. I have been harassed and humiliated in front 

of my peers. I have been made to suffer physical pain while 

doing my assigned tasks. 3 The last two days on this job 

have been the worst ever. I have dumped material in the 

wrong areas. I turned in front of another driver. I can no 

longer work under these conditions. I am no longer asking 

to be treated better. I am now demanding it! ... Taking 

3Mr. Shelton was injured in three accidents while working 

for Respondent. He broke both feet jumping from a burning haul 

truck in October 1988 . In November 1990, he sustained a 

concussion, three broken teeth, and a back injury, when a rock 

struck him while his truck was being loaded . In December 1991, a 

rock struck his truck and aggravated his back condition (Jt. EXh. 

1, pp. 1 - 5). In none of these accidents was complainant at 

fault (Tr. 271). 

763 
complaints and problems to supervisors has caused me grief. 

This is why I made a federal complaint to M.S.H.A. Inspector 

Jim Watson (Jt. Exh. 1, pp. 6 - 7). 

on the last page of his letter, Mr. Shelton made a number of 

statements which have been characterized as "requests" by him and 

"demands" by Respondent. He stated that, if injured, he wanted 

Sean Riley to be with him at all times. He wrote that he did not 

want to be alone in any remote area of the mine site without a 

radio that will reach base, that he wanted his instructions 

posted in the mine security office, and that he wanted MSHA to 

investigate any accident of any kind as soon as possible 

(Jt. Exh 1, p. 7). 

Mr. Shelton concluded his letter with this paragraph: 

I want no one on one contact with Roy Rose ever again. [I]n 

four years of dealing with him, he has taught me well to 

fear him. I do not know if he would try to harm me 

physically or not. I will not take any chances from this 

time forward. I will not seek a restraining order on him at 

this time. If another incident happens to me involving him, 

I will. I will discuss these matters with you at your 

request. 

Mr. Shelton did not fear a physical assault by Mr. Rose, who 

is smaller and older than Shelton (Tr. 133, 154-56). Rose never 

physically threatened Shelton (Tr. 156). The fear to which 

Shelton refers is that Mr. Rose would fire him (Tr. 154-55). 

On November 28, 1992, Mr. Shelton reported to work for the 

night shift after a three-day holiday. He gave a copy of his 

letter to a company security officer and told her to call 

Mr. Mcintosh at home (Tr. 58). He also gave a copy of the letter 

to his shift foreman, Carl Gibson. Complainant worked the night 

shifts on November 28, and 29, without incident. When he 

reported to work on November 30, 1992, his foreman sent him to 

Mcintosh's office (Tr. 58 - 61). 

Mcintosh, who had not met Mr. Shelton before, told 

complainant that they needed "breathing room" and that he was 

suspending him with pay so that Respondent could invest1gate his 

complaints (Tr. 62, 375 - 376). Mcintosh told Deborah Paparich, 

the human resources director at the Sleeper mine, to investigate 

the circumstances surrounding Mr. Shelton's letter (Tr. 335). 

Three weeks later Shelton was asked to attend a meeting to 

discuss his letter. In addition to Mr. Mcintosh and complainant, 

Ms. Paparich and Sean Riley attended this meeting on December 21, 

1992. Mr. Mcintosh asked Shelton about the statements made in 

his November 26, 1992 letter. He responded that he stood by the 

letter (Tr. 351, 381 - 382). Mr. Shelton again stated that he 

764 
could not work safely unless the company complied with his 

requests (Tr. 348, 382). 

Mr. Mcintosh told Shelton that he didn't understand why 

Roy Rose was the focus of his discontent, when correspondence he 

had looked at indicated that Dennis Brown was the source of his 

problems (Tr. 348, 382). Mcintosh asked why Shelton did not take 

his concerns up with the human resources department. Shelton · replied, "civil suit" {Tr. 349). 4 

On December 22, 1992, Respondent hand delivered a letter 

from Mr. Mcintosh to Mr. Shelton terminating his employment 

(Jt. Exh. 2). The letter cited as reasons for Shelton's 

termination an inability to interact and cooperate with mine 

supervision, management concern regarding his ability to function 

safely at the mine site, conditions placed by Shelton on his 

future employment, and defamatory statements made by Mr. Shelton 

regarding other employees. The letter also mentioned Shelton's 

harassment of other employees as a factor in his termination. 

Mr. Shelton filed a timely complaint with the Mine Safety 

and Health Administration (MSHA) alleging that his termination 

violated section 105{c) of the Act in that he was fired in 

retaliation for activity protected by the statute. His complaint 

was investigated by MSHA, which concluded that it was not 

meritorious (Exh. R-1). Thereupon, Mr. Shelton filed a complaint 

with the commission. 

4

Mr. Shelton did not contradict the testimony of 

Respondent's witnesses with regard to the December 21, 1992 

meeting. His testimony suggests that he intimated that he was 

considering filing some sort of lawsuit against Respondent. At 

one point Shelton testified: 

I told him [Mcintosh], I said it's probably going to go all 

the way, all the way to court. And I did mention that how 

exactly, I put it that way, I don't remember. He looked at 

me at one point and said you have done this before, and I 

said yes, but I didn't mean this before. I mean like 

traffic court. I had been in court many times before (Tr. 

70) • 

Complainant has a history of threatening other people, 

including supervisors, with legal action. He threatened 

Dennis Brown with criminal prosecution in 1990 (Tr. 233, Exh. cl). Mcintosh, who reviewed Mr. Shelton's 1991 letters to 

Dennis Brown and to General Manager Tom Irwin about Mr. Brown, 

may have had this in mind when he said, "you have done this 

before (Tr. 378, Exhs. C-1, C-2)." 

'765 
Analysis 

The issue before the Commission is whether Respondent's 

December 22, 1992 termination of Complainant violated· section 

105(c) of the Act. Section lOS(c) (1) of the Federal Mine Safety 

and Health Act provides that: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged 

or cause discrimination against or otherwise 

interfere with the exercise of the statutory 

rights of any . . . miner because such miner 

• . • has filed or made a complaint under or 

related to this Act, including a complaint 

notifying the operator or the operator's agent . • . of an alleged danger or safety or health 

violation . . . or because such miner . . . has 

instituted or caused to be instituted 

any proceeding under or related to 

this Act . . . or because of the exercise by such 

miner • . . of any statutory right afforded by 

this Act. 

The Federal Mine Safety and Health Review commission has 

enunciated the general principles for analyzing discrimination 

cases under the Mine Act in Sec. ex rel. Pasula v. consolidation 

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

sub nom. consolidation Coal co. v. Marshall, 663 F.2d 1211 (3d 

Cir. 1981), and Sec. ex rel. Robinette v. United Castle Coal Co., 

3 FMSHRC 803 (April 1981). In these cases, the Commission held 

that a complainant establishes a prima facie case of 

discrimination by showing 1) that he engaged in protected 

activity and 2) that an adverse action was motivated in part by 

the protected activity. 

The operator may rebut the prima f acie case by showing 

either that no protected activity occurred, or that the adverse 

action was in no part motivated by the protected activity. If 

the operator cannot thus rebut the prima facie case, it may still 

defend itself by proving that it was motivated in part by the 

miner's unprotected activities, and that it would have taken the 

adverse action for the unprotected activities alone. 

Did Complainant Engage In Protected Activity? 

There are several activities engaged in by Robert Shelton 

between November 23, 1992, and December 22, 1992, that can 

arguably be characterized as activity protected by section 105(c) 

of the Act . On November 23, 1992, he asked to speak with MSHA 

Inspector Watson. On November 24, 1992, he spoke with Watson 

about his relationship with general mine foreman Roy Rose, and 

76 6 
asserted that he was a hazard to himself and others as the result 

of his confrontation with Rose the previous morning. 

On November 26, 1992, Mr. Shelton wrote to Mr. Mcintosh. Of 

the statements made in that letter, the only ones that 

conceivably constitute protected activity are his request/demand 

for a radio that will reach base when working in remote areas of 

the mine, and his request/demand that MSHA investigate "any 

accident of any kind." 

I conclude that complainant engaged in protected activity 

with regard to each of the above, with the exception of the 

substance of his conversations with Watson . With regard to the 

other items, I would find a violation of section 105(c), if I 

were to conclude that Mr. Shelton would not have been terminated 

without them. 

Analyzing complainant's conversation with the MSHA 

Inspector, however, presents a very close question as to whether 

it was protected by the Federal Mine Safety and Health Act. 

Mr. Shelton did not talk to MSHA about any safety hazards other 

than those presented by his emotional state due to his fear of 

being fired . There was nothing that complainant could have 

reasonably expected MSHA to do about his problems. Indeed, an 

exchange between the undersigned and complainant establishes that 

Mr. Shelton sought nothing from the inspector that was even 

remotely related to Mr. Watson's authority: 

THE COURT: Let me ask you something, what did you expect 

Mr. Watson to do? 

MR . SHELTON: I--really--I really don't know. I had no idea 

what his powers were, what he was doing to do. But the most 

important thing is that I think he would do something . He 

would address mine management. He would talk to Roy ... (Tr. 

49) 

What Mr. Shelton was asking of Inspector Watson was so 

clearly outside MSHA's responsibilities, that his conversations 

with MSHA personnel were unprotected by the Act. It is clearly 

not within MSHA's authority to protect miners from discharge for 

reasons unrelated to safety and health, or to seek better 

treatment of miners regarding matters unrelated to the Act. 

It is true that Mr. Shelton did cast his concerns as a 

safety issue. Nevertheless, an allegation that a miner is a 

nervous wreck because his supervisor doesn't like him is far 

removed from what Congress intended to protect in enacting 

section 105(c). Although I find that Respondent terminated 

Mr . Shelton solely for other nonprotected reasons, I conclude 

767 
that nothing in the Act would have prevented it from firing him 

for bringing his non-safety and health problems with Mr. Rose to 

MSHA. 

In this regard, I note that complainant made no effort to 

seek redress from his employer--such as asking for the day off 

and/or seeking intervention by the human resources department. 

Given the fact that the company human relations department had 

satisfactorily resolved his problems with Dennis Brown i n 1991, I 

question Mr. Shelton's good faith in bringing his problems with 

Mr. Rose to MSHA in December 1992 (Tr. 207 - 208). 

Complainant failed to establish that his termination was in any 

part motivated by protected activity 

Although complainant's suspension and termination occurred 

shortly after the protected activities described above, there is 

neither direct nor circumstantial evidence suggesting that these 

adverse actions were related to these activities. The reason no 

inference can be drawn from the timing of the suspension and 

discharge is that intervening unprotected events occurred which I 

find caused his discharge. 

The most important intervening event was the November 26, 

1992 letter to General Manager Mcintosh . Although some 

statements in that letter may be protected, most of them are not . The demand/request for "no one on one contact with Roy Rose ever 

again," was sufficient grounds for discharge in of itself. No 

employee has a right to tell his employer that he doesn't want to 

be supervised by an individual selected by his employer for a 

management position. 

Mr. Mcintosh testified that he fired Mr. Shelton primarily 

for being unable to work with site management (Tr. 384). I find 

that explanation completely credible--particularly in light of 

the fact that Mcintosh offered complainant an opportunity to 

retract his requests/demands, which Mr. Shelton declined 

(Tr. 3 51 , 3 81 - 3 8 2) • 

Respondent also mentioned other reasons for the termination. 

Mcintosh expressed concern regarding complainants' ability to 

work safely (Tr. 384 - 385). In view of Mr. Shelton's assertion 

that his encounter with Mr. Rose had rendered him a hazard to 

himself and others, it was perfectly reasonable for Respondent to 

conclude that he might again become a hazard since the company 

legitimately had no intention of exempting him from contact with 

Mr. Rose. I find Respondent's witnesses credible on this account 

as well. 

Ms. Paparich, Respondent's Director of Human Resources, 

testified that her investigation of Mr. Shelton's letter also 

apprised her of numerous unsafe acts he had engaged in, as well 

758 
as difficulties he had with other employees (Tr. 329-30, 338, 

340). However, the record does not establish that Mr. Shelton 

was any worse than a number of other employees in this regard 

(Tr • 2 o 3 , 21 o , 214 - 215 , 2 2 o , 2 2 4 , 2 2 9 , 2 3 9 ) • 

This, however, does not advance complainant's assertion that 

he was fired in retaliation for activities protected by the Mine 

Safety and Health Act. The record in this case establishes that 

complainant was fired primarily for his inability to get along 

with Mr. Rose, his history of conflict with his supervisors, his 

insistence that he not be supervised by Rose, and management's 

concern that Mr. Shelton's continued employment with Nevada Gold 

could be dangerous to himself and others (Tr. 360, Jt. Exh . 2) . 

In conclusion, I find that complainant has failed to make 

out a prima facie case of discrimination under section 105(c) of 

the Act. Even assuming that the evidence in this case makes out 

a prirna facie case, I find that Respondent has met its burden of 

proving that it would have fired complainant for unprotected 

activities without regard to those that are protected. 

ORDER 

Robert Shelton's discrimination complaint under section 

105(c) of the Act is DISMISSED. 

Distribution: 

o:~ ~cl~~ Art~ J. Arnchan 

Administrative Law Judge 

703-756-6210 

Henry Chajet, Esq., James Zissler, Esq., Jackson & Kelly, 2401 

Pennsylvania Ave. , N. W., Suite 400, Washington, D. c. 20037 

{Certified Mail) 

Robert W. Shelton, 1630 Ballard Lane, Winnemucca, NV 89.445 

{Certified Mail) 

/jf 

769 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

APR 7 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MORRIS SAND & GRAVEL 

Respondent 

. . Docket No. CENT 92-195-M 

A.C. No. 41-03200-05515 

Docket No. CENT 92-196-M 

A.C. No. 41-03200-05516 

Docket No. CENT 92-226-M 

A.C. No. 41-03200-05517 

Plant No. 1 

Docket No. CENT 92-197-M 

A.C. No. 41-03476-05517 

: Docket No. CENT 92-225-M 

A.C. No. 41-03476-05519 

: 

Docket No. CENT 92-280-M 

A.C. No. 41-03476-05520 

Plant No. 2 

DECISION 

Appearances: Olivia Tanyel Harrison, Esq . , Office of the 

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

for Petitioner; 

Before: 

Harriett Morris, Thomas Morris, Pro Se, 

Spring, Texas, 

for Respondent. 

Judge Cetti 

These consolidated cases are before me upon the petition for 

civil penalties filed by the Secretary of Labor (Secretary) under 

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

30 u.s.c. § 801 et seq. the "Act. 11 The Secretary on behalf of 

the Mine Safety and Health Administration (MSHA), charges the 

Respondent, the operator of Morris Sand and Gravel (Morris), with 

10 violations of regulatory safety standards in 30 C.F.R. Part 56 

covering sand and Gravel mining operations. 

770 
The operator filed a timely answer contesting the alleged 

violations. Pursuant to notice, a hearing on the merits was held 

before me at Houston, Texas. The primary issues were the existence of tlie violations as alleged in each of the 10 citations, 

whether certain violations were "significant and substantial," 

whether certain unwarrantable failure findings should be affirmed 

and the appropriate penalties assessed. MSHA Inspector Joseph 

Watson was Petitioner's only witness. Thomas Morris, Harriett 

Morris and Leonard Ingle testified on behalf of Respondent. 

Thomas and Harriett Morris are the working owners and 

operators of Morris Sand and Gravel. This is a small family 

enterprise located in Spring, Texas. The Morrises stated that 

they are operating under Chapter 11 Bankruptcy under a Plan of 

Reorganization signed by Judge Manuel D. Seal, United States 

Bankruptcy Court Southern District of Texas Houston Division. 

In addition to having a young lady in the scale house 

Respondent normally had two employees in Plant No . 1 and two 

employees at Plant No. 2. At the time of the inspection there 

was only one person at Plant No. 1 and at the time of the hearing 

Plant No. 1 wa~ no longer open. 

STIPULATIONS 

At the hearing the parties stipulated as follows: 

1. Morris Sand and Gravel is engaged in commerce within the 

meaning of the Mine Act and is subject to the jurisdiction of 

that Act. 

2. The violations were abated in a timely fashion. 

3. Morris Sand and Gravel employs about four people in the 

field and one at the scale house. 

4. Respondent is a small sand and gravel operator. 

5. Morris Sand and Gravel filed for Chapter 11 Bankruptcy 

on August 21, 1987, in United States Bankruptcy Court Southern 

District of Texas Houston Division and was assigned No. 87-08067-

Hl-11. The Plan of Reorganization was signed by Judge Manuel o. 

Leal on April 17, 1989. 

Docket No. CENT 92-196-M 

Citation No. 03899553 

This citation alleges a non S&S violation of 30 C.F.R. 

§ 56.16005. This mandatory safety standard provides as follows: 

Compressed and liquid gas cylinders shall 

be secured in a safe manner. 

771 
Inspector Watson testified that during his inspection he 

observed two gas cylinders unsecured and leaning against each 

other on "soft ground." He believed the possibility. of an accident occurring was "unlikely" because of the minimal number of 

people working at the plant. He stated that there was a "limited 

amount of exposure." The violation was promptly abated. 

The evidence presented established a non S&S 104(a) violation of the cited safety standard as alleged in the citation. 

The citation is affirmed. 

Docket No. CENT 92-196-M 

citation No. 03898636 

This citation alleges a non S&S 104(a) violation of 30 

C.F.R. § 56.006 which states in pertinent part "Valves on compressed gas cylinders shall be protected by covers when being 

transported or stored." 

Inspector Watson testified that he observed bottles (cylinders) on a welding trailer at the edge of the yard. The compressed gas cylinders were not in use and did not have covers on 

the valves. 

The Respondent did not dispute that the valves were not 

covered but stated the possibility of injury was unlikely because 

the cylinders were sto.red on a welding rack and further secured 

by a chain. The inspector agreed that the possibility of injury 

occurring was unlikely and stated that was why the violation was 

cited as a "non S&S" 104(a) violation. 

Even though injury was unlikely the standard provides for no 

exceptions. When the cylinders are being stored they must be 

capped. The evidence presented clearly established the violation of the cited safety standard. The citation is affirmed. 

Docket No. CENT 92-226-M 

Citation No. 3898637 

This citation alleges a 104(a) non S&S violation of 30 

C.F.R. § 56.420l(a)(2). This safety standard reads as follows: 

(a) Firefighting equipment shall be inspected 

according to the following schedules: 

(2) At least once every twelve months, maintenance checks 

shall be made of mechanical parts, the amount and condition of 

extinguishing agent and expellant, and the condition of the 

hose, nozzle, and vessel to determine that the fire extingl.iishers will operate effectively. 

772 
The citation alleges that the fire extinguisher on the 

dredger at Plant 1 had not been inspected for more than 12 

months. The evidence presented established that the fire extinguisher had last been inspected and serviced about 15 months 

prior to the date the citation was issued. The evidence was 

undisputed. 

By way of mitigation Respondent presented evidence it had 

contracted with an independent company to conduct regular yearly 

inspections and servicing of fire extinguishers and that company 

had not performed its job in a timely manner as required by the 

contract. The violation was timely abated. 

As pointed out in the Secretary's brief, irrespective as to 

whose acts caused the violation, the operator is responsible. 

Allied Products Co., 666 F.2d at 894. 

The 104(a) non S&S violation of 30 C.F.R. § 56.4201 was 

established as charged in the citation. The citation is 

affirmed. 

Docket No. CENT 92-197-M 

Citation No. 3899542 

This citation alleges a 104(d) (1) S&S violation of 30 C.F.R. 

§ 56.12025. The citation states that the ground lug was missing 

on the plug of the long extension cord to the 110v electric motor 

for the diesel fuel pump. 

MSHA Inspector Joseph Watson who made the inspection testified that the extension cord was plugged into a llOv receptacle. 

The pump was not in use but the cord was energized. 

The inspector stated that if an accident occurred it could 

be expected to cause serious injury or death. He stated that 

"if" there is a fault, it is almost certain there is going to be 

an injury. The violation was promptly abated by taking the 

extension cord out of service. 

The inspector conceded on cross-examination that he does not 

know who plugged the cited extension cord with a .. missing ground 

lug into the receptacle. 

Leonard Ingle called by Respondent testified that he lives 

across the street from Respondent's plant. He is a neighbor. He 

is not an employee of Respondent. The extension cord in question belonged to him and not to Respondent. 

Mr. Ingle explained that he went to Respondent's plant to 

pump diesel fuel into his truck. He pulled Respondent's extension cord out of the wall socket and inadvertently damaged the 

cord so that it was no longer functional. Mr. Ingle went across 

773 
the street to his place and got the extension cord in question 

out of his shed behind his house and substituted his extension 

cord which had no ground lug for Respondent's cord. ·He did this 

"real quiet" because he "didn't want Tom (Morris} to get mad" at 

him for destroying the plant's extension cord. 

Mr. Tom Morris testified that the witness Leonard Ingle is a 

good customer and is not an employee. Morris was not aware that 

Ingle had "torn up" the plant's extension cord and substituted 

his (Ingle's) cord for the one Morris used to energize its pump. 

Morris stated he "certainly wasn't aware" that there was no 

ground lug on the substituted extension cord and he knew nothing 

about the substitution prior to receiving the citation. 

As pointed out by Petitioner it is "irrelevant whose act 

(caused) the violation." Allied Products Co., 666 F.2d 894. The 

evidence clearly established a violation of 30 C.F.R. § 56.12025. 

The fact of violation is affirmed. 

Whether or not the violation was "significant and substantial" or resulted from Respondent's "unwarranted failure" will be 

discussed below along with other contested citations issued by 

the inspector that were also characterized S&S and as "unwarrantable failure" on the part of Morris Sand and Gravel. 

Docket No. CENT 92-195-M 

citation No. 3899554 

This citation alleges a 104(d) (1) s&s violation of 30 C.F.R. 

§ 56 . 14130(g} which reads in pertinent part: 

Seatbelts shall be worn by the equipment 

operator. 

Inspector Watson testified that when he inspected the sand 

and gravel operation at Plant No . 1 there was only one person 

working at the plant. That employee, Larry Wickman, was operating a front-end loader, loading the trucks of customers who 

purchased material at the plant. The inspector later observed 

the employee operate the loader along a haul road to repair a 

berm. At that time the inspector observed the employee did not 

have his seat belt fastened. 

On cross-examination when asked as to the speed of the 

loader at the time of violation the inspector replied "I doubt 

very much (the loader) ever exceeded three to four miles an 

hour." 

The evidence presented clearly established a violation of 30 

C.F.R. § 56.14130(g). The fact of violation is affirmed. 

774 
The question of the penalty and whether the violation is a 

104(d) (1) S&S violation will be considered and discussed below 

along with other citations that were so designated. 

significant and Substantial Violations 

A "significant and substantial" violation is described in 

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

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 

C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable likelihood that 

the hazard contributed to will result in an injury or illness of 

a reasonably serious nature." Cement Division, National Gypsum 

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

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

Commission explained: 

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 likeli- hood that the hazard 

contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

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

1125, 1129, the Commission stated: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonab°Ie likelihood that the hazard contributed to will 

result in an event· in which there is an 

injury." U.S. Steel Mining Co., 6 FMSHRC 

1834, 1836 (August 1984). (Emphasis in 

original). 

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

surrounding the violation. Secretary of Labor v. Texasgulf, 

Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal 

Company, 9 ·FMSHRC 2007 (December 1987). In addition, any 

determination of the significant nature of a violation must be 

77 5 
made in the context of continued normal mining operations. 

National Gypsum, supra, at 329. Halfway, Inc., 8 FMSHRC 8, 12 

(January 1986); U.S. steel Mining co., 7 FMSHRC supra, at 1130 

(August 1985). 

UNWARRANTABLE FAILURE 

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), 

the commission held that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Ordinary 

negligence is the failure to use such care as a reasonably 

prudent and careful person would use, and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." Unwarrantable failure is characterized by such conduct as "reckless 

disregard," "intentional misconduct," "indifference" or a 

"serious lack of reasonable care." Emery, supra, at 2003-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 

(February 1991) . 

DISCUSSION 

Was the violation of 30 C.F.R. § 56.12025 a 104(d) S&S 

violation? Mr. Morris' credible testimony established that the 

extension cord Respondent installed had a ground lug and was 

properly grounded. Respondent was unaware that a third party, 

Mr. Ingle, had damaged the Respondent's extension cord and 

replaced it with one that had the ground lug missing. The fact 

that Respondent was unaware is irrelevant on the issue of the 

existence of the violation. As pointed out in Petitioner's brief 

the Fifth Circuit has held that "if the Act or its regulations · 

are violated, it is irrelevant whose act precipitated the 

violations or whether or not the violation was found to affect 

safety; the operator is liable." Allied Products co. v. FMSHRC, 

666 F.2d .890, 894 (5th Cir. 1982). The violation of the safety 

standard was established but there remains a question as to 

whether it was properly designated a 104(d) S&S violation. 

In the Mathies case the third element required to establish 

a violation of a mandatory safety standard as significant and 

substantial is a "reasonable likelihood that the hazard contributed to will r .esult in an injury." The purpose of a ground is 

to protect an exposed person'. from injury in the event there is a 

ground fault. In this case the inspector stated that the "possibility" of an accident occurring was likely but no evidence whatever was presented about conditions in the area of the violation 

or the condition of the cord that would persuasively show a 

ground fault was reasonably likely to occur. There was no evidence of damp or wet conditions in the area, no evidence of worn, 

chaffing or disintegration of cord sheath or cord insulation, nor 

of any loose clamps, fittings or other conditions in the area or 

the condition of the cord that would indicate a ground fault was 

more than a possibility. 

776 
With respect to a possibility of a ground fault the 

inspector only stated "if there was a fault" there would be an 

injury. Since Petitioner has the burden of proof there should be 

some persuasive evidence about the circumstances or about the 

conditions in the area of the violation or the condition of the 

llOv cord to persuade the trier of the fact that there was more 

than a mere possibility of a ground fault. The evidence was 

insufficient to establish the third element of the Mathies 

formula. Within the framework of the law and evidence presented 

I find the evidence did not establish an S&S violation of the 

cited standard. 

With respect to the designation of unwarrantable conduct, I 

find that the evidence presented established that Respondent was 

unaware that a third party, Mr. Ingles, had substituted an 

extension cord without a ground plug for Respondent's extensi on 

cord which was properly grounded. Petitioner points to the 

requirement of an uncited standard [30 C.F.R. § 57.18002(a)) 

which provides that "each working place should be examined at 

least once each shift for conditions which may adversely affect 

safety or health." 30 C.F.R. § 57.18002(a). There was, however, 

no satisfactory, evidence as to how long the violative condition 

existed. I know of no requirement that Respondent pull the 

various extension cords in use on the work site out of their 

sockets each day to determine if someone has substituted the 

properly grounded extension cord with one that has the ground 

plug missing. Even assuming that the uncited standard referenced 

by Petitioner requires such conduct we have insufficient evidence 

in this case as to how long the violative condition existed other 

than a "short time." 

Even more important and germane to the issue there is no 

persuasive evidence of conduct on the part of Respondent that 

should be characterized as "aggravated conduct constituting more 

than ordinary negligence . " It is on this basis that I find the 

violation cited was not a result of Respondent's "unwarrantable 

failure." The violation was a 104(a) non S&S violation of the 

citation and it shall be so modified. 

Citation No. 3899554 designated by the inspector as a 104(d) 

S&S violation was issued when the inspector observed that the 

operator of the front-end loader while traveling not more than 3 

or 4 miles per hour, along the haul road had failed to fasten his 

seat belt. 

The loader operator was abating a citation issued earlier 

that day for an inadequately bermed area with a drop-off. The 

inspector did not take measurement. He described the grade in 

the area at a . "slight grade", "not very much", "probably" in the 

"two to five percent range." 

77 7 
The operator's failure to fasten his seat belt was clearly a 

serious violation of 30 c . F.R. S 14130(g) involving a moderate to 

high degree of ordinary negligence on the part of the operator. 

I find the first two elements of the "S&S" criteria were 

clearly established. I do not find, however, the evidence 

established the third element of the Mathies "S&S" criteria. A 

significant and substantial violation is not established by 

merely showing that the chance of an injury is more than remote 

or speculative. See National Gypsum, supra. Accordingly, I find 

this violation of 30 C.F.R. § 14130(g) was not an S&S violation. 

with respect to the unwarrantable failure finding it appears 

the operator in his haste to correct a citation for an inadequate 

berm, thoughtlessly and inadvertently neglected to fasten his 

seat belt. Was this conduct properly characterized as unwarrantable failure? Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 

FMSHRC 1997, 2004 (1997). Unwarrantable failure is characterized 

by such conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care." 

Rochester and Pittsburgh Coal Co., 13 FMSHRC 189 (1991) . The 

Commission has also stated that use of a "knew or should have 

known test by itself would make unwarrantable failure indistinguishable from ordinary negligence" and, accordingly, the Commission rejected such an interpretation. Secretary v. Virginia· Crews Coal Co., 15 ·FMSHRC 2103 (1993). 

Within the framework of the law and the evidence presented I 

find this violation resulted from the operator's moderate to high 

ordinary negligence and was not a result of Respondent's "unwarrantable failure." The violation was a 104(a) non S&S violation 

of the cited seat belt standard and shall be so modified. 

Docket No. CENT 92-225-M 

Citation Ho. 3899548 

Citation No. 3899548 charges Morris with a 104(a) S&S violation of 30 C.F.R. § 56.1410l(a)(3) which requires all braking 

systems on mobile equipment be maintained in functional condition. The citation states that the parking brake on the frontend loader in the material yard and plant area "does not work." 

Respondent in its answer as well as its testimony at the hearing 

admitted the parking brake was not working . By way of mitigation 

Respondent presented evidence that the material yard in which the 

loader was used is level and there was never any need to use the 

parking brake. The loader was parked in gear. 

The undisputed evidence presented established a violation of 

30 C.F.R. § 56.1410l(a) (3). The first two elements of the 

Mathies formula were clearly established. The evidence is 

insufficient to establish the third and fourth elements of the 

778 
Mathies criteria. The violation was not S&S. The citation shall 

be modified to a 104 non S&S and affirmed as modified. 

citation No. 3898638 alleges a 104(a) s&s violation of 30 

C.F. R. § 56.1410l{a) (3). The inspector alleged and at the hearing testified that the front-end loader's· service brakes were 

very inadequate and would barely stop the loader on the flat 

surface of the yard. He stated that with the loader traveling 

about 3 miles per hour it took approximately 50 feet to 60 feet 

to stop the loader by use of the service brakes alone. In addition it was established that this loader did not have a functiona l parking brake that could be used in an emergency to stop the 

loader. The inspector noted that the operator of the loader was 

"quite good" at stopping the loader by use of the transmission, 

but this is not what the standard requires. 

Mrs. Morris contended that the brakes were adequate to stop 

the loader and stated that they had never had a loader run into 

anything and never had an accident of any kind. 

I credit the testimony of the inspector that the service 

brakes on the f~ont-end loader were not maintained in functional 

condition and that with continued use of the loader in normal 

mining operations with the service brakes in such poor condition 

an accident resulting in serious injury was reasonably likely to 

occur. I conclude that all four elements of the Mathies formula 

were established. The violation was properly cited as a "signicant and substantial" violation. 

The evidence established a significant and substantial 

violation of 30 c.F.R. § 56.1410l{a) (3) . This citation is 

affirmed as written without modification. 

Docket No. CENT 92-225-M 

Citation No. 3899546 

This citation charges the operator with a 104(a) S&S 

violation of 30 C.F.R. § 56.14132(a). It alleges that the backup alarm on the front loader was not functioning. 30 C.F.R. 

§ 56.14132 requires audible warning devices on self-p~opelled 

mobile equipment "shall be maintained in functionable condition." 

In Plant No. 1, where only one employee was working, the 

inspector observed that employee was operating the front-end 

loader loading a truck. The inspector observed that the backup 

alarm was not functioning when the loader was backing up. 

Respondent in its answer and testimony concedes that the 

backup alarm was temporarily out of order and states that the 

plug of the wire to the alarm, unknown to the operator, had 

jiggled out of the receptacle and when pl~gged back into the 

transmission, the alarm was functional. Respondent also 

779 
presented credible evidence that the loader was a substitute 

loader that was being temporarily used while the loader that was 

regularly used at the plant was temporarily out of service for 

repairs. 

The violation of 30 C.F.R. § 56.132(a) was clearly established. The fact of violation is affirmed. 

With respect to the S&S designation, there were no employees 

exposed to the hazard since the only employee at the plant was 

operating the loader. The inspector testified however, that he 

observed two instances where a customer got out of the cab of his 

truck while waiting to be loaded. Respondent presented credible 

evidence that customers normally stay in the cab of their truck 

while waiting to be loaded. 

Failure to have the backup alarm on a front-end loader 

functional at all times is a serious violation with a high 

potential gravity. I have no difficulty finding the first two 

and the fourth elements of the Mathies formula. In the instant 

case where the only employee at the plant was the operator of the 

loader I do not find the evidence sufficient to persuade me that 

the third element of the Mathies formula was established. The 

citation shall be modified accordingly to a 104(a) non S&S 

violation. 

Docket No. CENT 92-196-M 

citation No. 3899552 

This citation alleges a 104(a) S&S violation of 30 C.F.R. 

§ 56.9300{a) at Plant No. 1. The citation reads as follows: 

No berm was provide (sic) along the main 

axces (sic) road next to the stock pile. 

(Customer's) Haul trucks drive within (5') 

five foot of the {8') eight foot drop off. 

Loader uses this road, traveling to and from 

various stock piles. 

The cited safety standard 30 c.F.R. § 56.9300{a) provides as 

follows : 

Berms or guardrails shall be provided and 

maintained on the banks of roadways where a 

drop-off exists of sufficient grade or depth 

to cause a vehicle to overturn or endanger 

persons in equipment. 

The inspector "noticed" there was an inadequate berm along a 

road where customers parked their trucks to be loaded. The 

existing berm had deteriorated. A few feet off the. roadway (five 

feet) was what the inspector described as a "shallow" drop-off. 

1ae 
He did not measure the drop-off but he estimated it to be a 6 to 

8 feet deep. 

This haul road was used by customers and the one employee 

working at the plant. The employee was operating the front-end 

loader to load trucks and intermittently to rebuild the berm. 

The loader was not traveling more than 3 or 4 miles an hour. 

The evidence presented established a violation of the cited 

safety standard 30 C.F.R. § 56.14120(g). 

The 6- to 8-foot drop-off was 5 feet from the outer edge of 

the haul road used by customers in trucks and one employee. This 

failure to have a berm is a serious violation but not an S&S 

violation in the instant case since the evidence is insufficient 

to establish the third element of the Mathies criteria. This 

finding is consistent with the evidence that there has never been 

an accident at the plant since its beginning in 1979. The citation shall be modified to a 104(a) non S&S violation of the cited 

safety standard. 

Docket No. CENT 92-280-M 

Citation No. 03899541 

This citation alleges an S&S 104(a) violation of 30 C.F.R. 

§ 56.12040. 

The citation cited reads as follows: 

The electrical enclosure approximately 3' by 

3' at the MCC for the plant contains several 

breakers and re-sets. In order to operate 

these controls employees are exposed to the 

many energized parts in the box. 

30 C.F.R. § 56.12040 provides as follows: 

Operating controls shall be installed so that 

they can be operated without danger of 

contact with energized conductors. 

The inspector testified that he observed an electrical 

enclosure in which operating controls consisting primarily of a 

group of switches were installed. In order to reset a breaker 

one would have to open the door of the enclosure box. When the 

door was opened to reset a breaker, various inner parts in the 

enclosure remained energized. The person resetting the breaker 

was thus exposed to the danger of contact with energized conductors. 

By way of mitigation Respondent presented evidence that 

there was some misunderstanding of what was required to comply 

781 
with the standard. Mr. Morris was under the impression that 

Respondent was in compliance. This violation was timely abated. 

The evidence presented established a violation of the cited 

safety standard, 30 C.F.R. § 56.4201. 

The inspector testified that contact with an exposed part 

was reasonably likely when an employee resets a breaker or 

performs a similar task. Contact with an exposed part would 

reasonably likely result in a serious injury or a fatality. I 

agree with the inspector that there was a reasonable likelihood 

that the hazard contributed to, with continued normal mining 

operations would result in an event in which there would be 

serious injury. The violation was significant and substantial. 

The citation is affirmed as written without modification. 

Penalty Assessment 

In a contested civil penalty case the judge hearing the case 

is not bound by the penalty assessment regulations and practices 

followed by MSHA's Office of Assessments in arriving at initial 

proposed penalty assessments. After a hearing in a contested 

case the amount of the penalty is assessed de nova by the judge 

based on the statutory criteria specified in section llO(i) of 

the Act, 30 U.S.C. § 820(i), and the relevant evidence developed 

in the course of the hearing. Shamrock Coal Co., 1 FMSHRC 469 

(June 1979); aff'd, 652 F.2d 59 (6th Cir. 1981); Sellersburg 

Stone Company; 5 FMSHRC 287, 292 (March 1983). 

I have considered the statutory criteria specified in 

section llO(i) of the Act. Morris Sand and Gravel is a small 

family-owned and operated Sand and Gravel business. It appears 

from the record that the working owners, operators of this small 

enterprise are operating under Chapter 11 of the Bankruptcy Code 

to pay all past obligations. All citations were timely abated 

showing good faith in achieving compliance with the Act. Negligence and gravity have been considered and discussed along with 

the issues of significant and substantial violations and unwarrantable failure. 

Having considered the 6 statutory criteria set forth in 

section llO(i) of the Act and particularly my concern that the 

proposed civil penalty assessments on this small operator may 

adversely affect Respondent's ability to continue in business, I 

deem it appropriate in this case to assess a civil penalty of $50 

for each of the 104(a) non S&S violations and $100 penalty for 

each of the 104(a) S&S violations. I believe these penalties in 

this case will effectuate the deterrent purpose of the Act. See 

Robert G. Lawson Coal Company, 1 I~MA 115, 117-118 (1972). 

782 
ORDER 

It is ORDERED that the fact of violation in each of the 10 

citations referenced above in all 6 dockets be AFFIRMED. > 

It is further ORDERED that the significant and substantial 

designation for Citation No. 3898638 in Docket No. CENT 92-226-M 

and Citation No. 3899541 in Docket No. CENT 92-280-M be AFFIRMED. 

It is further ORDERED that Citation No. 3899552 in Docket 

No. CENT 92-196-M and Citation No. 3899548 and Citation No. 

3899546 in Docket No. CENT 92-225-M be MODIFIED by deleting the 

significant and substantial designations. 

It is further ORDERED that Citation No. 3899554 in Docket 

No. CENT 92-195-M and Citation No. 3899542 in Docket No. CENT 92-

197-M be MODIFIED by deleting the unwarrantable failure finding 

and the significant and substantial designations. 

It is further ORDERED that the penalty assessments for 

violations in each of the dockets be as follows: 

Docket No. CENT 92-195-M 

Citation No. Penalty Assessment 

3899554 

Docket No. CENT 92-196-M 

3898636 

3899552 

3899553 

Docket No. CENT 92-197-M 

3899542 

Docket No. CENT 92-225-M 

3899546 

3899548 

Docket No. CENT 92-226-M 

3898637 

3898638 

783 

$ 50.00 

$ 50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

50.00 

100.00 
Docket No. CENT 92-280-M 

3899541 100.00 

TOTAL $600.00 

It is further ORDERED that RESPONDENT PAY the above assessed 

penalties within 40 days of the date of this decision. Upon 

receipt of payment these cases are dismissed. 

Distribution: 

~{!ff. Au st F. Cetti 

Adininistrative Law Judge 

Olivia Tanyel ·Harrison, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 Griffin street, suite 501, Dallas, TX 

75202 (Certified Mail) 

Mro Thomas Morris, MORRIS SAND & GRAVEL, 6106 Larkmount Road, 

Spring, TX 77389 (Certified Mail) 

sh 

784 
FEDERAL MINE SAFETY A'4D HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1 0th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

_AeR 7 1994 

BRYAN WIMSATT, DISCRIMINATION PROCEEDING 

Complainant 

v. 

GREEN COAL COMPANY, INC., 

Respondent 

Docket No. KENT 93-735-D 

MADI CD 93-08 

Henderson County Mine No . 1 

ORDER OF DISMISSAL 

Before: Judge Maurer 

All the parties to this proceeding have reached an amicable 

settlement an~ counsel have therefore jointly moved to dismiss 

this proceeding, with prejudice, on the basis of their settlement 

agreement . 

Accordingly, and for good cause shown, the proposed 

settlement is approved, the motion to dismiss is GRANTED, the 

hearing presently set for April 7, 1994, in Owensboro, Kentucky, 

is CANCELED, and the captioned proceeding is DISMISSED, with 

prejudice. 

. Maurer 

trative Law Judge 

Distribution: 

Frank P. campisano, Esq., First Trust Centre, Suite 10 North, 

200 South Fifth Street, Louisville, KY 40202 (Certified Mail) 

Mary Lee Franke, Esq., Kahn, Dees, Donovan & Kahn, 305 Union 

Federal Building, P. o. Box 3646, Evansville, IN 47738-3646 

(Certified Mail) 

dcp 

785 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMrSSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 7, 1994 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v . 

DOW SAND & GRAVEL, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. YORK 93-14-M 

A. C. No. 27-00296-05502 

Docket No. YORK 93-19-M 

A. C. No. 27-00296-05503 

Docket No. YORK 93-20-M 

A. C. No. 27-00296-05505 

Docket No. YORK 93-28-M 

A. C. No. 27-00296-05504 

Dow Sand & Gravel 

DECISION APPROVING SETTLEMENTS 

Before: Judge Merlin 

These cases are before me upon petitions for the assessment 

of civil penalties under section 105(d) of the Federal Mine 

Safety and Health Act of 1977. The Solicitor has filed motions 

to approve settlements for all the violations involved i n these 

cases. The Solicitor proposes to settle these cases upon a 

payment of $149 by the operator. 

The basis for the Solicitor's proposed settlements is the 

operator's ability to pay. According to the Solicitor, this is a 

family owned mine which is operated on an intermittent basis, is 

small in size, and has been operatoring at a loss. In addition, 

the operator has had equipment repossessed and is undergoing 

financial hardship. The Solicitor further states that the operator has evidenced an improved attitude toward compliance. 

Finally, the Solicitor advises that the wife of the owner of the 

mine is very ill and the owner does not have health insurance. 

I have reviewed the Solicitor's detailed motions. In light 

of the circumstances presented in these cases, I conclude that 

the proffered settlements are appropriate under section 110 of 

the Mine Act. The file contains a memorandum from MSHA's office 

of assessment indicating that the operator has paid the agreed 

upon settlement amount. 

786 
WHEREFORE, the motions for approval of settlement are 

GRANTED, and the operator having paid, it is ORDERED that these 

cases be DISMISSED . 

... -. 

~-- ·-

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

David L. Baskin, Esq., Office of the Solicitor, u. s. Department 

of Labor, One Congress Street, 11th Floor, P. o. Box 8396, 

Boston, MA 02114 

Mr. E. Milton Dow, Dow Sand & Gravel, RR 1, Box 181, Ossipee, NH 

03864 

/gl 

787 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 7 1994· 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), ON Docket No. WEST 94-72-D 

BEHALF OF ROBERT E. 

MCCARTNEY, 

Complainant, 

v . 

BRIDGER COAL COMPANY, 

Respondent 

Jim Bridger Mine 

ORDER OF DISMISSAL 

The Secretary of Labor has moved to dismiss the proceeding 

in this matter in light of Mr. McCartney's voluntary withdrawal 

of his discrimination complaint. The motion is GRANTED and this 

case is DISMISSED. 

Distribution: 

CLJllACl~ Arth~rL-;. Amchan 

Administrative Law Judge 

703-756-6210 

Kristi Floyd, Esq . , Office of the Solicitor, U. s. Department of 

Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716 

(Certified Mail) 

Mark N. Savit, Esq . , Jackson & Kelly, 2401 Pennsylvania Ave., N. 

w., Suite 400, Washington, D. c. 20037 (Certified Mail) 

/jf 

788 
OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SICYLINE, 10th FL~ 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 1 2 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v . 

RB COAL COMPANY, INC., Respondent 

. . 

. 

0 

Docket No. KENT 93-715 

A.C. No. 15-08293-03567 

No. 4 Mine 

DECISION 

Appearances: Donna E. Sonner, Esquire, Office of· the Solicitor, 

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

tor the Petitioner; 

Before : 

Darrell Cohelia, Safety Director, R B coal 

Company, Pathfork, Kentucky, for the Respondent. 

Judge Melick 

This case is before me upon the petition for civil penalty filed by the Secretary of Labor pursuant to Section 105(d) of 

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

.@.t. seg., the "Act, 11 charging RB Coal company, Inc . (RB) with 

three violations of mandatory standards and seeking civil 

penalties of $8,900 for those violations. The general issue is 

whether R B violated the cited standards and, if so, what is 

the appropriate civil penalty to be assessed. Additional 

specific issues are addressed as noted. 

Order No . 3829635 issued pursuant to section 104(d)(l} of 

the Act alleges a "significant and substantial" violation of 

the standard at 30 C .. F.R. § 75.400 and charges that "float coal 

dust was allowed to accumulate along the No . 1 belt ·conveyor for 

a distance of 31 brakes [sic] . 111 

Section 104(d)(l) of the Act provides as follows: 

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

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety standard, 

and if he also finds that, while the conditions created by 

such violation do not cause imminent danger, such violation 

is of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine 

safety or health hazard, and if he finds such violation to 
The cited standard provides that "(c]oal dust, including 

float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not 

be permitted to accumulate in active workings, or on electric 

equipment therein." 

Roger Dingess is a roof control specialist for the 

Mine Safety and Health Administration (MSHA) with considerable mine industry experience , including work as a roof 

bolter and section foreman . on March 8, 1993, during the 

course of an inspection and accompanied by Mine Superintendent 

Paul Goins and MSHA Electrical Inspector Guy Fain, Jr. , Dingess observed at the air lock along the No . 1 belt conveyor, a 2-foot 

pile of fine loose coal. Traveling the entire the No. l beltline he further observed black coal dust along the beltline for 

31 breaks (approximately 1800 feet) . The dust was on top of a 

layer of rock dust, was a fine powdery coal and, according to 

Dingess, could easily become suspended. Based primarily on the 

particularly black color of the coal, Dingess opined that the 

condition had been present for one or two weeks. In addition, Dingess opined that the dust had been deposited at a rate of 

about 1/4 inch per shift at the air lock where the coal dust 

was two feet deep. Based on this credible evidence, I find that 

the Secretary has sustained his burden of proving the violation 

as charged. 

The violation was also "significant and substantial" 

and of high gravity. A violation is properly designated as 

"significant and substantial" if, based on the particular facts 

surrounding that violation, there exists a reasonable likelihood 

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

fn. l (continued) 

be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he 

shall include such finding in any citation given to the 

operator under this Act. If, during the same inspection or 

any subsequent inspection of such mine within 90 days after 

the issuance of such citation, an authorized representative of 

the Secretary finds another violation of any mandatory health 

or safety standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so comply, he 

shall forthwith issue an order requiring the operator to cause 

all persons in the area affected by such violation, except 

those persons referred to in subsection (c} to be withdrawn 

from, and to be prohibited from entering, such area until an 

authorized representative of the Secretary determines that 

such violation has been abated." 

790 
Gypsum Co., 3 FMSHRC 822, 825 (1981). In Mathies Coal Co., 

6 FMSHRC 1, 3-4 ( 1984) , the commission explained:. 

In order to establish that a violation of a 

mandatory standard is significant and substantial 

under National Gypsum the Secretary must prove: 

(1) the underlying violation of a mandatory safety standard, (2) a discrete safety hazard -- that is, a 

measure of danger to safety -- contributed to by the 

violation, (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

See also Austin Power co. v. Secretary, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 

(1987) (approving Mathies criteria). 

The third element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an 

injury (U.S ~ Steel Mining Co., 6 FMSHRC 1834, 1836 (1984), and 

also that in· the likelihood of injury be evaluated in terms of 

continued normal mining operations (U.S. Steel Mining Co •. Inc., 

6 FMSHRC 1473, 1574 (1984); see also Halfway. Inc., 8 FMSHRC 8, 

12 (1986) and Southern Oil Coal Co., 13 FMSHRC 912, 916-17 

(1991). 

In determining that this violation was "significant and 

substantial" Inspector Dingess noted that the fire sensor 

powerlines had been severed and were lying on the mine floor 

along side the No. 1 belt conveyor. According to Dingess this 

severed powerline could itself ignite the coal dust from sparks 

and, if there was a fire, with the fire sensor lines cut, there 

would be no fire alarm and the automatic water deluge system 

would not function. In addition, he observed that a belt roller, 

as well as the belt itself, was running in the two-foot pile of 

coal dust at the airlock. On the basis of these ignition sources 

and with no functioning fire sensor alarm and water deluge 

system, Dingess concluded that it was "highly likely" for fatal 

injuries to occur from an explosion or mine fire. · 

It is noted that Electrical Inspector Fain corroborated 

Dingess' observations of the amount of coal dust and confirmed 

that the severed fire sensor line could indeed provide a source 

of ignition for the coal dust. This credible evidence clearly 

supports the "significant and substantial" findings. In 

reaching this conclusion I have not disregarded the testimony 

of Superintendent Goins in respons~ to the question whether 

there was enough power in the exposed leads to cause a spark. 

He responded, "I'm not sure on it, but I don't think the fire 

791 
sensor line works off power" (Tr. 198) . This testimony is, 

however, too equivocal to be given probative weight. 

Inspector Dingess further concluded that the violation 

was the result of R B's "unwarrantable failure." :en 1mery Mining Corp., 9 FMSHRC 1997, 2004 (1987), the Commission held 

that unwarrantable failure is aggravated conduct constituting 

more than ordinary negligence and that it is characterized by such conduct as "reckless disregard," "intentional misconduct," 

"indifference," or "a serious lack of reasonable care." Rochester 

and Pittsburgh Coal Co., 13 FMSHRC 189 (1991). 

In support of his "unwarranta;>le" findings the Secretary 

notes that superintendent Goins told Inspector Dingess that 

he had performed a preshift examination on the beltlines the 

day before the order was issued. Indeed, Goins himself 

acknowledged that he then observed these conditions. It is 

not disputed, however, that the conditions were in fact not. reported in the appropriate examination books for March 7. 

While Goins also maintains he had at the time the order was 

issued already assigned men to commence cleanup along the beltline he acknowledges that he failed to advise the inspectors of this fact at the time the order was issued. Under the 

circumstances I can give Goins' testimony in this regard but 

little weight. It would be reasonable to expect Goins to 

inform the inspection party that he had commenced cleanup 

when he was issued the order. 

The evidence therefore that Goins knew of the cited 

conditions at least the day before the order was issued yet 

failed to report those conditions in the appropriate examination books and failed to take sufficient cleanup action 

is evidence of high negligence and "unwarrantable failure." 

The history of six prior violations of the same standard 

dating from June 13, 1991, further supports a finding of 

high negligence and "unwarrantable· failure." See Youghiogheny 

and Ohio Coal Co . , 9 FMSHRC 2007 (1987). 

In reaching these conclusions, I have not disregarded the 

testimony of superintendent Goins, who, while admitting that 

the beltline needed cleaning, stated that it was not a dangerous 

condition because half of the area was wet (and that even if 

there was an explosion the air locks would limit the explosion) 

and that no one was apparently working along the beltline at the 

time of the violation. The fact is, however, that the inspection 

party itself was present within the area of the cited conditions, 

that an explosion, even assuming it could be contained within 

two air locks, would be serious and at least one half of the 

cited area was admittedly dry. Goins' ' testimony therefore would 

not in any event negate the findings in this case. In addition, 

I can give no weight to the arguments in Respondent's Brief based 

on evidence not in the trial record. 
Order No. 4043391, also issued pursuant to Section 104(d)(l) 

of the Act, alleges a "significant and substantial" violation of 

the standard at 30 C.F.R. § 75.515 and charges as follows: 

The 300 KVA power center located at No. 33 P.U. were [sic] the high voltage (7 , 200) enters the power 

center had exposed conductors, were [sic] the insulated 

bushing had been pull [sic] out of the power center. 

Electrical Inspector Fain testified that during the 

course of the inspection on March 8, 1993 , he observed that 

on the cited power center the bolts on the entrance gland had 

been sheared off and the bottom of the plate on the outside 

had separated from the frame by four to six inches. According 

to Fain, the sheared portion of the bolts was "fresh looking" 

and he therefore concluded that the damage had only recently occurred. According to Fain the two wire phases were touching 

inside the metal box and there was very poor insulation on the 

wires since the mesh protection had been removed. Fain opined 

that if the wires had become exposed, for example, through 

vibration and friction to the insulation, and contacted the 

metal frame . of the power center it could become energized and 

someone touching it could be electrocuted. 

Inspector Dingess opined that the violation was "significant and substantial" because it would be highly likely for 

someone touching the power center under the circumstances to 

suffer fatal electrocution. Under the circumstances, I agree 

with Dingess and Fain that there was a reasonable likelihood 

because of the damage to the power center that it could become 

energized subjecting anyone touching the metal box to electrocution. In this regard I have also considered the testimony of 

Certified Electrician Tim Creech that if the insulation was off 

the lead then the metal frame of the box would become energized. 

The violation was accordingl y "significant and substantial." 

I do not, however, agree with the conclusions that the 

violation was the result of "unwarrantable failure . " The 

Secretary's findings in this regard were based upon an alleged 

statement by superintendent Goins that the box had been worked 

upon the night before and the condition should therefore have 

been discovered and corrected at that time. Clearly, however, 

the cited condition could have occurred subsequent to any such 

work and indeed Fain testified that the condition had occurred 

only very recently. Under the circumstances, I find that the 

Secretary has simply failed in his burden of proving this issue. 

Accordingly, the order must be modified to a citation under 

Section 104(a) of the Act . 

793 
Order No . 3829637 alleqes a "siqnificant and substantial" 

violation of the standard at 30 c.F.R. § 75.202(a) and, as 

amended at hearing, charges as follows: 

Unsupported roof was present along the No. 1 belt 

conveyor and area 60 feet times eiqht feet was 

unsupported at brake 23 and extended to the 24 brake 

[sic] on off side of belt conveyor where persons are 

required to travel. An area eight feet by eight feet 

was unsupported where the bolt had been knocked out 

and draw rock had fallen at the brake [sic] 31 on right side of belt in the travelway. The roof of areas where 

persons work or travel was not supported or otherwise 

controlled to protect persons from hazards related to 

falls of the roof. 

The cited standard, 30 C.F.R. § 75.202(a), provides that 

"the roof, face and ribs of areas where persons work or travel 

shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal 

or rock bursts." 

Inspector Dingess testified that during the course of his 

inspection along the No. l beltline on March 8 , 1993, he observed 

the cited conditions. In the first area cited there were no roof 

bolts in the cited 60-foot-by-8-foot area and, according to 

Dingess, there should have been four bolts every four feet for 

the entire 60 foot length. This was on the off side of the belt 

which, according to Dingess, is used for cleanup and to check 

offside rollers. According to Dingess the belt had been located 

in the position for at least 18 months before the citation. Mine 

Superintendent Goins reportedly stated that he did not know how 

the area had been left unsupported: 

Dingess concluded that the violation was of hiqh qravity and 

"siqnificant and substantial" particularly because of "draw rock" 

within the cited area. He opined that this could contribute to a 

roof fall onto persons working not only on the off side but also 

extending across the beltline. Dinqess also concluded that the 

violation was the result of the operator's "unwarr~table 

failure" because the citation had existed for such a long period and involved such a large unsupported area. Superintendent Goins 

acknowledged that he had traveled over the cited area the 

previous two years but that he had never previously noticed the 

absence of roof support. He testified that the mine height in 

the area is only 45 inches and it is difficult to see any missing 

bolts as you are crawling in such low coal. 

In particular, because of the large area of unsupported 

roof in an area of "draw rock" and the likelihood of a roof 

fall affecting both the tight side and the wide side of the 

belt entry, I conclude that the violation was indeed "significant 

794 
and substantial" and of high gravity. In addition, because 

of the extensive area of exposure and the fact that it existed 

for such a long period of time, i.e., approximately two years, I conclude that the violation was the result of high operator negligence and "unwarrantable failure." In reaching my conclusions herein I have also considered the arguments by 

Respondent that the cited area was not as large as alleged. 

However, even assuming these allegations were correct, it would 

not affect the findings herein . Under the circumstances the 

order is affirmed as issued. 

Considering all of the criteria under Section 110(1) of the 

Act, I find that the following civil penalties are appropriate: 

Order No. 3829635 

Order No. 3829637 

Citation No. 4043391 

$2,000 

$1,500 

$ 500 

ORDER. 

Order Nps. 3829635 and 3829637 are affirmed and R B coal 

Company Inc. · is directed to pay civil penalties of $2,000 and 

$1,500 for the violations charged in those orders, respectively 

within 30 days of the date of this decision. Order No. 4043391 

is hereby modified to a citation under Section 104(a) of the Act 

and R B Coal Company, Inc. is directed to pay a civil penalty of 

$500 for the violation charqed therein wi in 30 days of the date 

of this decision. · 

Distribution: 

Gary 

Adm in 

703-7 

Donna E. Sonner, Esq., Office of the Solicitor, 

w Judqe 

U.S. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215-2862 (Certified Mail) 

Mr. Darrell Cohelia, RB Coal Company, Inc., BC 61, 

Box 610, Pathfork, KY 40863 (Certified Mail) 

/lh 

79 5 
FEDERAL MINE SAFElY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 'i 2 1994 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSH.A), 

Petitioner 

v . 

L & J ENERGY COMPANY, INC . , 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 93-15 

A. C. No. 36-07270-03526 

L & J Energy Company 

DETERMINATION UPON REMAND 

Before: Judge Weisberger 

On April 5, 1994, the Commission issued an order directing 

me as follows: "· .. to determine whether the stipulation in 

question is complete and correctly represents the agreement of 

the parties. Upon so doing, the judge may reconsider his 

decision, if that should be necessary." 

It is the assertion of L & J Energy Company, Inc. (L&J) that 

the stipulation of record (Tr. 2-4, August 24, 1993) does not 

reflect the parties' agreement, which inter alia, provides that I 

would utilize the fact testimony from witnesses, other than Wu 

and Scovazzo, who observed the condition of the highwall. To the 

best of my recollection, L&J is correct in its assertion. 

However, there is no need to reconsider my decision, inasmuch as 

the decision takes cognizance of, and discusses, the testimony of 

witness other than Scovazzo and Wu, who had observed the 

highwall. 

Administrative 

~L~~ Law Judge 

Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of 

Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Laurance B. Seaman, Esq., Gates & Seaman, North Front Street, 

P.O. Box 846, Clearfield, PA 16830 (Certified Mail) 

Henry Chajet, Esq., Jackson & Kelly, 2401 Pennsylvania Avenue, 

N.W., Suite 400, Washington, DC 20037 (Certified Mail) 

/efw 

796 
OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 llCYLINE, 10th FLOOlt 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 1 2 1i9-4 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DOSS FORK COAL COMPANY, INC. , Respondent 

: 

: 

Docket No. WEVA 93-129 

A.C. No. 46-07751-03542 

: Seminole Mine 

. . 

DECIS!ON 

Appearances: 

Before: 

Pamela Silverman, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for Petitioner; 

David Hardy, Esq., Jackson and Kelly, Charleston, 

West Virginia, for Respondent. 

Judge Melick 

This case is before me upon the petition for civil penalty filed by the Secretary of Labor pursuant to section 105(d) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, ~ ~., the "Act," charging Doss Fork Coal Company, Inc. 

(Doss Fork) with eight violations of mandatory standards and 

seeking civil penalties of $19,800 for those violations. The 

general issue is whether Doss Fork violated the cited standards 

and, if so, what is the appropriate civil penalty to be assessed. 

Additional specific issues are addressed as noted. 

Order No. 2723744 

This order, issued pursuant to section 104(d)(l) of the 

Act, 1 alleges a violation of the mine operator's approved roof 

Section l04(d)(l) provides as follows: 

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

an authorized representative of the Secretary finds that 

there has been a violation of any mandatory heal~ or safety standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, 

such violation is of such nature as could significant and 

substantially contribute to the cause and effect of a coal 

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

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

79 7 
control plan under the provisions of 30 C.F.R. § 75.220 and 

charges as follows: 

The approved roof control plan No . 4-RC-9-89-12051-5 

dated July 22 and 23, 1992 page No. 4 Statement No. 3 

was not being followed on 2 left section in that a cut 

had been mined No. 5 face off No. 6 entry mains and 

only 3 roof bolts had been installed on the left side 

of the place . Spot bolting was being performed outby 

and clean up with a scoop. The roof bolter and scoop 

had traveled through said area . The plan requires that such area be permanent (sic] supported or a minimum of one (1) row of temporary support on 4-foot 

centers be installed in such area , before such work 

or travel . 

The Secretary maintains that the cited conditions constituted a violation of paragraph 3 page 4 of the approved roof 

control plan (Gov't Exhibit No. 22) which provides that 

"openings that create an intersection shall be permanently 

supported or a minimum of one row of temporary supports shall 

be installed on not more than four-foot centers across the 

opening before any other work or travel in the intersection." 

Roof control specialist Herbert McKinney of the Mine 

Safety and Health Administration (MSHA) issued the order at 

bar on the morning of October 21, 1992. He was accompanied 

during this inspection by Mine Superintendent John Dillon 

and West Virginia mine inspector Clyde Sowder. McKinney described the cited intersection on the 2 left section where 

a cut had been mined as the No. 5 face off the No. 6 entry. 

McKinney testified that the cut was approximately 18 feet wide 

and had neither temporary nor permanent support {Gov't Exhibit 

No. 23) . According to McKinney, either four posts on not more 

fn. l (continued} 

standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such ci ta ti on, an autho·rized 

representative of the Secretary finds another violation of 

any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such 

operator to so comply, he shall forthwith issue an order 

requiring the operator to cause all persons in the area 

affected by such violation, except those persons referred to 

in subsection (c) to be withdrawn ~rom,a nd to be prohibited from entering, such area until an authorized representative 

of the Secretary determines that such violation has been abated." 

798 
than four-foot spacing across the mouth of the intersection 

or four rows of roof bolts were needed to provide the support required by the roof control plan. 

McKinney also found the violation to be "significant 

and substantial. " A violation is properly designated as 

•significant and substantial" if, based on the particular 

tacts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature . Cement 

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

In Mathies Coal co., 6 FMSHRC 1,3-4 (1984), the Commission 

explained: 

In order to establish that a violation of a 

mandatory standard is significant and substantial 

under National Gypsum the Secretary must prove: 

(l) the underlying violation of a mandatory safety standard, (2) a discrete safety hazard -- that is, 

a measure of danger to safety -- contributed to by the violation, (3) a reasonable likelihood that the 

hazard contributed to will result in an injury, and 

(4) a reasonable likelihood that the injury in 

question· will be of a reasonably serious nature. 

See also Austin Power Co . v. Secretary, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 

(1987) (approving Mathies criteria). 

The third element of the Mathies formula requires that 

the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an 

injury. (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (1984), 

and also that in the likelihood of injury be evaluated in terms 

of continued normal mining operations (U.S. Steel Mining co., ~' 6 FMSHRC 1473, 1574 (1984); see also Halfway, Inc., 

8 FMSHRC 8, 12 (1986) and Southern Oil Coal Co., 13 FMSHRC 912, 

916-17 (1991). 

According to McKinney this unsupported roof was a 

particular hazard because a roof fall in the cut would tend 

to break through into, and expose miners in the entry. The 

roof would be "swinging" and there would be nothing to cut 

off a roof fall in the No. 5 face from the entry. According 

to McKinney, such a roof fall was reasonably likely to occur 

because of "cloud rock" present in the roof. Cloud rock is a 

rock formation without a grain and, according to McKinney, 

deteriorates and separates when wet. The record further shows 

that the roof in this intersection had been "potting out" 

between roof bolts in the entry thereby creating a cavity. 

McKinney concluded that, under the circumstances, crushing 

injuries resulting in permanent disability would likely result. 

799 
Five miners, including the miner operator, the miner operator helper, two shuttle car operators,· a foreman and an electrician, 

would be expected in the cited area. Indeed, a scoop and roof 

bolter were seen passing through the intersection. 

McKinney also concluded that the violation was the result 

of high negligence and "unwarrantable failure" to comply with 

the roof control plan. "Unwarrantable failure" has been defined 

as conduct that is "not justifiable" or is "inexcusable . " It 

is aggravated conduct by a mine operator constituting more 

than ordinary negligence. Youghiogheny and Ohio coal Company, 

9 FMSHRC 2007 (1987); Emery Mining Corp ., 9 FMSHRC 1997 (1987). 

In this regard McKinney testified that he discussed this violation with Section Foreman John Webb in the vicinity of the 

intersection before he issued the order at bar. According to 

McKinney, Webb told him that he (Webb) knew he was not supposed 

to be working inby the cited intersection. 

Clyde Sowder, a West Virginia state roof control inspector, corroborated McKinney's testimony in essential respects. Sowder 

cited the same condition for a violation under the state law of 

the same provision of the roof control plan (Gov't Exhibit 

No. 24). 2 Sowder observed the opening at the No. 5 face and . he 

too found no roof support except in the main entry. Sowder noted 

that the roof in the area was loose, broken and drummy and concluded that there was a good chance of a roof fall in the cut 

extending into the entry. Sowder opined that it was highly likely for injuries to occur as a result of the condition and 

that such injuries would be permanently disabling. Sowder also 

observed, while he was in the vicinity of this cut, that a 

shuttle car passed through the intersection. 

Sowder also was present when MSHA Inspector McKinney asked 

Foreman Webb if he knew of the existence of the condition and if 

he knew that such condition was a violation by tramming the roof 

bolter through the intersection. Sowder heard Webb's response 

admitting the existence of the condition but stating that it had 

"slipped his mind." While Webb did admit in Sowder's presence 

that he was aware of the violation, Sowder charged the violation 

as an "unknowing" violation under West Virginia law because he 

believed that Foreman Webb had "just forgot about the violation. " 

2 The notice of violation {Gov't Exhibit No . 24) 

issued by State Inspector Sowder on October 21, 1992, for 

the same conditions cited by Inspector McKinney in the 

order at bar and for violation of the same provisions of the r~of control plan, was not challenged and therefore 

became final under West Virginia law. 

800 
Within the above framework of credible evidence, I find 

that indeed the violation was committed as charged and that 

the violation was "significant and substantial." I further 

find that the violation was the result of the operator's 

"unwarrantable failure" to comply with the law. It is not 

mere inattention or inadvertence when the foreman intentionally removes a bolting crew before their job is completed. 

Here Foreman Webb acknowledged that only 15 minutes before the 

inspection party reached the cited intersection, he reassigned the crew which was bolting the intersection to another job. 

For the same reasons, I also find that the violation was the 

result of high operator negligence. 

In reaching these conclusions· I have not disregarded 

Doss Fork's evidence that, contrary to the testimony of 

McKinney and Sowder, there were actually 11 roof bolts in 

the intersection of the No . 5 face inby the entry (Operator's 

Exhibit No. 2). This evidence comes from Foreman Webb and roof 

bolter operator James Wright who both testified that there were 

actually 11 bolts provided as permanent support in the cited 

intersection. I can, however, give this evidence but little 

weight in light of the credible confirming testimony of both 

Federal Inspector McKinney and State Inspector Sowder. The 

failure of Doss Fork to have challenged the state notice of 

violation for the precise condition charged in the order here 

at issue adds credence to the testimony of the inspectors. 

Under the circumstances and considering all relevant 

criteria under Section llO(i) of the Act I find that the 

penalty proposed by the Secretary of $3,000 is appropriate 

for the violation charged in Order No. 2723744. 

Order No . 3554286 

This order, also issued pursuant to Section 104(d)(l) of 

the Act, alleges a "significant and substantial" violation of 

the mandatory standard at 30 c.F.R. § 75.400 and charges as 

follows: 

Loose coal and coal dust was allowed to accumulate 

on the 002-0 section in the No. 1 and No. 2 entries 

starting at the face and extended outby a distance 

of approximately seven cross-cut lengths also in the 

No. 3, No. 4, No. 5 entries starting at the face and 

extended outby to the section dumping point. Area 

affected measured approximately 600 feet in No. 1 and 

No. 5 entries and 200 feet in No. 3, No. 4 and No. 5 

entries. The accumulation ranged in depth of up to 

30 inches. 

801 
The cited standard provides that "coal dust, including float coal dust deposited on rock-dusted surfaces, loose 

coal, and combustible materials, shall be cleaned up and not 

permitted to accumulate in active workings, or on electric 

equipment therein." 

MSHA Inspector James Graham was performing an inspection 

of the Seminole Mine on october 21, 1992, accompanied in part by Foreman Carl Dalton. During the course of this inspection 

Graham purportedly observed loose coal and coal dust in a 

number of areas, including the No. 1 and 2 entries outby 

seven cross-cuts for approximately 600 feet and in the No . 3, 

4 and 5 entries outby approximately 200 feet to the section 

dumping point. According to Graham there was also loose coal 

in the crosscuts and at the feeder, in the No. 6 crosscut outby 

the face of No. 1 entry and in the fifth crosscut in particular. The accumulations at the feeder where coal is dumped onto the 

conveyor belt were "pretty extensive" and partly on top of the 

control box . 

Graham further testified that he measured these accumulations at three locations with a tape measure, including a 

deposit of 30'- inches near the coal feeder and at areas depicted in dark green on the mine map in evidence (Gov't Exhibit No. 3) . Graham also found the coal in the crosscuts to be approximately 30 inches deep based on his observation that it was near the 

36 to 40-inch-high roof. Graham testified that he physically handled the material and dug into it to determine that it was in 

fact coal dust and loose coal. While acknowledging that there 

was some rock in the material he concluded that there was more 

coal than rock. The accumulations in the Nos. 1, 2 and 3 entries 

were primarily dry, whereas the remaining accumulations were 

indeed wet. 

Graham opined that the violation was "significant and 

substantial" due to the ignition sources from electrical equipment and trailing cables in the section. In particular, he 

observed a roof bolter and personnel carrier operating that day. 

In addition, while coal was not then being mined, electric 

trailing cables were lying along the rib line of an entry. 

Graham identified electrical heat from the roof bolter machine 

generated from defective electrical motors, potential explosion 

of batteries and the burning of hydraulic oil as potential ignition sources. Graham also identified the electric motor and 

hydraulic fluid as potential ignition sources at the feeder and 

friction from defective bearings as a potential ignition source 

at tbe tail pulley. 

Based on the above observations, Graham concluded that a 

fire or smoke resulting from ignition of the accumulations would 

reasonably likely result in smoke inhalation and burn injuries, 

802 
which would result in lost work days or restricted duty. He 

noted that six persons were working on the section and could be 

affected by such fire or smoke. 

on cross-examination Graham acknowledged that, while 

there was no production on october 21, when he issued the 

instant order, the equipment was energized and the roof bolter 

and battery powered personnel carrier were in operation. He 

further acknowledged that the ventilation was above the required 

amount and that no methane was found. In addition, Graham 

inspected the Joy shuttle car and found no ignition sources, 

violations or hazards in its trailing cable. 

Inspector Graham also opined that the violation was the 

result of high negligence and "unwarrantable failure." According 

To Graham, the area of accumulations was extensive and, due to 

the amount, was "very obvious." He also relied upon statements 

by Section Foreman Carl Dalton that he knew the section needed 

cleaning and that it had been in this condition for at least 

five days. According to Graham, Dalton advised him that he 

intended to clean up the accumulations and complete rock dusting but wanted .to complete roof bolting first. The evidence that 

accumulations had been "packed" into the crosscut and that there 

had been a previous citation for three violations of accumulations on June 3, 1992, were also considered. 

MSHA Inspector Herbert McKinney also testified that during his inspections on October 15, 1992, of the same drainway section 

cited for the accumulations herein, he observed accumulations of 

loose coal and coal dust three crosscuts outby the feeder, inby 

the feeder along the roadways and in side cuts used for storage of supplies. Apparently he was told that this was "dirty coal" 

and was being stored as a result of cleaning the bottom. According to McKinney he did not cite these a lleged accumulations 

because he did not carry a dust sample ki t , but he purportedly 

advised Foreman Dalton of the need for cleanup and rock dusting. 

Section Foreman Carl Dalton testified that on October 21, 

1992, he was in charge of the drainway section at issue and 

noted that it was generally a wet section since it provided 

drainage for the entire mine. According to Dalton, Mine 

Foreman Dillon told him to do nothing else but spot bolt the 

section so, accordingly, he did no cleanup or rock dusting 

work following McKinney's visit on October 15, 1992 . He 

•aintains that his crew was split up from october 15 through 

october 19 performing spot bolting work as a result of a violation issued by McKinney on october 15, 1992. He maintains 

that he could not "take a chance" on doing anything else in 

light of the "high disregard" violation issued by McKinney on 

october 15. He recalled that McKinney returned on october 19 

to check on the spot bolting activity and told him that he had 

803 
"a bit of spillage . " Dalton maintains that he told McKinney 

he would clean up the spillage as soon as he finished the 

required bolting. 

Dalton also disagreed that the accumulations were as 

extensive as cited by Inspector Graham while admitting that 

•you are going to have coal" and it would have to be mud and 

rock mixed in. He also claimed that the material in the 

entries was wet. Indeed, he maintained that you could not 

have burned it in a "blast furnace." He further maintained 

that, while it did need cleaning at the feeder and there 

was some spillage at that location, there was not a serious 

accumulation . Dalton also testified that there were no 

electrical cables in the cited area except for the roof 

bolter cable which was "brand new. " · 

According to Mine Operator John Dillon, the cited material 

was not deep and was not even "dirty coal." He maintains that 

it was nothing more than rock and mud and created no hazard 

because the only potential ignition source was the pinning 

machine which had a new trailing cable. He did admit, however, 

that in the course of mining, a scoop, two shuttle cars, a continuous miner and roof bolter would operate in the area. He 

concluded that the cited material which consisted of pure rock 

and mud could not burn with a "blow torch. " 

Giving due credit to the expertise and credible observations of MSHA's witnesses and indeed of corroborating testimony by Foreman Dalton himself, I conclude that indeed 

coal accumulations did in fact exist in sufficient quantities 

to support the order at bar. In addition, I find that the 

cited accumulations constituted a "significant and substantial" 

violation. In reaching this conclusion, I again credit the 

disinterested testimony of Inspector Graham of the existence 

of loose coal and coal dust, at least some of which was dry 

and in proximity to potential ignition sources. 

I also agree with the Secretary that the violation was 

the result of high negligence and "unwarrantable failure." 

Clearly, mine management was informed by Inspector McKinney 

several days prior to the issuance of the instant order of 

the existence of at least some of the cited accumulations. I 

credit McKinney's testimony that management was also then told 

that it would be necessary to clean those up. The failure of 

aanagement to clean up those accumulations for as long as 

five days after being so warned indeed shows such a reckless 

disregard as to constitute high negligence and "unwarrantable 

failure. " 

While the operator's witnesses maintain that they were 

under a directive from Inspector McKinney to perform only roof 

bolting following his october 15, 1992 citation for violating 

804 
its roof control plan, I fi~d the attempted defense to 

be disingenuous. Firstly, Inspector McKinney denies the 

allegation. Moreover, it is unreasonable to expect that 

an inspector would advise a mine operator to ignQre other 

hazardous conditions while abating· an unsupported roof 

citation. It is clear that the operator had another work 

crew available in another section of the mine which could 

have been utilized to clean up the accumulations within 

the five day period following the rebolting by the split 

crew assigned to abate McKinney's October 15 violation. 

Even if the operator understood it was to give priority to 

supporting the roof there was ample time over the five days 

to commence clean up as roof support work progressed. 

Under the circumstances, and considering the criteria 

under section llO(i) of the Act, I find that a civil penalty 

of $2,000 is appropriate for the violation charged in the 

order at bar. 

Order No. 3554287 

Order No . 35542877 also issued pursuant to section 104(d)(l) 

of the Act, alleges a "significant and substantial" violation of 

the standard .at 30 c.F.R. § 75.403 and charges as follows: 

Rock dusting was not adequate i,n the No. 1, No. 2, 

No. 3 and No. 4 entries on the 002-0 section starting 

at the face and extended outby a distance of approxi- mately 600 feet. Spot samples were collected in the 

area to substantiate this action. 

The cited standard provides as follows: 

Where rock dust is required to be applied, it shall 

be distributed upon the top, floor, and sides of 

all underground areas of a coal mine and maintained 

in such quantities that the incombustible content of 

the combined coal dust, rock dust, and other dust 

shall be not less than 65 per centum, but the incombustible content in the return air courses shall be 

no less than 80 per centum. Where methane is 

present in any ventilating current, the per centum 

of incombustible· content of such combined dusts 

shall be increased 1.0 and 0.4 per centum for each 

0.1 per centwn of methane where 65 and 80 per centum, 

respectively, of incombustibles are required. 

According to Inspector Graham, during the course of his 

OCtober 21, 1992 inspection, he ob~erved in the No. l and 

2 entries, extending from the face to 100 feet outby, that 

the entry was black in color. In addition, outby this area 

the mine floor continued to be black and only spotty with 

8 0 5 
previous rock dusting. This condition extended for a linear 

distance of 600 feet in the No. l and 2 entries. In addition, 

Graham observed in the No. 3 and 4 entries from the face outby, that although there was evidence of prior rock dusting on the 

roof and ribs, the mine floor was black. Samples from the rock 

dusted areas (Gov't Exhibit No. 7) showed an incombustible 

content of 21 percent, 12 percent and 12 percent respectively for the samples taken. 

According to Graham it was reasonably likely for a fire 

to result from the combination of accumulations, lack of rock 

dust and ignition sources from electrical equipment. He 

further concluded that injuries would be reasonably likely 

from smoke inhalation or burns. 

Graham concluded, finally, that the violation was the 

result of high operator negligence and "unwarrantable failure." 

According to Graham, Carl Dalton, the section foreman , told 

him that the section had been in this condition for five days 

and that he knew it needed to be rock dusted. Ignition sources 

described by Graham in reference to the preceding order were, 

according to Graham, equally applicable to the instant situation. 

As previously noted, Inspector Herbert McKinney had also 

been on the section on October 15 and October 19, 1992, i n 

connection with a roof inspection. McKinney testified that he 

observed the inadequate rock dusting in areas of the section 

during these inspections. Indeed, Section Foreman John Dillon 

acknowledged at hearing his agreement with McKinney that on 

October 19 the area did in fact need additional cleaning and 

rock dusting, particularly around the face. According to Dillon, 

however, he intended to first complete roof bolting operations 

to abate the violation cited by McKinney on October 15 before 

rock dusting on October 21, 1992 . I have previously rejected 

this defense and for the same reasons again reject it. Within 

the above framework of evidence, i~ is indeed clear that the 

violation existed as charged and that the violation was "significant and substantial" and of high gravity. See Mathies coal ~, supra . 

It is also apparent that the violation herein was the 

result of high negligence ~d "unwarrantable failure." 

Two days before the condition was cited by Inspector Graham, 

McKinney observed inadequate rock dusting in the same section 

and informed Dalton of the need to clean and rock dust the 

section. In addition, the fact that Dalton himself acknowledged 

on october 19, that the area needed additional cleaning and 

rock dusting shows knowledge of the violative condition two days 

prior to its citation. Failure to even begin cleaning up and 

806 
rock dusting the cited area under the circumstances constitutes 

high negligence and "unwarrantable failure." Bmerv Mining Corp., 

supra . 

In reaching this conclusion, I have not disregarded the 

assertions by John Dillon, Doss Fork's Superintendent at the 

time, that he was in essence forbidden by McKinney's order to 

perform any cleanup or rock dusting operations until completion of roof bolting. As previously noted, however, I do not find 

these contentions credible. 

Considering the above evidence and the criteria under 

Section llO(i) of the Act, I find that a civil penalty of 

$2,000 is appropriate . 

Order No . 3554291 

Order No. 3554291, also issued pursuant to section 104(d)(l) 

of the Act, alleges a significant and substantial violation of 

the standard at 30 C.F.R. § 75 . 202(a) and charges as follows : 

The mine roof in the right return aircourse is 

not adequately supported at several spot locations 

starting ·at 4 cross-cuts inby the right return 

portal and extended [sic] inby this point to 

within approximately 6 cross-9uts of the face 

on the 001-0 section, a distance of approximately 

1,600 feet . There were several roof bolts at each 

location that were damaged to a point that they no 

longer provided adequate support for the mine roof. 

The cited standard provides that "the roof, face and ribs 

of areas where persons work or travel shall be supported or 

otherwise controlled to protect persons from hazards relating 

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

According to MSHA Inspector James Graham he was conducting 

an inspection of the cited area on October 26, 1992, accompanied 

by his supervisor Clyde Ratcliff, Within this area Graham found 

what he described as large sections of unsupported roof. More 

specifically, in one area, four crosscuts inby the surface 

portal , there were 16 damaged roof bolts. The rock 'had spalled 

away from the bolt heads, the bolts were hanging down exposed, 

and a portion of rock 5 feet long and 2 feet thick had fallen 

out. There were areas where rock was hanging from the roof, cavities in the roof and rock lying on the mine floor. one of 

these bolts had 30 inches of the six foot bolt exposed . A second 

area Graham described was 50 feet inby survey station No . 305 

where five bolts in a row were damaged. These bolts were bent 

and hanging down with approximately 18 inches exposed. 

807 
Graham noted that the roof bolts were required to have 

bearing plates in contact with the mine roof to prevent 

aloughage. The hazard under the circumstances, according to 

Graham, was from roof falls exposing anyone traversing in the 

area to crushing injuries. Graham observed that such injuries would be reasonably likely since the area must be traveled at 

seven day intervals for inspection and other employees would 

enter the area for maintenance, to pump water and to maintain 

ventilation. 

Inspector Graham also concluded that the violation was 

the result of high negligence and "unwarrantable failure." 

According to Graham, the conditions were "very obvious." In 

addition, Foreman Carl Dalton reportedly told Graham that he 

did the weekly exam himself and that he knew of the unsupported 

roof. Dalton told Graham that he did not have enough men, 

however, to perform the "outby work" and that he was disgusted and ready to quit the job because of that. 

MSHA Supervisory Inspector Clyde Ratcliff accompanied 

Inspector Graham during his examination of the right return 

air course and observed the same conditions and corroborated 

the testimony of Graham. There was roof material on the floor 

and roof bolt.s were not secured to the roof. They were jutting 

out with roof material spalled away. Ratcliff testified that 

he did not count the damaged roof since there were too many to 

count. Ratcliff confirmed that Foreman Dalton stated that he 

was aware of these adverse roof conditions but that he did not 

have enough men to correct these conditions and continue with 

production at the same time. 

Ratcliff further opined that the subject Pocahontas No. 3 

coal seam is composed of a heavy unconsolidated material. He 

considered a roof fall likely based upon the history of roof 

falls in this seam and his observations of the roof material . He concluded that injuries were reasonably likely under the 

circumstances. 

Within the above framework of evidence, it is clear 

that the violation is proven as charged, that the violation 

was "significant and substantial" and that it was the result 

of high negligence and "unwarrantable failure." 

In reaching these conclusions I have not disregarded the 

testimony of Section Foreman Carl Dalton who claims that he 

told Graham and Ratcliff that he in fact said he did not know 

of the unsupported roof in the right return entry. The cross 

corroborating testimony of both Ratcliff and Graham regarding 

the admission made by Dalton that he was aware of the roof 

conditions is however the more credible. 

808 
I have also evaluated Dalton's testimony that it was not 

unusual to see sloughage from the bolts in the areas cited and 

that the condition did not present.a hazard since a resin bolt 

does not need a bearing plate for anchorage. However, Dalton 

misconstrues the nature of the hazard described by Graham and 

Ratcliff. Graham and Ratcliff were particularly concerned by 

the fact that roof material had sloughed and was continuing to 

slough from the bearing plates thereby creating a hazard of 

falling rock from such sloughage. 

Under the circumstances and considering the criteria under 

Section llO(i) of the Act, I find that a civil penalty of $2,300 

is appropriate for the violation. 

Order No. 3554292 

Order No . 3554292, issued pursuant to Section 104(d)(l) of 

the Act, alleges a "significant and substantial" violation of 

the standard at 30 c.F.R. § 75.400 and charges as follows: 

Loose coal and coal dust was stored at spot locations in the left and right cross-cuts in the 

right re~urn air course starting 1 cross-cut inby 

survey station No . 375 and extended inby this 

point to within ten crosscuts of the face on the 

002-0 section, a distance of approximately 1,200 feet. 

The loose coal and coal dust ranged in depth of up to 

26 inches . 

Inspector Graham testified that during the course of his 

continuing inspection on October 26, 1992, he found accumulations of loose coal pushed into the crosscuts (areas colored 

purple on Gov't Exhibit No . 3). The accumulations pushed into 

these ten crosscuts were up to 26 inches deep. Graham handled 

and scrutinized the materials and observed that indeed it was 

loose coal mixed with pieces of rock. Graham described the 

hazard from fire that could result from such accumulations as 

a result of ignition sources from a mantrip operating in the 

return. Graham concluded that injuries were reasonably likely 

based on the amount of accumulations and the type of electrical 

equipment operating, i.e., a scoop tractor and a mantrip, for a 

fire causing smoke to result. 

Graham also concluded that the violation was the result 

of high negligence and "unwarrantable failure" because of what 

he considered to be the obvious nature of the condition. Section 

Foreman Dalton purportedly told Graham that the accumulations 

were "dirty coal" and that he cleans it out when he gets a 

chance. According to Graham, Dalton advised him that he knew it 

was dirty coal. 

809 
MSHA Supervisor Ratcliff accompanied Graham during this 

phase of his investigation and he also recalled piles of coal 

to the left and right in the crosscuts in the cited area. 

While he also observed aome rock in the material on the left, 

he did not see any rock in the material on the right. Ratcliff 

also observed that some areas in the return were in fact wet. Ratcliff also found a hazard from explosion or fire and concluded 

that it would be reasonably likely to have injuries from smoke 

inhalation causing death. 

Dalton conceded that accumulations did exist in the 

cited areas, but because they were mud and rock, claims the 

conditions were not hazardous. He denied, however, that there 

were any ignition sources in the area, i . e., no power lines and 

no power equi pment, and that the area was well rock dusted. I 

conclude, however, from the credible and disinterested testimony 

of Graham and Ratcliff that the material did in fact constitute 

violative accumulations. I do not find, however, that the 

secretary has sustained his burden of proving that the violation 

was "significant substantial" or the result of "unwarrantable 

failure." There is insufficient evidence of the combustibility 

of this admitted mix of rock, mud and coal and of the likelihood 

of an ignition source to support a significant ·and substantial 

finding. The testimony of Dalton that the material had only 

recently been pushed into the crosscuts is also undisputed. I 

give weight to his apparent good faith belief that the material 

was not a violative "accumulation." Accordingly, I do not find 

the condition to have been the result of "unwa.rrantable failure " 

or high negligence. The order is accordingly modified to a 

citation under section 104(a) of the Act. 

Considering the criteria under Section llO(i) of the Act, 

I find that a penalty of $500 is appropriate for this violation. 

Order No· 3554293 

Order No. 3554293, also issued pursuant to Section 104(d)(l) 

of the Act, alleges a "significant and substantial" violation of 

the standard at 30 C.F.R. § 75 . 202(a) and charges as follows: 

The mine roof in the left return air course 

is not adequately supported at spot locations 

starting four crosscuts outby survey station 

No . 65 and extended outby this point to within 

three cross-cuts of the surface portal. There 

were several roof bolts at each location that 

were damaqed to a point they no lonqer adequately 

supported the roof. 

810 
As previously noted, 30 C.F.R. § 75.202(a) provides 

that "the roof, face and ribs of areas where persons work 

or travel shall be supported or otherwise controlled to 

protect persons from hazards related to falls of the roof, 

face or ribs and coal or rock bursts." 

During his inspection on October 26, 1992, Inspector 

Graham found in the left return air course several places where roof bolts were hanging down and exposing 24 inches 

between the roof and the plate. Other areas had groups of 

damaged boltso He recalled, in particular, three areas, 

one of which was four crosscuts outby survey station No. 65, 

consisting of a group of six consecutive defective bolts. 

In addition, at a location six crosscuts outby survey station 

No. 65, there was a group of ten adjacent bolts where rock had 

fallen away. Finally, he remembered a group of twelve bolts 

that were "defective" at a location 11 crosscuts outby survey station No. 65. Graham testified that, in addition, there 

were many bolts damaged throughout the area with cracked and 

loose rock in the roof with much of the loose roof left hanging. 

Graham testified the roof fall hazard in this area 

would cause crushing and fatal injuries. The weekly examiner, 

State and Federal inspectors, and anyone working on roof 

support or removing roof fall material would be exposed to 

the hazard. Graham opined that it"was reasonably likely for 

one person to be so injured because of the extensive area 

involved and deteriorating roof condition. 

Graham further opined that the violation was the result 

of high negligence and "unwarrantable failure" based upon 

the extensive area involved. He aiso concluded, based on the 

state of deterioration that the conditions had existed for at 

least several weeks. Finally, Graham noted that the examination 

reported for the area was dated October 21, five days before his 

inspection. 

Graham's testimony is corroborated in essential respects 

by the testimony of Graham's supervisor, Clyde Ratcliff. 

Ratcliff accompanied Graham a.pd was "greatly surprised" by the 

amount of fallen material in the left return air course and the 

number of protruding roof bolts. According to Ratcliff, there 

were large sized rocks, baseball size up to the size of a pickup 

truck bed on the floor consistently over the entire area. In 

addition, some roof bolts were broken and others showed spalling 

around the plates. He also· noted that the cavities where the 

roof had fallen out were extremely high. 

811 
Ratcliff opined that falling material would cause severe 

injuries to a miner or inspectors and that it was highly likely 

for serious injuries to result. He also opined that the cited 

conditions had existed for "weeks" based on the extensive nature 

of the problem. 

While the evidence clearly supports a finding that the 

violation was "significant and substa..ntial," I cannot find 

that the Secretary has sustained her burden of proving that 

the violation was the result of high negligence or "unwarrantable failure." Section Foreman Carl Dalton testified that he 

had performed the weekly examination in the return air courses 

on October 17, 1992, and at that time did not observe any 

hazardous roof conditions. It is further acknowledged that the 

mine roof in this area of the mine"could deteriorate rapidly. 

Under the circumstances I do not find that the Secretary has 

sustained her burden of proving that the deteriorated conditions 

found on October 26 had existed at the time of the previous 

weekly examination and that accordingly Doss Fork officials 

were therefore on notice of the existence of such conditions. 

Accordingly, I cannot find that the violation was the result 

of high negligence or "unwarrantable failure." The order is 

therefore modified to a citation under Section 104(a) of the Act. 

Considering the criteria under section 110(i) of the Act, 

I find that a penalty of $500 is appropriate. 

Order No. 3554294 

Order No. 3554294 alleges a violation on October 26, 

1992, of the standard at 30 C.F.R. § 75.305. However, since 

no mandatory standard identified as 30 C.F.R. § 75.305 existed 

at the time the instant order was issued on October 26, 1992, . there could not. have been any violation of the standard cited. 

The provisions of 30 C.F.R. § 75.305 were no longer effective 

after August 15, 1992. See 57 F.R. 20868 and 20914, May 15, 

1992. Under the circumstances, the order must be vacated. 

Citation No. 3981551 

Citation No. 3981551 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 75.202(b) and charges as 

follows: 

A roof bolt machine operator was observed traveling 

inby permanent roof supports in the face of the No. 3 

cross-cut on the 001-0 section. The roof bolting 

machine had been moved into the face of the No. 3 

cross-cut and the machine operator traveled inby 

permanent roof supports to position a metal roof 

support strap before the T.R.S. had been installed 

812 
against the roof. This citation is the factor in 

the issuance of Imminent Danger Order No. 3981550 

therefore no abatement time was set. 

30 c.F.R. § 75.202(b) provides that "no person shall work 

or travel under unsupported roof unless in accordance with this 

subpart." 

MSHA Inspector James Graham testified that he observed 

the roof bolter move into the crosscut and the miner on the 

right side of the roof bolter proceed under unsupported roof, 

reach for the roof support strap and pull it over the roof 

bolting machine. Under the circumstances, roof bolter operator 

James Wright , was exposed to unsupported roof. Inspector Trainee 

Roy Walls also observed that Wright had his entire body beyond 

the roof strap. In particular, Walls recalled that Wright's head 

was inby the last bolt by six inches. Graham opined that because 

of the dangerous nature of the roof in this mine, which subjected it to falls at any time ; it was highly likely for injuries from 

crushing to result in death. 

Graham also concluded that the violation was the result 

of high negllgence. According to Graham, Superintendent Dillon 

told him enroute to the section th~t the straps could not safely be installed and that it was causing the workers to go inby 

permanent supports. In addition, the roof bolter operator who 

was observed proceeding beneath unsupported roof purportedly told Inspector Graham that this procedure had been necessary 

ever since they had begun using straps. 

MSHA Supervisor Ratcliff testified that on November 16, 

1992, he received a telephone call from Mine Superintendent 

John Dillon about the problems the installation of the metal 

straps was causing at Doss Fork. According to Ratcliff, Dillon 

complained about the necessity of miners to go inby the last row 

of permanent support i n order to install the straps. 

James Wright admitted that he had to reach inby the last 

row of bolts in order to set up the roof straps and that he had 

been performing this procedure for ·two or three weeks prior to 

the issuance of the instant citation. 

Within the framework of this evidence, it is clear that 

the violation is proven as charged and that the violation was 

"siqnificant and substantial" and the result of high operator 

negligence . In reaching these conclusions, I have not disregarded the testimony of Superintendent Dillon that he did not 

in fact discuss with Inspector Graham or Ratcliff anything about 

employees going inby permanent roof support to set the straps. However, in light of the clear recollection and the disinterested 

testimony of both Graham and Ratcliff, I can only conclude that 

813 
Mr. Dillon's recollection was deficient. Citation No . 3981551 

is accordinqly affirmed with its "siqnificant and substantial" 

findinqs. 

Considerinq the criteria unde~ Section 1lO(i) of the Act, 

I find that a civil penalty of $3,000 is appropriate. 

ORDBR 

Order No. 3554294 is hereby VACATED. Order Nos. 3554292 

and 3554293 are hereby modified to citations under section l04(a) 

of the Act . Doss Fork coal Company is hereby directed to pay a 

civil penalty of $500 each for the violations in those citations 

within 30 days of the date of this decision. The remaininq citation and orders are hereby AFFIRMED and Doss Fork Coal 

Company is hereby directed to pay the followinq civil penalties 

for the violati ons charqed therein within 30 days of the date of 

this decision: 

Order No. 2723744 

Order No. 3554286 

Order No. 3554287 

Order No. 3554291 

Citation No . 3981551 

Distribution: 

$3,000 

$2 , 000 

$2,000 

$2,300 

$3,000 

Pamela S. Silverman, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Blvd., Room 516, 

Arlinqton, VA 22203 (Certified Mail) 

David J. Hardy, Esq . , Jackson and Kelly, 1600 Laidley Tower, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

\lh 

814 
J'BDBRAL JUD SUBTY UD llBAL'l'B UVJ:BW OOJOllSSIOB 

OFFICE OF Al»41NISTRATIVE LA~ JIA>GES 

2 SKYL INE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 1 3 1994 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LARRY ADDAIR, EMPLOYED BY 

JAMB MINING INCORPORATED, 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No . VA 93-87 

A.C. No. 44-05395-03568-A 

Mine No. 2 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This case involves a petition for assessment of civil 

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

Act of 1977, 30 u.s.c. § 801 et seq. Petitioner has 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 § 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 of $400.00 in four monthly installments of $100.00 

each beginning May 15, 1994. 

Distribution: 

ll)William ~~~ Fauver 

Administrative Law Judge 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 400, Arlington, VA 22203 

(Certified Mail) 

Larry Addair, P.O. Box 990, Castlewood, VA 24224 (Certified 

Mail) 

/lt 

815 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 1 3 1994 

ENERGY WEST MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Res,pondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

ENERGY WEST MINING COMPANY, 

Respondent 

. . 

CONTEST PROCEEDING 

Docket No. WEST 94-22-R · 

Order No. 3587924; 10/4/93 

Deer Creek Mine 

Mine ID ·42-00121 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 94-186 

A. C. No. 42-00121-03823 

Deer Creek ·Mine 

DECIS·ION 

Appearances: Timothy M. Biddle, Esq., Crowell & Moring, 

Washington, D.C. for Contestant; 

Before: 

Carl c. Charneski, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia for 

Respondent. 

Judge Hodgdon 

These cases are before me on a notice of contest filed by 

Energy West Mining Company again~t the Secretary of Labor and a 

petition for assessment of civil penalty filed by the Secretary 

of Labor against Energy West Mining Company pursuant to Sections 

105 . and 110 of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. §§ 815 and 820. 1 Energy West contests the issuance of 

Order No. 3587924 to it on October 4, 1993 . The Secretary has 

proposed a civil penalty for the same violation. For the reasons 

set forth below, the order is vacated. 

The civil penalty proceeding was filed subsequent to the 

hearing on the contest. Energy West's motion to consolidate the 

proceedings is unopposed. Accordingly, the motion to consolidate 

is GRANTED and these proceedings are CONS'OLIDATED for disposition 

in this decision. 

816 
The case was heard on January 19, 1994, in Price, Utah. 

Mine Safety and Health Administration (MSHA) Inspectors 

Donald E. Gibson, Robe.rt Baker, Fred L. Marietti and 

Ted E. Farmer testified on behalf of the Secretary. 

Mr. Mark Tuttle, Mr. Chad s. Hansen, Mr. Scott Timothy, 

Mr. Arch Allred, Mr. Rudy L. Madrigal2 and Mr. Kent L. Norton 

testified for Energy West. The parties have also filed post 

hearing briefs which I have considered in my disposition of these 

cases. 

FINDINGS OF FACT 

The following facts are undisputed in this matter. On 

September 13, 1993, Inspector Gibson conducted respirable dust 

sampling on the day shift in the 1st Left Longwall Panel at 

Energy West's Deer Creek mine. He placed dust sampling equipment 

on five longwall face workers, including the headgate and 

tailgate shear operators. At lunch time, Inspector Gibson 

discovered that the tailgate shear operator had taken his dust 

sampling pump with him to the "dinner hole" and that the 

replacement tailgate shear operator did not have any sampling 

equipment. He advised the section foreman, Mark Tuttle, that 

when the tailgate shear operator is replaced to go to lunch, the 

dust sampling equipment should be given to his replacement to 

wear. 

On September 20 and 21, 1993, Inspector Gibson monitored 

procedures at the Deer Creek mine when Energ¥ West took its own 

dust samples as required by the Regulations. During this 

sampling, the dust pump was only on the tailgate shear operator, 

the "designated occupation" (DO) for dust sampling of Deer 

Creek's longwall mechanized mining unit (MMU). 

When the tailgate shear operator went to lunch on the 20th, 

he gave his dust pump to his replacement, Rudy Madrigal. As this 

was occurring, Tuttle asked Inspector Gibson if that was the way 

2 Mr. Madrigal's name is spelled Madrijal throughout the 

transcript of record, however., the correct spelling is with a "g" 

and will appear that way in this decision. 

3 Section 70.207(a) of the Regulations, 30 C.F.R. § 70.207(a), 

requires that the operator take five valid respirable dust 

samples from a designated occupation in each mechanized mining 

unit every two months. The samples have to "be collected on 

consecutive normal production shifts or normal production shifts 

each of which is worked on consecutive days." 

817 
it was supposed to be done. Gibson responded that he was not 

"going to tell them how to collect their sample." 

(Tr. 47-48, 175, 219.) 

During the sampling on September 20 and 21, the longwall was 

operated the way it was always operated. On the "grade" cycle, 

when the longwall shear travelled across the face from headgate 

to tailgate, both the headgate shear operator and _the tailgate 

shear operator walked along with the shear. On the "cut" cycle, 

when the shear travelled from tailgate to headgate, only the 

headgate operator walked with the shear; the tailgate operator 

returned to the headgate to wait in fresh air until the "cut" 

cycle was completed. The tailgate operator did this because the 

tailgate cutting drum on the shear was not used on the "cut" 

cycle, only the headgate drum. 

on October 4, 1993, Inspector Gibson returned to the Deer Creek 

mine and issued an order of withdrawal, Order No. 3587924, 

pursuant to Section 104(d) (1) of the Act, 30 u.s.c. § 814(d) (1) . 4 

4 Section 104(d)l) provides: 

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

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

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

conditions created by such violation do not cause 

imminent danger, such violation is of such nature as 

could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or 

health hazard, and if he finds such violation to be 

caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, 

he shall include such finding in any citation given to 

the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, an 

authorized representative of the Secretary finds . another violation of any mandatory health or safety 

standard and finds such violation to be also caused by 

an unwarrantable failure of such operator to so comply, 

he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected by 

such violation, except those persons referred to in 

subsection (c) to be withdrawn from, and to be 

prohibited from entering, such area until an authorized 

representative of the Secretary determines that such 

violation has been abated. 

818 
The inspector concluded that the company had violated Section 

70.207(e) (7) of the Regulations, 30 C.F.R. § 70.207(e) (7), 

because: 

The required bi-monthly samples collected by the 

operator on MMU-052, designated occupation 044 longwall 

operator (tailgate side) for the September October 1993 

sampling cycle were not collected as required by 30 CFR 

70 (emphasis in original]. 

Cassette No.'s 47830675 and 47831351 collected 

September 20-21, 1993, respectively, and submitted to 

the Pittsburgh Dust center were not collected in 

accordance with MSHA regulations. The sampling device 

did not remain at the designated occupation (emphasis 

in original]. The tailgate shearer [sic] operator 

changed occupations after each longwall cut and did not 

leave the device at the shearer (sic] and retain it at 

the designated occupation position. 

This practice did not reflect accurate monitoring 

of the mine atmosphere of the mechanized mining unit 

and would render the above mentioned dust samples 

invalid. 

The op~rator submitted the invalid samples to be 

used for the September-October sampling cycle. 

Air stream helmets or respirators were not worn by 

all miners. 

This type of practice has been discussed with 

management prior to the sampling on September 20-21, 

1993. 

(Govt. Ex. 6.) The order was modified that same day to allow the 

operator to take new dust samples. (Govt. Ex. 7.) The order was 

terminated on October 19, 1993, when the new samples showed the 

dust concentration to be within required limits. (Govt. Ex. 8.) 

PURTHER PINDINGS OP PACT 

AND 

CONCLUSIONS OF LAW 

Section 70.207(e) (7) states that: 

(e) Unless otherwise directed by the District Manager, 

the designated occupation samples shall be taken by 

placing the sampling device as follows: 

* * * * 

819 
(7) Longwall section. 

the return air side of 

along the working face 

inches of the corner. 

On the miner who works nearest 

the longwall working face or 

on the return side within 48 

In his Brief for the Secretary of Labor, the Secretary 

asserts that Energy West violated this regulation when the DO, 

the tailgate shear operator, retained the dust sampling device 

and stayed in fresh air. while the longwall shear was cutting coal 

on the "cut" cycle. {Sec. Br. at 5.) He further argues that the 

company knew that this was not the proper method to conduct dust 

sampling based on prior conversations with Inspectors Gibson, 

Baker, Marietti and Farmer, and the dust sampling provisions in 

MSHA's Program Policy Manual and Coal Mine Health Inspection 

Procedures Handbook. (Sec. BR. at 4-9.) 

In Energy West's Proposed Findings of Fact, Conclusions of 

Law, and Brief, the company maintains that it did not violate the 

Regulation. Energy West further avers that it "had no reason to 

believe its sampling procedures were improper, particularly since 

the mine had used the same procedures for at least 10 longwall 

panels and that procedure had never been questioned by any MSHA 

inspector before October 4, 1993. 11 (Co. Br. at 18.) 

Fact of Violation 

I conclude that Energy West did not violate Section 

70.207{e) (7) of the Regulations. I reach this conclusion because 

neither the regulation nor MSHA's Program Policy Manual or Coal 

Mine Health Inspection Procedures Handbook indicate that Energy 

West's method of dust sampling was improper. Further, I find 

that until the citation was issued, no MSHA official had advised 

Energy West management that MSHA considered that the company's 

method of dust sampling was not in accordance with the 

Regulations. 

Section 70.207(d), 30 C.F.R. § 70.207(d), states that 

"(e)ach designated occupation sample shall be taken on a normal 

production shift." Section 70.201(b), 30 C.F.R. § 70.201(b), 

provides that: "Sampling devices shall be worn or carried 

directly to and from the mechanized mining unit or designated 

area to be sampled and shall be operated portal to portal. 

Sampling devices shall remain operational during the entire shift 

or for 8 hours, whichever time is less." Other than these two 

sections, the Regulations provide no guidance as to how sampling 

is to be conducted. 

820 
On the other hand, the Program Policy Manual explains: 

70.207 Bimonthly Sampling; Mechanized Mining Units 

* * * * 

(e) If the operator's mining procedures result in the 

changing of miners from one occupation to another 

during a production shift, the sampling device must 

remain on or at the designated occupation (DO). For 

example, if an operator alternates the duties of the 

continuous miner operator on a one-half shift basis 

between the continuous miner operator and helper, the 

dust sampler shall be worn for one-half of a shift by 

the continuous miner operator and the other one-half of 

a shift by the helper, while each is operating the 

continuous mining machine, or the sampler shall remain 

on the machine as required by this section. 

at 8 (Vol . V, Part 70, July 1, 1988). (Govt. Ex. 2.) In 

addition, the following guidance to MSHA inspectors conducting 

dust sampling is. provided by the Coal Mine Health Inspection 

Procedures Handbook 1.1 (February 15, 1989) concerning MMU's: 

"When sampling the DO, the sampling device shall remain in the 

environment of the DO rather than with the individual miner, 

even when miners change positions or alternate duties during 

the shift." (Emphasis in original) (Govt. Ex. 3.) 

It is apparent from reading these two sections that Energy 

West was not put on notice that they were not performing their 

dust sampling properly. 5 The Program Policy Manual states that 

if a miner changes from one occupation to another, "the sampling 

device must remain on or at the designated occupation DO." 

However, in this case the tailgate shear operator did not change 

occupations by going to the headgate, he was still the tailgate 

shear operator and performing those duties, and the .sampling 

device remained on or at the DO . Likewise, the tailgate shear 

operator did not change positions or alternate duties during the 

shift (except when he went to lunch, which is not at issue in 

this case), therefore, the sampling device did always remain in 

the environment of the DO as indicated in the handbook. 

5 For the purposes of this decision, it is not necessary to 

determine whether the manual and the handbook have any binding 

effect on the company. See, e.a., Utah Power and Light v. MSHA, 

12 FMSHRC 965 (May 1990) and King Knob Coal Co . , 3 FMSHRC 1417 

(June 1981). Nor is it necessary to determine whether Energy 

West had access, or should have had access, to either or both of 

these publications. 

821 
Cf. Consolidation Coal Company v. Secretary of Labor, 9 FMSHRC 

1509 (August 1987, Judge Weisberger) (Headgate and tailgate 

operators alternated going to the headgate in fresh air and when 

operating alone, the headgate operator "may be required, in the 

normal course of mining operations, to go to the tail position 

and perform duties •... "). 

In his brief, the Secretary contends that "to have properly 

and accurately sampled the tailgate operator (i.e., the DO) on 

September 20, the sampling device would have had to have remained 

'in the environment of the MMU, at the [shear] machine.'" (Sec. 

Br. at 6.) Although he does not go on to explain exactly how 

Energy West should have complied with this requirement, at the 

hearing, it was the Inspector Gibson's opinion that when the 

tailgate shear operator went to the headgate, he should have 

given the sampling device to the headgate shear operator. 

(Tr • 4 6-4 7 . ) 

While Energy West's method of sampling appears to conform to 

the plain meaning of both the manual and the handbook, the 

Secretary's construction of the meaning is strained. In the 

first place, it is clear that the tailgate shear operator never 

left his working environment, nor changed positions. In the 

second place, the Secretary's interpretation would have some one 

other than the DO, i.e. the headgate shear operator, performing the sampling for half of the shift. And in the third place, it 

would require the tailgate and headgate shear operators to be 

constantly handing the sampling device back forth to one another. 

The Commission has held that: 

[I]n interpreting and applying broadly worded 

standards, the appropriate test is not whether an 

operator had explicit prior notice of the specific 

prohibition or requirement, but whether a reasonably 

prudent person familiar with the mining industry and 

the protective purposes of the standard would have 

recognized the specific prohibition or .requirement of 

the standard. 

Ideal Cement Co., 12 FMSHRC 2409 1 2416 (November 1990). Applying 

this standard, it is still evident that the company was not put 

on notice by either the manual or the handbook that this was the 

way dust sampling on the longwall was supposed to be conducted. 

Similarly, nothing that the MSHA inspectors told the 

management at the Deer Creek mine put them on notice that the 

tailgate shear operator was supposed to give the sampling device 

to the headgate shear operator on the "cut" cycle in order to 

822 
properly conduct their dust sampling. Inspector Gibson's 

testimony was vague, contradictory and, at times, implausible. 

While all parties agree that Inspector Gibson told 

Mr. Tuttle, the Section Foreman, on September 13 that the 

sampling device was not to be taken to the "dinner hole" (Tr. 

41, 172-73), only Inspector Gibson remembers telling Tuttle in 

another conversation on that same day that when the DO went to 

fresh air he had to give the pump to the headgate shear operator. 

Further, although the inspector testified on direct examination 

that he had two conversations with Mark Tuttle on the 13th, he 

only related the contents of the "dinner hole" conversation, he 

did not reveal what was said in the critical other conversation. 

(Tr. 49.) Nor did he divulge it on cross examination, (Tr. 84), 

redirect, (Tr. 113), recross or re-redirect. 

It was only when I questioned the witness, and specifically 

asked him what he told Mark Tuttle was supposed to be done, that 

Inspector Gibson stated that he told Tuttle "that that pump was 

to have been exchanged and stayed with the machine. I thought 

they knew that and that's the way they were doing it." (Tr. 

121.) Since this conversation is one of the bases for Gibson's 

issuance of the order, (Tr. 59), as well as one of the crucial 

factors in the ~ecretary's prosecution of the case, this lack of 

specificity is perplexing and raises doubts about whether it 

occurred. On the other hand, Tuttle unequivocally testified that 

Inspector Gibson did not say anything to him about the tailgate 

operator going to the headgate, that he only talked to him about 

the operator taking the dust pump to the kitchen. (Tr. 171-174.) 

Inspector Robert Baker testified that he had conversations 

with various members of management at Deer Creek in 1992 and 

early 1993 concerning dust sampling by designated occupations. 

With respect to the longwall, he said that he told them that the 

dust pump had to stay with the designated occupation and that if 

the DO "went to dinner or left to do something else, then if his 

occupation continued to work then the pump was to stay with the 

machine or the occupation." (Tr. 128-29.) He also stated that 

he had observed dust sampling at Deer Creek in May 1993 when the 

DO remained on the intake (headgate) side of the shear in fresh 

air and that he did not consider that to be a violation of the 

dust sampling regulations. (Tr. 134-35.) 

Inspector Fred Marietti testified that he talked with 

Randy Tatton, who was then Safety Director at the cottonwood 

mine, about dust sampling. 6 He stated that he told him that 

"when taking respirable dust samples that it was mandatory 

6 At the time of the alleged violation in this case, Tatton 

was Safety Director at both the Cottonwood and Deer Creek mines. 

823 
that the respirable dust pump be kept with the operator of 

the machine." (Tr. 13 7.) 

Inspector Ted Farmer testified that he talked to . Randy Tatton in November 1992 at the Cottonwood mine 

concerning dust sampling. He related the conversation as 

follows: 

Q. What was the substance of your conversation? 

A. It was that the respirable dust pump remain at the 

shearer7 with whoever was operating the tailgate 

shearer, end of the shearer. And that if they switched 

individuals then that pump would have to stay with the 

individual that was running the shearer. 

Q. So if the tailgate operator left the shearer to go 

somewhere else and another individual took his place, 

what would happen with that pump? 

A. That pump would stay with the individual who took 

his place . 

(Tr. 141-42.) Inspector Farmer sent a memorandum concerning this 

conversation to his superiors. (Govt. Ex. 12.) Inspector Farmer 

also testified that he was at the Deer Creek mine on October 4, 

1993, when .the order in question was issued, and that it was his 

understanding that the order was issued because "the pump left 

the area and went to the kitchen with the operator." (Tr. 145, 

14 7.) 

Significantly, Inspector Gibson is the only witness for the 

Secretary who states that Energy West was notified prior to being 

cited about how dust sampling was to be conducted. His testimony 

was less than straightforward. (See,~' Tr. 120-124). On the 

other hand, none of the other inspectors had told Energy West 

that the dust sampling at the Deer creek mine was improper; at 

least one specifically testified that he did not think it was 

improper; what they told Energy West about the Cottonwood mine 

did not necessarily apply to Deer Creek and, furthermore·, would 

not have put them on notice that what they were doing at Deer 

Creek was improper; and even at the time Inspector Gibson issued 

the order an inspector who was with him did not understand that 

the alleged violation involved the DO going to the headgate. 

7 Throughout the transcript the word "shear" appears as 

"shearer." 

8 24 
Energy West's witnesses were unanimous in stating that up 

until the order was issued on October 4, 1993, the only issue 

concerning dust sampling and the DO that they had been advised 

by MSHA about, and had discussed with MSHA, was the .DO taking 

the sampling dev ice to lunch. I find their testimony to be 

forthright, consistent with the rest of the evidence in the 

case, and, therefore, credible. 

Having found that Energy West was not put on notice either 

by MSHA's publications or by MSHA's inspectors that its method 

obtaining dust sample's by the tailgate shear operator was 

improper, and that its sampling procedure appears to be 

consistent with MSHA's publications, I conclude that the 

company did not violate Section 70 . 207(e) (7) of the 

Regulations. 8 Accordingly, the order will be vacated and 

the civil penalty proceeding dismissed. 

ORDER 

It is ORDERED that Order No . 3587924 is VACATED and the 

civil penalty proceeding is DISMISSED. 

Distribution: 

v.~~~ T. Todd H~d&on Administrative Law Judge 

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004-2595 (Certified Mail) 

Carl c. Charneski, Esq . , U.S. Department of Labor, Office of the 

Solicitor, Suite 400, 4015 Wilson Blvd . , Arlington, VA 22203 

(Certified Mail) 

/lbk 

8 The Secretary does not claim in this case, nor is there 

any evidence to support such a claim, that Energy West's method 

of operating the longwall at the Deer Creek mine was designed 

wholly, or in part, to avoid taking valid dust samples for the 

DO. 

325 
nDBDL IUD SAPBTY DD mL'l'JI uvxn OOJor'ISS'IOll 

OFFICE OF ADMINISTRATIVE LAW Jll>GES 

2 SKYLINE, 10th FLOOR 

5203 LEES8URG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 1 5 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner . . Docket No. CENT 93-46-M A. C. No. 32-00185-05509 

v. . . 

. . Docket No. CENT 93-181-M 

A. C. No. 32-00185-05511 

NAPOLEON SAND AND GRAVEL . . 

Appearances: 

Before: 

Docket No. CENT 93-182-M 

A. C. No. 32-00185-05512 

Gross Pit 

DECISION 

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

u. s. Department of Labor, Denver, Colorado for 

Petitioner; 

Jerold A. Kuhn, Esq. Napoleon, North Dakota, for 

the Respondent. 

Judge Feldman 

The above captioned proceedings are before me as a result of 

a petition for civil penalty filed by the Secretary of Labor 

pursuant to Section 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801, et. seq., (the Act). These matters 

were called for hearing on March 22, 1994, in Bismarck, 

North Dakota. These cases concern a total of seven 104(a) 

citations for which the Secretary initially proposed total civil 

penalties of $4,038. Three of the seven citations were issued in 

conjunction with 104(b) orders. 1 

At the commencement of the hearing, the parties moved to settle 

these cases. The settlement terms included the respondent's 

stipulation to the violations as cited in the subject citations. 

The agreed upon total civil penalty to -be assessed in these cases 

was $1,750 which consists of $250 for each of the seven 

citations. It was further agreed that payment of the civil 

penalty would be deferred until on or before September 22, 1994, 

when the respondent resumes gravel pit operations. 

1

A 104(b) order is issued pursuant to Section 104(b) of the 

Act, 30 u.s.c. § 814(b), when a violation previously cited is not 

timely abated. 

826 
Section llO(i) of the Act, 30 u.s.c. § 820(i), sets forth 

the statutory criteria for considering the appropriateness of 

civil penalties. This criteria includes the operator's history 

of previous violations, the relationship between the amount of 

the penalty and the size of the operator's business, and the 

demonstrated good faith of the operator in attempting to achieve 

rapid compliance after issuance of the citation. 

In considering the statutory civil penalty criteria, I note 

the operator has had only 18 violations during the previous six 

years of operation, and, that it has not been cited for any 

violations within the past two years. (Tr. 14). In addition, 

the respondent is a small business that is operated by Walter 

Schauer, the sole proprietor. Only Walter Schauer and his son 

Jerry perform work at the gravel pit site. The gravel pit is 

only operated sporadically, approximately 400 hours per year, in 

order to remove approximately 2,000 yards of gravel annually. 

Although, a small portion of the extracted material is sold to 

private individuals, the majority of the sand and gravel removed 

is used for the respondent's ready mix concrete business. 

(Tr. 11-12). Finally, counsel for the Secretary noted that the 

respondent has always been courteous to the Mine Safety and 

Health Administration inspectors and has demonstrated a past 

willingness to promptly correct violations. (Tr. 14). In this 

regard, the respondent's culpability for the three 104(b) orders 

issued in this matter is mitigated by the fact that the gravel 

pit was not operational during the interim period between the 

issuance of the initial citations and subsequent 104(b) orders. 

(Tr. 16-17). 

In view of the information presented on the record 

pertaining to the Section llO(i) penalty criteria, I issued a 

bench decision approving the settlement agreement proffered by 

the parties. As noted above, the settlement terms include 

payment by the respondent of $1,750 on or before 

September 22, 1994 . If payment is not made on or before 

September 22, 1994, the total penalty of $4,038 initially 

proposed by the Secretary will become due and payable 

immediately. 

ORDER 

Accordingly, the parties• motion to approve settlement IS 

GRAN'l'BD. IT IS ORDBRED that the respondent pay a total civil 

penalty of $1,750 on or before September 22, 1994, in 

satisfaction of the seven citations in issue. Upon timely 

payment of this sum, these cases ARB DISMISSED. 

Jerold Feldman 

Administrative Law Judge 

827 
Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, u. s. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, co 80294 (Certified Mail) 

Gerald A. Kuhn, Esq., Napoleon Sand & Gravel, P. o. Box #SO, 

Napoleon, ND 58561 (Certified Mail) 

/11 

828 
l'BDBDL 11D1B SUB'l'Y A11D JIB&L'.l'B ltBVJ:BW 00Jllll'.88J:OB 

ORJ:CB OP ADllXBJ:STD'rl:VB aw JUDGBS 

2 SKYLJ:JIB, 10th PLOOR 

5203 LBBSBUltG PJ:KB 

PALLS CBUBCB, TI:RGDlll 22041 APR 1 5 1994 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

UNITED STATES STEEL MINING 

COMPANY, INCORPORATED, 

Respondent 

. . CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-783 

: A.C. No. 46-01816-03805 . . Gary No. 50 Mine 

DECISION ON ·REMAND 

Before: Judge Fauver 

Beginning in 1981, the Commission has held that a 

"significant and substantial" violation under § 104(d) of the 

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

et seq .. 1 requires proof of "a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a 

reasonably serious nature." Cement Division. National Gypsum ~ 3 FMSHRC 822, 825 (1981}; Mathies Coal Co . , 6 FMSHRC 1, 

3-4 (1984). In Mathies the Commission further 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. 

In my original decision in this case, I interpreted the 

Mathies "reasonable likelihood" test to mean that an S&S 

violation exists if there is a substantial possibility that the 

violation will result in injury or disease, and that the 

Section 104(d) defines a significant and substantial 

violation 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." 

829 
secretary is not required to establish that it was more probable 

than not that injury or disease would result. 

The Commission reversed my decision, holding that a 

"substantial possibility test" is "contrary to Commission 

precedent" and "does not lend itself to review under the third 

Mathies standard." It remanded "for proper application of the 

third Mathies element, i.~., whether there was a reasonable 

likelihood that the hazard contributed to would result in an 

injury." 

On remand, the parties remain in sharp conflict as to the 

meaning of the Mathies test. U.S. Steel contends that "an 

objective reading of Mathies compels the conclusion that the 

Secretary must prove that it was more probable or likely than not 

that the hazard contributed to would result in an injury." 

Respondent's Brief on Remand, p. 4. The Secretary contends that 

"the Mathies test does not require proof that it is more probable 

than not that a violation will result in an injury." Secretary's 

Brief on Remand, p . 3. 

The Commission has not resolved this issue. Although it 

ruled that a "substantial possibility test" is contrary to 

Mathies, it has, not ruled whether the term "reasonable 

likelihood" in Mathies means "more probable than not" or includes 

a lesser degree of possibility or probability. To comply with 

the remand "for proper application of the third Mathies element," 

it will be necessary to decide this issue. 

The parties' conflict is understandable because the term 

"reasonable likelihood" may convey different meanings. To U.S. 

Steel, the word "likelihood" governs, and the term "reasonable 

likelihood" means "more probable than not." To the Secretary, 

the word "reasonable" modifies "likelihood" to mean a reasonable 

potential, not "more probable than not." 

For the reasons that follow, it is my interpretation that 

the third Mathies element -- "a reasonable likelihood that the 

hazard contributed to will result in an injury or illness" 

does not mean "more probable than not." 

I begin by noting the Commission's discussion of .a 

"significant and substantial" violation as falling "between two 

extremes" (in National Gypsum): 

Section 104(d) says that to be of a significant and 

substantial nature, the conditions created by the violation 

need not be so grave as to constitute an imminent danger. 

(An "imminent danger" is a condition "which could reasonably 

be expected to cause death or serious physical harm" before 

the condition can be abated. Section 3(j)). At the other 

extreme, there must be more than just a violation, which 

830 
itself presupposes at least a remote possibility of an 

injury, because the inspector is to make significant and 

substantial findings in addition to a finding of violation. 

Our interpretation of the significant and substantial 

language as applying to violations where there exists a 

reasonable likelihood of an injury or illness of a 

reasonably serious nature occurring, falls between these two 

extremes -- mere existence of a violation, and existence of 

an imminent danger . • . . [3 FMSHRC at 828.] 

As the Commission observed, a "significant and substantial" 

violation in § 104(d) is less than an "imminent danger" in 

§ 3(j). The legislative history of the Act makes clear that an 

"imminent danger" is not to be defined in terms of "a percentage 

of probability": 

The Committee disavows any notion that imminent danger 

can be defined in terms of a percentage of probability that 

an accident will happen; rather the concept of imminent 

danger requires an examination of the potential of the risk 

to cause serious physical harm at any time. It is the 

committee's view that the authority under this section is 

essential to the protection of miners and should be 

construed e;xpansively by inspectors and the Commission. 

* * * 2 

It follows that an S&S violation, which by statute is less 

than an imminent danger, 3 is to be defined not "in terms of a 

percentage of probability" but in terms of "the potential of the 

risk" of injury or illness (Legislative History cited above). 

Tests such as "more probable than not" or some other percentage 

of probability are inconsistent with § 104(d) and the Act's 

legislative history. 

This interpretation is also indicated by Commission 

decisions finding an S&S violation where the facts do not show 

injury or illness was "more probable than not." For example, in 

U.S. Steel Mining Co., 7 FMSHRC 327 (1985), the issue was whether 

the failure to install a bushing for a cable entering a water 

pump was an S&S violation. The judge found that the pump 

2 s. Rep . No. 95-181, 95th Cong. 1st Sess. (1977), 

reprinted in senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977 at 626 (1978). 

3 Section 104(d) excludes imminent dangers from its 

definition of an S&S violation. 

831 
vibrated, vibration could eventually cause a cut in the 

insulation, and if the circuit protection systems failed, a worn 

spot in the cable could energize the pump-frame and cause an 

electrical shock. The judge found an S&S violation, holding that 

injury was "reasonably likely" to occur. 5 FMSHRC ·1788 (1983). 

In affirming, the Commission stated, inter alia : 

on review, U.S. Steel argues that the facts indicated 

that the occurrence of the events necessary to create the 

hazard, the cutting of the wires' insulation and failure of 

the electrical safety systems, are too remote and 

speculative for the hazard to be reasonably likely to happen 

and, consequently , that the judge erred in concluding that 

the violation was significant and substantial. 

* * * 

* * * The fact that the insulation was not cut at the 

time the violation was cited does not negate the possibility 

that the violation could result in the feared accident. As 

we have concluded previously, a determination of the 

significant and substantial nature of a violation must be 

made in the context of continued normal mining operations. 

U.S . Steel Mining Co., 6 FMSHRC 1673, 1574 (July 1984). The 

administrative law judge correctly considered such continued 

normal mining operations. He noted that the pump vibrated 

when in operation and that the vibration could cause a cut 

in the power wires' insulation in the absence of a 

protective bushing. In view of the fact that the vibration 

was constant and in view of the testimony of the inspector 

that the insulation of the power wires could be cut and that 

the cut could result in the pump becoming the ground, we 

agree that in the context of normal mining operations, an 

electrical accident was reasonably likely to occur. 

In U.S. Steel Mining Co., the finding that injury was 

"reasonably likely to occur" was based upon a reasonable 

potential for injury, not a finding that it was more probable 

than not that injury would result. Indeed, based upon the facts 

found by the trial judge and relied upon by the Commission, one 

could not find that it was "more probable than not" that, had a 

bare spot in the cable touched the frame, the circuit ·protection 

systems would have failed to function to prevent injury. 

For the above reasons, I conclude that the term "reasonable 

likelihood" as used in the Mathies test does not mean "more 

probable than not." Because of the importance of this question, 

I certify my ruling for interlocutory review by the Commission, 

pursuant to Rule 76 of the Commission's Procedural Rules, 

20 c . F.R § 2700.76. In doing so, I certify that the . interlocutory ruling involves a controlling question of law and 

832 
that, in my opinion, immediate review will materially advance the 

final disposition of this proceeding . 

Distribution: 

(J}~~~v~ William la~ver Administrative Law Judge 

Javier I. Romanach, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, suite 516, Arlington, 

VA 22203 {Certified Mail) 

Billy M. Tennant, Esq., United State Steel Mining Company, Inc., 

600 Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

/lt 

833 
FBDBRAL llDIB 

OFFICE OF ADMlNlSTRATlVE LAW JUDGES 

i SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VlRGlNIA 22041 

APR 1 6 1994 

COMKISS:COH 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CEDAR LAKE SAND AND GRAVEL 

COMPANY, INCORPORATED, 

Respondent 

. . 

: 

. 

• 

Docket No . LAKE 93-64-M 

A.C. No. 47-00792-05504 

Cedar Land sand and Gravel 

Before: 

DECISION APPROVING SE'.l'Tl.RlfRNT 

Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section l05(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). Petitioner has filed a motion 

to approve a settlement agreement and to dismiss the case. A 

reduction in penalty from $100 to $40 is proposed. I have considered the representations and documentati on submitted in this 

case, and I conclude that the proffered settlement is acceptable 

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

WHEREFORE, the motion for approv GRANTED, and it is ORDERED that Resp $40 within 30 days of this order. T 

April 12, 1993 , was accordingly can 

of settlement is ' nt pay a penalty 

earing scheduled 

d. 

Gary Me · k 

Administrativ 

Distribution: 

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

of Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604. 

Bruce Gilbert, President, Cedar Lake Sand and Gravel Co., Inc, 

5189 Aurora Road, Hwy. 41, Hartford, WI 53027 

/lb 

834 
FEDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5267/FAX (303) 844-5268 

APR 1 8 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner . . Docket No. WEST 93-169 A.C. No. 42-01944-03614 

v. . 0 Cottonwood Mine 

ENERGY WEST MINING COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Margaret A. Miller, Esq., Office of the Solicitor, 

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

for Petitioner; 

Timothy M. Biddle, Esq., Thomas A. Stock, Esq., 

CROWELL & MORING, Washington, O.C., 

for Respondent. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration {MSHA) charged Respondent, Energy West 

Mining Company ("Energy West") with violating the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 802 , et~ (the 

"Act") • 

A hearing was held in Salt Lake City, Utah. The parties 

filed post-trial briefs. 

STIPULATION 

1. Energy West is engaged in mining and selling of bituminous coal in the United States and its mining operations affect 

interstate commerce. 

2. Energy West is the owner and operator of the Cottonwood 

MSID N. 4201944. 

3. Energy West is subject to the jurisdiction of the 

Federal Mine Safety and Health Act. 

835 
4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The citation and order were properly served· by a duly 

authorized representative of the Secretary upon an agent of the 

respondent on the date and place stated therein, and may be admitted into evidence for the purpose of establishing their issuance and not for the truthfulness or relevancy of any statements 

asserted therein. 

6. The exhibits offered by the Secretary and by the Respondent are stipulated to be authentic, but no stipulation is 

made as to their relevancy or the truthfulness of the matters 

asserted therein. 

7. The proposed penalty of $500.00 [as to Citation No. 

9996761] will not affect Respondent's ability to continue in 

business. 

a. Energy West is a large mine operator. 

9. Exhibit M-1 is a certified copy of the history of 

assessed violations and it accurately reflects the history of the 

mine for the two years prior to the date of the citation. 

This case involves the validity of a citation issued under 

Section 104{a) of the Act and a related order issued under Section 104{b) for an alleged failure to abate. 

citation No. 9996761 issued June 25, 1992, was generated by 

an advisory of excessive dust relating to MMU1 015-0 of the 

cottonwood Mine. 

The advisory provided as follows: 

Cassette Ho. 

46603112 

46603119 

46602829 

46602815 

46603115 

Date 

6-11-92 

6-12-92 

6-15-92 

6-16-92 

6-17-92 

AVG. CONC. 2.2 

(Exhibit M-3) 

MRE Equivalent 

concentration 

1.8 

2.0 

1. 7 

3.0 

2.8 

NORM. PROD. 6109 

Production 

5630 

5160 

663.0 

7300 

5825 

"MMU" is an acronym for Mechanical Mining Unit. (Tr. 65). 

836 
The citation issued as a result of the advisory alleged a 

violation of the respirable dust standard, 2 and it reads as 

follows: 

Based on the results of five valid dust samples colle·cted by t he operator, the average concentration of 

respirable dust in the working environment of the 044 

designated occupation in mechanized mining unit 015-0 

was 2.2 milligrams which exceeded the applicable limit 

of 2.0 milligrams. Management shall take corrective 

actions to lower the respirable dust and then sample 

each production shift until five valid samples are 

taken and submitted to the Pittsburgh Respirable Dust 

Processing Laboratory. Approved respiratory equipment 

shall be made available to a l l persons working in the 

area . 

At the commencement of the hearing, the operator admitted 

the violation alleged in the citation based on the Secretary's 

motion to amend the citation to a non-S&S violation. The Secretary agreed to such an amendment based upon affidavits submitted by the operator showing that the miners who were exposed to 

the levels of ~espirable dust listed in the citation were all 

wearing personal protective equipment. (Tr. 33; Ex. M-2). The 

motions to amend and withdraw the operator's contest were 

granted. 

EVIDENCE 

On July 15, 1994, Fred L. Marietti, an MSHA inspector for 15 

years, was at the Cottonwood Mine beginning a regular AAA inspection. (Tr. 26, 27). 

2 S 70.100 Respirable dust standards. 

(a) Each operator shall continuously 

maintain the average concentration of 

respirable dust in the mine atmosphere 

during each shift to which each miner in 

the active workings of each mine is exposed 

at or below 2. 0 milligrams of respirable 

dust per cubic meter of air as measured 

with an approved sampling device and in 

terms of an equivalent concentration determined in accordance with § 70.206 

(Approved sampling devices; equivalent 

concentrations) . 

83 7 
His inspection was interrupted when he was recalled to his 

off ice to review a computer-generated report of continuing noncompliance on MMU 015. {Tr. 290). 

The report read, in part, as follows: 

Citation/order No. 

Date Issued 

Expiration Date 

Cassette No. 

46602833 

46602834 

46602911 

46602927 

46602931 

Date 

7-01-92 

7-01-92 

7-02-92 

7-02-92 

7-03-92 

AVG. CONC. 2.3 

(Exhibit M-4) 

09996761 

06-25-92 

07-14-92 

MRE Equivalent 

Concentration 

3.4 

1.5 

1.1 

2.7 

2.8 

NORM. PROD. 6526 

Production 

6630 

7000 

6000 

6500 

6500 

After reviewing the two documents, Mr. Marietti returned to 

Cottonwood and told Energy West they had a "b" order for failing 

to make a good-faith effort to abate citation No. 9996761. 

The Order (No. 3850746) was issued under Section 104(b) 3 of 

the Act on the same day. It provided as follows: 

3 

Results of the five most recent samples received by 

MSHA and collected by the operator from the working 

environment of the designated occupation, 044-0 in MMU 

015-0 shows an average concentration of 2.3 mg/m3 • 

The cited portion of the Act reads: 

(b) If, upon any follow-up inspection of a coal or 

other mine, an authorized representative of the secretary finds (1) that a violation described in a citati on 

issued pursuant to subsection (1) has not been totally 

abated within the period of time as originally fixed 

therein or as subsequently extended, and (2) that the 

period of time for the abatement should not be further 

extended, he shall determine the extent of the area affected by the violation and shall promptly issue an 

order requiring the operator of such mine or his agent 

to immediately cause all persons, except those persons 

referred to in subsection (c), to be withdrawn from and 

to be prohibited from entering, such area until an 

authorized representative of the Secretary determines 

that such violation has been abated .' 

838 
015-0 shows an average concentration of 2.3 mg/m3 • 

Due to the obvious lack of effort by the operator to 

control the respirable dust, the period of reasonable 

time for abatement cannot be extended. There will be 

no mining of coal in MMU 075-0, 11th left longwall. section, until the operator submits a plan to the 

District mine manager for approval to lower the 

average concentration of respirable dust to the 

required level. 

CASE AUTHORITY 

The Secretary relies on Clinchf ield Coal Company, 11 FMSHRC 

2120 (November 1989). 

In support of its position, Energy West relies on a series 

of Administrative Law Judges' decisions including Peter White 

Coal co., 1 FMSHRC 255, 265 (April 1979); Eastern Associated Coal 

Corporation, Docket No. Hope 76-140, slip op. at 25 (June 22, 

1978); Peabody Coal company, 11 FMSHRC 2068, 2102-2103 (October 

1989). Concerning a failure to abate, see also the Commission 

decision in Mid-Continent Resources, Inc., 11 FMSHRC sos (April 

1989) . 

APDITIONAL EVIDENCE 

Fred L. Marietti and Robert Thaxton testified for the Secretary. Garth Nielsen, Bud Warrington, Steve Radmall, Dennis 

Ardohain; Ed Hickman, Max Mccourt, Randy Tatton, and Thomas Hall 

testified for Energy West. 

Inspector Fred L. Marietti issued the 104(b) order. His 

rationale for doing so will be discussed hereafter. 

Robert A. Thaxton, an expert witness and industrial hygienist, reviewed dust samples of the cottonwood mine and expressed 

the view that cottonwood has a relevant history of non-compliance 

with the regulation. The evidence presented by Energy West will 

be discussed hereafter. 

DISCUSSION 

At the outset, it should be noted that the mid-June 1992 

sampling for respirable dust was at the longwall in th·e 4th West 

section. The early-July 1992 sampling at the same longwall was 

also in the 4th West section. 

On July 10, 1992, a week after the abatement samples were 

collected, mining was stopped in 4th West and the longwall was 

moved to 11th Right Section, approximately two miles away. 

On July 15, 1992, Inspector Marietti issued Order No. 

3850746 and withdrew the miners from 11th Right Section. 

839 
In this factual situation, the change of the location of the 

MMU does not affect the 104(b) order because the entity cited is 

MMU-015, a longwall. (Tr. 88). 

Exhibit M-3 cited above, is a computer generated advisory 

for excessive dust at Cottonwood. It resulted in the issuance of 

Citation No. 9996761. Subsequently, on a report of continuing 

non-compliance dated July 14, 1992, Inspector Marietti issued the 

104(b} order on July 15, 1992. (Tr. 29). 

It was Mr. Marietti's decision to issue the 104{b) order. 

His decision was based on several facts. Specifically, he noted 

that the average dust concentration in the mid-June 1992 sampling 

was 2.2 mg/m3 • However, the early July 1992 sampling for dust 

showed an increase to 2.3 mg/m3 • Further, such a concentration 

at Cottonwood could affect the health of the miners. (Tr. 35). 

In addition, this unit (015-0) had frequently been going out 

of compliance. Modifications were then made to bring the MMU 

back into compliance, but such modifications were not being incorporated in the operator's ventilation plan. {Tr. 36, 37). It 

was obvious to Mr. Marietti that additional sprays, different locations, and increased air were required to be abated. {Tr. 37). 

After he had completed the inspection, Mr. Marietti wrote 

MSHA's District Manager to suggest various recommendations in 

connection with the operator's ventilation plan. {Tr. 38, 39; 

Ex. M-5). 

The Inspector also talked to the miners at the face. Some 

of the changes they recommended were on the machine and had been 

in use. (Tr. 40). 

In Mr. Marietti's view, coal production is one of the main 

reasons the operator comes out of compliance. In reviewing sampling with other inspectors, when the company's production is 

around 6,000 tons the company is out of compliance but they come 

back into compliance around 4500 tons. {Tr. 41, 42). 

In the Inspector's opinion, the company's ventilation plan 

was adequate for the lower production but not for 6000 tons. 

{Tr. 42) . 

In connection with a previous order, numerous things were 

done, including the installations of tip sprays, deflectors on 

the shields to try to help entrain the air into the face. 

On July 15, these things were not in place nor were they 

incorporated into the ventilation plan. (Tr. 43). 

840 
Energy West had been given 21 days to abate the original 

citation. After the ("b") order was issued, the company abated 

in eight hours. (Tr. 43, 44). 

Mr. Marietti agrees he did not enter the mine nor did he 

inspect the longwall before issuing his order. Also, he did not 

ask anyone at the mine why the readings might have increased. 

(Tr. 4 7, 48) • 

The Inspector wrote the format words into his order. There 

is similar wording in the inspection manual. However, no one 

told him what to write. {Tr. 53, 54). Exhibit R-1, identified 

as the Coal Mine Inspector's Manual, suggests similar language to 

be incorporated when writing an order. (Tr. 54, 55). For their 

protection, miners are required to wear air stream helmets after 

the issuance of an order. The Inspector's order required such a . wearing of air stream helmets until the ("b") order was lifted. 

(Tr. 56) . 

ROBERT A. TRAXTON, an expert witness, studied the Cottonwood 

dust sampling for two years. His opinion, supported by his bar 

chart (Ex. M-6) is that the dust sampling concentration increase 

with coal production. 

Mr. Traxton's testimony is hereafter discussed in connection 

with Energy West's contentions. 

CORRECTIVE ACTIONS AND MINING CONDITIONS 

As revealed in the testimony of several witnesses for Energy 

West, in the days that followed the issuance of the citation, the 

company undertook numerous corrective actions to lower respirable 

dust concentrations in the 4th West section. As soon as he heard 

there was a violation on Friday, June 26, 1992, Mr. Randy Tatton 

and the managers of the Cottonwood Mine met to develop a corrective action strategy. (Tr. 328). The following Monday, June 29, 

1993, Mr. Tatton directed one of his Safety Engineers, Mr. Steve 

Radmall, to do a dust survey using a real time aerosol monitor, 

or "RAM," "to ensure that all the controls that [the Mine] had in 

place were functioning properly." (Tr. 329. In addition, on 

Monday, June 29, 1993, Mr. Tatton and the Mine superintendent, 

Mr. Garth Nielsen, unsuccessfully attempted to divert more air 

into the 4th West section. (Tr. 329-335). 

On June 30, 1992, Mr. Radmall conducted a RAM survey of the 

4th West section as directed by Mr. Tatton. (Tr. 213, 230). 

This dust survey involved taking spot measurements of respirable 

841 
dust concentrations4 at several locations in the 4th West section. Based on his survey results, Mr. Radmall reco~ended that 

the intake air course and stage loader be checked for any dust 

generation problems. (Tr. 230-231). The RAM check .also revealed 

that dust levels rose dramatically when the longwall shear cut 

through rock in the mine roof. (Tr. 227). 

In the meantime, the miners on the section were put on a 

dust control alert by the Equipment Overhaul Coordinator, Mr. Bud 

Warrington, who on Friday, June 26, 1992, informed the Longwall 

Maintenance Foreman, Mr. Ed Hickman, that "[w]e are out on dust 

samples," and directed that immediate action be taken to correct 

one possible source of dust, a baffle on the crusher of the stage 

loader. (Tr. 188; Ex. R-5). This repair was performed by Tuesday, June 30, 1992, after a new baffle was made. (Tr. 285-286). 

Mr. Warrington reiterated his instruction the following Monday, June 29, 1992, adding instructions to "[c]heck everything 

out that has to do with dust. Make it shine." (Tr. 189-190; Ex. 

R-5). Mr. Warrington gave this instruction because samples would 

soon be taken to determine if the dust violation had been abated. 

(Tr. 190) . His instructions were accompanied by a checklist of 

dust control measures he prepared in May 1991. (Tr. 187; Ex . R-4). This checklist includes adjusting air controls and volumes; changing filters in and otherwise maintaining a scrubber 

designed to capture dust at the stage loader (Tr. 179-181); running all sprays in the stage loader and in the machine that 

crushes coal coming off the longwall {the "crusher") {Tr. 181); 

checking the baffle plates on the crusher that restrict dust from 

entering the mine atmosphere (Tr. 181); checking the various dust 

control flaps and baffles on the shear of the longwall machine 

(Tr. 182-184) ; watering roadways and walkways· (Tr. 184-185) ; and 

limiting the use of diesel-powered vehicles on the section (Tr. 

185). 

Mr. Hickman assumed personal responsibility to see that 

these corrective actions were being thoroughly carried out. 

(Tr. 287). From June 29 through July 1, 1992, Mr. Hickman performed several repairs and maintenance checks on the longwall 

equipment in 4th West. (Tr. 284-291) . Other miners working on 

the longwall took numerous corrective actions as well. 

MR. DENNIS ARDOHAIN, a Longwall Section Foreman, testified 

that he and his crew "spent quite a bit of time chasing down dust 

parameters [i.e., controls) • •• we may have missed." (Tr. 241). 

4 RAM sampling results provide what is essentially a "snapshot" of dust 

concentrations at any given moment. In contrast, dust samples collected for 

analysis by MSHA provide an average figure for the eight hours sampled. (Tr. 

237-238). 

842 
On every swing shift {i.e., 4 p.m. until midnight) from June 26, 

to July 3, 1992, Mr. Ardohain supervised various equipment repairs to ensure that dust generation was kept to a minimum, including changing the bits on the lonqwall shear~ cleaning the 

shields and wetting the section, and checking and r ·epairing 

sprays. {Tr. 242-251) • 

MR. MAX MCCOURT, the Longwall Service Foreman, performed 

repairs to control dust generation on every graveyard shift from 

June 29 to July 2, 1992, including changing filters on the stage 

loader scrubber, installing a. dust control flap on the longwall 

shear, installing a new cover on the stage loader, and checking 

and repairing sprays. {Tr. 299-305}. 

Energy West also relied on administrative measures to limit 

the miners' exposure to respirable dust. These measures included 

providing Racal airstream helmets to all miners working on the 

section. (Tr. 252, 327-328; Ex. M-2). These helmets provide a 

virtually dust-free air supply to miners, reducing respirable 

dust exposure to insignificant levels. {Tr. 403-404). The positions of miners on the lonqwall face also were routinely 

changed to minimize their exposure to respirable dust, since some 

areas are dustier than others on ·a longwall. (Tr. 251-252}. 

Energy West's corrective actions were taken in the face of 

very difficult mining conditions specifically, severe geological 

problems. (Tr. 131). Mr. Nielsen, the Mine Superintendent, 

described these conditions as "some of the worst that we'd had in 

a long time." (Tr. 143). Mr. Ardohain testified that the conditions were "about the worst I can remember since I had been at 

the cottonwood Mine." (Tr. 255). 

MOVE TO 11th RIGHT 

Mining conditions were so bad in 4th West tnat on July 10, 

1992, a week after abatement samples were collected on the section, mining was stopped, leaving 100 feet of the panel unmined. 

(Tr. 144, 164) . The longwall equipment was moved to the 11th 

Right Section, approximately two miles from 4th West (Tr. 147). 

Conditions on 11th Right were dramatically different from 4th 

West. Most notably, where 4th West was dry, 11th Right was very 

wet. {Tr. 147-149, 343-344)'. In addition, unlike 4th west, 

where face burst and rock in the roof were problems, on 11th 

Right, problems were encountered with the top, resulting in lower 

production. (Tr. 379). 

ENERGY WEST CONTENTIONS 

Energy West argues it met all of the .abatement requirements 

of Citation No. 9996761 therefore the 104(b) order should be 

vacated. 

843 
The citation required Energy West to "take corrective action 

to lower the respirable dust." It is true that the operator took 

some corrective action but it did not lower the dust. In fact, 

the dust concentration was 2.2 mg/m3 and it increased to 2.3 

mg/m3 • (See Exs. M-3 and M-4). 

Energy West further argues that Inspector Marietti abused 

his discretion by failing to consider whether the circumstances 

warranted an extension of the abatement period. In support of 

its position, Energy west cites a number of Judges' decisions and 

the MSHA Policy Manual at I.15 (July 1988). 

Abuse of discretion may be broadly defined to include errors 

of law . See generally Butz v . Glover Livestock commission Co., 

411 U. S . 182 , 185-186 (1973); NL Industries, Inc., v. Department 

of Transportation, 901 F.2d 141, 144 (D.C. Cir. 1990); U.S. v. 

U.S. Currency, in the amount of $103,387.27, 863 F . 2d 555 (7th 

Cir. 1988); Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir. 1985) 

("abuse of discretion may be found only if there is no evidence 

to support the decision or if the decision is based on an improper understanding of the law"), Utah Power and Light Company, 

Mining Di vision, 13 FMSHRC 16.17 (October 1991) . 

In this case, the record shows there was a continuing dust 

violation from mid-June until early July 1992. Given this information, Inspector Marietti properly exercised his discretion. In 

my view, no circumstances existed that would cause the Inspector 

to conclude otherwise. 

Energy West further argues that mining conditions in 4th 

West justified an extension of the abatement period for the citation. In support of its position the operator cites a series 

of Judges' decisions. Youghiogheny and Ohio Coal Co., 8 FMSHRC 

330, 339 (March 1986); Freeman coal Mining Corp., 1 IBMA 1 . 27 

(1970) ; Consolidation Coal Company, 3 FMSHRC 2201, 2205 (Sept. 

1981); Consolidation coal company, 4 FMSHRC 747.752 (April 1982). 

Specifically, had Inspector Marietti conducted an inspection 

of MMU 015-0, he would have discovered that the miners operating 

the longwall were using airstream helmets. In addition, he would 

have discovered that the longwall had been moved two miles to the 

right because of the adverse mining conditions. (Tr. 144). 

It is the Judge's view that no extension of the abatement 

period would have been justified. The use of air helmets is not 

a remedy authorized under 70 . lOO(a) . Further, when adverse mining conditions cause excessive dust, those conditions should be 

addressed by the operator. Finally, in this case, the Inspector's opinion focused on those facts which indicated that the 

cause of the excessive dust concentration was MMU-015. As a 

result, it is not relevant that the MMU had moved to 11th Right. 

844 
To justify the Order in this case, the Secretary relies on 

the "history of excessive dust"; the relationship of production 

to dust levels; changes in MMU numbers; dust sample results and 

the diligence of Cottonwood's efforts to control respirable dust; 

a claim that cottonwood refused to adjust its ventilation plan 

and accusations that Cottonwood acted in "bad faith." 

EXCESSIVE DUST 

Energy West identifies the "history of excessive dust" as a 

basis relied upon by the Secretary to justify the order in this 

case. Energy West argues that no case law is offered to suggest 

that the factors offered by the Secretary are legitimate grounds 

for stopping operations. 

The evidence, partially from Exhibit M-6, 5 shows dust sampling on 22 dates from April 16, 1991, to May 13, 1993. The 

operator was out of compliance on 11 .of the 22 samplings. A 

record of being out of compliance 50 percent of the time establishes a history of excessive dust. 

RELATIONSHIP OF COAL PRODUCTION TO COAL DUST 

It is a fact that less production can mean less dust. 

(Tr. 380). However, the detailed evidence in this case fails 

to establish a credible relationship between production and coal 

dust. 

A review of the time line sampling Chart A6 for MMUs 012, 

013, 014, 015, and 016 is warranted since the evidence indicates 

that all MMUs are basically similar. . However, the review indicates production is unrelated to coal dust when dust sample 

results are compared with production figures. Further, the time 

line sampling chart fails to establish any credible conclusion in 

support of Mr. Marietti's opinion that Cottonwood can handle the 

respirable dust generated by 4500 tons of production but it tends 

to go out of compliance at 6000 tons. 

s The bottom of M-6 lists five separate MMUs. Above the MMUs are 

the respirable dust sampling dates. At the top of the chart corresponding to 

the dates are the dust sampling concentrations. The colored overlay on M-6 

shows coal production. 

6 Chart A, the timeline sampling history at the Cottonwood Mine is 

the third page of Exhibit M-6. 

845 
REDUCING PRODUCTION TO COME INTO COMPLIANCE 

THEN 

RESUMING HIGHER PRODUCTION 

The Secretary asserts that Energy West has a history of 

reducing production long enough to come into compliance then 

resuming higher production. (Brief 3, 5). 

No evidence supports the Secretary's position. In addition, 

a review of the timeline sampling indicates lower dust sample 

results can occur when production is higher. Exhibits M-6 and M4 show the following: 

Date Sample Result Production <Tons> 

4-16-91 5.7 mg/m3 4,875 

5-08-91 2.1 mg/m3 5,710 

4-28-92 1.4 mg/m3 6,526 

6-17-92 2.2 mg/m3 6,109 

7-01-92 1. 5 mg/m3 7,000 

7-01-92 3.4 mg/m3 6,630 

Ex. M-6 (average sample results for MMU 014-0 and MMU 015-0); 

Ex. M-4 (abatement sample results for MMU 015-0). Applying the 

Secretary's hypothesis, one would predict that when Energy West 

decreased production on MMU 014-0 between April 16 and May 8, 

1991, and on MMU 015-0 between April 28 and June 17, 1992, and on 

July 1, 1992, the sample averages or results would have decreased 

correspondingly. As demonstrated from the results above, this 

was not the case. Levels of respirable dust in an underground 

coal mine are affected by many factors other than production--a 

good example is the adverse mining conditions encountered by Cottonwood in its 4th West longwall section (Tr. 398, 402). In addition, the testimony of Dr. Hall that face bursts and other 

conditions in 4th West increased dust levels. An underground 

coal mine is "a very dynamic environment in which the conditions 

change on a relatively frequent basis" (Tr 397), and many of 

these changes in conditions affect respirable dust levels and 

sample results (Tr. 135-136, 398, 402). This is borne out by the 

testimony of several witnesses regarding the dramatic difference 

in mining conditions between 4th West and 11th Right (Tr. 147-

149, 207, 294, 307, 343-344), and the fact that Cottonwood came 

into compliance with relative ease once the longwall began 

operating in less adverse conditions in 11th Right. 

(Tr. 277-278). 

In connection with reducing production then resuming higher 

production, the secretary cites the transcript at pages 46, 42, 

846 
and 78 to support this position.. The transcript does not support 

the Secretary's view: 

At page 36, Inspector Marietti is discussing changes in the 

MMU ventilation plan. This issue is discussed infra. 

At page 42 Inspector Marietti is discussing dust parameters 

and concludes that their ventilation plan is adequate for lower 

production but not for 6000 tons. For the reasons previously 

stated, I have rejected this portion of the Inspector's opinion. 

At page 78, expert witness Thaxton is discussing timeline 

sampling from Exhibit M-6. For the reasons previously stated, I 

have rejected Mr. Thaxton's opinion of the data. 

In sum, the transcript references do not support the Secretary's allegations. 

COTTONWOOD'S EFFORTS TO REDUCE DUST AND CHANGING MMU NUMBERS 

The Secretary further argues that Cottonwood does not make a 

diligent or good faith effort to reduce dust at the mine but instead, makes a minimal effort to control dust. In support of his 

position, the Secretary cites the transcript at pages· 37, 39-40, 

76. 

The evidence fairly shows that cottonwood made only a minimal and inadequate effort to control dust and failed to adjust 

its ventilation plan to reflect any modifications. 

Inspector Marietti testified: 

Q: All right. So are you saying that they did things to 

keep down the dust, but those things were not in their 

ventilation plan? 

A: That's right. 

Q: Now, why would that make a difference? 

A: Well, it's obvious to me that these additional requirements are needed, additional sprays, different 

locations increased air, if that's necessary, different things of that nature are required to abate the 

order. Or in the past, it's only evident to me that 

they - that it should be incorporated into the ventilation plan and the MMU to keep the mining environment 

of the health of miners and keep the dust less than 

the two milligram standard or less - less than that 

standard. (Tr. 37). 

Further, Mr. Marietti related a conversation with Mr. 

Randy Tatton, Energy West's manager of health, safety, and 

training. (Tr. 316) . 

847 
Q. And what did you discuss with Mr. Tatton on that day? 

A. I discussed, you know, the non-compliance there and we 

discussed some things that I told him that I can re.- remember that I said, "I'd like to see you incorporate 

these things in your MMU ventilation plan requirements. " And he told me th.at they didn't want to include that stuff in there because they didn't want to 

get violations, and if they did, that they would have 

nowhere to go to abate the violation. And I told him, 

I says, "Well, my problem with it is, you know, you're 

telling me that you need these things in there but you 

don't want to put them in the ventilation plan because 

if they're not working, you're afraid you'll get a violation." But I said, "It's apparent to me that you 

need these in here because every time you get a citation or an order, you have to use these things or 

they're used to bring out a compliance." (Tr. 41, 

42}. 

Mr. Marietti's testimony is further supported by his memorandum to MSHA district manager on August 13, 1992. (Ex. M-5). 

Mr. Tatton confirmed the Inspector's testimony. He stated: 

"if we were to get parameters in our plan that were at the very 

max, then, you know, we have nowhere to go. We need that flexibility and we do ·at all times operate at our minimums and when we 

shouldn't be penalized for doing something better." (Tr. 372). 

Many of the modifications made to abate the order were of 

such a nature that they could have been in place to deal with the 

mining conditions involved in 4th West. 

Section 104(b) of the Act requires the authorized representative of the Secretary to set a reasonable time for abatement, and determine if an extension of time is warranted if the 

violation had not been abated during that time. The Inspector 

must determine whether or not the violation is serious and 

whether or not the company has made a diligent, good faith effort 

to abate during the time designated. Section 104(b) requires 

that if "an authorized representative of the Secretary finds 

(1) that a violation described in a citation ... (a) has not been 

totally abated within the period of time as originally fixed 

therein ... , and (2) that the period of time for the abatement 

should not be further extended ... "he shall issue a failure to 

abate order." Here, Inspector Marietti found that the citation 

had not been abated, since the level of excessive dust had risen 

to 2.3 milligrams rather than decreased to below the required 2.0 

milligrams, and that the period of time for abatement should not 

be further extended. He determined that the original amount of 

time given for abatement was reasonable and that a 11 b 11 order was 

justified under the circumstances. (Tr. 36-40). 

In the absence of a diligent or good faith effort to abate a 

violation within a designated time, withdrawal orders may be 

848 
properly· issued. It is not enough that any effort to abate is 

made, it must be a diligent effort. Issuance of an order is 

reasonable when only a token effort has been made. Republic · Steel Corporation, 3 FMSHRC 1099 (April 1981). A 104(b) order is 

also properly issued when good faith efforts have not been exercised and a valid reason for an extension has not been given before an order has been issued. Consolidated Coal, 2 FMSHRC 2862 

(October 1980). 

Inspector Marietti realized, upon review of the records, 

that during the 21-day abatement period, the level of respirable 

dust had not been diminished in any respect, but indeed had 

climbed. It is more than reasonable to assume that if a diligent 

effort had been made that it would be reflected in the sample results. That is, the abatement samples (Ex. M-4) would show a decline in respirable dust, rather than an increase. (Tr. 80-81). 

In addition, if a diligent effort to control dust had been made 

by the operator, the individual samples should have improved over 

the abatement time. (Tr. 81). Instead, the individual number of 

samples that were out of compliance had increased from two to 

three. An increase in the average concentration and an increase 

:in t~e individual concentrations clearly indicate that the mine 

made little ef.fective effort to correct the respirable dust violation. (Tr. 81). 

Even if the dust was caused by adverse mining conditions, 

these conditions are not a defense recognized by 70.100. 

The Secretary, citing the transcript at 37-40 and 76, also 

asserts Cottonwood of ten changes the MMU numbers in order to 

avoid dust history. 

The transcript at pages 37-40 reveals the testimony of Inspector Marietti concerning what was not in the operator's ventilation plan. In addition, he discussed his conversation with 

miners at the face. The transcript at page 76 does not deal with 

changing MMU numbers but deals with dust controls. As the Secretary knows, any change in an MMU is subject to proper MSHA 

approval. (30 C.F.R. § 75.370). 

In sum, the Secretary failed to prove that Energy West 

modified its MMU numbers to avoid dust history. 

For the reasons stated herein, the citation and order herein 

are AFF:IRMED. 

CIVIL PENALTY 

Section 110(i) of the Act mandates consideration of certain 

criteria in assessing appropriate civil penalties. 

849 
The record reflects that Energy West is a large mine 

operator. (Stip. ! 7). 

The payment of the proposed penalty should not affect the 

operator's ability to con~inue in business. 

The operator's prior history indicates it was assessed and 

paid .268 violations in the two-year period ending June 24, 1992. 

Energy West was negligent in permitting the 2.2 mg/m3 respirable dust concentration; further the operator was negligent in 

failing to lower the dust concentration. 

The gravity of the violation is high since respirable coal 

dust can cause pneumoconiosis over a period of time. Generally, 

such a violation is considered to be "S&S". 

Energy West is not entitled to statutory good faith since it 

failed to abate the original citation. 

The judge believes a civil penalty of $3000 is appropriate 

herein. 

Accordingly, for the foregoing reasons, I enter the 

following: 

ORDER 

Citation No. 9996761 and Order No. 3850746 are AFFIRMED and 

a penalty of $3,000 is ASSESSED. 

Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716 

(Certified Mail) 

Timothy M. Biddle, Esq., Thomas A. Stock, Esq., CROWELL & MORING, 

1001 Pennsylvania Avenue, NW, Washington DC 20004-2595 

(Certified Mail) 

ek 

850 
OFFICE Of ADMUllSTRATJVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIK£ 

FALLS CHURCH, VIRGINIA 22041 

APR 1 8 1994 

JIM WALTER RESOURCES, INC., 

contestant . • 

. . CONTEST PROCEEDING 

v. : 

. • 

Docket No. SE 93-56-R 

Citation No. 3188499; 11/10/92 

SECRETARY OF LABOR, . . MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. 

0 

. . 

No. s Mine 

I.D. No. 01-01322 

. . UNITED MINE WORKERS OF AMERICA, : 

Intervenor . . 

. . SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION ( MSHA) 1 

Petitioner 

. . 

: Docket No. SE 93-132 

A.C. No. 01-01322-03896 

UNITED MINE WORKERS OF AMERICA, : No. s Mine 

Intervenor 

v. . • 

. 

• 

. . JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. . 

Appearances: 

Before: 

DECISION 

David M. Smith, Esq., J. Alan Truitt, Esq. 

Maynard, Cooper, Frierson and Gale, P.C., 

Birmingham, Alabama, and R. Stanley Morrow, 

Esq., Jim Walter Resources, Inc., Brookwood, 

Alabama, for Jim Walter Resources, Inc; 

William Lawson, Esq., Office of the Solicitor, 

u.s. Department of Labor, Birmingham, Alabama, 

for the Secretary of Labor; 

Patrick K. Nakamura, Esq., ·and Robert Weaver, 

Esq., Longshore, Nakamura and Quinn, Birminqham, 

Alabama, on behalf of the United Mine Workers 

of America. 

Judge Melick 

These consolidated cases are before me pursuant to 

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

of 1977, 30 u.s.c. §801 n_ seq., the "Act," to challenge 

Citation No. 3188499 issued by the Secretary of Labor for 

851 
the failure of Jim Walter Resources, Inc. {JWR) to have 

operated with an approved ventilation, methane and dust 

control plan (ventilation plan). The underlying issue 

is how JWR will comply with the respirable dust sampling requirements in lonqwall mining sections set forth in 

30 C.F.R. § 70.207. 

30 C.F. R. § 70.207 provides, in relevant part, as 

follows: 

{e) Unless otherwise directed by the District 

Manager, the designated occupation samples shall be 

taken by placing the sampling device as follows: 

* * * (7 ) Lonqwall section. on the miner 

who works nearest the return air side of 

the lonqwall working face or along the 

working face on the return side within 

48 inches of the corner. 

Rather than sample in accordance with the above subsection (7) JWR requested that the Mine Safety and Health 

Administration (MSHA) district manager consider an alternative 

sampling proc~dure within his discretionary authority under 

the above subsection (e). This proposal was submitted on 

October 10 , 1992, as a modification to its ventilation plan 

(Exh. G-13) . The MSHA district manager thereafter rejected the proposed modification and has not "otherwise directed" 

how sampling should take place. Under the circumstances, 

JWR must comply with section 70 .207{e)(7) . 

In an interlocutory decision issued August 23, 1993, 

notifying the parties of the burden of proof and standard 

of proof to be applied in this case, it was held that the 

revised ventilation plan submitted by JWR on October 10, 

1992, under the circumstances of this case,was only a vehicle 

to enable the district manager to exercise his discretion to 

"otherwise direct" a method of dust sampling under 30 C.F.R. 

§ 70.207(e). It was accordingly held that the attempted use 

of the ventilation plan modification procedure in the instant 

case did not alter the burden of proof and standard of proof 

applicable to a mine operator's challenge to the Sec~etary's 

exercise of discretion under the cited standard. 

It was further held that the burden was upon JWR to 

prove that the decision of the district manager, in not 

otherwise directing that JWR could conduct its respirable 

dust sampling in the manner it had requested, was arbitrary and capricious. However, since the posture of these cases 

ultimately is that of enforcement proceedings, i.e., the 

852 
issuance of Citation No. 3188499 and the challenge of that 

citation under Section l05(d) of the Act, it is apparent 

that, in fact, the Secretary has the burden of proof in these 

cases. The Commission has long held that in an enforcement 

action before the Commission, the secretary bears the burden 

of proving any alleged violation. Asarco Mining co., 15 FMSHRC 

1383 (1993), Jim Walter Resources. Inc., 9 FMSHRC 903, 907 

(1987). Consistent with this, the Secretary in these cases 

in fact assumed the burden of going forward with the evidence 

and the decision herein is based upon the placement of the 

burden upon the Secretary. Moreov~r, since it is the decision 

by the district manager to deny JWR's requested modification 

that is the underlying issue herein and since the Secretary 

is the proponent of that decision, the burden of proof is, in 

any event, properly upon the secretary in these proceedings 

to show that the decision of the district manager was not 

arbitrary and capricious. See 5 u .s.c. § 556(d); Commission 

Rule 63(b), 29 C.F.R. §2700 . 63{b) . 

The analysis of the "arbitrary and capricious" standard 

by the Circuit Court in American Mining Congress v. Marshall, 

671 F.2d 1251 (10th Cir. 1982), although applied to judicial 

review under the Administrative Procedure Act, is nevertheless 

instructional. 1 In this regard the Court stated as follows: 

The United States Supreme Court explained the 

meaning of the arbitrary and capricious standard 

in Citizens to Preserve Overton Park. v. Volpe, 

401 U.S. 402, 91 s.ct. 814, 28 L.Ed. 2d 136 (1971): 

Section 706(2)(A) requires a finding that 

the actual choice made was not 'arbitrary. 

capricious. an abuse of discretion, or 

otherwise not in accordance with law.' 

To make this finding the court must consider whether the decision was based on a 

consideration of the relevant factors and 

whether there has been a clear error of 

judgment. Although this inquiry into the 

facts is to be searching and careful, the 

ultimate standard of review is a narrow one. 

The court is not empowered to substitute its. judgment for that of the agency. 

Id. at 416, 91 s . ct. at 823 (citations omitted). 

Under this standard, the agency must demonstrate 

that it considered the relevant factors and alternatives after a full ventilation of the issues and 

see 5 u.s.c. § 706(2)(A). 

853 
that the choice it made based on that consideration 

was a reasonable one. [footnote omitted] (Emphasis 

added) 

The determination of whether the district manager acted 

in an arbitrary and capricious manner must also be limited to 

the facts and information presented to him at the time he made 

such decision. See Golden Coal Mining Co .. L.P. v. Secretary, 

12 FMSHRC 1360 (1990). 

The record shows that on October 10, 1992, JWR presented 

to MSHA District Manager Joseph Garcia an alternative for dust 

samplinq of the occupation designated as "the miner who works 

nearest the return air side of the longwall workinq face," 

i.e., the occupation identified at 30 C.F.R. § 70.207(e)(7). 

The particular provisions at issue appear in paragraph K(2)(f) 

of the October 10, 1992, ventilation plan (Exh. G-13) and provide 

an alternative method for computing allowable downwind exposure 

to respirable dust. It read as follows : 

The work practices of the miners down wind time 

will be adjusted to correspond with the respective 

sample result of the 7 samples taken that was not 

greater than the respirable dust level which shall 

not exceed 2 mg when the respective hourly sample .is multiplied by an equivalent MRE conversion factor 

of 1.38. 

Garcia testified that in early November 1992 he rejected this proposal because it provided for the calculation of 

respirable dust exposure in terms of weight gain expressed in 

milligrams. 2 While conceding that he did not understand the 

proposed modification and did not try to understand it, he stated 

that it was not necessary for him to understand it because the 

proposed testing procedures were in violation of the Secretary's 

regulations. Garcia testified that the regulations require, for 

purposes of determining respirable dust exposure, a conversion 

of weight gain to dust concentration expressed in milligrams per 

cubic meter of air (mg/m3 ). In his brief, the Secretary cites 

in this regard the following standards: 30 C.F.R. §§ 70.2(d), 

70.200, 70.202, 10 . 201 and 70.206. 

It is undisputed,moreover, that before rejecting· the JWR 

proposal in paragraph k(2)(f) Garcia nevertheless conferred with 

his ventilation specialist Judy McCormick who agreed that the 

2 It is not disputed that Mr. Garcia was the District 

Manager who made this decision even though the subsequent 

formal rejection letter dated November 6, 1992 was signed 

by his successor (Exh. G-14). 

854 
proposal would violate the requlations for respirable dust 

sampling. It is further undispute~ that before rejecting the 

JWR proposal Garcia also conferred wi th Bob Peluso of the MSHA 

technical support staff in Pittsburgh, Ron Schell, . the Chief 

of MSHA's Health Division, MSHA Deputy Administrator and mining 

engineer Robert Elam, and Ed Hugler, a Deputy Assistant 

Secretary. According to Garcia, "every recommendation I had 

back on this is that weight gain was not an acceptable way of 

calculating for respirable dust. " 

JWR argues that the district manager's statements (that 

he did not understand the JWR proposal and had no intention 

of understanding it) show that his decision was arbitrary and 

capricious. These statements taken out of context would appear 

to support JWR's position. If the district manager does not 

understand the technical aspects of a proposal to be evaluated 

under 30 C.F .R. § 207(e) it is incumbent upon him to confer with 

persons having the necessary expertise to provide a rational and 

reasoned basis for his decision. 3 However, the record in this 

case shows that the district manager did in fact confer with a 

number of legal and technical experts before making his decision. 

In any event, the district manager's discretion under 

§ 70 . 207(e) is\ limited to making modifications in the location 

or placement of the sampling devices and nothing more . The 

district manager does not have the authority under that section 

to change the computational methodology as JWR seeks in its 

proposal . Accordingly, it was not incumbent .upon the district 

manager to make any change in the computational methodology. 

Under the circumstances I f i nd that the decision of the 

district manager was not arbitrary and capricious. Accordingly, 

his denial of the JWR proposed modification in paragraph k(2)(f) 

of its October 10, 1992 plan must stand and the citation must be 

affirmed . Since this case was initiated for the sole purpose of 

litigating the unique issues presented and that the alternative 

provisions submitted by JWR were never actually implemented, I 

find that a civil penalty of $1 is appropriate. 

3 It appears that Robert Haney, an MSHA Supervisory 

Mining Engineer and apparently MSHA's principal expert on 

this highly technical issue, was not consulted until w~ll 

after the district manager made his decision in this case 

and only then in preparation for this litigation. 

855 
ORDER 

Citation No. 3188499 is APP:tRllBD and contest Proceeding 

Docket No. SE 93-56-R is DISMISSED. Jim Walter Resources, Inc. 

is directed to pay a civil penalty of $1 for the violation 

charged in Citation No. 3188499 thin 30 days of the date of 

this decision. / / 

Distribution: 

Ii I i/ 

G ry Melick 

jinistrative 

! 

w Judge 

David M. smith, Esq., Maynard~ Cooper, Frierson and Gale, 

P.C., 1901 6th Avenue North, 2400 AmSouth, Herbert Plaza, 

Birmingham, AL 35203-2602 (Certified Mail) 

R. Stanley Morrow, Esq . , Jim Walte~ Resources, Inc. , P.O. Box 133, Brookwood, AL 35444 (Certified Mail) 

Patrick K. Nakamura, Esq., ·Longshore, Nakamura and Quinn, 

New South Federal Bldg., Suite 300, 2100 First Avenue 

North, Birmingham, AL 35203 (Certified Mail) 

William Lawson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Chambers Bldg., Highpoint Office Center, Suite 150, 

100 Centerview Drive, Birmingham, AL 35216 (Certified Mail) 

lh 

856 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 0 1994 

IN RE: CONTESTS OF RESPIRABLE ) 

DUST SAMPLE ALTERATION ) 

CITATIONS ) 

) 

KEYSTONE COAL MINING CORP . , ) 

Contestant ) 

v. ) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND HEALTH ) 

ADMINISTRATiON (MSHA) , ) ' Respondent ) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA), ) 

Petitioner ) 

v . ) 

) 

KEYSTONE COAL MINING CORP . , ) 

Respondent ) 

) 

UNITED MINE WORK~RS ) 

OF AMERICA (UMWA), ) 

Representative ) 

of the Miners ) 

) 

) 

) 

) 

) 

8 5 7: 

Master Docket No . 91-1 

CONTEST PROCEEDINGS 

Docket Nos. PENN 91-451-R 

through PENN 91-503-R 

Citation Nos. 9860247 

through 9860299 

Docket Nos. PENN 91-1176-R 

through PENN 91-1197-R 

Citation Nos. 9862821 

through 9862842 

Urling No. 1 Mine 

Mine ID 36-04852 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 91-1264 

A.C. No. 36-04852-037570 

Docket No. PENN 91-1265 

A.C. No. 36-04852-03758D 

Docket No. PENN 91-1266 

A. C. No. 36-04852-03759D 

Docket No. PENN 92-182 

A.C. No. 36-04852-03778D 

Docket No . PENN 92-183 

A.C . No . 36-04852-037790 

Urling No. 1 Mine 
Appearances: 

Before: 

PBCISION 

Douqlas N; White, Esq., Stephen D. Turow, Esq., and Richard L. Gilman, Esq., Office of the 

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

Virginia, for the Secretary of Labor; 

R. Henry Moore, Esq., Stanley R. Geary, Esq., and 

Heather A. Wyman, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania, for Keystone Coal Mining 

corp.; 

Barry A. Woodbrey, Esq., Washington, D.C., for the 

United Mine Workers of America. 

Judge Broderick 

STATEMENT OF 'l'JIE CASE 

On April 4, 1991, the Secretary of Labor (Secretary) issued 

53 citations to Urling Number 1 Mine (Urling) of the Keystone 

Coal Mining corp. (Keystone) alleging violations of the mandatory 

standard in 3.0 c. F. R. S 70. 209 (b) . on June 7, 1991, the 

Secretary issued an additional 22 citations for violations of the 

same standard.· Each of the citations charges that "the weight of 

the respirable dust cassette . • • has been altered while the 

cassette was being submitted to fulfill the sampling requirements 

of Title 30 c.F.R. Parts 70, 71 or 90. Observation of the filter 

surface indicates that a portion of the dust had been removed. " 

The filters cited on April 4, 1991 were submitted on various 

dates between September 20, 1989 and December 4, 1989. The 

filters cited on June 7, 1991 were submitted on various dates 

between January 3, 1990 and May 15, 1990. For each of the 

violations charged on April 4, 1991, the Secretary sought a civil 

penalty of $1,800; for each violation charged on June 7, 1991, he 

sought a penalty of $1,500. At the closing argument after the 

trial in this case, counsel for the Secretary stated that he now 

seeks a penalty of $5,000 for each violation. 

The citations issued to Urling are part of the more than 

5 1 000 citations issued to approximately 800 coal mines in 1991. 

Following substantial pretrial discovery, all pending cases were 

consolidated for the trial of issues common to all cases. The 

common issues trial was conducted from December 1, 1992 to 

February 22, 1993. 1

/ The common issues decision, promulgated 

July 20, 1993, selected Urling for a mine-specific trial and 

stayed all other pending cases. Contests of Respirable Dust 

Sample Alteration Citations, 15 FMSHRC 1456 (1993). The Urling 

mine is operated by Keystone, which is a wholly owned subsidiary 

of Rochester and Pittsburgh Coal Company (R & P). The dust 

1/ Transcript citations to the common issues trial will be 

prefixed by CIT, as CIT Tr. ~~· 

858 
sampling program at all the R & P mines, including Urling, was 

conducted by R & P's Environmental Safety Department which was 

located in a central laboratory. 

A written stipulation was submitted and received at the 

commencement of the mine-specific hearing on November 30, 1993. 

The Secretary offered testimony from a number of miners and 

former miners of Keystone; Robert A. Thaxton, MSHA supervisory 

industrial hygienist who initially determined that the citations 

should be issued; Or. Virgil A. Marple, an expert in the field of 

aerosol particle technology who testified in the common issues 

trial; Paul s. Parobeck, Chief of the Instrumentation and 

Analytical Branch of MSHA's Pittsburgh Health Technology Center; 

and Dr. John J . Miller, a statistics expert who testified in the 

common issues trial. Keystone offered testimony from a number of 

Keystone personnel, including assistant foremen at Urling, 

certain safety personnel, and the supervisors and dust 

technicians at the R & P central dust laboratory; Dr. Richard J. 

Lee, an expert in materials characterization and analyses and 

environmental monitoring who testified in the common issues 

trial; and Or. H. Daniel Roth, a statistics expert who also 

testified in ·the common issues trial. The United Mine Workers of 

America (UMWA). did not offer any witnesses or other evidence. 

The hearing concluded on January 6, 1994. Counsel for the 

Secretary and Keystone made closing arguments on the record .and 

each has filed a written posthearing brief and a reply brief. I 

have considered the evidence received in the common issues trial, 

the evidence in the mine-specific trial involving Keystone's Urling mine, and the contentions of the parties in making this 

decision. 

I . FACTUAL AND PROCEDURAL BACKGROUND 

A. RESPIRABLE DUST SAMPLING PROGRAM 

Section 202 of the Federal Mine Safety and Health Act of 

1977 (Mine Act), 30 U.S.C. § 801 et~ (1988), requires each 

coal mine operator to take accurate samples in a manner 

prescribed by the Secretary of the amount of respirable dust in 

the mine atmosphere to which each miner in the active workings is 

exposed. Congress first instituted dust sampling requirements to 

control the amount of respirable dust to which miners are exposed 

when it enacted sections 201 through 205 of the Federal Coal Mine 

Health and Safety Act of 1969, 30 u.s.c. S 801 et seq. (1976) 

(amended 1977). In enacting these provisions, Congress voiced 

the nation's concern for the "countless thousands [who] have 

suffered and died or presently suffer from the ravages of coal 

workers' pneumoconiosis -- the dread miners disease caused by the 

inhalation of excessive amounts of coal dust." H.R. Rep. 

No. 91-563, 91st Cong., lst Sess. (1969), reprinted in 

Leaislative History Federal Coal Mine Health And Safety Act 558 

(1970). 

859 
In implementing the statutory requirements, the Secretary 

has promulgated regulations, 30 C.F.R. SS 10 . 201-220 (for 

underground mines), 71.201-220 (for surface mines), . and 

90 . 201-220 (for Part 90 miners), which require coal mine 

operators to take samples of the concentration of respirable dust 

in the active workings of the mine and to maintain the average 

concentration of such dust at or below prescribed levels. The 

concentration is determined on the basis of five valid samples 

from a designated occupation (or one valid sample from a 

designated area) during a bimonthly sampling period . Compliance 

by the coal industry with these requirements and the reduction in 

the incidence of "black lung" disease is obviously of the highest 

importance . Black lung is irreversible and continued exposure to 

respirable dust after it is contracted can lead to progressive 

pulmonary fibrosis and the destruction of lung tissue. 2/ 

Therefore , violations of the respirable dust limits have been 

determined to be of such nature as could significantly and 

substantially contribute to a mine health hazard (Section ·104(d) 

of the Mine Act) . Consolidation Coal co., 8 FMSHRC 890 (1986}, 

aff 'd sub nom . Consolidation Coal Co . v. FMSHRC, ~24 F. 2d 1071 

(D . c. Cir. 1987). Clearly, violations of the standard in section 

209(b) are extremely serious violations since they compromise the 

integrity of the program designed to reduce respirable dust and 

its deadly effects. 

B. COMMON ISSUES TRIAL AND DECISION 

By agreement between counsel for the Secretary and counsel 

for the mine operators, a common issues trial involving all the 

consolidated cases was held. The . trial began in December 1992 

and was concluded in February 1993 ." The purpose of the common 

issues trial was to receive evidence and decide issues common to 

all the contested citations. On behalf of the Secretary, Robert 

Thaxton testified concerning his criteria for citing filters 

exhibiting abnorma l white centers (AWCs) and explained why he 

concluded that such filters established tampering. He described 

his classification of the cited filters under 10 tamper codes in 

accordance with the physical appearances of the filters and what 

Thaxton believed caused those appearances. . The Secretary 

introduced evidence concerning the handling of filter cassettes 

at MSHA's Pittsburgh Health Technology Center (PHTC). Scientific 

expert witnesses testified on behalf of the Secretary and the 

mine operators as to the possible and probable causes of AWCs and 

the effect of sampling equipment and mine dust variables on the 

occurrence of AWCs. They offered opinion evidence on the 

question whether an AWC indicates an intentional alteration of 

2/ "Down through the years, Black Lung -- the disease 

caused by breathing respirable coal dust -- has snuffed out more 

lives than any of the other hazards present in mining . " 

J. Davitt McAteer, Miner's Manual. 109 (1981) . 

860 
the weight on the filter. Statistical expert witnesses testified 

on behalf of the Secretary and the mine operators concerning the 

meaning of the rates of cited AWCs in the various mines and the 

decline in the cited rates at different times. · 

My decision on the common issues trial made certain findings 

of fact. I found that reverse air AWCs could have resulted from 

intentional acts, such as blowing or otherwise directing a pulse 

of air into the cassette outlet or introducing a vacuum source 

into the cassette inlet. I found that such AWCs could also have 

resulted from impacts to the cassette or the sampling hose, which 

might have occurred accidentally during normal handling of the 

sampling equipment at the mines, or from snapping together the 

two halves of the cassette. I further found that the reverse air 

AWC dislodgment patterns could not have resulted from mailing the 

cassettes from the mines to the PHTC, or the desiccation of the 

filter capsules or other handling of the cassettes and capsules 

at the PHTC. I found that the filter-to-foil distance in the 

cassettes and the floppiness of the filters were factors in the 

susceptibility of filters to AWC dislodgments; and that the 

firmness or softness of the sampling assembly hose, and variables 

in the dust on the filter may have affected the susceptibility to 

AWCs. I found that on the average reverse air AWC filters showed 

a weight loss. With respect to filters cited under tamper codes 

other than those considered the result of reverse air, I found 

that those classified under tamper codes 5 and 9 could have 

resulted from intentional tampering, but those classified under 

codes 8 and 10 were not consistently classified or were not shown 

to have been likely caused by intentional acts. 

on the basis of all the evidence introduced in the common 

issues trial, I concluded that the Secretary failed to carry his 

burden of proving by a preponderance of the evidence that an AWC 

on a cited filter establishes that the mine operator 

intentionally altered the weight of the filter, and that he 

f a.iled to carry his burden of proving by a preponderance of the 

evidence that deliberate conduct on the part of the cited mine 

operators is the only reasonable explanation for the cited AWCs. 

Those findings and conclusions are incorporated in this 

decision involving Keystone . 

II. THE MINE-SPECIFIC TRIAL -- SAMPLING AND AWCs 

A. HANDLING OF PUST PUMPS AND CASSETTES AT URLING 

1. THE ESD PUST LAB 

The respirable dust sampling program for Urling, as well as 

for all R & P mines, has been conducted by R & P's Environmental 

Safety Department (ESD) under the supervision of Donald Eget 

since 1970. During 1989 and 1990, Shawn Houck worked at the ESD 

861 
as a maintenance and calibration technician, and Douglas Snyder 

worked as a dust technician assigned responsibility for sampling 

at the Urling mines. Three other dust technicians were assigned 

responsibility for sampling at other R & P mines. 

Shawn Houck worked from 6:00 a.m. to 2:00 p.m., Monday 

through Friday. When he arrived at the lab he prepared pumps to 

be used by the dust technicians that day. The dust technicians 

arrived about 7:00 a.m., picked up the pumps and sampling 

assemblies, and took them to the mines for sampling on the three 

shifts, the first beginning at 8:01 a.m. (daylight shift). 

Donald Eget arrived at the lab at about 7:30 a.m. and, after 

being apprised as to the previous day's sampling, left at about 

8:00 a.m. to pick up the pumps and samples from the previous 

afternoon and midnight shifts from all 13 R & P mines. Eget 

carried the pumps and samples back to the lab in a company 

vehicle. If the pumps were in a carrying box, Eget lowered the 

rear window of his vehicle and swung the box over the tailgate 

and placed it on the floor in the cargo area. He tried to avoid 

having the box land on the hoses but occasionally it may have 

done so. If Eget picked up loose pumps, he generally placed them 

on the floor on the passenger side or on the rear seat. He 

carried the loose pumps by grasping the hoses and might have 

carried up to'.half a dozen at a time. Eget was not concerned 

about loose pumps landing on hoses and he was sure that they did. 

He was not aware that this might have created a problem. Eget drove over main and secondary roads, some of which were rather 

rough. In 1989 and 1990, the Urling pumps were generally picked 

up from a hallway outside the safety director's office. 

Sometimes they were in carrying boxes, and sometimes they were 

loose . If loose, the pumps were aligned in rows parallel to the 

wall with the hoses out of the way. This was a traffic area, so 

the hoses could have been stepped on. 

When Eget returned to the lab at some time between 9:30 a.m. 

and 11:45 a.m., he placed the pumps on a table. Other pumps 

might have been already there and the pumps or boxes of pumps 

might have landed on hoses. Eget testified that he did not 

handle the pumps carelessly, that he did not drop the pumps or 

boxes on the table, but placed them there. Other witnesses, 

including Houck and Snyder, testified that Eget handled the pumps 

roughly, briskly like he was in a hurry, and recklessly. 

While Eget picked up pumps from the mines, Houck processed 

the pumps left from the previous daylight shift. Houck removed 

the sampling head and hose from each pump, cleaned the pumps, and 

placed them on the charging rack. He disassembled the sampling 

head and removed the cassette. He disassembled and cleaned the 

cyclone assembly, cleaned the hoses, and filled out the dust data 

cards. When Eget returned to the lab, Houck removed the 

cassettes from the sampling heads and took them to Eget's office . 

862 
Eget recorded cassette numbers from each mine, checked the 

dust data cards against the cassette numbers, and looked into 

cassette inlets and recorded the filter appearances. After Eget 

finished reviewing the samples, he brought them ou·t of his off ice 

and Houck packaged them for mailing to MSHA. Cassettes from all 

three shifts were mailed simultaneously. Houck cleaned any 

remaining pumps, prepared pumps for use the next day, and did 

calibration and maintenance of pumps if needed until he left for 

the day. 

The dust technicians returned from the mines to the lab 

after 4:00 p.m. and delivered pumps from the daylight shift. 

They placed their paperwork on Houck's desk, checked to see if 

pumps were in order for the next sampling day, and left for the 

day. Occasionally, dust technicians would be in the lab during the day, e.g., near the end of a bimonthly sampling period or 

when a section broke down at the mines. Eget left for the day at 

4:00 p.m. or 5:00 p.m. after all the dust technicians phoned in 

or returned to the lab. 

Houck testified that when he arrived at the lab, some pumps 

that were left by the dust technicians the previous afternoon 

were loose on "the table and it took him 15 to 20 minutes to 

untangle the h·oses. Many pumps were sitting on hoses. When 

Houck took apart the sampling assembly, it was often difficult to 

remove the hose from the nipple outlet on the pump. He would 

sometimes use pliers to pull the hose off, or double the hose to 

free it from the nipple, or wrap the hose around his hand and 

work it back and forth. Houck occasionally dropped cassettes on 

the floor when removing them from the sampling head or pushing in 

the plugs. Houck saw Eget catch the pump hoses in the office 

door when bringing them in. He also saw Eget accidentally drop 

the pumps, and strike hoses with pumps and boxes of pumps when he 

put them on the table. 

Snyder has dropped pumps while carrying them from the Urling 

mine to his car or to the ESD. He has had hoses catch on the car 

door lock and latch, and the drawer handles in the safety office. 

He has dropped cassettes when pulling them from the sampling head. He has stepped on hoses and has seen others step on hoses. 

When carrying loose pumps, Snyder usually carried them by the 

hoses. He has placed pump carrying boxes on the table in such a 

way that hoses were caught under the box. Some hoses were 

difficult to remove from the pump. Snyder often had to wrap the 

hose through his first two fingers in order to pull it off. 

The three other dust technicians testified regarding the 

manner in which they handled pumps. Robert Bolinger testified 

that when he placed pumps with the hoses wrapped around them in a 

carrying box, he had to push them into the box, thereby 

compressing the hoses on both sides of the pump. Bolinger used 

the trunk of his car to transport the pumps and samples and is 

863 
certain that at times he shut the trunk lid on hoses or caught 

the hoses on the trunk latch. When he brought them into the dust 

lab and placed them on the table, he impacted the hoses of other 

pumps. Bolinger handled the pumps roughly. Bolinger has dropped 

a cassette on the lab floor while removing it from the sampling head. He has also dropped the whole assembly. Herbert Gleditsch 

testified that before the Spring of 1990 he carried pumps by the 

hoses and handled them roughly. Gleditsch has caught hoses in 

his car door. He was not certain as to the time of these events. 

Thomas Hollern has snagged hoses that hang below the bottom of 

the pump carrying boxes. He may have closed the door of his car 

on hoses. He has dropped cassettes when removing them from the 

sampling heads. Hollern has placed pump carrying boxes on hoses 

lying on the lab room table. 

I find as facts that the dust dislodgment patterns on the 

cited Urling filters could have resulted wholly or partly from 

the handling of the sampling assemblies by the ESD personnel 

described in this section. Specifically, they could have 

resulted from the carrying of multiple pumps by their hoses, 

dropping carrying boxes with pumps to the floor of a vehicle or 

onto a table, stepping on hoses, placing pumps on hoses, catching 

hoses in car doors or the office door, dropping pumps and 

sampling assemblies on the ground or on the floor, dropping dust 

laden cassettes on the floor, or otherwise impacting the hose as 

previously described. 

2. RESPIRABLE OUST SAMPLING AT URLING 

When Doug Snyder arrived at the Urling mine in the morning, 

he set the pump carrying box on a counter top or table . He 

usually brought four pumps to sample one mechanized mining unit 

(MMU) (a pump for each of the three shifts and one extra pump) or 

seven or eight pumps to sample two MMUs. The number of pumps he 

brought depended upon the sampling schedule, i.e., whether it was 

an MMU month or a designated area {DA) month, and how many 

sections he would be sampling. Snyder usually tried to sample 

two sections at a time. 

Snyder collected pumps from the previous afternoon and 

midnight shifts left in the lamphouse or the section foremen's 

office, and placed them in the hallway for Eget to pick up. He 

took the pumps to be used for sampling on the daylight shift to 

the lamphouse and gave them to the miners or the section foremen. 

After Snyder distributed the pumps, he usually went into the 

mine. Snyder also distributed pumps at the beginning of the 

afternoon shift. Snyder left pumps with notes attached in the 

section foremen's desks if he was not there for the afternoon 

shift, and for sampling on the midnight shift. 

864 
The section foremen at Urling were certified to take 

respirable dust samples and were annually retrained by Snyder on 

the use of respirable dust pumps. Each section foreman 

supervised a coal production crew which was periodically sampled 

for respirable dust. When a crew member was sampled for 

respirable dust (usually the miner operator, but on occasion 

other crew members), the section foreman was required to examine 

the pump during the second and last hours of the shift to ensure 

that the pump was running and to check for proper flow rate. 

The miners usually arrived at the Urling mine about 1/2 hour 

before the beginning of the shift. About 5 to 15 minutes before 

the shift started, miners went to the lamphouse to pick up their 

equipment. If sampling was scheduled they generally received 

pumps from Snyder or their section foremen . 

Miners did not receive formal training on how to use or 

handle the pump, but were instructed to be careful with it and 

not to turn the sampling head upside down because it could spoil 

the sample. Miners knew that if a sample they took was 

invalidated they would have to carry the pump again to get 

another sample. The pumps were fully assembled and ready for 

sampling when ·the miners received them. 

Miners wore or carried the pumps in a variety of ways, 

generally clipping the pump body onto their belts, clipping the 

sampling head onto their shirt collar, and clipping the hose onto 

their coveralls. Some miners ran the hose under and through the 

bib of their overalls. Others placed the pump body inside their 

coveralls. In this manner, the pump body sat between the miner's 

shirt and his coveralls (above the belt}, the hose was tucked 

inside the coveralls and came out at the neck, and the sampling 

head was clipped to the lapel outside the coveralls. Some miners 

carried the pump to the section with the hose wrapped vertically 

around the pump body and the sampling head clipped to the nipple 

outlet. 

The miners travelled to the working sections in mantrips. A 

mantrip carried four miners across on each of two seats with the 

mechanic and the section foreman sitting in the operator's 

compartment. Some miners placed their pumps, lunch buckets, 

hammers, and other items on top of the flat part of the battery 

on the mantrip, on the bumper above their feet, on the metal 

ledge, on the seat, or on the floor during transit to and from 

the section. Some miners left the sampling head attached to 

their collar and placed the pump body between their legs. Others 

continued to wear their pumps. After the mantrip ride, miners 

generally walked to the "kitchen" where they dropped off their 

lunch buckets, got their tools, and received instructions and 

information regarding mining conditions. Then they went to the 

face and mined coal. 

8 65 
Two types of continuous mining machines were used at 

Urling -- the Lee-Norse miner and the Joy miner. When using 

the Lee-Norse continuous mining machine, some miners wore the 

pump and others set the pump on top of the machine · next to or 

inside the operator's compartment and attached the sampling head 

onto the canopy post. The hose was generally straight up and 

down in front of the miner operator. Some miners hung the whole 

pump on the canopy post with the sampling head attached to the 

nipple outlet, using wire attached to a hole in the canopy post 

and the clip on the back of the pump. Regardless of where the 

pump was set, it would stay in place throughout the shift. The 

Joy continuous mining machine was operated using a remote control 

unit. The miner sat on a bench, stood, or knelt at varying 

distances behind the machine. When using the Joy machine, some 

miners wore the pump and others attached the pump to the remote 

box. Miners attached the entire pump assembly to the remote box 

in a variety of ways. Some miners left the hose hanging in front 

of the remote box, while others wrapped the hose where it could 

not get caught. 

Generally, the miner operators alternated responsibilities 

with their miner helpers after each cut. When the miner operator 

and the miner 'helper switched roles, the pump remained affixed to 

the machine or the remote box (the pump stayed with the person 

operating the continuous mining machine throughout the shift). 

In addition to running the continuous mining machine, miners 

shovelled coal from the belt, rock dusted, cleaned up, checked 

the bits and sprays, and hung curtains. Some miners wore the 

pump while performing these activities. Other miners left the 

pump on the machine or the remote box. When miners put down the 

remote box, they placed it on top of the machine or bench or on 

the mine floor. Miners put other equipment on top of the machine 

also, e.g., a rock bar, hammers, pliers, bolts, and bits in a 

gallon bucket. 

Occasionally, but not often, pumps have accidently fallen 

during the shift, e.g., pumps have fallen off the remote box, and 

pumps have fallen off miners' belts when they were walking bent 

over, stooping, or shoveling. Sometimes the miners have caught 

the pumps (by the pump body or the hose), or the sampling head 

and hose clips have prevented pumps from falling to the mine 

floor. Sometimes pumps have detached from the hose and fallen to 

the floor. Other times entire sampling assemblies, including the 

sampling head and pump, have fallen to the floor. 

Miners have snagged hoses on objects during the shift while 

walking in the mine. This could have pinched the hose or 

detached the hose from the nipple outlet. If a hose is pinched, 

the pump ~akes a sound different from its normal drone, more like 

a "thump." The miners testified that they have also heard this 

sound when riding on the mantrip and a hose is squeezed between 

866 
two miners' bodies. The miners did not recall stepping or 

sitting on hoses during the shift. 

Some miners turned off the pump during the shift because of 

its noise. The pump sounds like a "bunch of bumble bees." 

Miners turned off the pump for up to 5 minutes at a time to hear 

someone tell them something or if they heard a noise in the roof. 

Some miners turned off the pump for a few minutes at a time when 

they were stumping or pillar mining so they could listen to roof 

conditions. In the kitchen at lunchtime, when the miner operator 

and helper took their breaks together, some miners turned off the 

pump for the entire 1/2-hour lunch . Other miners left the pump 

running in the lunchroom. 

Toward the end of the shift when it was time to stop mining, 

the miners checked to see that all the curtains were up, 

ventilation was maintained, and equipment was serviced if needed. 

Miners cleaned the continuous mining machine , changed the bits on 

the machine, checked water sprays, closed off the machine, 

cleaned off any rock that may have fallen on the heads, and 

cleaned coal off the heads. The crew returned to the kitchen to 

put away tools and pick up their lunch buckets and coats. Miners 

continued to carry or wear the pump while walking to the kitchen. 

Then the crew went to the mantrip and rode toward the elevator. 

The miners testified that they handled the pumps in the same 

manner as on the mantrip ride into the mine. If miners were 

wearing the pump, they left it on and if they were carrying it, 

they continued to carry it. 

Different section foremen had different "rules" (and some 

had no "rule" at all) regarding who would bring the pump out of 

the mine at the end of a shift -- sometimes the miner brought the 

pump out and sometimes the section foreman brought it out. Section foremen who carried the pumps out of the mine received 

the pumps from the miners at various locations, e.g. i at the 

mantrip before leaving the section, on the mantrip during 

transit, at the end of the mantrip ride (sometimes pumps were 

left on the mantrip), at the bottom of the elevator, or at the 

top of the elevator. Generally, the sampling head was clipped to 

the nipple outlet on the pump body with the hose hanging. The 

pumps were normally running when the section foremen received 

them. The section foremen carried pumps out of the mine in a 

variety of ways, e.g., in their hands, set on top of the battery 

in front of the operator's compartment on the mantrip, inside 

their zipped up coveralls with the sampling head outside their 

coveralls, or clipped to their belt with the sampling head 

clipped to their collar or coveralls. 

When section foremen brought pumps out of the mine, they 

generally turned off the pumps at the top of the elevator. After 

getting off the elevator, the section foremen gave the pumps to 

Snyder (usually after daylight and midnight shifts), · generally 

867 
with the sampling head clipped to the nipple outlet. If Snyder 

was not there, the section foremen set the pumps on the lampman's 

counter or mechanic's box in the lamphouse, or took . them to the 

section foremen's office and set them in one of the raised-lid 

desks with the sampling head clipped to the nipple outlet. A 

section foreman may have found another pump left in the desk by 

the section foreman from the previous shift (generally, three 

section foremen shared each desk}. The section foremen placed 

other things in their desks, e.g., a hammer, thermos, lunch 

bucket, belt, coat, etc. Some section foremen were careful not 

to throw things into their desks or place things on top of the 

hoses. Some were not so careful. Sometimes desk lids have 

fallen on top of hoses that were hanging over the desk's edge. 

Generally, miners were in a hurry when travelling from the 

mantrip to the elevator. They walked a little faster than 

normal, but did not run. When miners carried the pump on the 

elevator, the sampling head was usually clipped to the nipple 

outlet with the hose hanging. Some miners wrapped the hose 

vertically around the pump body and clipped the sampling head to 

the nipple outlet. Other miners wore the pump on the elevator. 

If Snyder was at the top of the elevator, miners handed their 

pumps to him as they returned to the lamphouse. Snyder put the 

pumps in a carrying box set either beside him on the floor or on 

top of the mechanic's box. If Snyder was not there, miners gave 

the pumps to their section foremen or set them on the mechanic's 

box or lampman's counter, with the sampling head clipped to the 

nipple outlet or the wire mesh cage above the lampman's counter 

or standing beside the pump body (not fastened to anything). 

After putting their equipment away, the miners went to the shower 

room and then left the mine property. 

All of the miners and section foremen testified that they 

had never seen tampering with the pump or dust samples at Urling. 

Like all underground coal mines, the environment in Urling 

is harsh and confined. I find as facts that the dust dislodgment 

patterns on the cited tilters could have resulted wholly or 

partly from the handling of the sampling assemblies by the miners 

being sampled. Specifically, they could have resulted from pumps 

falling to the mine floor from the remote box or from miners' 

belts, from pumps being detached from the hoses and falling to 

the floor, from hoses being snagged on objects in the mine, from 

hoses being pinched on the mantrip, from hoses being impacted by 

other pumps on the lampman's counter or the mechanic's box, or 

from hoses being wrapped around pumps. 

B. THAXTON CLASSIFICATION OF URLING FILTERS 

Robert Thaxton reviewed the 75 cited Urling filters and the 

three filters classified as no-calls in October 1993 in 

preparation for his testimony at the mine-specific hearing. In 

868 
his examination of the filters, Thaxton used a lighted magnifying 

glass, a microscope, a ruler, and tweezers. He prepared a report 

which was received in evidence as G-505 and G-505A. Thaxton had 

previously systematically examined the same filters on two 

previous occasions prior to the common issues trial and had 

viewed them at various other times when the filters were examined 

by mine operators' experts. Thaxton is of the opinion that the 

dust deposition appearances of the filters have changed over 

time, some slightly and some "very dramatically." Tr. 882. In 

some cases the changes have affected Thaxton's ability to 

evaluate the filters, i.e., "to make the same call that [he] did 

four and a half years ago ..•• " Tr. 884. The preamble to his 

October 1993 report concludes: "Stated plainly, the filters do 

not look as they did when received in late 1989 and early 1990." 

G-505, p . 2. However, Thaxton did not identify any of the Urling 

filters which had so changed in appearance that he could not 

"make the same call" that he previously made. 

For the purposes of testifying in this case, Thaxton divided 

the 75 cited filters into seven groups (A .through G) in 

accordance with the general overall appearance of each filter. 

G-532. What were considered representative filters from each 

group were exhibited in the courtroom, and were viewed (some 

under a microscope) by counsel and the court. 

The October 1993 report considered each of the 78 filters 

and indicated under which tamper code it was originally 

classified, and the tamper code assigned following Thaxton's 

March 1992 review. For each filter the report provides six 

"statements": the center characteristics; a comparison of the 

dust inside the central dislodgment to that outside; the 

appearance of a "keyhole"/"dagger"; the physical condition of the 

filter including the existence of a dimple; the general 

appearance of the filter deposition; and the most probable cause 

for the citable appearance. Thirteen of the filters were 

originally classified under tamper code 1, 59 under code 2, one 

under code 5, two under code 7, and three under code 11 

{no-calls). Of the 59 under tamper code 2, seven were 

reclassified in March 1992 to tamper code 3. Of the "statements" 

in the 1993 report, the "first two .•• are the main 

characteristics .•. (in] making a determination of whether a 

filter would be cited or not." Tr. 878. 

With respect to eight of the filters cited under tamper 

code 1, "statement 2" indicates that the dust inside the 

6-millimeter ring "is lighter in approximately 1/3 of the circle, 

balance is nearly the same as that outside ring." In the case of 

one filter, the dust inside the ring is lighter in approximately 

one-half of the circle. Three filters are stated to have dust 

inside the 6-millimeter center that is "slightly lighter" than 

the dust immediately outside. However, filter 368209 classified 

under tamper code 1 is described in statement 2 as having "[d]ust 

. 869 
inside 6 mm center ••• much lighter than that outside." These 

conclusions are inconsistent with Thaxton's testimony at the 

common issues trial to the effect that in tamper code 1 filters, 

the dust inside the central area is not essentially. different 

from that immediately outside. CIT Tr. 181. Statement 6 is the 

same for all the filters classified under tamper code 1: "Most 

likely cause of central area disturbance is the result of a 

reverse flow of air such as would be produced by blowing into the 

cassette outlet by mouth." 

In the case of 47 of the filters cited under tamper code 2, 

the dust in the 6-millimeter center is described as much lighter 

than that outside the center; seven of these were reclassified as 

tamper code 3 in March 1992. Two tamper code 2 filters are 

described as lighter within the center; six as slightly lighter, 

three as lighter in approximately one-third of the center circle; 

and one as having a center area "all nearly white." The cause of 

the dust disturbance in the case of all but one of the 59 filters 

originally cited under tamper code 2 is stated to be "reverse 

flow of air such as would be produced by blowing into the 

cassette outlet by mouth." Seven of these have an alternate 

cause: "or through the application of a mechanical means." The 

latter show a greater degree of dust removed in the central area 

than the other 52. The cause of the dust disturbance in filter 

369204, cited under tamper code 2, is stated to be an object 

applied to the filter to remove dust. 

Filter 324842 was cited under tamper code 5. It is 

described as having a 6 to 8-millimeter center with lighter dust 

inside the center. The most likely cause of the center area 

disturbance is stated to be a liquid being applied to the filter 

cassette. 

Filters 325329 and 325635 were cited under tamper code 7. 

They are described in one case as having lighter dust in 

approximately one-third of the center circle, and on the other as 

having slightly lighter dust inside the center than immediately 

outside. In both cases the cause of the central area disturbance 

is stated to be reverse air flow such as would be produced by blowing into the cassette outlet by mouth. 

Filters 323857, 325233, and 325613 were classified under 

tamper code 11 and were not cited because there was no 

discernible difference in the color of the dust deposited inside 

the center area and that outside. The distinction between some 

of the filters cited under tamper code 1 and no-call filters is 

very difficult to discern. The common issues decision described 

cited filters under tamper code 1 as those where the degree of 

dust removal in the center portion of the filter is not 

significantly different from that immediately outside. 15 FMSHRC 

at 1461. No-call filters were described as those not exhibiting "that degree of dust removal that [Thaxton] would feel 

870 
comfortable" in citing. Id. at 1466 (quoting CIT Tr. 139) . In 

describing the three no-call filters of Urling, Thaxton testified 

that the dust deposition inside the lighter ring is nearly the 

same as that outside the ring. Tr. 92 7-32. 

In G-505, filter 325300 is described as having a welldefined center nearly white in color 6 millimeters in diameter in 

alignment with the inlet. The most likely cause of the central 

area disturbance is stated to be a reverse flow of air applied to 

the back of the filter cassette as would be produced by blowing 

by mouth or through the application of a mechanical means. 

Exhibit G-532 places filter 325300 in group G which is described 

as having a well-defined center disturbance from physical 

contact. In his testimony Mr . Thaxton stated that filter 325300 

(and 369204] "have characteristics that could be classed as 

contact marks. That is that something may have been inserted 

into the inlet opening of the cassette to affect (sic] dust 

removal as opposed to strictly reverse air •... " Tr. 1004. 

When asked about the discrepancy in the descriptions of the cause 

of the dust dislodgment, Thaxton stated that 

[F]ilter 325300 has the characteristics that would fit 

something coming in contact with the filter from being 

inserted through the inlet opening and also vacuuming 

the dust off the filter • • • • I just grouped them 

together for ease in discussion. That does not mean 

that there's any hard and fast -- all the ones in my 

report • have to be described exactly the same way 

as the way they're grouped. 

Tr. 1007. 

In the common issues decision, I noted some questions as to 

the coherence and consi stency of Thaxton's classification of 

citable filters under his tamper codes, but found his overall 

classification sufficiently coherent and consistent for the 

purposes of the common issues trial. As noted above, I find 

inconsistencies in Thaxton's classification of the 78 filters 

which are being considered in this proceeding, but in general the 

cited filters conform to Thaxton's primary criterion: the dust 

inside the 6-millimeter central area generally is lighter than 

that immediately outside. But there are possible exceptions. 

For example, viewing filters 324070, 324221, 324772, 325311, 

325329, and 325357, the dust in the central area, without 

considering the keyhole/dagger, appears to me to be essentially 

the same as that immediately outside the central area . Further, 

it is not clear that the three Urling no-call filters can be 

rationally distinguished from the cited filters. And it is still 

not clear to me whether Thaxton believes that the appearance on 

filter 325300 was caused by reverse air (blowing by mouth or 

vacuuming) or by inserting an object in the inlet to remove dust. 

871 
III. THE MINE-SPECIFIC TRIAL -- SCIENTIFIC EVIDENCE 

A. THAXTON 

At the common issues trial, Robert Thaxton was accepted as 

an expert witness in the fields of respirable dust sampling and 

in determining normal and abnormal patterns on respirable dust 

filters. I accept his judgment that the patterns on the 78 

Urling filters are abnormal in that they do not conform to the 

normal pattern resulting from dust sampling: a dust deposition 

covering the filter more or less uniformly. However, I 

previously noted the vague and subjective classification of the 

filters into tamper codes, and the tenuous distinctions between 

some cited filters and no-call filters. 

Thaxton is of the opinion that the dust dislodgment noted on 

the 75 cited Urling filters resulted from deliberate acts, in 

most cases by blowing by mouth through the cassette outlet. He 

bases his opinion on his review of the filters concerning which 

mine operators have pleaded guilty to criminal charges of 

tampering, on tests that he has conducted, on tests conducted by 

others including Dr. Marple, and on his many years of viewing 

normal dust d~position patterns on filters. Thaxton is of the 

opinion that the use of water sprays and scrubbers would have no 

effect on the dust deposited on filters, and would not cause the 

dust to be more difficult to dislodge. Tr. 4212-18. 

Filter 324842, cited under tamper code 5, and filter 369204, 

cited under tamper code 2, are the only cited Urling filters in 

which according to G-500 reverse air played no part. Thaxton's 

conclusions that the pattern on the former resulted from a liquid 

"being applied" to the filter and that on the latter from some 

object being applied to the filter to remove dust are based on 

tests he performed at Mt. Hope. I have previously discussed his 

inconsistent conclusions as to the cause of filter 325300. 

With respect to Thaxton's opinion as to the causes of the 

abnormal patterns, I stated in the common issues decision that 

his tests were nonsystematic and not conducted with scientific 

rigor. I further noted that he was not a disinterested witness. 

He has not prepared a comprehensive report explaining the 

rationale he has followed in ascribing causes to the dust 

dislodgment patterns he has described. For these reasons, 

although I considered and respected his opinions as to the cause 

of dust dislodgment patterns, I gave them diminished weight. I 

reaffirm that conclusion with respect to the Urling filters. 

B. MARPLE 

Dr. Virgil A. Marple examined the 78 Urling filters, 

classified them in accordance with the classification scheme 

devised for the common issues trial(~ 15 FMSHRC at 1478-79), 

872 
and att~mpted to evaluate the mechanisms which created the Urling 

filter dislodgments following that protocol. The evaluation 

included "fingerprinting" or digitizing the filters to determine 

the diameter of the dislodgments and the relative gray values 

across the filters. He classified 69 of the cited filters as 

Marple type A-1, one as A-2, one as A-3, one as A-2 or c, two as 

C, and one as "other" {a water stain pattern) . The three no-call 

filters· he classified as type A-3 before he knew they were 

no-calls. 

As a result of his experiments done for the common issues 

trial, Dr . Marple concluded that all type A patterns resulted 

from reverse air flow through the cassette . The type A-1 pattern 

shows less dust removed than the A-2, and more dust removed than 

the A-3 . Tr. 1559 . Marple concluded that the type C patterns 

resulted from inserting a vacuum tube into the cassette inlet and 

removing dust particles from the filter. His common issues 

experimental work created dust dislodgment patterns resulting 

from impacts to the filter cassettes which were classified as 

types E-1 and E-2 . See G-531. In Dr. Marple's opinion the type 

E patterns resulted from different mechanisms than the A and 

C patterns shown on G-528. Tr. 1463. Dr. Marple rejected 

Dr. Lee's "mixed-mode" theory, discussed infra, as the cause of 

the Urling dust dislodgment patterns. In Marple's opinion if a 

mechanical impact was the dominant factor involved in causing the 

dislodgments, at least some of the filters would resemble 

Marple's E patterns. Dislodgments caused solely by reverse air 

may have a diffuse ring as Dr. Marple's common issues experiments 

showed. In Dr. Marple's report for the Keystone trial {G-508), 

he reached no conclusion as to whether the "liquid spot" filter 

324842, classified as "other," resulted from deliberate conduct. 

None of Dr. Marple's experiments had produced a similar 

dislodgment. In his deposition prior to the Urling trial, 

Dr. Marple repeated that he had not reached a conclusion as to 

whether this dislodgment pattern resulted from a deliberate act 

or extreme mishandling. On cross-examination at the Keystone 

trial after he had learned of Mr . Thaxton's opinion that the 

pattern resulted from a liquid being applied to the filter, 

Dr . Marple found the filter to be "suspicious" and concluded that 

if it were accidental, the stains would have extended to the 

filter's edge . It appeared to him that "some kind of liquid had 

been put in and it could've been from something like an absorbent 

material stuck in the inlet and moistened, tried to lift off the 

particles and come back out, and continually had been left on the 

horizontal plain (sic] until it had dried." Tr. 1621. 

Following his examination of the Urling filters and 

considering the experimental work previously performed, 

Dr. Marple concluded that the dislodgments were not created 

during normal dust sampling, that reverse air flow was the cause 

of 71 or 72 of the cited filters, that a vacuum or probe 

withdrawing particles caused two or three, that impacts to the 

873 
cassettes did not cause the dislodgments, and that at least 74 of 

the 75 dislodgments resulted from deliberate acts or extreme 

mishandling of the sampler. 

Following receipt of Or. Lee's report (R-2001), Or. Marple 

performed a series of tests entitled vehicle/carrying case 

vibration tests. Ten filter cassettes loaded with 1 to 

2 milligrams of laboratory generated dust were inserted in 

sampling heads connected to pumps and were put in a pump carrying box and placed in the cargo bed of a pickup truck. The pumps 

were turned off. The truck was driven 4 miles over a rough 

gravel road at a speed of about 40 miles per hour. Four of the 

hoses were taped to the box so that about 5 inches of each hose 

was held under the box. After the test, the filters were 

examined and did not show any dust dislodgment patterns. 

Thereafter, 10 sampling units were carried in a small unsprung 

steel trailer pulled by a garden tractor at about 9 miles per 

hour over a rough farm field road. Again no dislodgment patterns 

were found. The two tests were then repeated with different 

sampling units at higher rates of speed and under rougher 

conditions. One dislodgment pattern, of a type A-3, resulted 

from the second trailer-tractor test. Or. Marple concluded that 

"it is very difficult, nearly impossible, to create a 

dislodgement by transporting the carrying case, with hoses 

underneath the case, in a vehicle." G-509, p. 5. Dr. Marple 

also concluded that a mixed-mode dislodgment pattern "from shocks 

and reverse air pulses in the hose, is a typical Type A-3 pattern • • • with dust inside and outside the 6 mm ring being about the 

same density . " I.sL.. 

Or. Marple considered the pump-wrap-and-throw test he 

performed for the common issues trial to be a mixed-mode event. 

He recalled that only one of the 60 filters used in the test 

resulted in a dislodgment pattern, of a type A-3, and he 

concluded that "it is extremely unlikely to create a dislodgement 

by impacting the hose and filter cassette due to throwing the 

assembly onto a table." ~at 6. 

Fifteen filters submitted to MSHA from the Urling mine in 

the winter of 1992-93 as part of normal compliance sampling were 

given to Dr. Marple to measure their threshold velocity. The 

measurements were performed in the same way as threshold 

velocities were measured in the common issues trial. The Urling samples were within the range of the mine samples measured for 

the common issues trial and their threshold velocities were much 

higher than those of the laboratory generated dust used in the 

vehicle/carrying case vibration tests. Since the lab dust is 

thus more susceptible to dislodgment, this reinforces Marple's 

opinion that transporting the sampling equipment by car or truck 

is very unlikely to result in dust dislodgments in the filters. 

874 
Dr. Marple's opinion as to the effect of water sprays on the 

susceptibility of dust laden filters to dust dislodgment is 

inconsistent. In discussing the threshold velocity .of the Urling 

1993 samples he testified: 

Well, I don ' t think we really know what it is 

about this dust that makes mine dust more difficult to 

get off of the filter but it's probably something to do 

with the type of sprays that we are using and the 

wetness of the particles when it gets down on the 

filter. 

* * * * * * 

I think the wetness of the particles would have a 

major effect which would be related back to the water 

sprays . 

Tr. 1551. On rebuttal Dr. Marple testified: 

* 

Q. Now, is Doctor Lee right about increased water 

volume and pressure making deposits on filters that are 

less susceptible to dislodqment? 

A. I don't believe so. 

Q. You mean more water spray doesn't make the 

dust stickier? 

A. That's right. 

Q. Why? 

A. Well, the more water spray we have, it make 

[sic] take out more of the particles, but the particles 

that penetrate through the water spray should be 

effectively the same independent of the amount of water 

• • • • So the ones that do get to the sampler have 

not been affected by the water sprays. 

Tr. 4145. Dr . Marple further explained that the sampler collects 

dust particles that do not contact water droplets. He stated 

that if a wet particle got onto a filter it would adhere more 

firmly than a dry particle. He was referring to a particle to 

which moisture had attached at generation, not after it- had 

become airborne. Tr. 4147-49 • . 

c. 1&E 

On several occasions Dr. Richard J . Lee examined the 78 

Urling filters involved in this proceeding and classified the 

75 cited filters by R. J . Lee Group type . See 15 FMSHRC at 

8 75 
1470-71, 1488-89. Each filter was examined under an optical 

microscope and some of the microscopic images were photographed 

and included in Lee's report. R-2001. Lee measured the diameter 

of the dislodgments using the optical micr~s~ope . Lee classified 

43 of the cited filters in the R. J . Lee Group type 1, 24 in type 

2 , three in type 3, four in type 4, and one (the liquid spot 

filter) in type 5. He further divided the filters into six 

qroups (A through F). The first four groups were based on the 

size and symmetry of the dislodgment pattern and the sharpness 

and dimension of the outer ring ~ Photographs of each group are 

exhibited with photographs of no-call, non-void, inspector, and 

Lee experimental filters for comparison . Group E are filters 

with dislodgments that Lee concluded were caused by handling, 

most likely during disassembly at the PHTC. In group F are three 

f i l ters wit~ "Qpique artifacts." 

As noted above, Dr. Lee believed that the dust dislodgment 

on a number of filters (14 cited and one no-call) was caused or 

significantly affected by handling , most likely occurring during 

disassembly at the PHTC. In my common issues decision, I found 

that handling at the PHTC did not cause the cited AWCs. 

15 FMSHRC at 1514 . That finding is final and binding as to the 

Urling filters, and I therefore am not considering Dr. Lee's 

opinion insofar as it attributes any of the cited filter 

appearances to PHTC handling. 

Lee noted that 57 percent of the Urling cited filters were 

classified as Lee type 1 (the dust deposit within the 

6-millimeter ring has a color and density similar to the dust 

outside the ring), whereas 34 percent of the cited filters 

throughout the industry were so classified. He further noted 

that 17 . 3 percent of-· the Ur ling filters were classified by 

Thaxton as tamper code 1, while 12.6 percent of the cited filters 

industry wide were so classified. Lee's prior experiments showed 

that Lee type 1 dislodgments. · (and presumably Thaxton tamper 

code 1) resulted from small·er impact forces than the other types 

because less dust is dislodged . From these data Lee concluded 

that deliberate tampering did not occur, but that the 

dislodgments were caused by impacts incidental to the handling of 

the filters and sampling systems at the R & P facilities. Lee's 

experimental filters showed that deliberate blowing through the 

cassette outlet causes a sharp 6-millimeter ring, definite dust 

dislodgment within the ring, and a high percentage of cones and 

dimples. Lee observed that most of the Urling filters have very 

little or no dust dislodged, none had cones, and only a small 

percentage had possible or slight indications of dimples. Lee 

created dust dislodgment patterns on experimental filters by 

accidental impacts which patterns he believed were physically 

indistinguishable from the Urling filters. He further believed 

that the Urling filters were indistinguishable from the general 

no-call and non-void filters identified in the common issues 

trial. Lee concluded that the appearance and dimensions of the 

876 
dust dislodgment patterns on some of the Urling filters are 

consistent with a mixed mechanical-impact/reverse-air-pulse-byhose-impact mode of occurrence ("mixed-mode"). Under Lee's 

theory, the two impacts occur almost simultaneously, within 

milliseconds of each other. The mechanical impact tends to 

dislodge dust on the outside of the 6-millimeter ring, while 

reverse air pulses tend to dislodge dust within the ring. Lee 

believed that the filters in his group B show evidence of a 

reverse air pulse caused by hose impact followed by a mechanical 

impact to the cyclone. He believed that group c show evidence of 

a mechanical impact followed by a reverse air pulse. Lee stated 

that the filters shown in Group D have such a large mechanical 

impact component that the effect of any reverse air pulse is 

minimal. In Lee's opinion the handling of the sampling assembly 

at the Urling mine and in the R & P dust lab created significant 

opportunities for impacts to the sampling head and the hose such 

that dust dislodgments could have occurred. 

Lee criticized Marple's vehicle/carrying case vibration 

tests because only 16 of the 40 hoses were subjected to possible 

impact (four hoses were taped under the box and four tests were 

conducted), and the weight of the box was distributed over all 

four hoses -- effectively cushioning any impact on a single hose. 

Dr. Lee was of the opinion that increased use of water 

sprays would reduce the susceptibility of filter samples to dust 

dislodgment. 

(Water sprays) reduce the dust generation . . . • 

Increased water will decrease the size 

distribution . • • . [T]he first thing that will go 

out are the coarser particles. The finer the dust is, 

the more surface area the dust, . • . the more 

difficult it will be to remove those particles • . . . 

* * * * * * * 

Q. If the purpose of water is to knock the dust out of 

the air, what's getting to the filter? 

A. Dust. 

Q. Wet dust? 

A. If it's coming out of a dust generation point which 

has had water spray directly applied, very 

likely . • . . [G]enerally I think your filter is 

going to come out wet using more water. 

Tr. 4087-89. 

877 . 
On the basis of Dr. Lee's examination of the Urling filters, 

his comparison of the Urling filters with experimental filters 

and other MSHA non-cited filters, and his consideration of the 

mine and laboratory handling (R & P and PHTC) and the mine and 

manufacturing variable factors, he concluded that the dust 

dislodgment patterns on the Urling filters were not caused by 

blowing through the cassette or any other deliberate tampering. 

IV. THE MINE-SPECIFIC TRIAL -- STATISTICAL EVIDENCE 

A. MILLER 

Dr. John J . Miller performed certain statistical analyses of 

data related to the citations issued to Urling and to the R & P 

mines and compared that data to the data for all the mines 

contained in the reduced analysis data set received in evidence 

in the common issues trial (G-235). This data set, taken from 

MSHA's Denver database, included all the dust samples processed 

between August 8, 1989 and March 31, 1992, eliminating certain 

classes of cassettes for which it could not be guaranteed that 

they had been checked for AWCs, and those from mines which had 

pleaded guilty to tampering. See G-227. That data was further 

reduced by eliminating cassettes from mines which subsequently 

pleaded guilty to tampering, and is referred to in this 

proceeding as the new reduced analysis data set. G-500. 

Dr. Miller found that the overall rate of cited cassettes 

for urling was about five times as large as the rate for the 

"other" mines (all mines in the new reduced. analysis data set 

except those in the "R & P lab group plus Urling"). The rate of 

cited cassettes for R & P lab mines not including Urling (R & P 

lab mines") was about six times as large as the rate for other 

mines. 

In analyzing the rate of cited samples, Dr. Miller used 

March 26, 1990 as the cutoff date between before and after 

periods. This was based on his understanding that R & P's 

personnel first became aware on that date that MSHA was voiding 

AWC samples. In the before period Urling had 74 cited samples 

out of a total of 173 submitted, a cited rate of 42.77 percent. 

R & P lab mines had 545 samples cited out of 1,219 submitted, a 

cited rate of 44.71 percent. The "other" mines (all the other 

mines) during the same period had 2,903 samples cited out of 

48,690 submitted, a cited rate of 5.96 percent. The differences 

between Urling and other, and between R & P lab mines and other 

were, in Miller's opinion, statistically significant. In the 

after period Urling had one sample cited out of 552 submitted, a 

cited rate of 0.18 percent. In the after period R & P lab mines 

had six samples cited out of 3,187 submitted, a cited rate of 

0.19 percent. The other mines in the same period had 999 samples 

cited out of 141,364 submitted, a cited rate of 0.71 percent. In 

Miller's judgment these data present overwhelming evidence that 

878 
whatever caused cited samples at Urling and R & P lab mines had a 

much higher rate of causation than it did in the other mines in 

the before and overall periods. Dr. Miller was of the opinion 

that the data also provide strong evidence that in .the after 

period the rate for other is higher than the rate for R & P lab 

mines. 

Dr. Miller concluded that the same data provide overwhelming 

evidence that the rates of cited cassettes are higher in the 

before period than in the after period. The rate shows "a 

sudden, dramatic, and final drop to a rate close to zeroAat a 

time very close to March 26, 1990 for the R & P Lab mines: The 

change is also evident in the plot for the Urling 1 Mine ·alone, 

but there is more variability in this plot." G-500, p. 15. 

Dr. Miller analyzed the dates that the cassettes were 

manufactured as those dates related to the cited rate versus 

sample date . He created a data set including all cassettes 

manufactured on dates that cassettes used by Urling were . made, 

and a data set including all cassettes manufactured on dates that 

cassettes used by R & P lab mines were made . For these 

cassettes, the cited rates for Urling were eight times higher 

than for other· in the before and overall periods, a difference 

that Miller found overwhelmingly statistically significant. A 

similar result was obtained for R & P lab mines cited rates 

versus other cited rates. Thus, Dr. Miller concluded that 

manufacture date does not explain the differences in citation 

rates. The differences in cited rates between Urling before and 

after, and between R & P lab mines before and after remained when 

only cassettes made at about the same time were used. The 

citation rates were also compared for Urling and R & P lab mines 

samples before and after March 26, 1990 by comparing cassettes 

grouped into sets manufactured in contiguous time periods. In 

both cases, the cited rates in the before period were much larger 

than in the after periods. Dr. Miller again concluded that this 

shows that manufacture date cannot be used to explain the 

observed differences in citation rates. 

Dr. Miller prepared a supplemental report (G-527} in 

response to the report of Dr. Roth. He used a statistical tool 

called the Mantel-Haenszel technique to analyze Dr. Roth's 

discussion of the relationship between four manufacturing dates 

(May 26, May 31, June 1, and June 2, 1989, referred to as "key 

dates" -- when almost 50 percent of the R & P cited cassettes 

were manufactured} and AWC citation rates. For R & P lab mines 

plus Urling samples before March 26, 1990, the cited rate for 

cassettes manufactured on the key dates was 49.93 percent. For 

cassettes manufactured on other dates it was 38.21 percent. 

However, for cassettes from other mines sampled before March 26, 

1990, the cited rate for cassettes manufactured on key dates was 

2.5 percent, while the rate for cassettes manufactured on other 

dates was 6.23 percent. Thus, in Miller's opinion, the 

8 7 9 
difference in cited rates cannot be explained by the properties 

of the cassettes manufactured on the key dates. The 

Mantel-Haenszel technique was used to determine the relationship 

between two categorical variables -- manufacture date (key date 

or other date) and cited status (cited or not cited). The 

sampling period before March 26, 1990 was divided into nine 

4-week periods. However, the first period (before August 14, 

1989) did not have samples used from key date cassettes, although 

it had cited AWCs, and therefore was not used in the analysis. 

The rates for key date cassettes were higher in four periods and 

the rates for other date cassettes were higher in four periods. 

The key date cassettes were predominately used in the three 

periods with the highest cited rates. Dr. Miller determined that 

the Mantel-H~enszel technique fails to show a statistically 

significant relationship between manufacture date class (key date 

vs. other date) and the cited rate. Therefore, Dr. Miller's 

prior conclusion was verified that manufacture date is not an 

explanation for cited rate, but sample date is. 

B. ROTH 

Dr. H. Daniel Roth plotted the bimonthly rates of AWCs from 

August 1989 to ~arch 1992 for Url~ng, R & P lab mines, R & P lab 

mines plus Urling, and all non-R & P mines ("other"). He used 

bimonthly periods because MSHA follows a bimonthly dust sampling 

cycle, and because use of a bimonthly period tends to smooth out 

monthly variations and to compensate for small numbers of samples 

in any month. Dr. Roth stated that the plots show a strong trend 

of declining rates over virtually the entire study period. The 

decline at R & P including Urling is similar to the pattern of 

decline for all other mines. In Dr. Roth's opinion the rate of 

cited AWCs is statistically significantly higher before virtually 

any cutoff date in the study period than after that date, and not 

just March 26, 1990. Roth compared rates for Urling, for R & P 

lab mines, and for R & P lab mines plus Urling before and after 

the 15th day of each month from October 1989 to December 1990. 

R-2004, attachments E, F, and G. For each of the dates 

considered, Roth found the rate statistically significantly 

higher in the before period than in the after period. 

Roth also plotted the rate of cited AWCs versus the date of 

manufacture of the cassettes and found that AWC rates in general 

were lower for cassettes manufactured on later dates than for 

those manufactured on earlier dates. This suggested to Roth that 

manufacturing variables may have been a factor in Awes. In fact, 

according to Roth, the high rate of AWCs at R & P may be 

attributable to cassettes manufactured on four consecutive dates, 

May 26, May 31, June 1, and June 2, 1989. For R & P lab mines 

plus Urling, the rate of AWCs for cassettes manufactured on those 

dates ("key dates") was 49.6 percent of all cassettes used as 

compared to 5.8 percent on other dates of manufacture. Even 

though only 15.6 percent of the cassettes used at R & P lab mines 

880 
plus Urling were manufactured on those dates, they account for 

59.3 percent of the cited samples. For Urling, the AWC rates for 

key date cassettes was 46 . 9 percent as compared to 4.8 percent on 

other dates of manufacture. In addition, even though only 

13.2 percent of the Urling cassettes were manufactured on the key dates, they accounted for 60 percent of the cited samples from 

the mine . Even if a comparison is made of cassettes sampled 

before March 26, 1990 at R & P lab mines plus Urling, the .rate of 

AWCs for key date cassettes is 49.9 percent compared to 

38.2 percent for cassettes manufactured on other dates. Roth 

concluded that this difference is statistically significant. In 

Dr. Roth's opinion, this analysis indicates something anomalous 

about cassettes manufactured on those four dates. 

Dr. Roth did a regression analysis on weekly data from July 

1989 through March 25, 1990 for Urling, R & P lab mines, and 

R & P lab mines plus Urling. R-2131A corrected as R-2136. 

Regression analysis as used here is a method of summarizing the 

trend of AWC rates. See 15 FMSHRC at 1520. For R & P lab mines 

plus Urling Roth concluded that the trend of decline over time is 

statistically significant. It is not so for R & P lab mines 

alone or for _Urling, though in both cases the overall trend of 

decline is observed. Dr. Roth then did a weighted regression 

analysis to take into account the different amounts of data in 

the weekly periods. See R-2131B. With the weighted regression 

analysis, Roth found the weekly AWC rates to be statistically 

significantly declining throughout the before period (before 

March 26, 1990) for Urling, R & P lab mines, and R & P lab mines 

plus Urling. Roth also did a regression analysis using September 

1989 as the starting date rather than July . R-2131C corrected as 

R-2137. Again, he concluded that the rates are statistically 

significantly declining . 

Dr. Roth criticized Dr. Miller's use of the Mantel-Haenszel 

technique as inappropriate for this case. Dr. Roth stated that 

the Mantel-Haenszel technique is properly used to compare 

independent studies which provide different results. This case 

on the contrary exhibits, according to Roth , an arbitrary 

selection of data dependent on one another in a single study. To 

show how Miller improperly used the technique, Roth applied the 

Mantel-Haenszel technique to the data using four periods of 

8 weeks each rather than the eight periods of 4 weeks used by 

Miller. He chose the 8-week periods because they more closely 

conformed to the bimonthly sampling periods. Following this 

procedure, Dr. Roth produced results which he found were 

statistically significant, though Dr. Miller' s were not. This 

suggested to Roth that Miller's data were "sliced too thin. " 

Further, in Dr. Roth's opinion Dr. Miller improperly eliminated 

data (30 cassettes) from July 1989 because they were not key da te 

cassettes. Dr. Roth stated that the Mantel-Haenszel technique 

requires the use of all available data. 

881 
V. FINDINGS OF FACT -- DUST SAMPLING AT URLING 

A. HANDLING OF PUMPS AND SAMPLING ASSEMBLIES 

Training courses were given to Urling employees certified to 

sample for respirable dust on February 6, 1990, February 18, 

1991, and May 22 , 1992. R-2069, R-2070, R-2071. The training did not include any instruction or admonition as to handling 

pumps or sampling assemblies. 

The parties stipul ated that the miner operators, miner 

helpers, and section foremen generally were not aware of the 

institution of t he AWC void code until at least a year after it 

was instituted, if at all. Stipulation 108(c). At least some of 

the miners and section foremen were aware, however, of an MSHA 

investigation of the dust sampling program at or before the time 

the void code was instituted. After the section foremen heard 

about the investigation, some of them checked the pumps more 

often, kept a closer eye on the pump during the shift, and 

brought the pumps out of the mine themselves. The miners 

testified that they did not make any changes in the way they 

handled the pumps after learning about AWCs. The evidence does 

not establish that the miners or section foremen significantly 

changed the manner in which they handled pumps and sampling 

assemblies because of their awareness of the investigation. I 

find that they did not, and that any change in dust deposition 

patterns on filters in Urling samples after the institution of 

the void code is not the result of changes in handling by miner 

operators, miner helpers, or section foremen . 

B. CHANGES IN CONTINUOUS MINER MACHINES; INTRODUCTION OF 

SCRUBBER MINERS AND WATER SPRAYS 

During the period from August 1, 1989 to May 31, 1990, two 

kinds of continuous miners were used at Urling : the Lee-Norse 

miners operated from controls on the machine, and the Joy miners 

operated from a remote control box {some Joy miners could be 

operated from the remote control box or from controls on the 

miner). The Lee-Norse miner vibrated when cutting coal, so that 

the sampling head attached to the canopy swayed back ~nd forth 

and contacted the canopy post. I find that this could have 

caused or contributed to abnormal dust patterns on Urling 

filters. 

Scrubber systems were installed on the Joy miners, being 

qradually phased in beginning on or before August 1, 1989 . Using 

scrubber-equipped miners, Keystone could take cuts of coal 

qreater than 20 feet, up to 37 feet, depending upon mining 

conditions. A scrubber system controls dust while mining by 

sucking up the dust and discharging it through a filter system. 

It has a discharge line that runs out of a sump and continuously 

dumps water on the mine floor. In addition to the water sprays 

882 
that conventional miners have, scrubber miners have blocking 

sprays designed to keep the air current from by-passing the 

exhaust of the scrubber system. A scrubber miner uses from 6 to 

8 gallons per minute more water than a non-scrubber miner. As I 

indicated earlier, the expert witnesses disagree as to whether 

the use of scrubbers and water sprays has any effect on the dust 

deposited on the filter. I am persuaded that it does have an 

effect. I find that the dust deposit on filters when a scrubber 

miner is sampled is damper, has a higher threshold velocity, and 

is more difficult to dislodge. This could have been a factor in 

the decline in the number of AWCs in late 1989 and early 1990. 

In a related matter, I find that the north sections of the 

Urling mine are in general wetter than the south sections and 

that overall the mine is wetter in 1993 than it was in 1989 and 

1990. Therefore, samples taken from the north sections are less 

susceptible to dust dislodgment than those taken from the south, 

and samples taken in 1993 are less susceptible to dust 

dislodgment than those taken in 1989 and 1990 . However, the 

evidence does not permit me to conclude whether these facts 

contributed to the decline in the number of AWCs in late 1989 and 

early 1990. 

C. OTHER MINING CONDITIONS 

The north end of the Urling mine generally has a higher coal 

seam than the south end, although the height may vary even within 

the same section. Miners have encountered binder {a layer of 

rock) in the coal throughout the mine, but at present there is 

more binder in the north end of the mine. Also at the present time, the roof in the n·orth end of the mine is sand rock and in 

the south end is shale. Roof stability varies from section to 

section and within sections. A miner operator testified that the 

roof was "pretty bad" in 1989 and 1990. Tr. 334. 

over the past few years, Urling has replaced the mantrips 

used in the mine . The old mantrips had metal seats while the new 

ones have vinyl, plastic, or canvas-like seats, more leg room, 

and are more comfortable. 

However, the evidence does not establish that the height of 

the coal seam, the presence of binder, the roof conditions, or 

the mantrip changes were related to the deposits on respirable dust samples or to changes in the character of those deposits. I 

find that none of these conditions contributed to the character 

of the respirable dust deposits on filters during the period 

relevant to this case. 

883 
D. HANDLING OF PUMPS. SAMPLING ASSEMBLIES, AND CASSETTES BY ESD 

The only equipment changes in ESD's handling of samples in 

1990 were the replacement or reconstruction of the· pump carrying 

boxes and the addition of wire ties to the sampling heads. ESD 

began to use the new carrying boxes in April and May 1990. The 

new boxes were more square with higher sides and closed-in ends. 

They carried eight pumps. The old 10-pump boxes were discarded 

and the old four-pump boxes were reconstructed with higher sides. 

In the new boxes, the sampling heads were clipped to a metal rod 

and the pump bodies sat side by side rather than end to end. 

Although the hoses did not hang out of the ends of the new boxes, 

they still protruded below the bottom of the boxes on the sides 

but not as far as they did with the old boxes. Eget testified 

that it was very likely that hoses could get caught under the new 

boxes as well as the older ones. However, it was less likely 

that hoses would be impacted under the new boxes because of their 

configuration and size . In April or May 1990, the ESD attached 

wire ties on all the sampling heads in an effort to tamper-proof 

the sampling assembly. The cassette could not be removed without 

breaking the tie. Because these changes occurred sometime after 

the initiation of the void code, their significance to this case 

is questionable. 

Eget was off work because of a back condition in April 1990. 

He did not pick up pumps and samples from approximately April 9 

to May 10, 1990. Eget testified that he did not change the way 

he handled the pumps or samples after he learned of the void 

code. In particular, he did not change the way he lifted pumps 

into the back of his vehicle. Houck testified that the tangled 

mass of pumps and hoses on the ESD table did not change after the 

void code. Snyder testified that he handled the pumps more 

carefully, that he no longer put pumps on the mechanic's box, and 

that he no longer carried the pumps by the hoses. He was 

uncertain as to the timing of these changes. Hollern and 

Bolinger stated that they handled the pumps and sampling 

assemblies more carefully after the AWC notices. Gleditsch 

stated that he was more careful in handling the samples beginning 

in the Spring of 1990, that he discontinued carrying the pumps by 

the hoses, and that he no longer put the pump carrying box down 

roughly or caught hoses in his car door. 

The evidence establishes and I find as facts that there were 

changes in the handling practices of ESD personnel beginning in 

the Spring of 1990. Specifically, Eget, who handled the sampling 

equipment in a rougher manner than the others, did not pick up 

pumps and samples from April 9 to May 10, 1990. Snyder and the 

other dust technicians were more careful in their handling and 

carrying of pumps and hoses, and, in particular, were careful to 

avoid hose impacts because of the MSHA dust sample investigation. 

These changes could have been factors in the decrease in the 

number of cited AWCs in the Spring of 1990. 

884 
E. CHANGES IN CASSETTES AND HOSES 

1. FILTER-TO-FOIL DISTANCE AND CASSETTE MANUFACTURE DATE 

In the common issues decision, I found that filter-to-foil 

distance varies from filter to filter. I also found that a 

filter cassette with a smaller filter-to-foil distance is more 

prone to an AWC dust dislodgment pattern than one with a larger 

filter-to-foil distance, and that the cited filters had a shorter 

filter-to-foil distance than those manufactured subsequently . 3 / 

I found that cassettes manufactured before February 13, 1990 had 

a much higher rate of AWC citation than those manufactured later. 

Of Urling es 75 cited filters, eight filters were from the 

MSA 200 , 000 series, which were manufactured between April 20, 

1988 and April 3, 1989 , and 67 filters were from the MSA 300,000 

series, which were manufactured between April 3, 1989 and 

February 13, 1990. See R-2133 . Forty-five of Urling's 75 cited 

filters were manufactured on four "key dates," May 26 and 31, and 

June 1 and 2, 1989. The remaining 30 cited filters were 

manufactured on 12 other dates, ranging from January 21 to 

September 30 , 1989. Id. 

According ·to Dr. Lee, the absence of 9-millimeter-ring 

standoff patterns and the presence of crimping on the Urling 

cited filters indicates shorter filter-to-foil distances. 

Tr. 3874-79, R- 2001. Lee stated that about 20 percent of the 

Urling cited filters show evidence of crimping, compared with 

about 6 percent in recently purchased filters. Dr. Marple 

disagrees that 9-millimeter rings indi cate filter-to-foil 

distances based on his experiments for the common issues trial. Tr. 1519-20, 1578-81, G-509 . Marple's tests indicated that even 

when filters were resting on the standoff, only 50 percent had 

standoff patterns. Therefore, he concluded that the absence of 

standoff patterns does not indicate shorter filter-to-foil 

distances. Marple did not address the issue of filter crimping . 

The Urling cited filters came from the population of filters 

with shorter filter-to-foil distances. Although it is not 

possible to know the specific filter-to-foil distance for each of 

3 / In his reply brief the Secretary argues that the charts 

I relied upon to find in the common issues decision that the more 

recent filters had a larger filter-to-foil distance also showed 

that they were floppier than the older ones. No expert witness 

supported this argument, and Dr. Marple found that the more 

floppy filters were associated with smaller filter-to-foil 

distances. The evidence related to the question whether the more 

recently manufactured filters were floppier than the older ones 

is not sufficiently clear to enable me to make a finding one way 

or the other. 

885 
the cited filters, I find that the Urling cited filters more 

probably than not had shorter filter-to-foil distances than those 

manufactured subsequently. This could have been a factor in the 

decline in the number of cited AWCs in the Spring of 1990. 

2. HOSE.SOFTNESS/FIRMNESS 

In the common issues decision, I found that the firmness or 

softness of the sampling assembly hose may be related to the 

formation of an AWC, and that a softer hose is more prone to an 

AWC dust dislodgment. I found that the firmness or softness of 

the hose varies from sampling assembly to sampling assembly. 

Houck testified that there were differences in the softness 

or firmness of hoses in 1989 and 1990. He testified that hoses 

become more soft and are more easily removed from the nipple 

outlet as they age. Houck stated that detergents and hot water 

used to clean hoses remove the stickiness and cause hoses to grip 

less tightly. 

Houck testified that the ESD always kept their equipment in 

meticulous condition. He stated that sampling assembly hoses 

were replaced ·as needed, e.g., when they started turning yellow . and got soft, started slipping off the nipple outlet, or became 

less than 36 inches in length (hoses would be snipped to cut off 

pinholes created by the sampling head clip). Houck stated that 

after pumps 81 through 140 were taken out of service in January 

1989, those hoses continued to be used on a rotation basis. He 

testified that in October 1989, a large batch of hoses was 

replaced, but thereafter hoses were replaced gradually. A small 

percentage of the hoses replaced in October 1989 was of a firmer 

type that had been used since at least 1986. 

I find that the sampling assembly hoses at Urling varied in 

softness during any given period of time, and that the record 

does not clearly establish that either the AWCs or the drop off 

in the number of AWCs are explainable by the firmness or softness 

of the hoses that were used. 

F. CHANGES IN MSHA CRITERIA FOR DETERMINING AWCs 

Keystone argues that changes in AWC selection criteria by 

MSHA at or about the time the void code was instituted may 

explain the declining rate of AWCs . Beginning in August 1989 the 

PHTC examined all filter samples from all coal mines and referred 

those believed to be potentially citable as AWCs to Thaxton. 

(Beginning in April or May 1989 PHTC had been examining Peabody 

filters for suspected AWCs.) Except for l week in late August 

when he was assisted by another employee and until October 1989, 

the only person examining the filters and referring them to 

Thaxton was Lewis Raymond. Beginning in October 1989 other PHTC 

personnel who had been trained by Raymond examined filters for 

886 
AWC appearances. Some suspected AWCs were reviewed by Raymond, 

and others were sent to Thaxton without review. Raymond prepared 

a written protocol at some time in 1990 with photographs of AWC 

filters and normal filters. R-1404. The reviewing employees 

were instructed that if the dust pattern did not fall into one of 

the photographic examples of AWCs, it was assumed to be valid. 

After the void code in March 1990, Raymond began reviewing all 

suspected AWCs before sending them to Thaxton. Before that date 

Raymond sent all doubtful filters to Thaxton but thereafter he 

discarded filters which were abnormal in some way but not 

suggestive of AWCs. 15 FMSHRC at 1458-60. Keystone, adopting 

the argument put forth by the LOCC in the common issues trial, 

argues that there were inconsistencies between the criteria 

followed by Thaxton and Raymond in identifying AWCs. It further 

contends that after March 1990 "significantly fewer •suspect' 

filters were sent to Thaxton for review and citation issuance. 

As would be expected, the number of AWCs cited . . . then 

dropped." LDCC brief at 23. 

However, the inconsistencies between Thaxton and Raymond 

were not nearly as great as Keystone contends. The LDCC brief 

states that in a comparison session between Thaxton and Raymond, 

they "did not -agree on any filter that exhibited an AWC 

appearance." LDCC brief at 19. In fact Raymond testified that 

they disagreed only on two such filters. Further the changes in 

the criteria followed by Raymond in selecting filters to send to 

Thaxton affected only 5 percent of the filters. 15 FMSHRC 1459. 

on many occasions Thaxton reviewed the PHTC referrals of 

suspected AWCs and was satisfied that PHTC was properly referring filters to him. Thaxton of course made the ultimate decision to 

cite or not in each case. 

I find that the evidence does not establish that changes in 

AWC selection criteria by MSHA at or about the time the void code 

was instituted explain any decline in the rate of cited AWCs at 

Urling after that date. 

G. OPTIONAL OPERATOR QUARTZ SAMPLES AND MSHA INSPECTOR SAMPLES 

The Secretary argues that because R & P submitted optional 

quartz samples from which R & P would have no motive . to remove 

dust, and none of the samples exhibited AWC appearances, this 

confirms his contention that the cited filters resulted from 

deliberate tampering . R & P submitted 75 optional quartz samples 

from August 1, 1989 to March 31, 1991; 11 were from Urling. 

R & P submitted 3,251 compliance samples from July 1, 1989 to 

December 23, 1990; 410 were from Urling. Thus the optional 

quartz samples represented approximately 2 or 3 percent of the 

compliance samples. None of the quartz samples were made 

available for inspection or comparison in preparation for .this 

case since they were all destroyed in analysis. The persons at 

the PHTC who examined the quartz samples for AWC appearances were 

88 7 
not called to testify. These facts make it impossible to draw 

any conclusions from the fact that no AWC appearances on quartz 

samples were noted or cited by MSHA. 

During the period August 1, 1989 to May 1, 1991, seven 

inspector samples taken from Keystone mines (none from Urling) 

were found by Thaxton to have AWC appearances (one of them was 

classified under tamper code 11 as a no-call). The inspectors 

were not called to testify. I am unable to draw any conclusions 

from the fact that some inspector samples were found to have AWC 

appearances. 

VI . R & P's ENVIRONMENTAL SAFETY DEPARTMENT 

In his opening statement, counsel for the Secretary argued 

that the evidence would establish that "a person or persons at 

the central laboratory were deliberately tampering with the 

cassettes being submitted to MSHA." Tr. 14. Because all the 

persons who worked in the ESD dust laboratory during 1989 and 

1990 were witnesses, it is important to evaluate their testimony 

and credibility. 

Dennis Hellgren has been Director of Safety for R & P since 

February 1989. In that capacity he supervised Donald Eget and 

the ESD dust laboratory. Hellgren has been employed in the 

safety or training divisions of R & P since October 1976. Prior 

to that he worked for the Mining Enforcement and Safety 

Administration (predecessor of MSHA) as a training specialist for 

18 months. 

Hellgren was aware beginning in early February 1990 that 

MSHA was investigating R & P's dust sampling program. He learned 

that special investigators had interviewed foremen at R & P's 

Florence 2 mine. Hellgren contacted an MSHA special investigator 

on February 2 and later other MSHA officials to discuss the 

investigation. Other R & P foremen were interviewed. Hellgren 

discussed the investigation with Eget, and when he later learned 

that R & P was under investigation by the United states 

Attorney's office, he communicated that information to Eget. 

After ESD personnel discovered some filters from R & P's 

Heshbon mine that apparently had been tampered with, the Heshbon 

superintendent called a meeting on May 24, 1990 to discuss the 

incidents. Hellgren was present at the meeting. Randy Thomas, a 

Heshbon miner, was also present. Thomas had been employed in the 

coal laboratory, adjacent to the dust laboratory in the mid1970's. Thomas stated at the meeting that while working in the 

laboratory he had witnessed a dust laboratory employee, Gary 

Foehrenbach, directing air from an air hose into a dust sample 

cassette. Hellgren testified that he thought it very likely that 

Thomas did not see what he believed he saw 15 years previously. 

888 
Hellgren learned that Robert Anderson, now President of 

Keystone and prior to July 1993 Assistant Vice President of 

Operations for R & P, had been joking with dust technician 

Gleditsch about the MSHA respirable dust investigation. Hellgren 

asked Anderson to refrain from such kidding because the dust 

technicians felt harassed about the subject. 

Hellgren stated that he never observed Eget, Houck, Snyder, 

Bolinger, Gleditsch, or Hollern tampering with respirable dust 

samples, nor did he authorize or instruct any of them to tamper 

with samples. Hellgren testified that he would not tolerate any 

type of tampering, and would have fired Eget if he learned that 

Eget was tampering. In fact, Hellgren believes Eget to be a 

person of integrity who would not himself tamper or tolerate 

tampering by his subordinates. 

Donald Eget worked for R & P for more than 21 years until 

his retirement on December 31, ·1991 . He was supervisor, 

Environmental Control commencing in October 1970, when the dust 

sampling program was instituted, until his retirement. Eget has 

a degree in mining engineering from Pennsylvania State 

University. 

Eget was responsible for supervising the dust sampling 

program in the R & P mines. On a typical day after reporting to 

the dust laboratory, Eget would go to the mines and pick up the 

pumps with samples taken during the previous afternoon and 

midnight shifts. He returned them to the laboratory and with 

Shawn Houck prepared the samples for mailing to MSHA. Eget kept 

a log book for each mine , viewed each sample through the cassette 

inlet after removing the plug, and recorded in the log book what 

he saw. Eget recorded his observations as "a form of protection" 

in case the filter resulted in a citation so that he could later 

explain what he had seen in the filter. Tr. 2373. He also 

checked the dust data cards for accuracy. ' 

Eget was made aware of MSHA's investigation of the dust 

sampling program by Hellgren prior to receiving the first AWC 

void notice in March 1990. Many years previously in 1978, Eget 

talked to an MSHA inspector and another federal official 

concerning an investigation of unusual dust samples at R & P. 

Eget testified that he never saw former dust technician 

Foehrenbach use an air hose to tamper with dust samples. Eget 

was aware of criminal prosecutions involving other coal companies 

for tampering with dust samples. 

In April and May and again in September 1990, Shawn Houck 

discovered and alerted Eget to samples from the Heshbon mine 

which had apparently been tampered with. MSHA was notified and 

the samples were voided as contaminated. R & P investigated the 

incidents but was unable to discover the cause. The September 

sample had been tampered with without removing the cassette from 

889 
the sampling head, since a wire tie had been affixed to the 

cassette prior to sampling and had not been removed. Eget and 

Houck tested a special R & P sample by injecting air into the end 

of the sampling hose. This resulted in a duplication of the 

tampered sample. Eget does not recall participating in an 

experiment with Houck in which they attempted to remove dust from 

a filter by blowing into the cassette. · 

Eget denied that he ever tampered with samples submitted to 

MSHA. He stated that he did not see any other dust laboratory 

employee tamper, nor would he tolerate tampering by his 

subordinates. 

Shawn Houck worked for R & P for more than 3 years until he 

was laid off December 7, 1990. He was initially hired as a 

calibration technician and later became a dust technician. He 

was not certified for underground dust sampling. In 1989 and 

1990 Houck's duties included preparing the dust pumps for the 

dust technicians; cleaning the pumps, sampling heads, and hoses; 

laying out the cassettes for Eget's inspection; and completing 

the dust data cards. 

When R & P received notice of the AWC void code on March 26, 

1990, Houck discussed its meaning with Eget. Houck previously 

had heard of the MSHA investigation of the dust sampling program 

when an investigator contacted Bolinger. 

Houck testified that he and Eget "way before any of this 

ever occurred" conducted an experiment on a special cassette to 

see whether blowing through the outlet would result in a weight 

loss. No significant weight loss was detected and Houck did not 

consider the experiment important. Tr. 2191-93. 

Houck discovered the three samples from the Heshbon mine 

that apparently had been tampered with, one in April, one in May, 

and one in September 1990. After the May incident, wire ties 

were affixed to the sampling heads to prevent removal of the 

cassette without breaking the wire. The September sample had 

apparently been tampered with without removing the cassette. 

Houck and Eget using a special test cassette forced air through 

the assembly hose and created a filter similar in appearance to 

the September Heshbon filter. 

Houck denied that he ever tampered in any way with samples 

submitted to MSHA. He denied ever seeing anyone else tamper with 

the cassettes. 

Douglas Snyder has been employed by R & P since May 1979, 

and has been a dust technician since March 1980. He has been 

responsible for the dust sampling at Urling since 1980. After 

Houck was laid off in December 1990, Snyder and the other dust 

technicians were responsible for cleaning and assembling the 

890 
pumps and sampling assemblies, and filling out the dust data 

cards. 

In February 1990, prior to R & P's receipt of the first AWC 

void notice, .Snyder heard that MSHA investigators were conducting 

an investigation of white centers in respirable dust samples. 

Four designated area samples taken by Snyder were cited 

AWCs. Snyder denied that he tampered with these samples in any 

way. He denied tampering with any other samples or seeing anyone 

else in the dust lab tamper with them . 

Robert Bolinger was a dust technician at R & P for about 

15 years until he retired in January 1992. At various times he 

was responsible for sampling at R & P's Helvetia mines 

(Lucerne 6, Lucerne 8, and Lucerne 9) and the Jane and Margaret 

11 mines. Before he became a dust technician, Bolinger was a 

union miner. He was found to have x-ray evidence of black lung 

and worked as a Part 90 miner. In August 1989, Bolinger picked 

up dust samples at Urling when Snyder was on medical leave. He 

also picked up samples for Eget at various times. 

Bolinger learned of MSHA's AWC investigation prior to 

R & P ' s receipt of the void code notice on March 26, 1990 . Thomas Hollern told Bolinger that Florence mine foremen had been 

interviewed about dust sampling, and an MSHA investigator came to 

Bolinger's home looking for his son, Robert Bolinger, Jr., who 

was a section foreman at R & P's Emilie mine. 

Bolinger denied tampering with respirable dust samples. He 

denied seeing any of the other dust technicians or Houck or Eget 

tamper with dust samples. In his testimony, Bolinger expressed 

some hostility toward MSHA. He stated that "the whole program • • • was a bunch of harassment by these [MSHA] people." Tr. 3069. Bolinger had been decertified once because he 

inadvertently put the wrong tonnage on a dust data card when an 

inspector was present. 

Jack Szentmiklosi was employed with R & P as a miner for 

23 years. He formerly was a UMWA safety committeeman. While in 

the mine off ice looking at a mine map sometime before October 

1992, Szentmiklosi overheard a conversation between Bolinger and 

Anderson. According to szentmiklosi, Anderson told Bolinger that 

he was in big trouble for tampering with dust pumps. Bolinger 

replied that if he fell, he would take a lot of big people with 

him. Szentmiklosi later asked Bolinger about the conversation. 

According to Szentmiklosi, Bolinger did not want to talk about 

it. Bolinger testified that he did not recall hearing Anderson 

make such a statement, and he denied making the statement to 

Anderson which Szentmiklosi attributed to him. 

891 
Thomas Hollern was a dust technician at R & P from early 

1980 until he was laid off in October 1991. He ~ad been with 

R & P since 1975. At the time Hollern was laid off he was 

responsible for sampling at the Heshbon and Florence 2 mines. In 

1989 and 1990 he sampled at Lucerne 8 and Florence 2. Hollern 

had not sampled at Urling since the late 1970s. Early in 

February 1990 Hollern was told by foremen at the Florence 2 mine 

that they had been contacted by MSHA investigators concerning 

dust samples. He also knew of MSHA contacting Bolinger looking 

for Bolinger's son. Eget told Hollern of the first Heshbon 

tampered sample in early April 1990. Hollern talked to the miner 

operator and section foreman, but was unable to determine what 

caused the sample. Houck told Hollern of the second Heshbon 

tampered sample in which there was no filter paper in the 

cassette. The third Heshbon tampered sample showed a small hole 

in the filter and the wire tie attached to the sampling head was 

intact. Hollern never learned what caused any of these abnormal 

filters. Hollern testified that he has never tampered with MSHA 

dust samples and has never seen Eget, Houck, Gleditsch, Bolinger, 

or Snyder tamper with MSHA dust samples. 

Herbert Gleditsch has been an R & P dust technician since 

April 1970. He has a bachelors degree in science education and 

was a school teacher before working for R & P. During 1989 and 

1990 he was responsible for dust sampling in the Emilie mines, 

the Jane mine, and the Keystone cleaning plant. On occasion 

Gleditsch has picked up pumps from the Urling mine. He was aware 

of MSHA's investigation of R & P's dust sampling because a 

foreman at Jane mine had been interviewed by an investigator. 

Gleditsch testified that he has never tampered with dust samples 

submitted to MSHA, that Eget never suggested that Gleditsch 

tamper with such samples, and that he never saw Eget, Houck, 

Bolinger, Hollern, or Snyder tamper with dust samples. Gleditsch 

has been kidded about the dust sampling investiga.tion. He was 

called "Mr. Donut" by an MSHA inspector. Tr. 2685, 2735. The 

kidding has upset Gleditsch. 

Randy Thomas worked for R & P in the coal analytical lab for 

about 1-1/2 years beginning in 1976. He worked for R & P in 

other capacities until he was laid off in 1991. The coal 

analytical lab was located adjacent to the ESD in the same 

building. Thomas testified that in the 1970's he witnessed Gary 

Foehrenbach directing air into dust cassettes with an air hose. 

According to Thomas, when he asked why Foehrenbach was doing it, 

Foehrenbach said the miners put dust in deliberately, and he was 

blowing the excess particles out as his way of making things 

even. While working at R & P's Heshbon mine in 1991, the mine 

superintendent stated at a meeting that anyone caught tampering 

with respirable dust samples would be punished. Thomas then told 

what he had seen Foehrenbach do. 

892 
Gary Foehrenbach was employed by R & P from 1974 until he 

was laid off in June 1993. He worked as a dust technician from 

1974 until August 1978. While a dust technician, Foehrenbach 

cleaned pumps and cassettes using rags and an air ·hose. 

Foehrenbach testified that when he used the air hose to clean 

cassettes, the plugs were in the cassette inlet and outlet. He 

denies ever using an air hose to remove dust from the inside of a 

cassette. Foehrenbach does not recall a conversation with Thomas 

in which he told Thomas that he was removing particles from 

inside cassettes. 

Ray Wygonik is the Manager of Mines for Keystone. He 

recalls a conversation in April 1991 with R & P Vice President 

Anderson and Gleditsch during which Anderson joked with Gleditsch 

that he was in trouble because of the dust sample investigatU>n . Wygonik sensed that Gleditsch was not taking it well and 

suggested to Hellgren that he tell Anderson to ease up. 

Robert Anderson has been President of Keystone and Helvetia 

since July 1993. He was previously R & P Vice President for 

Operations. Anderson does not recall making the statement that 

Szentmiklosi said he made to Bolinger. He testified that if he 

did, it was in jest. Neither does he recall the conversation 

testified to by Wygonik. Anderson testified that he has no 

reason to believe that either Bolinger or Gleditsch tampered with 

respirable dust samples. 

VII. RESPIBABLE DUST CITATION HISTORY 

From September 20, 1987 to May 15, 1990, Urling received 

seven citations for violations of Part 70 mandatory health 

standards concerning respirable dust as follows: 

30 C. F. R. Section 

70.lOO(a) 

70.208(a) 

Number of Citations 

5 

2 

Urling received two of these citations in 1987, two in 1988, 

two in 1989, and one in 1990. The total penalties paid for the 

seven citations was $1,568. Urling received a total of 965 

citations for all violations during this period (inciuding the 

seven) for which $227,533 was paid. See G-541. 

During this same period, Keystone (including Urling) 

received 54 citations for violations of Parts 70 and 71 mandatory 

health standards concerning respirable dust as follows: 

30 C. F.R. Section 

70.lOO(a) 

70.101 

8 9 3 

Number of Citations 

42 

l 
70.207(a) 

70.208(a) 

71.30l(c) 

2 

8 

1 

Keystone received eight of these citations in 1987, 22 in 

1988, 14 in 1989, and 10 in 1990. The total penalties paid for 

the 54 citations was $10,643. Keystone received a total of 4,458 

citations for all violations during this period (including the 

54) for which $926,769 was paid. See G-542. 

Also during this same period, R & P (including Keystone) 

received 239 citations for violations of Parts 70, 71, and 90 

mandatory health standards concerning respirable dust as follows: 

30 C.F.R. Section 

70.lOO(a) 

70.101 

10.202(a) 

70.207(a) 

70.208(a) 

70.208(c) 

70.209(c) 

70.220(a) 

70.400 

71.100 

71.205(b) 

71.208(a) 

71.220(a) 

71.JOO(a) 

71.30l(c) 

90.100 

90.103{a) 

90.300 

Number of Citations 

115 

11 

4 

26 

36 

6 

5 

3 

10 

5 

1 

5 

1 

1 

1 

7 

1 

1 

R & P received 22 of these citations in 1987, 101 in 1988, 

83 in 1989, and 33 in 1990. The total penalties paid for the 239 

citations was $42,103. R & P received a total of 8,904 citations 

for all violations during this period {including the 239) for 

which $1,577,905.20 was paid. See G-543. 

In 1988, the ESD processed 2,826 respirable dust samples to 

satisfy Parts 70, 71, and 90. In 1989, the ESD processed 2,248 

such samples. R-2049. Less than 4 percent of R & P's respirable 

dust samples were cited during these 2 years preceding initiation 

of the void code. 

The small percentage- of citations and relatively modest 

amount of the penalties paid for violations of the respirable 

dust standards during the 2 years preceding initiation of the 

void code do not indicate a significant respirable dust citation 

894 
problem which could arguably have motivated tampering with the 

samples. 

Furthermore1. Hellgren testified that under the provisions of 

R & P's coal sales agreements, any penalty assessments, including 

assessments for respirable dust violations, were passed on to the 

utilities purchasing the coal. 

ULTIMATE FINDINGS AND CONCLUSIONS OF LAW 

I. THE STANDARD OF PROOF 

The same evidentiary burden is applicable in the Keystone 

mine-specific case as was applicable in the common issues trial: 

the Secretary must prove by a preponderance of the evidence that 

the 75 cited Urling filters resulted from intentional tampering. 

I have to consider all the evidence introduced in the common 

issues trial and in the Keystone trial in determining whether he 

has carried that burden. 

The parties do not disagree as to who has the burden of 

proof in this·, case or what the burden entails in principle. The 

essential agre~ment is obscured by some rhetorical fog however. 

The Secretary: Keystone's argument "is a brazen attempt to 

elevate the burden of proof well beyond the established level for 

civil proceedings." Secty•s brief at 3. Keystone: "It is time 

that the Secretary's attempt to cobble together a case out of 

inference and innuendo be rejected. " Keystone's brief at 15. 

Both parties cite the Commission's opinion in Garden Creek 

Pocahontas Co. , 11 FMSHRC 2148 (1989), which laid down the 

following rule for burden of proof: 

The Mine Act imposes on the Secretary the burden of 

proving the violation the Secretary alleges by a 

preponderance of the evidence . • . • The Commission 

has recognized that in certain circumstances the 

Secretary may establish a violation by inference . . . • Any such inference, however, must be 

inherently reasonable and there must be a rational 

connection between the evidentiary facts and the 

ultimate fact inferred. 

~at 2152-53 (citations omitted). 

The burden of proving by a preponderance of the evidence 

requires the party bearing the burden to convince the trier of 

fact "that the existence of a fact is more probable than its 

nonexistence •••• " Concrete Pipe and Products of California, 

ln£.!. v. Construction Laborers Pension Trust for Southern 

California, 508 U.S. (1993}, 124 L.Ed . 2d 539, 563 (citation 

omitted). To preponderate, the evidence must be sufficient to 

convince the trier of fact that the proposition asserted is more 

895 
likely true than not true. See, ~' Hopkins v. Price 

Waterhouse, 737 F. Supp. 1202 (D.D.C. 1990), aff'd, 920 F.2d 967 

(D.C. Cir. 1990); Merzon v. county of Suffolk, 767 F. Supp. 432 

(E.D . N.Y. 1991); Smith v. United States, 557 F. Supp. 42 (W.D. 

Ark. 1982), aff'd, 726 F.2d 428 (8th Cir. 1984). Preponderance 

of the evidence means "the greater weight of evidence, evidence 

which is .more convincing than the evidence which is offered in 

opposition to it." St. Paul Fire & Marine Ins. Co. v. United 

States, 6 F.3d 763, 769 (Fed. Cir. 1993) (citation omitted). 

Where the evidence is equally balanced "or if it cannot be said 

upon which side it weighs more heavily, plaintiff has not met his 

or her burden of proof. " 557 F. supp. at 52. 

All of the evidence must be given appropriate weight, 

whether it be direct or circumstantial, testimonial or written, 

expert or lay . Circumstantial evidence may prove an ultimate· fact "if upon consideration of all the circumstances revealed by 

the evidence [the trier of fact is) satisfied that in logic and 

common experience the ultimate fact is more likely than not to 

follow from the fact proved." Selle v. Gibb, 567 F. Supp. 1173, 

1182 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984). 

In the common issues trial, conflicting expert scientific 

evidence was i-ntroduced concerning the possible and probable 

causes of the abnormal filters. Conflicting expert statistical 

evidence was introduced concerning the meaning of the rate of 

cited AWCs and the decline in the rate of cited AWCs. I excluded 

evidence concerning min~ handling practices precisely because 

such practices vary from mine to mine and therefore do not raise 

"common issues. " I held that on the basis of the evidence 

introduced in the common issues trial, the Secretary failed to 

establish by a preponderance of the evidence that the cited 

filters resulted from intentional tampering. I left for minespecific trials consideration of the sampling practices at 

individual mines and the relationship of those practices to the 

question of tampering . 

The burden of proof remains with the Secretary throughout 

this proceeding. He must prove by a preponderance of the 

evidence that Keystone tampered with the cited samples. Keystone 

does not have the burden of establishing that the appearances on 

the samples resulted from some other cause. · 

II. ISSUANCE OF THE CITATIONS 

The Keystone citations, like all the other citations in the 

consolidated cases, were issued because Robert Thaxton concluded 

that the dust deposition patterns on the cited filters evidenced 

tampering. Thaxton believed that the abnormal appearances of the 

dust in the center of the filters were similar to those that he 

had experimentally created by reverse air tests in 1983. He did 

further testing in 1989 after an abnormal abatement sample was 

8 96 
received from Peabody Coal Company. Peabody was indicted and 

eventually pleaded guilty to tampering with respirable dust 

samples. On the basis of his tests and a comparison. with Peabody 

filters, Thaxton concluded that the abnormal appearances did not 

result from normal sample collection in the mines but from 

intentional tampering involving the introduction of reverse air 

into the dust laden cassette or the insertion of a foreign object 

designed to remove dust from the center of the filter. I 

previously stated that Thaxton's conclusions were not supported 

by systematic scientific experiments. Subsequently such 

experiments were performed by Ors. Marple, Rubow, Lee, Grayson, 

and McFarland . 

I conclude on the basis of Robert Thaxton's studies that the 

appearances on the cited Keystone filters did not result from 

normal sampling in the Urling mine. Something occurred in the 

mine or thereafter to cause the abnormal appearances. But 

Thaxton's conclusions that what occurred was intentional 

tampering is to a considerable extent subjective. Thaxton did 

not prepare a comprehensive written protocol based on scientific 

testing relating specific appearances to different kinds of 

tampering. Further, the distinction Thaxton has made between the 

appearances of the cited filters and many of the no-calls is 

tenuous at best. I reject the Secretary's argument that the 

decision not to cite those no-calls (a decision related to 

Thaxton's feeling "comfortable") is "an appropriate exercise of 

the agency's discretion." Secty's brief at 27 . Whether to 

charge a coal mine operator and its employees with deliberately 

tampering with dust samples so as to falsify respirable dust 

levels in the mine must be based on more objective standards. 

Therefore, although I accept Thaxton's determination that the 

appearances on the cited Urling filters were abnormal, and 

although I previously found that his decisions to cite were 

sufficiently consistent for the purposes of the common issues 

trial, I am not able to conclude on the basis of Thaxton's 

reports and testimony t~at the abnormal appearances on the Urling 

filters were caused by intentional tampering. 

Keystone argues that the delay in issuing the citations 

prejudiced its ability to defend itself in these proceedings. In 

part this argument was addressed in my orders denying motions to 

vacate filed by Southern Ohio Coal Company and others, 14 FMSHRC 

928 (1992); Utah Power and Light Company, 14 FMSHRC 1098 (1992); 

and Mettiki Coal Corp., 14 FMSHRC 1104 (1992). The record does 

not support Keystone's argument that it was prejudiced by the 

delay, and I reject the contention. 

89 7 
III. HANDLING OF THE CASSETTES AND SAMPLING EQUIPMENT 

IN THE URLING MINE AND THE ESD 

on the basis of my findings on page 12, supra, I conclude 

that the reverse air dust dislodgment patterns on the cited 

Urling filters could have resulted from accidental impacts to the 

sampling equipment, particularly the hoses, in the Urling mine 

during sampling or after the samples were taken. I conclude that 

the dust dislodgment patterns did not result from intentional 

tampering by miners or section foremen in the mine (nor does the 

Secretary contend that they did). on the basis of my findings on 

page 8, supra, I conclude that the reverse air dust dislodgment 

patterns on the cited Urling filters could have resulted from 

accidental impacts to the sampling equipment, particularly the 

hoses, while the samples were being handled by R & P ' s ESD lab 

personnel. Also, on the basis of my common issues decision, I 

conclude that reverse air dust dislodgment patterns on the cited 

Urling filters could have resulted from intentional tampering 

including blowing by mouth or otherwise directing air into the 

cassette outlet or introducing a vacuum source into the cassette 

inlet. 15 FMSHRC at 1515. If such tampering occurred, it must 

have occurred ,at the ESD lab by ESD employees. Therefore, in 

order to determine whether the abnormal dust dislodgment patterns 

resulted from deliberate tampering or from incidental and 

accidental handling of the sampling equipment, I must consider 

and analyze the scientific and statistical evidence, and evaluate 

the testimony and credibility of the ESD employees. 

IV. THE SCIENTIFIC EVIDENCE -- THAXTON/MARPLE vs. LEE 

Robert Thaxton is not a scientist but has probably examined 

more respirable dust filters than anyone in the United states. 

He first investigated filters exhibiting what he considered 

abnormal white centers in 1983, and it was his judgment that 

resulted in the issuance of the more than 5000 citations, 

including 75 to Urling, in 1991 alleging intentional tampering. 

Dr. Marple and Or. Lee are scientists with impressive credentials 

and backgrounds. 4/ Each has spent considerable time and 

scientific expertise over the past 3 years in investigating the 

abnormal white center phenomenon, and its possible causes. Their 

conclusions differ in many respects. 

After examining the cited Urling filters, Dr. Marple 

concluded that 71 or 72 . of them resulted from reverse air flow 

through the cassette outlet, that two or three resulted from a 

vacuum source being introduced into the cassette inlet and 

removing dust, and one resulted from water being introduced into 

the fi~ter. Marple believed his experimental filters created by 

4/ There is no basis in the record to support the 

secretary's assertion that Dr. Lee was a biased witness. 

898 
reverse air were comparable to the 71 or 72 which he classified 

as type A, and that his experimental filters created by a vacuum 

were comparable to the two or three which he classified as 

type c. He further concluded that none of the Urling cited 

filters were comparable to Marple experimental filters classified 

as type E which resulted from cassette impact. He classified the 

water stain filter as other, and originally was unable to ascribe 

a cause to it. 

Dr. Lee concluded after examining the cited Urling filters 

that most showed comparatively slight dust dislodgment from the 

central area . The dust within the central ring had a color and 

density similar to that outside the ring. None had cones and 

only a few had possible or slight indications of dimples. The 

dust dislodgrnent patterns resulting from Lee's experiments 

involving deliberate blowing of air in the outlet showed sharp 

6-millimeter rings with definite dislodgrnents within the ring and 

a high percentage of cones and dimples. Lee determined that the 

Urling filters had a slightly larger diameter than those created 

by deliberate reverse air. On the basis of these considerations, 

Dr. Lee concluded that the Urling filters did not result from 

deliberate blowing through the cassette. 

Dr. Marple disagreed with Dr. Lee that the comparatively 

slight dislodgrnents indicated smaller impact forces. Marple 

believed that the threshold velocity of the dust on the filter 

was the overriding factor in determining its susceptibility to 

dislodqment. On this issue I conclude that both threshold 

velocity and degree of impact force are important in the 

resulting dust dislodgment pattern. 

With respect to the water stain filter, Lee stated that in 

his opinion it did not result from a wet cotton swab being 

inserted in the cassette . Lee stated that unlike Marple's 

experimental filters, this filter did not show any marks 

indicating swabbing. See 15 FMSHRC at 1478. 

When Thaxton reviewed all the cited filters in August 1992, 

six of Urling's filters were reclassified from tamper code 2 to 

tamper code 3 because of the presence of cones. When Urling 

cited filters were examined by Thaxton in 1993 none ~howed cones, 

one was described as showing a dimple, and two as having "slight 

dimple[s]." Thaxton explained the absence of cones by the fact 

that the filter tends to relax over time, resulting in the 

disappearance of the cone. Lee disagreed with this conclusion 

because he found no indication in examining his experimental 

filters that the cone relaxes over time. The testimony of both 

Dr. Lee and Dr. McFarland at the common issues trial cast doubt 

on Thaxton's judgments as to the presence of cones. ~ 

15 FMSHRC at 1493 (Lee) and 1504 (McFarland). I conclude that 

none of the cited filters exhibited cones at the time the 

citations were issued. In itself this conclusion does not mean 

899 
that the filters were not tampered with, but it does indicate 

that the impact forces creating the dislodgments were relatively 

slight. 

I conclude that the preponderance of the evidence does not 

show that the water stain filter (324842) resulted from 

deliberate tampering. I conclude that the preponderance of the 

evidence does not show that filter 325300 resulted from 

deliberate tampering. The Secretary's evidence relating to both 

of these filters is inconsistent and unconvincing. I further 

conclude that the 73 other cited Urling filters resulted in whole 

or in part from reverse air flow through the filter. I conclude 

that the reverse air impact forces were generally less than those 

created by deliberate blowing through the filter cassette. The 

dust dislodgment patterns may have been influenced by impacts to 

the cassettes or sampling assemblies as well as reverse air 

through the cassettes (mixed-mode theory of Dr. Lee). 

V. THE STATISTICAL EVIDENCE MILLER vs. ROTH 

Dr. Miller and Dr. Roth are both expert statisticians with 

impressive credentials. Both have published extensively in the 

field of statistics, and both have previously testified as expert 

witnesses. Using the same data they have arrived at some very 

different conclusions in this case. Their use of the data is 

different in two respects: Dr. Miller used March 26, 1990 as the 

cutoff date between before and after periods. Dr. Roth saw 

"nothing magic" about the March 26, 1990 date. Dr. Miller 

generally used weekly periods to compare rates of cited 

cassettes. Dr. Roth used bimonthly periods. With respect to the 

cutoff date, I conclude that March 26, 1990 is not the most 

logical cutoff point. If it is assumed that a change in behavior 

resulted from knowledge of the ongoing MSHA investigation, the 

evidence shows that the ESD personnel and Keystone management 

were aware of the investigation from early February 1990, 6 weeks 

or more before the notification of the void code on March 26. I 

am attaching to this decision as Appendix A a graph prepared by 

Dr. Miller {G-500, attachment A-1) and as Appendix B one prepared 

by Dr. Roth (R-2129B). · or. Miller's graph shows the cited rate 

by week for Urling from August 1, 1989 to March 31, 1992 with a 

vertical line drawn at March 25, 1990. Or. Roth's graph shows 

the bimonthly cited rate for Urling from September 1989 to March 

1992. I agree with Dr. Roth that it is preferable to use 

bimonthly periods to compare cited rates because dust sampling is 

done on a bimonthly basis. I agree with Dr. Miller that there 

was a sharp decline in the cited rate on or about March 26, 1990. · I agree with Dr. Roth that there was overall decline in cited 

rates from September 1989 to April 1990. I agree with Dr. Miller 

that in general the dates of cassette manufacture do not seem 

overall to explain the differences in the cited rate. On the 

other hand I agree with Dr. Roth that the fact that 60 percent of· the cited Urling cassettes were manufactured on four consecutive 

900 
working days in May and June 1989 is highly suggestive of 

manufacturing anomalies on those dates. 

I am unable to conclude on the basis of the statistical 

evidence that the changes in the rates of cited cassettes at 

Urling establishes that a change in the behavior of Urling 

personnel was related to their perception of an MSHA 

investigation of the respirable dust sampling program at the 

mine. 

VI. ESD PERSONNEL -- CREDIBILITY 

Unlike the common issues trial this case involves 

allegations that specific persons tampered with the cited dust 

samples, namely the people employed at R & P's ESD dust lab. 

Because all of them testified I have had the opportunity of 

observing them and assessing their credibility. Credibility 

determinations, of course, are more complex than merely 

evaluating demeanor on the witness stand, steadiness of voice, 

eye contact, body language, etc . , important though these may be. 

In this case credibility must take into account the extensive 

factual evidence related to practices in the mine and in the dust 

lab, the scientific evidence, the statistical evidence, and the 

witnesses' prior knowledge of criminal and civil sanctions for 

tampering. 

I previously indicated that I consider the violations 

charged here to be very serious in that they placed in jeopardy 

the health of the miners including those accused of tampering . The record before me shows that a large number of mine operators 

and agents have pleaded guilty to criminal charges of tampering. 

So despite what I consider the heinousness of the practice, I 

recognize that miners and mine operators have tampered with and 

removed dust from respirable dust samples submitted to MSHA. 

As a practical matter only Eget and Houck among the ESD 

personnel had any substantial opportunity to tamper with the 

samples. The dust technicians spent considerable time in 

distributing and collecting the pumps and travelling between the 

mines and the dust lab. It would have been very difficult for 

them to separate the sampling assemblies, remove the cassettes, 

and remove dust from the filters. Eget and Houck, on the other ·hand, spent much of their time in the lab and, in the course of 

their duties, removed the cassettes from the sampling assemblies. 

Eget examined each cassette and viewed the filter through the 

cassette inlet. 

901 
What would motivate sl these employees -- Eget, a mid-level 

supervisor, and Houck, a calibration technician employed at R & P 

for only 3 years, to engage in the seriously illegal conduct with 

which they are charged? The Secretary suggests three possible 

incentives: first, to avoid penalties for overweight samples; 

second, to avoid the irksome chore of resampling if overweight 

samples were submitted; and third, to avoid the "enormous 

potential costs associated with not achieving compliance." 

Secty's brief at 98. The enormous potential costs, according to 

the Secretary, may include reworking the mine's ventilation 

system, or dust suppression systems, or reducing the speed at 

which the continuous mining machine operates. But neither Eget 

nor Houck was directly involved in coal production; neither 

reported to a production supervisor. Neither would pay any 

penalty. Eget and Houck processed dust samples all day every 

day. Although resampling would have required additional work, it 

would not appear to represent a substantial burden for the ESD. 

The Secretary suggests that Eget had a personal incentive to 

tamper in that if few dust citations were issued management would 

be disinclined to interfere with his unsupervised control of the 

activities of the ESD. In themselves, these "incentives" seem 

very weak. Considered with the relatively small history of prior 

dust violations, they practically disappear. Both Eget and Houck 

knew that tampering was illegal. Eget at least was aware that 

such acts could result (and had resulted) in criminal sanctions. 

I discount the testimony of Randy Thomas that he had 

witnessed tampering with dust cassettes at ESD some 15 years 

prior to his testimony. I considered his testimony even though 

it was remote in time to the tampering charged in this case, and 

weighed it in conjunction with the testimony of Gary Foehrenbach 

who allegedly engaged in the tampering. I conclude that Thomas 

misunderstood what he saw or his recollection was dimmed by the 

passage of time, and that what he saw was Foehrenbach using an 

air hose to clean sampling equipment. In any event Foehrenbach 

has not worked in the ESD lab for many years, and the Secretary 

does not implicate him in the violations charged. 

I was impressed by the backgrounds of Eget and Houck and 

their forthrightness on the witness stand. I have carefully 

considered their testimony. Relying on the absence of any 

adequate motive for tampering, and the strong disincentive 

provided by their knowledge of possible sanctions for tampering, 

I accept as truthful the statements of each of them that he did 

sl The Secretary argues that he is not obliged to show a 

motive for the alleged tampering. But he is obliged to prove 

tampering, and motive or its absence may be evidence to show "the 

doing or not doing of the act." J. H. Wigmore, The Science of 

Judicial Proof 117 (Jd ed. 1937) cited in Garner, A Dictionary of 

Modern Legal Usage 366 (1987). 

902 
not tamper with compliance respirable dust samples submitted to 

MSHA. 

I indicated earlier that the four dust technicians, Snyder, 

Hollern, Bolinger, and Gleditsch, would have had little 

opportunity to tamper with the dust samples. And only Snyder 

handled the Urling samples. ·snyder and the three other dust 

technicians testified in this case and denied tampering with any 

MSHA samples. For the same reasons that I accept the testimony 

of Eget and Houck, I accept the testimony of Snyder, Hollern, 

Bolinger, and Gleditsch as truthful. I do not regard the 

testimony of Jack Szentmiklosi as affecting their credibility. 

I agree with the Secretary that credibility determinations 

cannot be made in a vacuum. My decision to credit the testimony 

of Eget, Houck, Snyder, Hollern, Bolinger, and Gleditsch that 

they did not tamper with dust samples takes into consideration 

not only their testimony, but also the evidence concerning the 

handling of dust samples at the mine, and the expert testimony of 

Thaxton, the scientists, and the statisticians. I consider these 

credibility determinations to be of overriding importance in this 

decision. 

ORDER 

Based on the above findings and conclusions and on the 

entire record in the common issues trial and the Keystone trial, 

and considering the contentions of the parties, I conclude that 

the Secretary has failed to carry his burden of proving by a 

preponderance of the evidence that the weight of the 75 cited 

Urling filters was intentionally altered by Keystone. 

Therefore, IT IS ORDERED 

1. The captioned contest proceedings are GRANTED; 

2. Citation Nos. 9860247 through 9860299 and Citation 

Nos. 9862821 through 9862842 are VACATED; 

3. The petitions for civil penalties based on the above 

citations are DENIED and the proceedings are DISMISSEp. 

4. All other pending cases in the consolidated docket are 

STAYED until further order of the Commission. 

Appendices A and B 

~~h~~~ James A. Broderick 

Administrative Law Judge 

903 
Distribution: 

Douglas N. White, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 58th 

Floor, Pittsburgh, PA 15219 (Certified Mail) 

Barry A. Woodbrey, Esq., United Mine Workers of America, 900 15th 

street, N.W., Washington, D.C. 20005 (Certified Mail) 

All others by Regular Mail 

/fb 

904 
> 

'"O 

(1) 

"' l..D ::s 

0 p. 

lJl ..... 

x 

> 

Cited Rate by Week from 8/1/89 to 3/31/92 (Smooth

CIHRATE 

1 . 0 .., 

0.9 

0. 8 

0. 7 

0.6 

o·. s 

0.4 

0.3 

0.2 

l Ii 

: 

0. 1 

0. 0 I . 

• 

.. 

... 

: . : : 

: 

.. 

• 

(Data for Urllng1 Mine ONLY - - New Reduced Anatysis Data Set) 

(Vertical Line at 3/25/90- - Pre and Post Smoothed Separately) 

., 

:1 

:• 

~I ,, 

::, 

:: , 

::, 

::1 

::1 

::: 

::. ::, 

:1:1 

:1 

:1 

' 

••. ~ i••••. • •• . . • . . •• .•• ..•. . •• . .... ............. ..... .. ......... o ................. . - - 

o-r- r 

27JUL89 04NOV89 t 2F£890 23MAY90 JIAUG90 090£C90 19MAR91 27JUN91 050C19

SA MW[[K 
~ • 

'd 

i 

\0 

ID 

::s 0 ~ u 

Cl >< ;: 

b:I c( 

0.6 

0.5 

0.4 

0.3 

0.2 

0.1 

"'* ,, . * ' • 

' 

ATTACHMENT B 

BIMONTHLY AWC RATE FROM SEPTEMBER 1989 TO MAR

FOR URLINO #1 MINE 

' 

' 

t '

t 

t ' 

' 

• 

' 

' 

t 

' 

• 

~ \ 

' 

• 

• \ 

t 

' 

~ 

' 

' 

' t 

' 

' 

' 

' 

' 

:\c .. 0 1 

I I I I I '* lif If{ * lif ... afC JfC lf4 lif 

8-0 N-D H M-A ~ J-A S-0 N-D J.f M-A M.J J-A S.Q N·D J.F 

.. 90 

Bimonthly Sample 

Urllng #1 Mine 

---*---

91 9
PBDBRAL UllB SAPBTr Alll> BBATlrll RBVIBW 0 'NTSSJ:OR 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEES8URG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 0 1994 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

. • 

. . 

. 

• 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-1231 

A.C. No. 46-01309-03786 

: North Branch Mine . . 

DECISION APEROVllfG Sl'Pl'J.BllBNT 

Before: Judge Melick 

This case is before me upon a petition for assessment 

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

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

filed a motion to approve a settlement agreement and to dismiss the case. Respondent has agreed to pay the proposed 

penalty of $400 in full. I have considered the representations and documentation submitted in this case, and I conclude that 

the proffered settlement is acceptable 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 

$400 within 30 days of this order. 

Distribution: 

James v. Blair, Esq., Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd., Room 516, 

Arlington, VA 22203 (Certified Mail) 

Marshall s. Peace, Attorney at Law, 157 West Short Street, 

P.O. Box 679, Lexington, KY 40586 (Certified Mail) 

/lh 

907 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5267/FAX (303) 844-5268 

APR 2 2 1994 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

on behalf of 

MICHAEL BILLINGS, 

Complainant 

v. 

Docket No. CENT 93-157-DM 

SC MD 92-12 

Bayer Alumina Plant 

ALCOA, ALUMINUM COMPANY OF 

AMERICA, 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Morris 

The parties reached an amicable settlement in the above case. 

I have reviewed the proposed settlement agreement and find it 

is reasonable and in the public interest. 

Accordingly, I enter the following: 

ORDER 

1. The settlement agreement is APPROVED. 

2. The case is DISMISSED. 

-

~J orris 

~~~nistrative Law Judge 

Distribution: Certified Mail 

Mary E. Witherow, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

Maria Greco Danaher, Esq., LeBOEUF, LAMB, LEIGY & MacRAE, 425 Sixth 

Avenue, Suite 1444, Pittsburgh, PA 15219 

ek 

908 
FEDERAL MINE SAFETY AND BBALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v . 

JOHN CULLEN ROCK CRUSHING & 

GRAVEL, 

Respondent 

APR 2 2 1994 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 93-172-M 

A.C. No. 05-04420-05502 

Grant Pit 

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

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

for Petitioner; 

John Cullen, Pro Se, Pueblo, Colorado, 

for Respondent. 

Before: Judqe Cetti 

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, 30 U.S.C. § 801 et seq., the "Act". The 

Secretary of Labor on behalf of the Mine Safety and Health 

Administration {MSHA), charges John Cullen Rock Crushing and 

Gravel, the operator of the Grant Pit, with refusing to allow one 

of Petitioner's mine inspectors to inspect Respondent's Grant 

Pit, a gravel pit located near Pueblo, Colorado. 

After due notice to the parties a hearing was held on the 

merits in Pueblo, Colorado. Oral and documentary evidence was 

introduced by the parties and the matter was submitted. The 

parties declined the filing of briefs or proposed findings of 

fact and conclusions of law. 

I 

The 104{a) citation in question was issued to Respondent by 

federal Mine Inspector Lyle Marti. The citation issued by 

Inspector Marti charges Respondent with the violation of section 

l03{a) of the Act which provides in pertinent part: 

"Authorized representatives .of the Secretary 

•.• shall make frequent inspections and investigations in coal or other mines •••. In 

909 
part: 

carrying out the requirements of this subsection, no advance notice of an inspection 

shall be provided .•.. [and the authorize? 

representatives] shall have a right of entry 

to, upon, or through any ..•. mine." 

The citation issued by Inspector Marti states in pertinent 

During the inspection of Grant Pit, John 

Cullen, owner-operator, denied me the right 

to continue my inspection of the mine 

property in accordance with the requirements 

of Section 103 of the Act. 

At approximately 8:00 a.m. on July 22, 1992, 

John Cullen ordered me off the mine property. 

It is undisputed that Lyle Marti is an authorized representative of the Secretary of Labor. 

II 

The Secretary entered into the record in this matter the 

"Injunctive Order" of Judge Richard P. Matsch of the United 

States District Court, District of Colorado issued June 24, 1993, 

in the case of Reich v. John Cullen, individually, and doing 

business as John Cullen Rock Crushing and Gravel, Civil Action 

No. 92-M-2186. After a full evidentiary hearing on April 29, 

1993, in Pueblo Colorado, the Federal District Court found: 

[T]he defendant's own statements constitute 

a basis for finding that he has interfered 

with, hindered and delayed the authorized 

representatives of the Secretary of Labor in 

carrying out the provisions of the Act; has 

refused to admit them to his gravel pit and 

refused to permit the inspection of his 

business. The Department of Labor is, therefore, entitled to an order of this court in 

the nature of an injunction. 

Thus, the Federal District court has enjoined Respondent 

from denying entry upon his mining operations, from refusing to 

permit inspections and from interfering with MSHA inspectors 

carrying out their official duties. The Injunctive Order is 

attached to this decision as Exhibit A. 

III 

It is the Secretary's position that the only issue before me 

is the appropriate penalty for the established violation of 

910 
section 103(a) of the Act. While the secretary's position 

appears sound, we have in the instant proceeding statements and 

admissions volunteered by John Cullen while under oath which 

constitutes a solid basis for finding a violation of · 103(a) of 

the Act. John Cullen under oath openly and frankly volunteered 

the following: 

Well, there's no denying I told these people 

they should leave, and I damn well meant it. 

But I wasn't doing it to violate any law. I 

truly believed that my Constitutional rights 

were violated and that these people should 

not have that kind of power. 

And I still believe that, but I don't think 

that trying to stand up for your rights that 

a person should be penalized for trying to do 

the very best that he can do. 

Q When you say you told these people to 

leave, you're referring to the inspector who 

was making a regular inspection of the gravel 

pit? 

A Well, I guess. He told -- to tell you the 

whole thing here, he left on his own power. 

I did not tell him to leave. He told me, 

"Hey, I'm leaving. I'm out of here." 

Q Why did he say that? 

A Because I was mad, and I ought to have the 

right to be mad. I run the place. 

* * * * * 

And I believe that these people -- maybe 

they don't know it, but they are going to 

ruin the small business of this country. 

And I just can't understand why these 

people (MSHA Inspectors) have more power than 

the FBI or the police or anyone. They need 

no reasonable cause. They can make any 

amount of regulations that they want, 

whenever they want, to enforce those 

regulations. 

And, you know, I'm in business for myself 

because I want to be private and I want to be 

independent. And I don't necessarily want 

the government telling me what to do. And I 

911 
believe in that free country. That's more 

important to me than life, than this 

business, than anything, is to be a free 

person and be -- have a country where my kids 

could start a business and do as they want to 

do. 

With respect to the Respondent's financial condition and the 

effect of the proposed penalty on its ability to continue in 

business Mr. Cullen testified: 

Q This gravel business that you are in, is 

this an intermittent thing or 

A I've made my living off of it for the last 

15 years. Sometimes I made a living. 

Usually -- I'll tell you, I've been told more 

than once to file bankruptcy and get the hell 

out, and I just -- we've struggled and we've 

struggled and we've struggled. 

And maybe now -- I think I own enough 

machinery now, but maybe I could recuperate 

some of· the money that I've lost, maybe pay 

off the second mortgage on my home, and 

things like that. But I -- I can't deal with 

this -- with this -- I don't know --

Q one of the factors in this is your ability 

to pay without going out of business or 

hindering your business, so if --

A You know, it's hard for me to say. Today 

I probably could write a check for $2,000. 

Maybe. I'd have to check with my wife, but I 

have no retirement. My house is in hock to 

the hilt. My machinery needs repairing, and 

I have to make a payroll this Friday. 

And how should -- should I be allowed to 

accumulate anything? Should I be able -- do 

you want to take all I have, or shall I --

can I just keep a little bit? I don't know 

how to address that. 

Q -- the purpose of this (assessing penalties) is to get the operator to comply with 

the law. 

A Okay. I'm going to comply with the law, 

because I'll be out of business. I don't 

want to be out of business. 

912 
IV 

The operator appears to be sincere in questioning the 

authority of federal mine inspectors to enter his mine property 

without his permission and make inspections for regulatory safety 

violations. He apparently believes that his constitutional 

rights are violated and one should not be punished for "trying to 

stand up for your constitutional rights." His beliefs may well 

be sincere but as discussed in greater detail below, they are 

badly mistaken and misguided. 

v 

The terms of the Mine Act as well as the Act's legislative 

history reflect a congressional determination that all mi ning 

related accidents and diseases unduly burden and impede interstate commerce. See section 2(f) of the Mine Act, 30 u.s.c. 

§ 80l(f). 

In addition, the Mine Act defines the Act's scope as including "the Nation's coal or other mines," with no express limitation or exception. 30 u.s.c. §§ 801(c), (d), and (g). The 

legislative history of the Federal Coal Mine Health and Safety 

Act of 1969, the' statute from which the Mine Act derived, also 

indicates that congress intended to regulate mining "to the 

maximum extent feasible through legislation." S. Rep. No. 1055, 

89th Cong., 2d Sess. 1 (1966). Thus, in enacting the Mine Act, 

Congress chose to regulate mines as a class. See Marshall v . 

Kraynack, 604 F.2d 231, 232 (3rd Cir. 1979), cert. denied, 444 

U.S. 1014 (1980) (applying Coal Act to family-owned mining operation); Marshall v. Bosack, 463 F.Supp. 800 (E.D. Pa. 1978), 

aff'd, 3rd Cir. No. 78-1803 (Jan. 15, 1979) (applying Coal Act to 

coal preparation plant). 

Congressional intent to counter the adverse effect of mining 

accidents and injuries by regulating the mining industry as a 

whole has be·en recognized by the Supreme Court. In Donovan v. 

Dewey, 452 U.S. 594, 602 (1982), a case involving a surface limestone quarry, the Supreme Court stated that "--- Congress was 

plainly aware that the mining industry is among the most hazardous in the country and that the poor health and safety record of 

this industry has significant deleterious effects on interstate 

commerce." Congress' finding was "based on extensive evidence 

showing that the mining industry was among the most hazardous of 

the nation's industries. (Sees. Rep. No. 95-181 (1977); H.R. 

Rep. NO. 95-312 (1977)." Id at 602 n. 7. 

It is well established that when Congress regulates a class 

of activity under the Commerce Clause, all members of the class 

are covered, including a particular member whose activities are 

entirely intrastate. Perez v. United States, 402 U.S. 146, 150 

(1971); Fry v. United States, 421 U.S. 542, 547 (1975). 

913 
Thus, when Congress has determined that an activity affects 

interstate commerce, "the courts need inquire only whether the 

finding is rational." Hodel v. Virginia Surface Mining and Reel. 

Assn., 452 U.S. 264, 277 (1981). As stated above, in Donovan v. 

Dewey, supra, 452 U. S . at 602 n. 7, the Supreme Court properly 

deferred to the express findings of Congress, set out in the Mine 

Act itself and based on extensive evidence, about the effects of 

mining-related injuries and diseases on interstate commerce. 

It is well established that a congressional finding that an 

activity affects interstate commerce is presumed to be valid, and 

a reviewing court will invalidate such legislation "only if it is 

clear that there is no rational basis for a congressional finding 

that the regulated activity affects interstate commerce, or that 

there is no reasonable connection between the regulatory means 

selected and the asserted ends." Hodel v. Indiana, 452 U.S. 314, 

323-324 (1981). Mr. Cullen does not and cannot show a lack of 

any rational basis for Congress' finding that mining-related 

accidents and diseases at all mines burden and impede interstate 

commerce. Thus, the legislative history of the Mine Act indicates that Cullen's gravel pit is properly the subject of · 

congressional regulation. 

The nature of Cullen's mining activities fall within the 

broad scope of jurisdiction contemplated by the Mine Act. Section 4 of the Act, 30 u.s.c. § 803, states that "[e]ach coal or 

other mine, the products of which enter commerce, or the operations or products of which affect commerce, and each operator --- and every miner in such mine shall be subject to the provisions 

of (the] Act." Applicable case law also indicates that Cullen's 

facility and _sales "affects commerce" within the meaning of 

section 4 of the Mine Act. courts have consistently held that 

Congress is empowered under the Commerce Clause to regulate even 

intrastate sales. Wichard v. Filburn, 317 U.S. 111 (1942). See 

also Marshall v. Meredith Mining Co., 4S3 F.Supp. 737 (W.D. Pa . 

1980) (Mine Act); more recently, in Andrus v. P-Burg Coal co., 

Inc., 644 F.2d 1231, 1232 (1981), the Seventh Circuit reiterated 

that congress is empowered to regulate a mining operation that 

produces a product solely for intrastate sale. In that case, the 

court adopted the district court's jurisdictional determination 

that intrastate producers compete with interstate producers, and 

that intrastate sales have a cumulative effect on commerce. 

VI 

The record in the instant case clearly dictates that the 

operator's conduct was tantamount to a denial of entry. MSHA 

inspectors are not required to force entry or subject themselves 

to .possible confrontation or physical harm in order to inspect. 

Secretary v. Calvin Black Enterprises, 7 FMSHRC 1151 (Aug. 20, 

1985) at 1157. See also U.S. Steel Corp. v. Secretary of Labor, 

6 FMSHRC 1423 (June 26, 1984). 

914 
VII 

PENALTY 

There are numerous cases upholding the authority to issue 

civil money penalties under section llO(a} of the Mine Act for 

denial of entry to a mine . Secretary v . Calvin Black Enterprises, 7 FMSHRC 1151 (August 20, 1985}. In Waukesha Lime and 

Stone Company, Inc. 3 FMSHRC 1702 (July 1981} the Commission held 

that an operator's refusal to permit an inspection requires the 

imposition of a penalty notwithstanding the fact that the Secretary has obtained an injunction. 

In determining the appropriate civil penalty, I have, 

pursuant to statutory mandate, considered the statutory criteria 

set forth in section llO(i) of the Mine Act. As to the size of 

the business, Mr. Cullen testified that he usually has two or 

three employees at the gravel pit. The parties stipulated that 

Respondent is a 'small operator. rt is undisputed that the 

operator showed good faith in his abatement of the violation. 

The violation was abated on July 27, 1992, when John Cullen, the 

owner, signed an agreement stipulating that he would not interfere with or hinder or delay the Secretary of Labor or his 

authorized representatives from conducting official inspection 

duties under the provisions of the Mine Act. This signing of the 

written agreement was pursuant to an earlier oral agreement to 

the same effect between the Solicitor on behalf of the Secretary 

and Mr. Cullen. 

The violation was a serious one that threatens to undermine 

mine safety enforcement. Considering the statutory criteria 

however, and Mr. Cullen's sincere but badly mistaken belief that 

he was merely standing up for his constitutional rights, I find 

the MSHA proposed penalty of $2,000 . 00 for this violation by this 

small operator is excessive. The violation was a very serious 

one but considering the .statutory criteria including the good 

faith abatement and the small size of the operator I find the 

more appropriate penalty for this serious violation is $500.00. 

I believe a $500.00 penalty in this case will effectuate the 

deterrent purpose of the Act. See Robert G. Lawson Coal Company, 

1 IBMA 115, 117-118 {1972}. 

ORDER 

Citation No. 4121093 is AFFIRMED. The Respondent John 

Cullen Rock Crushing and Gravel is ORDERED TO PAY to the Secretary of Labor a civil penalty of $500.00 for this violation of 

915 
section 103(a) of the Mine Act within 30 days of the date of this 

decision. On receipt of payment the case is dismissed. 

Law Judge 

Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1999 Broadway, suite 1600, Denver, co 80202-5716 

(Certified Mail) 

Mr. John Cullen, JOHN CULLEN ROCK CRUSHING & GRAVEL, 4356 Bluefax 

Drive, Pueblo, CO 81001 (Certified Mail) 

sh 

916 
u FILED 

NfTrO STA1£S DISTRICT COURT 

IN THE UNITED STATES DISTRICT COURT DfNvtR.co =>1."~ 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 92-M-2186 

JUN .~ ! 1?93 

JAME~ rt MANSPfA.KER 

:;tL.?K 

ROBERT REICH, SECRETARY OF LABOR, SUB NOM LYNN MARTIN, 

SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, 

Plaintiff( s ), 

v. 

JOh"N CtJLLEN, fodividuaiiy, anci doing business as jQHN CULLEN ROCK CRUSHING 

, 'AND GRAVEL, ~ . 

,-. Defendant( s ). ,, 

~ 

INJUNCTIVE ORDER 

This civil action was initiated by the United States Department of Labor pursuant to 

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

§ 108 of the Act, 30 U.S.C. § 818, to obtain an injunction against John Cullen, doing business as John 

Cullen Rock Crushing & Gravel, the owner and operator of a gravel pit in Pueblo County, Colorado, 

from refusing to permit representatives of the Secretary of Labor to enter the gravel pit and refusing 

to permit inspection of it. The plaintiff fiied a motion for preliminary injunction. The defendant did 

not file an answer or other pleading. Mrs. John Cullen submitted to the Clerk of this court a handwritten note reading as follows: "We feel this civil action against us is unfair and misrepresented. 

We are requesting a hearing on this in Pueblo County and we will represent ourselves because we 

cannot afford legal counsel." 

While tbat note was procedurally inappropriate, the court entered an order of reference to 

United States Magistrate Judge 0. Edward Sc~h~ t~a1eifa~~·~~~mend disposition by an order 

of reference dated January 28, 1993. 

917 

-. r·· C' ",.' -.. --. • . ,-... : :i 

\...;..:> '---· ,. ·-

- ~ \-~ :- • t Q .. -·.J- -

- ' ·. -
Magistrate Judge Schlatter convened a hearing on April 29, 1993, in Pueblo, Colorado. 

Robert J. Murphy appeared for the plaintiff and John Cullen appeared for himself. As a result of 

that hearing, Magistrate Judge Schlatter submitted his recommendation on May 5, 1993, 

recommending the entry of the injunction. Mr. Cullen filed a written objection on May 18, 1993, 

reading as follows: 

I know nothing of any Physicall or Forcefull resisting. Verbal resistance is all 

I know of. 

I don't reamber saying anything about the future. 

I never said anything about a probabel payoff but a possible payoff. 

I ·"'·0vld like 2 CC;JY of the recordings. So I can go over them. 

I would also like to talk to my congressman. 

I hope I can recive the information and time I need. 

This court has listened to the tape of the testimony and statements of Mr. John Cullen at the hearing 

before the Magistrate Judge. It is clear from Mr. Cullen's statements that he disagrees with the 

provisions of the Federal Mine Safety and Health Act of 1977, as applied to him and his business. 

He has also made it clear that he refused admission and inspection of his operation by representatives 

of the Department of Labor and considers that the attempts by those persons to inspect his business 

is an unconstitutional invasion of his privacy and an unwarranted interference with the operations of 

small business in this country. ?-.fr. Cullen further indicated a continuing refusal to comply with the 

law. Accordingly, the defendant's own statements constitute a basis for finding that he has interfered 

with, hindered and delayed the authorized representatives of the Secretary of Labor in carrying out 

the provisions of the Act; has refused to admit them to his gravel pit and refused to permit the 

inspection of his business. The Department of Labor is, therefore, entitled to an order of this court 

in the nature of an injunction. Because an injunction is the only relief requested, this order shall 

constitute a final order in this case. It is therefore 

ORDERED, ADJUDGED AND DECREED that defendant John Cullen, individually, and 

doing business as John Cullen Rock Rushing and Gravel, his agents, servants, employees, and all 

persons in active concert or participation with him are enjoined: 

918 
l. From denying authorized representatives of the Secretary of Labor entry to, upon or 

through defendant's gravel pit; 

2. From refusing to permit the inspection of defendant's gravel pit; 

3. From interfering with, hindering or delaying the authorized representatives of the 

Secretary of Labor in carrying out the provisions of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801, et seq. 

4. Upon the showing of official identification and the disclosure of their official office 

address by the authorized icpr::seuta~ives 0f the Secretary of labor, John Cullen, and his agents, 

servants, employees, and all persons in active concert or participation .... 11h him, shall make no attempt 

or inquiry to discern that representative's home address, telephone or social security number, or any 

other personal infonnatioo concerning any representative of the Secretary of Labor. 

5. Enforcement of this order will be made by a Deputy United States Marshal who shall 

accompany authorized representatives of the Department of Labor in the inspection of the 

defendant's gravel piL 

This court retains jurisdiction for such further proceedigns as may be necessary for the 

enforcement of this order. 

Dated: June 24, 1993 

BY TI-IE COURT: 

919 
Case Number: 92-M-2186 

I certify that I mailed a copy of the attached to the folJo,ving: 

Daled' ~-~» f11:3 

1 

Roben J. Mui phy 

Office of the Solicitor 

1585 Federal Bldg. 

1%1 Stout Sl 

Denver, CO 80294 

John Cullen 

4356 Blueflax Dr. 

Pueblo, CO 81001 

cc: Magistrate Judge Schlatter 

cc: U. S. Marshal 

920 

Jacob Gilmore, Deputy Clerk 

Glenna Drake, Secretary 
CQllKISSJ:OH 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 5 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner . . Docket No. PENN 93-490 A.C. No. 36-02398-03693 

v . 

LION MINING COMPANY, 

Respondent 

: Grove No. 1 Mine 

DECISION 

Appearances: Theresa c. Timlin, Esq., Office of the Solicitor, 

U. S . Department of Labor, Philadelphia, 

Pennsylvania, for the secretary of Labor; 

Joseph Yuhas, Esq., Barnesboro, Pennsylvania, 

for Respondent . 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

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

Health Act of 1977 (the Act). Following an evidentiary hearing, 

Petitioner filed a motion to approve a settlement agreement 

proposing to delete the "significant and substantial" findings 

from Citation Nos. 3706632 and 3706891 and reducing the total 

penalties for all citations from $854 to $475. I have considered the representations and documentation submitted in this 

case, and I conclude that the proffered settlement is acceptable 

under the criteria set forth in Section 110(i} of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty ot fi 475 within 

30 days of this order. 

Gary 

Admi 

·; 

1 As requested by the Seer ary, the basis 

settlement of Citation No. 3706569 is set forth in 

an Appendix hereto. 

921 

for 

full as 
Distribution: 

Theresa c. Timlin, Esq., Office of the Solicitor, 

U.S. Department of Labor, 14480 Ga~eway Building, 

3535 Market street, Philadelphia, PA 19104 (Certified Mail) 

Joseph Yuhas, Attorney for Lion Mining Company, 

1809 Chestnut Ave., P. O. Box 25, Barnesboro, PA 15714 

(Certified Mail) 

/lh 

922 
APPENDIX PENN 93-490 

Citation No. 3706569 was issued on May 17, 1993, by an 

authorized representative of the Secretary (MSHA inspector) 

pursuant to § 104(a) of the Act fo~ a violation of 30 C.F.R. 

§ 75.340(a)(l). The citation states: 

The air current used to ventilate the No. 2 Ram-Car 

Charging Station in No. 5 Entry of 10 left Section 

was not being coursed to the return air course 

adequately in that a chemical smoke tube test taken 

above two Ram-car batteries that the smoke traveled 

out through crosscut 5 to 4 entries which is the 

primary intake air escapeway for this station. 

The inspector assessed the violation to be siqnif icant 

and substantial, with it being reasonably likely for an injury 

or illness resulting in lost work days to occur. The inspector 

believed four persons would be affected by the hazard and 

assessed the operator's negligence as low. 

A hearing was held before the Honorable Gary Melick 

on March 24, 1994, in Somerset, Pennsylvania, at which MSHA 

Inspector Kenne.th Fetsko testified that while inspecting 

Grove No. 1 Mine on May 17, 1993, he traveled to the 10 Left 

Section and inspected the Ram-Car battery charging station. 

One Ram-car was being charged at the time. A second Ram-Car 

battery, which was not on charge, was adjacent to the first 

battery. At the other end of the crosscut, a golf cart 

battery was also being charged. Inspector Fetsko released 

several smoke tubes to check the direction of the air flow in 

the cross cut. He observed the smoke travel slowly over the 

battery which was not being charged, and out of the crosscut 

into the intake escapeway. He did not observe any air travel 

into the return. A mine map introduced into evidence as Joint 

Exhibit No. 2, showed that the air from the intake escapeway 

traveled to the working face. Inspector Fetsko further testified that in the course of abating the citation, he learned 

that a door in the return had been closed, blocking the normal 

flow of air from the crosscut into the return. 

Ronald Gossard, an electrical engineer, testified as 

an expert for MSHA regarding the reasonable likelihood of 

an injury occurring as a result of the improper ventilation 

at the crosscut. Mr. Gossard explained that batteries 

liberate hydrogen during the charging process. Hydrogen is 

an extremely explosive gas, with an explosive range that is 

lower than methane. He further testified that the batteries 

themselves serve as ignition sources. As the hydrogen was 

observed traveling over the batteries, Mr. Gossard opined 

that it was reasonably likely that the hydrogen gas could 

ignite, causing an explosion in the area of the charging 

station. 

92.3 
Hiram Riblett, Manager of Engineering for Lion Mining 

Company, also testified. He essentially concurred with 

Mr. Gossard about the explosive risk of hydrogen being liberated from batteries. 

In light of the testimony presented at hearing, the 

parties agree that it was reasonably likely, if normal 

mining operations had continued, that an explosion would 

occur, resulting in a serious injury to workers in the 

area of the charging station. The parties agree that the 

operator's negligence was correctly assessed as low. 

92 4 
PEDER.AL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 5 1994 

SECRETARY OF LABOR, . . DISCRIMINATION PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

THOMAS K. ALLEN, and 

ALAN D. BOE, 

Complainants 

v. 

L. H. SOWLES COMPANY, 

Respondent 

. . 

. . 

. . 

DECISION 

Docket No . WEST 94-71-D 

Docket No. WEST 94-47-DM 

Rosebud No . 6 Mine 

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

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

Complainants: 

Gerald Roth, Colstrip, Montana for Respondent. 

Before: Judge Weisberger 

statement of the case 

These cases, consolidated for hearing, are before me based 

upon Petitions filed by the Secretary of Labor on behalf of 

Alan D. Boe and Thomas K. Allen alleging that they were 

discharged by L. H. Sowles Company ("Sowles") in violation of 

Section lOS(c) of the Federal Mine Safety and Health Act of 1977 

("the Act"). Pursuant to notice, a hearing was held in Billings, 

Montana on February 1, 1993. Subsequent to the hearing, the 

Secretary filed a brief .on March 24, 1994. On April 4, 1994, a 

brief was filed by Sowles. 

Findings of Fact and Discussion 

I. Factual Background 

During the period in issue, ~., May 24, 1993 through 

June 9, 1993, Western Energy company ("Western") operated an 

advanced coal preparation plant ("prep plant") located on the 

site of its Rosebud No. 6 Mine. Western contracted with 

Sowles for the latter to modify the prep plant. on May 24, 1993, 

Alan Boe and Thomas K. Allen started to work for Sowles. 

Initially, Boe and Allen, who are millwrights, were assigned to a 

925 
task putting buckets on a chain. From the time Boe was hired 

until June 9, 1993, Sowles did not complain to him about his work 

habits, or punctuality. There is no evidence that in this time 

period Sowles disciplined or expressed any dissatisfaction with 

Allen, or with his work. 

On June 9, 1993, at approximately 9:30 a.m., Gerald Roth, 

Sowles•s superintendent, who was the supervisor of Boe and Allen, 

asked Boe to install explosion doors on a chute. According 

to Boe, he told Roth that the man-lift ("JLG") was "working" 

(Tr. 87) above them and "· •• this is unsafe; we should'nt be 

doing it." (Tr. 94) Boe stated that Roth responded as follows: 

"Get the damn explosion doors on, we have got to get the chute 

stood." {sic) (Tr. 94). Roth then walked away, and Boe went up a 

hill where Allen was working, and told him of Roth's directive to 

install the explosion doors. According to Boe, Allen responded by indicating that he would not work under a suspended load. 

According to Boe, Roth then came up on the hill and said to him 

and Allen as follows: "You guys either get that explosion door 

put on or go to the house." {Tr. 107) (Emphasis added) 1 • This 

letter term terminology is commonly used to tell a miner that he 

is being fired . According to Boe, his and Allen's response to 

Roth was as follows: "We said we weren't going to work on it." 

(Tr. 108). Boe and Allen then went to see Patrick Rummerfield, 

Western's Safety Coordinator. According to Rummerfield, Boe and 

Allen informed· him that they had refused to work under a 

suspended load. Boe and Allen then gathered their tools and left 

the site. 

II. Applicable Law 

The Commission, in Braithwaite v. Tri-Star Mining, 15 FMSHRC 2460 (December 1993), reiterated the legal standards 

to be applied in a case where a miner has alleged acts of 

discrimination. The Commission, Tri-Star, at 2463-2464, stated 

as follows: 

The principles governing analysis of a discrimination case 

under the Mine Act are well settled. A miner establishes a 

prima facie case of prohibited discrimination by proving that he engaged in protected activity and that the adverse 

action complained of was motivated in any part by that 

activity. Secretary on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980)_, rev'd on 

other grounds, sub nom. Consolidation Coal Co •. v. Marshall, 

663 F.2d 1211 (3d cir. 1981); Secretary on behalf of 

Robinette v. United Castle Coal co., 3 FMSHRC 803, 817-18 

(April 1981) . The operator may rebut the prima facie case 

by showing either that no protected activity occurred or 

that the adverse action was in no part motivated by 

1 In essence, Roth also testified that he made this statement. 

926 
protected activity. Fasula, 2 FMSHRC at 2799-800. If the 

operator cannot rebut the prima facie case in this manner, 

it nevertheless may defend affirmatively by proving that it 

also was motivated by the miner's unprotected activity and 

would have taken the adverse action in any event for the 

unprotected activity alone. Fasula, 2 FMSHRC at 2800; 

Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal 

Corporation, v. United Castle Coal co., 813 F.2d 639, 642 

(4th Cir. 1987). 

A miner's refusal to perform work is protected under the 

Mine Act if it is based upon a reasonable, good faith belief 

that the work involves a hazard. Robinette, 3 FMSHRC at 

808-12; Conatser v. Red Flame Coal Co., 11 FMSHRC 12, 17 

(Jan. 1989); see also, Simpson v. FMSHRC, 842 F. 2d 453, 458 

(D.C. Cir. 1988). The Commission has held: "Proper 

communication of a perceived hazard is an integral component 

of a protected work refusal, and responsibility for the 

communication of a belief in a hazard underlying a work 

refusal lies with the miner." Conatser, 11 FMSHRC at 17, 

citing Dillard Smith v. Reco, Inc., 9 FMSHRC 992, 995-96 

(June 1987). 11 [T]he communication requirement is intended 

to avoid situations in which the operator at the time of a 

refusal is forced to divine the miner's motivations for 

refusing \work." Smith, 9 FMSHRC at 995. The miner's 

failure to communicate his safety concern denies the 

operator an opportunity to address the perceived danger and, 

if permitted, would have the effect of requiring the 

Commission to presume that the operator would have done 

nothing to address the miner's concern. Id. Thus, a 

failure to meet the communication requirement may strip a 

work refusal of its protection under the Act. Finally, the 

Commission has held that the "communication of a safety 

concern 'must be evaluated not only in terms of the specific words used, but also in terms of the circumstances within 

which the words are used .••• 111 Conatser, 11 FMSHRC at 

17, quoting Secretary on behalf of Hogan and Ventura v. 

Emerald Mines Corp., 8 FMSHRC 1066, 1074 (July 1986), aff'd 

mem., 829 F.2d 31 (3d Cir. 1987). 

III. Discussion 

I find that the record establishes that Boe and. Allen were 

told by Roth, in essence, to either install the explosion doors 

or they would be fired. They chose not to install the doors, and 

were fired. Hence, they were discharged by Roth solely for their 

work refusal to install explosion doors. Under applicable case 

law cited above, it must be decided (A) whether the work refusal 

was protected, i.~., whether it was based on a reasonable belief 

that .. the work involves a hazard, and (B) whether Boe and Allen 

communicated this belief to Roth. 

927 
(A) Reasonable Belief in a Hazard 

In order to install the explosion doors on the chute, 

Boe and Allen would have had to climb a ladder that had 

been set against the chute. According to Boe•s testimony 

that I find credible, when he had his initial conversation 

with Roth, he was standing approximately l foot from the 

base of the ladder which was approximately 1/2 - 2 feet from 

the base of the chute. Boe looked up and observed that the 

caqe of a mobile man-lift (JLG) was directly overhead. Boe 

indicated that the cage was approximately 20 feet above the 

ground. The cage, which contained 2 iron workers, Roger Meyer, 

and David Little Whiteman, Jr., was connected to an arm that was 

attached to the base of the man-lift. In addition to the iron 

workers, the cage also contained following items: 3/4 inch bolts, 

an electric wrench, an acetylene cutting torch, and hand tools. 

The openings in the floor of the cage were not large enough to 

allow these items to fall through. However, Meyer explained that 

in performing his duties in the case, he reaches up over the 

basket of cage with his tools. It thus is possible that a tool 

could accidentally drop, and hit someone below. Both Meyer and 

Little Whiteman, Jr. , in essence, stated that in the normal 

performance of their duties, the cage would have been over the 

ladder in question. 

At approximately 10:00 a.m. , Patrick D. Rummerfield Western 

Safety Coordinator, observed the area in question and noted the 

man-lift. He opined, that it would be a hazard to have person stand on the ladder and install explosion doors at the chute "If 

everything was exactly as these photographs show" (Tr. 52) (Govt 

Ex C-1-4) . 

Boe expressed his concern about the hazards of working under 

the cage of the man-lift. He indicated that the ~ydraulic system 

supporting the cage could fail, or tools and equipment used by 

the iron workers could fall causing injuries. 

Roth testified that he intended to have had the man-lift 

cage swing away from the area in question, so that Boe and Allen 

would not have been exposed to any hazard when working on the 

ladder. However, he did not tell either Boe or Allen that he had 

intended to move the man-lift. 

Within the framework of the above evidence, I find that Boe 

and Allen had a qood faith belief that performing the work 

requested by Roth would have exposed them to the hazards of 

working under the man-lift cage i.§., a risk of being injured by 

an item dropped from the cage. 

~ (B) Communication of a Perceived Hazard 

According to Roth, when he had asked Boe to install the 

explosion doors, the latter did not say anything about working 

928 . 
under a suspended load, or about working in unsafe conditions. 

Roth indicated that Boe stated merely that "the area was too 

congested could it wait until later" (sic) (Tr. 276). On 

cross-examination, Roth stated that he interpreted Boe's 

refusal as follows: "He wanted to wait until the iron workers 

were plwnb done, and then they go over and work on the area." 

(sic) (Tr. 286). Boe, on the other hand, stated that he told 

Roth that it was unsafe to install the explosion doors. He said 

that he did not recall saying that he not want to do the work 

because the area was "congested" (Tr. 156). Within the framework 

of this evidence, and based upon the demeanor of Boe whom I found 

to be a credible witness on this point, I conclude that Boe did 

communicate to Roth his safety concerns regarding the performance 

of work installing the explosion doors as ordered by Roth. 

According to Allen, at approximately 9:30 a.m. on June 9, 

When Boe informed him that Roth wanted them to install explosion doors which required them to stand on a ladder under the manlift, Allen said he would not do it as working under the JLG was 

unsafe. Allen said that he did not say anything to Roth prior to 

the time Roth approached him on the hill and told him and Boe 

that if they did not want to do the work they should go home. 

Allen indicated that after Roth spoke to him he did not say 

anything to Roth. 2 Allen explained as follows: "· •• I wasn't 

going to do it, --.so there was nothing to say" (Tr. 200). 

Since Boe and Allen were ordered by Roth to perform the same 

task, i.§., to install explosion doors, a communicated refusal by 

Boe to Roth, served to alert Roth of the perceived danger of 

performing this of task. Thus, Roth was afforded the opportunity 

to address the perceived danger to Boe and Allen. (See, Smith v. 

Reco, supra, at 995). There was accordingly no need for Allen to 

separately communicate his concerns to Roth. I thus conclude 

that the communicated refusal by Boe allows Allen's refusal to be 

afforded the protection of the Act. 

Conclusion 

Based on the all the above, I conclude that Respondent did 

violate Section lOS(c) in discharging Boe and Allen. There is no 

evidence regarding Respondent's history, if any, of previous 

Section 105(c) violations. Further, regarding Respondent's 

negligence, I find Roth's testimony credible that he had intended 

to have had the manlift removed so that Boe and Allen would not 

2 Boe testified that after Roth spoke to him and Allen, "we 

said we weren't going to work on it." (Tr. 108). 

929 
have had to work under it installing the explosion doors. I 

conclude that a penalty of $1000.00 is appropriate for each 

violation. The parties have agreed that the back pay to which 

Boe and Allen are entitled is to be based upon 145 hours, and a 

rate of pay of $21 . 97 an hour. 

order 

It is Ordered as follows: 

1. Docket No. WEST 94-71-D is dismissed; 

2. Respondent shall pay a total civil penalty of 

$2,000.00, 3 within 30 days of this decision, for discharging 

Alan Boe, and Thomas K. Allen, in violation of section 105(c) of 

the Act; 

3. Respondent shall, within 30 days of this decision, pay 

Alan Boe, and Thomas K. Allen, back wages based on 145 hours and 

a rate pay of $21.97 an hour, plus interest at a rate to be 

calculated in accordance with LOC. ~ 2274, UMWA v. Clinchfield 

coal Co., 10 FMSHRC 1443 (November 1988), pet. for review filed, 

No. 88-1873 (DC Cir. December 16, 1988), and based on the formula 

set forth in s.ecretarv on behalf of Bailey v. Arkansas - carbona 

Co., 5 FMSHRC 2042, 2051-53 (December 1983); and 

4. The employment records of Alan Boe, and Thomas K. Allen, be completely expunged of all comments and references to 

the circumstances involved in their discharges, and the 

discharges be removed from their files. 

~~ Avram Weisberger 

Administrative Law Judge Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, u.s. Department of Labor, Room 1585, 1961 stout Street, Denver, co 80294 

(Certified Mail) 

Mr. Gerald Roth, P.O. Box 718, Colstrip, MT 59323 (Certified 

Mail) 

/efw 

3 The penalty for the violation found in Docket No. 

WEST ··94-11-o is $1,000.00. The penalty for the violation 

found in Docket No . WEST 94-47-DM is $1,000.00. 

930 
FEDERAL MINE SAFETY AND HEALTfi REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 25, 1994 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

Docket No. YORK 93-134-M 

A. C. No. 18-00417-05501 W21 

v . Mechanics Valley Quarry 

EXPLO-TECH INCORPORATED, 

Respondent 

. . 

Appearances: 

Before: 

DECISION 

Anthony G. O'Malley, Jr. , Esq., Office of 

the Solicitor, u. S. Department of Labor, 

Philadelphia, Pennsylvania, for the Petitioner; 

Frank P. Spada, Jr., Esq., Explo-Tech 

Incorporated, Philadelphia, Pennsylvania, for the 

Respondent. 

Judge Merlin 

This case is a petition for the assessment of a civil 

penalty filed by the Secretary of Labor against Explo-Tech 

Incorporated under section 110 of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 820. 

Citation No .. 4082132 was issued for a violation of 30 

C.F.R. § 56.15005 and alleges the following condition or 

practice: 

The contract driller using a Gill (bettle) drill 

was observed operating the drill approximately 2 to 3 

feet from the bench edge. 

The driller was not wearing a safety line and belt 

to protect him from a 30 foot fall, if the bench edge 

collapsed or he lost his footing. 

30 C.F.R. § 56.15005 sets forth the following: 

Safety belts and lines shall be worn when persons 

work where there is danger of falling; a second person 

shall tend the lifeline when bins, tanks, or other 

dangerous areas are entered. 

A hearing was held on March 31, 1994. In an off the record 

conference prior to going on the record and in written submissions, the parties agreed to the following stipulations 

(Tr. 6-9): 

931 
(1) The respondent is an operator and was performing 

services for Mechanics Valley Quarry, Cecil County, Maryland 

which services are the subject of this proceeding. 

(2) Respondent utilizes tools, equipment, machinery, materials, goods, and supplies in its business activities which have 

originated in whole or in part from locations outside the 

Commonwealth of Pennsylvania. 

(3) Respondent engages in business which affects commerce. 

(4) Operations at the Mechanics Valley Quarry are subject to 

the Mine Safety Health Act of 1977, as amended. 

(5) The Administrative Law Judge has jurisdiction to hear 

and decide this case pursuant to Section 105 of the Act of 1977. 

(6) MSHA Inspector earl F. Spohn was acting in his official 

capacity when he issued to Respondent on March 24, 1993, a 

104(a) citation for violation of 30 C. F . R. 56.15005 (Citation 

No. 4082132.) 

(7) True copies of the citation referred to in Stipulation 

No. 6 together with all appropriate modifications and abatements 

were served on the Respondent or its agents as required by the 

Act. 

(8) The Administrative Law Judge has the authority to assess 

the appropriate civil penalty under Section llO(i) of the Act if 

he finds that the citation at issue states a violation of the Act 

and the regulations. 

(9) The parties have agreed that the Respondent's workers 

were not using safety belts when viewed by the MSHA inspector. 

(10) The parties have agreed that the issues are whether the 

condition noted by the Inspector existed; where the cited miners 

were standing at the time the MSHA inspector saw them and whether 

the miners were in danger of falling. 

(11) Copies of the subject citation and termination of the 

violation in issue in this proceeding are authentic and .may be 

admitted into evidence for purposes of establishing their issuance but not for the purpose of establishing the truthfulness or 

relevancy of any statements asserted therein. 

(12) Payment of any penalty will not affect the operator's 

ability to continue in business. 

(13) The operator demonstrated good faith abatement. 

932 

/ 
(14) The operator has no history of prior violations. 

(15) The operator is small to medium in size. 

At the hearing, the Secretary presented testimony from the 

inspector who issued the citation and from a trainee inspector 

who was present at the time . The operator presented testimony 

from its safety and compliance director as well as the miner who 

was operating the drill when the citation was issued. 

After completion of the Secretary 1 s case and during presentation of the operator's testimony, the parties agreed to recommend a settlement of this matter. The parties proposed to delete 

the significant and substantial designation, leave as unchanged 

the negligence determination of moderate, and characterize 

gravity as moderate. The parties also agreed to leave the determination of the appropriate penalty amount to me . In ruling upon 

the parties' motion, I held as follows (Tr. 155-157): 

Under the Mine Safety Act unlike most statutes, 

the administrative law judge has the affirmative duty 

to approve a settlement, even if the parties themselves 

have agreed upon its terms. Under this law the judge 

does not have to approve a settlement, if he determines it is not in the public 1 s interest. In other 

words, the judge is here to guarantee the public interest under this mine safety law . 

I determine that this proposed settlement is in 

the public interest. It appears to me to be fully 

justified by the efforts taken to this point in this 

matter. I believe that the settlement in addition to 

being consistent with the public interest, also is to 

the benefit of both parties. 

Therefore, in accordance with the settlement, I 

order that the finding of a violation in Citation 

4082132 date March 24, 1993 , be hereby affirmed. I 

further order that the designation of significant and 

substantial in said citation be deleted. I further 

find that the finding of negligence to a moderate 

degree be affirmed. I further find, as proposed and as 

indicated by the nature of the testimony here thus far, 

that the violation was of only moderate gravity. 

The parties have left to me the determination of 

the amount of civil pen alty to be assessed . In making 

this assessment, I particularly note t hat this small to 

medium sized operator has no prior history of viol a -

tions. That to me is a very telling factor. In light 

of that factor and the other five criteria in section 

l l O(i) of the Act, I assess a penalty of $50. 

933 
I adhere to the foregoing, findings, conclusions and 

assessment. 

In accordance with the settlement proposal approved on the 

record as stated above, it is ORDERED that the operator PAY, if 

it has not already done so, $50 within 30 days of the date of 

this decision, and that this case be DISMISSED. 

Pau l Merl in 

Chief Admi nistrative Law Judge 

Distribution: 

Anthony G. O'Malley, Jr., Esq., Office of the Solicitor, U. s. 

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

Street, Philadelphia, PA 19104 

Frank P. Spada, Jr., Esq., Clark, Ladner, Fortenbaugh & Young, 

Explo-Tech Incorporated, One Commerce Square, 2005 Market Street, 

Philadelphia, PA 19103 

/gl 
ftDBllL JIDIB 8Al'Bft UD BBALTJI RBVXBW COIDUSSIOB 

OFFICE OF ADMINISTRATIVE LAW JOOGES 

2 SKYLINE, 10th FLOOR 

5Z03 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 6 1994 

BETHENERGY MINES, INC., 

contestant 

: CONTEST PROCEEDING 

: 

v. : Docket No. PENN 93-247-R 

: Order No. 3708620; 3/11/93 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: Cambria Slope #33 Mine 

Appearances: 

Before: 

DECISION 

R. Henry Moore, Esq., Kevin Burns, Esq., 

Buchanan Ingersoll, P.C., Pittsburgh, 

Pennsylvania, for the Contestant; 

Mark V. Swirsky, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a Notice of Contest filed by the 

contestant (BethEnergy) pursuant to section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 815(d), 

challenging the legality of a section 107(a) imminent danger 

order. The respondent (MSHA) filed a timely answer asserting 

that the order was properly issued, and a hearing was held in 

Pittsburgh, Pennsylvania. The parties filed posthearing briefs, 

and I have considered their arguments in the course of my 

adjudication of this matter. 

Issues 

The principal issue in this case is whether or not the cited 

conditions or practices presented an imminent danger within the 

meaning of section 107(a) of the Act, warranting the withdrawal 

of miners from the mine. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s. c. § 301 et seq. 

2. Sections l05(d) and 107(a} of the Act. 

J. Commission rules, 29 c.F.R. § 2700.1, et seq. 

935 
Stipulations 

The parties stipulated to the following (Tr. 8-12) : 

1. The No. 33 Mine in question i s owned and operated by the 

contestant. 

2. The presiding Judge has jurisdiction to hear and decide 

this matter. 

3. The contested order was issued at 1:15 p.m. on March 11, 

1993 , as a result of a fire that occurred in a new airshaft 

that was in the process of being constructed by an 

independent contractor, Central Cambria Drilling Company. 

The order required the contestant to evacuate the entire 

underground workings of Mine 33 . There were other Section 

107(a) orders and a Section 103(k) order which were issued 

at this shaft site to Central Cambria Drilling. No other 

orders affected the underground workings at Mine 33 . The 

subject order was lifted at 4:40 p .m., and it was in effect 

for three hours and twenty-five minutes. 

4. Mine 33 produces coal from two seams, the Upper 

Ki ttanning (C Prime) and Lower Kittenning (B Seam) coal 

beds, which average 48 to 72 inches in thickness. 

s. In March 1993 there were six continuous-mining machine 

sections and two longwall sections that produced an average 

of 8,965 tons of clean coal daily at Mine No . 33. 

6. The D-East air shaft had been under construction since 

August 21, 1992, by Central Drilling Co., (ID No. 859). 

7. The shaft measured approximately 30 feet, 2 inches by 

18 feet , 4 inches and is projected to a depth of 1,035 

feet to the Lower Kittanning (B Seam} coalbed. It was 

intended to be an intake air shaft for the D-East area 

of Mine 33. On March 11, 1993 the shaft had been 

driven to a depth of 841 feet. 

a. At approximately 5:15 A.M. on March llth, 1993, smoke 

was discovered in the D-East shaft by employees of Central 

Cambria . At 8 : 30 A.M. a fire in the shaft was observed. Throughout the day activities were conducted to ensure that 

any fire was extinguished, including the dumping of water 

into the shaft. 

9 . MSHA was notified of the incident at 9:05 A.M. 

10. Ventilation of the D-East shaft construction site is 

essentially separate from the ventilation system for the 

underground workings of Mine 33. However, if the valve of 

936 
the deep water borehole connecting 0-east shaft to the active 

workings of the mine was open and the borehole pipe was not 

filled with water, there could be limited air movement 

through the borehole into the D-East area of the mine. Such 

air would not travel to any working section of the mine. 

11. The 0-East shaft is connected to a deep watering 

borehole at the shaft's water ring located at approximately 

the 272 foot level and the 624 foot level. This borehole 

pipe extends i nto the lower Kittanning B seam. 

12. The valve and the bor ehole pipe were closed by 

Bethenerqy at 9 : 28 a .m. 

13. At approximately 9:28 A.M. a BethEnerqy employee 

observed a limited amount of smoke in the B seam in proximity 

to the bottom of the deep watering borehole . But once the 

valve on the borehole was closed the smoke dissipated and no 

further clear evidence of smoke was observed. 

14. Prio~ to the issuance of the Section 107(a) order 

involved in this matter, at 10 :15 A. M, an air sample was 

collected by an MSHA inspector in the B seam at the location 

of the 0-East shaft eight-inch dewatering borehole. 

15. This sample was collected t o sample the air that might 

be entering the underground workings of Mine 33 . 

16 . This air sample detected . 010 percent methane present at 

the location where the borehole enters the B seam. This is 

not considered a significant amount of methane . 

17. This air sample showed . 0006 percent carbon monoxide 

present where the borehole enters the B seam. This is not 

considered a significant amount of carbon monoxide. 

18 . The valve on the borehole pipe was closed at the time 

the sample was taken. MSHA did not have the results of this 

air sample at the time the 107(a) Order was issued and did 

not base the 107(a) Order in any way on the results of the 

said air sample. At 9 : 45 A.M. MSHA inspector Nevin Davis 

used a hand-held detector to determine the level of methane 

in the area of the borehole in the D-East area B seam. He 

did not detect any methane in the area of the borehole. He 

was advised that a BethEnerqy foreman was to monitor the area 

of the borehole i n the B seam using a carbon monoxide 

detector. Such information was available to the MSHA 

personnel who directed that the Section 107(a) Order be 

issued. 

937 
Discussion 

The contested section 107(a) Order No. 3708620, was issued by 

JISHA Inspector Joseph E. Colton, on March 11, 1993, at 1:15 p .m., 

and the cited condition or practice states as follows: 

A mine fire has occurred approximately 17 feet above the 

bottom of "D" East shaft currently under construction, 

the fire is of unknown origin and the extent of the fire 

cannot be determined. This shaft is connected to a 

borehole that extends into the "B" coal seam, which is 

interconnected with the "C" prime seam. This order 

requires all persons to be evacuated from the underground 

areas of these two coal seams until such time that a 

determination can be made that these underground areas 

are in fact safe and unaffected by the ongoing mine fire. 

The order required the withdrawal of miners from the entire 

underground portions of both the "B" and "C" coal seams. 

Petitioner's Testimony and Evidence 

MSHA Electrical Inspector Joseph E. Colton, testifi ed that he has 

been so employed for 18 years, and has received training in 

conducting accident investigations, including methane ignitions and explosions. He stated that he was first notified of the fire 

at the D-East shaft at approximately 9:15 A.M., on March 11 , 1993, by his supervisor James Biesinger who instructed him to 

proceed to the mine and start an investigation and to issue a 

section 103(k) order at the shaft site where the fire was 

reported. Mr. Colton confirmed that he arrived at the shaft at 

9:50 A.M., and spoke with the superintendent or foreman of the 

shaft construction crew (Peterman) (Tr. 21-26). 

Mr. Colton stated that Mr. Peterman informed him that he went 

part way down the shaft in a bucket to determine the source of 

the fire but had to come back to the surface because of heavy smoke and he did not know what was burning, but that flames were 

projecting "in a torch like fashion" from the concrete bulkhead 

or wall of the shaft which had reached to within 17 feet of the 

shaft bottom (Tr. 28). Mr. Colton then informed Bob Nelson, 

MSHA's acting subdistrict manager in Johnstown about the fire in 

the shaft and told him that he had issued a verbal section 103(k) 

order to Mr. Peterman, who informed him that on the previous •hift methane was detected at .7 and .9 percent. Mr. Biesinger arrived at the scene at approximately 10: 45 A.M., and took 

charge, and Mr. Colton briefed him on what he had done (Tr. 32). 

Referring to his notes, Mr. Colton indicated that 

Mr. Peterman told him that the fire was reported to him at 

938 
5:45 A.M. , by workers "reporting that the fan had .burned up" (Tr. 33). Mr. Colton stated that after Mr. Biesinger arrived, a 

aection 107(a) order was issued for the shaft area and he 

explained as follows at (Tr. 33-34): 

A. Well, with all the activity and all the different 

agencies arriving and different people arriving up at the 

scene, it was decided for everyone's safety that an imminent 

danger be placed on the shaft area to more or less control 

the amount of people there. And because of the fact, like I 

said, we didn't really know what was burning or what was 

going to happen to our efforts of putting the fire out. 

so we did determine that there was an imminent danger at 

this location at that point in time . so here, again, 

Mr. Peterman was verbally told of the imminent danger 

Order and Mr. Biesinger was left with Mr. Peterman as I 

went to my vehicle to issue the Orders in writing. And 

that's what I did at that point in time, I exited the 

trailer, '.Went to my car and wrote out the necessary 

documents\.to inform Mr. Peterman in writing of what our 

intentions were. 

Mr. Colton stated that once the water was put down the shaft, 

he was concerned about a void behind the bulkhead creating a 

methane explosion hazard from the efforts made to extinguish the 

fire . He did not believe that this hazard would have been 

totally eliminated after the fire was put out by the water in the 

shaft, and he believed that the water level had to be brought up 

from the bottom of the shaft and onto the cement bulkhead, and at 

least 10 feet higher in order to thoroughly extinguish the fire 

(Tr. 38-39). He believed the water reached that level after the 

imminent danger order was issued, and he expressed his concern as 

follows at (Tr. 39-41): 

A. It was after the issuance of the Order when the water 

reached that level. That was the major concern of the 

Order because, like I said before, we had nobody hurt at 

this point in time. And the only way to guarantee or to 

assure that nobody else would be involved by our efforts 

to extinguish this fire. And I could say the only way to 

assure the fact that. nobody else was hurt was to remove 

everybody from the mine because there was a possibility of entrapment of gas behind this area and there was a 

possibility that this gas could be ignited. And no one 

can really say with any certainty what's going to take 

place when an explosion occurs. The --- it's something that's uncontrolled and it's unpredictable and for 

anybody to say that it's going to do this or that would 

be ludicrous. You can't make a determination like that. 

939 
* * * * during our extinquishing process it was feared 

that we could have created a situation where an explosion 

could have occurred and to make --- take every step available to us to assure that nobody would get hurt. The 

only· step we _ had available to us was to remove everybody 

from the mine . 

Mr. Colton stated that if an explosion had occurred, no one 

could predict what would happen or its direction. He stated that 

he became aware of the borehole pipe connection between the shaft 

and the B coal seam at approximately 12:50 p.m., and that 

Mr. Biesinger may have informed him of this. Mr. Colton stated 

that he shared Mr . Biesinger's concern about a potential explosion "probably around the same time t hat we had a discussion 

about the borehole connection with the B seam" (Tr. 42). 

Mr. Colton stated that Mr. Biesinger was in communication with 

district manager Kuzar at this time, and that Mr. Biesinger 

instructed him (Colton) between 12:00 and 12:30 p . m. to go to the 

mine off ice at the main portal and issue an imminent danger order 

affecting both coal seams and to withdraw all persons from the 

mine (Tr. 43-44 ). 

Mr. Colton estimated that the distance between the borehole 

pipe and the bottom of the shaft and the B coal seam was 

200 feet . He stated that he went to the mine office to issue the 

order, rather than to the B seam itself, because he wanted to 

make sure that mine management was aware of what was taking place and that everyone needed to be evacuated from the mine. He 

stated that he met with Mr. Dick stickler, Mr. DuDreucq, and 

Mr. Moyer, and instructed them to evacuate the mine . Mr. Colton 

confirmed that the 1 : 15 p.m. , issuance time on the order reflects 

when he reduced it to writing , and that Mr. Biesinger had 

instructed him to issue it approximately one hour earlier 

(Tr. 48) . He confirmed that he was not involved in terminating 

the order because he was relieved by another inspector (Tr. 49). 

Mr. Colton stated that he formed his own opinion as to 

whether the imminent danger order should issue regardless of 

Mr. Biesinger's instructions to do so because he "felt strongly that there was a great potential for a disaster there", and that 

the only way to assure the safety of the people underground was 

to remove them from the mine . He confirmed that he would have 

issued the order himself if Mr. Biesinger had not instructed him 

to do so (Tr. 50). He confirmed that at the time he ordered 

people removed from the shaft, he did not know about the 

connection with the underground B seam (Tr. 53) . 

On cross-examination, Mr. Colton stated that during his 

18 years with MSHA he has been involved in only one investigation 

of an underground explosion, and it was not a shaft explosion 

(Tr. 56). He stated that the borehole is in close proximity and 

next to the shaft and stands about one foot out of the ground. 

940 
He confirmed that during the fire, the carbon monoxide coming out 

of the shaft was being monitored by several people, .including two 

or more state officials. Also present at the scene were 

employees of BethEnerqy, the UMWA, the shaft contractor, Central 

Cambria Drilling Company, and members of the mine safety 

committee (Tr. 60-61). 

Mr. Colton stated that there were no electrical lines behind 

the concrete shaft liner. He confirmed that he had previously 

inspected Mine 33, including the B seam, and that there are 

numerous boreholes used for degassing purposes. He confirmed 

that when he first arrived at the mine he did not ask 

Mr. Peterman if there were any connections between the mine 

workings and the shaft because "the thought didn't occur to me at 

that preci se moment. I was more concerned with the people in the 

immediate area" (Tr. 65) . He also confirmed that he was not 

aware that two other MSHA inspectors were at Mine 33, even though 

inspectors are usually present on any given morning, because it 

didn't occur to him at that time . 

Mr. Colton stated that the borehole is connected to the shaft 

by two "water rings" that collect water that comes down inside 

the shaft walls and funnels it over the borehole so it can drain 

into the mine (Tr. 66) . He did not know how big the connection 

was between the water r i ngs and the borehole, or how big the hole 

was in the borehole pipe. He believed that the shaft and shaft 

ventilation would have to be approved by MSHA, but he did not 

know when it was started or how frequently it was inspected 

(Tr. 67). 

Mr. Colton stated that after he issued the order, 

Mr . Stickler, Mr. DuBreucq and Mr. Moyer challenged it, and he 

called Mr. Biesinger from the mine office to advise him of this. 

He did not believe that he could have properly issued the order 

by telephoning those indi viduals "because there's certain 

procedures you must follow when you close a mine" and he did 

not want to give an advance warning to evacuate the mine. He 

confirmed that it took him 20 or 30 minutes to drive to the mine 

to issue the order (Tr. 68-70) . 

Mr. Colton confirmed that at the time he issued the order he 

knew that Mr. Peterman had observed that the fire was at the 

bottom of the concrete shaft, but did not know the location from 

where the flames were coming out (Tr. 71). He did not assume 

that methane was bleeding out of the E seam, did not know which 

way the air was flowing in the borehole, did not know whether 

there was water in the borehole, was certain that he was told 

that the valve at the bottom of the borehole had been closed, did 

not know what would happen if the valve were closed, and did not 

speak to anyone about this (Tr. 72-74). 

941 
Mr. Colton stated that the shaft was approximately 843 feet 

deep (Tr. 74), and in response to a question as to the direction 

of any explosion in the shaft, he stated as follows (Tr. 76): 

A. It all depends where that explosion occurred. If it 

occurred behind the bulkhead of the shaft it could 

probably blow the shaft wall out·, probably penetrate the 

pipe. It all depends on the magnitude of the explosion , the amount of gas, explosive gas, is contained behind the 

bulkhead . That was a fact that we didn't know. 

Mr. Colton confirmed that while water was being dumped down 

the shaft to extinguish the fire, the ventilation and methane in 

the shaft continued to be monitored , but he did not know how high 

the water had risen when the order was terminated (Tr. 76-78). 

In response to further questions, Mr. Colton stated that the 

borehole is close to the shaft wall, but does not touch it, and 

that it consists of a metal casing of steel pipe (Tr. 82). He 

confirmed that the contractor personnel working in the shaft were 

out of the shaft when the fire was detected, and that the 

imminent danger order issued for the shaft was still in effect 

when he issued the order for the underground mine area in 

question (Tr. 83-84). 

Mr. Colton explained that the shaft "gaps" that concerned him 

were the spaces created between the outer corrugated metal lining 

next to the concrete shaft wall and the natural rock or terrain 

adjacent to the lining (Tr. 85-86). He confirmed that the shaft 

was still under construction at the time the order was issued 

(Tr. 87). 

James E. Biesinger, MSHA supervisory mine inspector, 

testified that he holds a 1967 associate degree in engineering 

from the Penn State University, had previous experience as a mine 

surveyor, field engineer, and assistant safety director prior to 

his MSHA employment in February 1971 (Tr. 88-89). He confirmed 

his experience and training, including the investigation of an 

explosion at Bethlehem Mines Corporation Lehman mine shaft that 

killed one person. He recalled that the explosion in that 

incident "went two directions in the shaft. It went down and 

then it came back up" (Tr. 94). He confirmed that his experience with that explosion affected his decision making with respect to 

the shaft fire in this case (Tr. 94). He also confirmed that he 

was involved with the recovery of several mine fires and 

explosions during his career, and that he has reviewed numerous 

accident reports in this regard (Tr. 94). 

Mr. Biesinger stated that he first learned of the fire in 

question when he received a phone call from construction foreman 

Ray Peterman at approximately 9:05 a.m., on March 11, 1993. 

Mr. Peterman informed him "that something was burning and he 

942 
auspected a fire in the shaft, and asked permission to dump water 

down the shaft and asked if we had any objections to him 

notifying local fire companies to provide water to put into the 

abaft" (Tr. 95). Mr. Biesiner informed Mr. Peterman that he was 

under a section 103(k) order, ~hat he should immediately start 

putting water down the shaft, and that he was dispatching an 

inspector to the site to issue the formal order (Tr. 96). 

Mr. Biesinger stated that he could have issued a section 107(a) 

imminent danger order over the telephone at that time pursuant to 

MSHA policy, but he did not do so . He confirmed that the policy 

has since changed, and an inspector must travel to the site 

before issuing such on order (Tr. 96-97). 

Mr. Biesinger confirmed that he assigned Mr. Colton to go to 

the mine and then called the acting MSHA Subdistrict Manager, 

Robert Nelson, and briefed him. Mr. Biesinger and trainee 

inspector Clark McElhoes then went to the site and Mr. McElhoes 

was assigned to assist in taking oxygen, methane, and carbon 

monoxide readings from the exhaust fan, and he explained the 

results as follows (Tr. 99-100): 

A. We \were getting readings as high as, I believe, 

126 parts'. per million co, carbon monoxide. Oxygen was 

somewhat less than 20.os and methane, I believe, was 

.1 percent, 0.1 percent. 

*** 

A. Carbon monoxide, 126 parts per million is not a 

great amount, but it is above the OVL limits and it is an 

indicator of fire. You can use that as an indication 

that we have some kind of combustion taking place. 

*** 

A. The other was oxygen. It was 20. --- I believe it 

was less than 20.5 percent. Which means it was less than -- usually we have around 21 percent which means that you 

could have some of the oxygen being used up in combustion 

which is also an indicator that there is combustion going 

on in the shaft. · 

Mr. Biesinger stated that based on his discussions with 

Mr. Peterman, and his own observations at the shaft between 

10:05 A.M. and 10:40 a.m. , he could not conclude that methane was 

being burned. The record books reflected methane readings of 

.6 to .7 during the previous hours, and he concluded that 

•omething was burning in the E seam, and that it was possibly air 

and duct lines constructed of PVC or rubberized material, and 

possibly methane being liberated from the rock strata. He was 

concerned that the methane could build up behind the shaft wall 

and explode if ignited by the burning fire (Tr. 101-106). 

943 
Mr. Biesinger stated that he learned about the borehole pipe 

at 10:45 A.M. when MSHA inspector Sam Brunati called him from the 

surface of mine 33, where he was conducting an inspection, and 

informed him that mine officials had smelled smoke in the mine 

but shut a valve on the bottom of the borehole pipe. Mr. Brunati 

also informed him that MSHA inspector Nevin Davis, who was 

underground at the time, went to the borehole area and detected 

no methane, but did observe something that could have been 

residual smoke or steam. Mr. Brunati also reported that 2,178 

cubic feet of air per minute was ventilating the entry directly 

below the bottom of the shaft in the B seam. Mr. Biesinger 

stated that it was most likely that the ventilation was in 

compliance with the mine plan and that no violations were issued 

in this regard (Tr. 107-109) . Mr. Biesinger was told that the 

borehole valve was closed at approximately 9 : 28 a.m. , and he 

assumed that the smoke that was reported was detected before the 

valve was shut (Tr. 110). 

Mr. Biesinger confirmed that he was in communication with 

MSHA acting district manager Xuzar prior to his conversation with 

Inspector Brunati at 10:45 a.m., and they discussed the issuance 

of an imminent danger order to remove the underground miners from 

Mine 33, and that a "joint" decision was made at approximately 

11:30 A.M. (Tr. 112). In concluding that the order was 

appropriate, he considered the fact that there was an active fire 

in the shaft, methane was detected coming out of the shaft fan, 

readings were recorded in the shaft record book, previous shift 

methane was detected as high as 1 . 0% at the shaft bottom around 

the end of the concrete the open borehole connection between the 

shaft and the underground B seam, and the borehole connection to 

both water rings at the 624 and 270 foot level. He confirmed 

that he knew that the valve had been shut, but believed that the 

force of a shaft explosion coming down the borehole would destroy 

the valve. He also confirmed that there was 200 feet of 

unexcavated rock between the bottom of the shaft and the B seam 

coal bed (Tr. 112-114). 

Mr. Biesinger confirmed that the "connection" between the 

shaft and the B seam was the borehole that penetrated the seam 

200 feet from the shaft bottom. If there were an explosion, he 

believed it "would be up and down the shaft, explosive forces to 

the right and left, enter the water ring and down the borehole" 

(Tr. 116). If there were no borehole, an explosion would be 

restricted to the shaft, would not affect the underground B and C 

coal seams where men were working, and he "would not expect it to 

travel that 200 feet through solid rock and affect the B seam" 

(Tr. 117). . 

Mr. Biesinger believed it was reasonably expected that any 

explosion would go down the six-inch borehole and over to the B 

seam for the following reasons (Tr. 118): 

94.4 
A. We had an open --- two open water rinqs which would allow 

for expansion of that explosion . We had a borehole that --- aix or eiqht inch borehole, whatever it was that connected 

the two water rings wi th the B seam mine. I look at that as 

a very high potential for --- that if an explosion occurred 

that it could affect that B seam mine. Now, in the B seam 

aine some 1,200 feet from the bottom of that air shaft we got extensive mined out lonqwall gobs that contain methane qas. 

And it's anybody --- anyone's quess what could happen if that 

explosion entered into the B seam mine and affected the 

ventilation in the B seam and could cause methane to be drawn 

off of those lonqwall qobs. You could have significant 

explosions underground as a result of that. This is a highly 

gassy mine. 

Mr. Biesinqer stated further that he specifically considered 

the fire burning in the shaft bottom, the methane being 

liberated, the void behind the shaft wall where methane could 

be accumulated, and the water rising in the shaft that could 

trap methane behind the concrete liner. He also considered 

the presence "of burning PVC pipes and carbon monoxi de (Tr. 123) . 

Mr. Biesinger stated that he did not specifically known that 

miners were working in the B and c seams at the time the order 

was issued, but he assumed they were because he had inspectors at 

the mine that day, and had no reason to believe that no one was 

underground. He stated that "knowing there were miners underground I wanted to issue the Order to remove those persons to 

make sure of their safety" (Tr. 128). He confi rmed that the B 

and C seams are considered one mine because they are interconnected and have a common ventilation system. However, 

at the time the order was issued he did not calculate the 

available underground ventilation or ventilation air pressures 

(Tr. 130) . 

Mr. Biesinger stated that even though Inspector Brunati 

reported zero percentage methane readings in the B seam, and had 

sampled the air at the bottom of the borehole, this did not 

affect his decision to issue the order because "what he had down 

there didn't significantly change what was occurring· in the shaft 

and it would not change the occurrence if the explosion 

propagated down that borehole into the underground mine" 

(Tr. 132). He also believed that toxic pvc fumes would come up 

the shaft and down the borehole through the valve, and since 

•moke was smelled in the mine this indicated to him that there 

was an open connection and that there was a transfer of air or 

gas between the shaft and the underground portion of the mine 

(Tr. 134). He did not, however, know the water level in the 

ahaft at the time of the decision to issue the order, and he 

945 
confirmed that he was at the site for over an hour before making the decision (Tr. 138). Mr. Biesinger explained what was done 

before the order was lifted verbally at approximately 4:30 p.m. 

(Tr. 139-142). 

Qn cross-examination, Mr. Biesinger confirmed that he was 

advised about the borehole connection at 10:45 a.m., when he 

•poke with Mr. Brunati, and shortly thereafter spoke with 

Mr. Kuzar. They made the decision to issue the order to Mine 33, 

but he could not recall the precise time when the decision was 

aade and stated that "it might have been 11:30 A.M." (Tr. 146). 

He did not telephone the mine in advance of inspector Colton's 

arrival there , nor did he speak with Inspector Davis at Mine 33 . 

He stated that Mr. Brunati informed him that the borehole valve 

had been shut and that someone was stationed at the bottom of the 

borehole with a co detector (Tr. 149). He confirmed that the air 

coming by the bottom of the borehole in the mine was going to the 

returns and not to any working section (Tr. 150). He was aware 

that the mine had a co monitor warning system in the active 

working sections, and confirmed that the air coming out of the 

shaft was being monitored for carbon monoxide, methane, and 

oxygen (Tr. 15~) . 

Mr. Biesinger confirmed that an explosion would require methane, an ignition source, and sufficient oxygen, and he 

reviewed Mr. McElhoes notes with respect to the co readings, and 

confirmed that they show "a trend downward in the CO", and that 

these recordings were made while water was being dumped down the 

shaft (Tr. 156) . He confirmed that when the decision to issue 

the order was made the co had declined from a nigh of 126 parts 

per million to 19 parts per million (Tr. 156). 

Mr. Biesinger confirmed that the shaft construction plan was 

approved by MSHA. He stated that the Lanham Shaft also had water 

rings and that when the explosion occurred it came down the 

shaft, and when it encountered water, it went back up the shaft. 

He confirmed that the fatality in that incident occurred on the ·surface , that no one was near the bottom of the shaft, and it was 

possible that the B and c seams were working at that time 

(Tr. 158) . 

Mr. Biesinger stated that if there is no explosion any products of combustion would not 90 through the water and the 

borehole , and one can expect the main force of the explosion to 

90 up the shaft. Although the force of an explosion dissipates 

as it travels, it will sometimes pick up speed and force if fuel 

is continually being added (Tr. 160) . He confirmed that he did 

not know the methane percentages at any specific point in the 

•haft. He stated that when he went down the shaft to see if the 

fire was out he could not see the E seam because it was behind 

the concrete shaft wall and he could not tell what was happening in that seam (Tr. 161). 

94 6 
In response to further questions, Mr. Biesinger stated that 

the mine co monitoring system had no bearing on the issuance of 

the order because that system does not prewarn anyone and only 

aonitors the amount of co in the mine after the fact (Tr. 163) . 

Be confirmed that he knew about the borehole connection before 

the decision was made to issue the order (Tr. 166). 

John A. Kuzar, MSHA Johnstown Sub-District Manager, 

testified as to his mine experience and training, including the investigation of the Lehman shaft explosion, and a simila.r 

incident at Bethlehem's Revloc Shaft in 1979 or 1980 

(Tr. 167-172 )0 He stated that he was informed of the D-East 

shaft fire on March 11, 1993, by a telephone call from acting 

subdistrict manager Robert Nelson. Mr. Kuzar then telephoned 

Mr. Biesinger at the mine site, and was briefed on the efforts 

being made to address the fire. Mr. Kuzar assumed that a 

section 103(k) order was in place, but there was no discussion 

about a connection between the shaft and the mine. He stated 

that there were five or six subsequent telephone calls to 

Mr. Biesinger, and that the decision to issue the imminent danger order was made "on the second call after he had evaluated the 

area, knew more of what was going on, knew that there was a 

physical connection between that shaft and underground workings 

of the mine" (Tr. 176). 

Mr. Kuzar stated that during his second telephone conversation with Mr. Biesinger he was informed of the connection of 

the borehole pipe into the B seam. There was no discussion about 

any valve at the bottom of the borehole pipe and he was not 

apprised that MSHA Inspector Nevin Davis was in the B seam 

in close proximity to the borehole pipe. At that point in time, 

the decision was made to remove the employees from the B and C 

mine seams, and Mr. Kuzar confirmed that it was basically a joint 

decision based on the facts presented to him by Mr. Basinger, 

particularly the fire in the shaft, and the physical connection 

between the borehole pipe and the B seam (Tr. 178). Although 

Mr. Kuzar alluded to a concern about the shaft ventilation, 

petitioner's counsel asserted that there were no adverse 

ventilation conditions where the miners were working underground 

(Tr. 182-183) 0 

Mr. Kuzar stated that the mine "was the gassiest in the State 

of Pennsylvania" and that this was considered when the decision 

to issue the order was made (Tr. 183). He stated that if he had 

known about the valve at the bottom of the borehole pipe it would 

not have changed his decision, and he explained as follows at 

(Tr. 185-186): 

A. That valve, the way I understand it was a two-inch 

- I don't know, it was a two-inch valve. That valve 

would probably have blown off that pipe and then there's 

no assurance that I have that there was not any gasses or 

947 
anything coming out around that pipe. I don't know. I 

wasn't there to see it. But as far as the valve in 

itself, it wasn't irrelevant to me. 

Q. You said it would have come off, if what happened? 

A. If I had an explosion in that shaft and the forces 

went into that mine, I don't think that little valve 

would stop those forces. 

Q. And what type of explosion were you concerned about? 

A. Methane. 

Mr. Kuzar stated that the respondent's operations Manager 

Stickler called him and expressed his concern and belief that the 

order was not justified. After Mr. Stickler advised Mr . Kuzar 

that he could not guarantee that no one working underground would 

be affected by any explosion, Mr. Kuzar informed Mr. Stickler 

that "on the side of safety we need to pull your mine 0 and 

advised him· that he would "try to get it back into production as 

fast as we can° (Tr. 191). 

On Cross-examination, Mr. Kuzar confirmed that he was not 

told about the borehole valve, and he was not sure that he was 

aware of the borehole prior to March 11 (Tr. 203) . He stated 

that the borehole is used to remove water from the mine when 

sinking a shaft, and this is done by water rings connected to the 

borehole. He assumed that the borehole will fill up with water 

if the valve is closed (Tr. 204). He confirmed that Mr . Biesinger did not inform him that Inspector Davis was 

underground, and that he first learned of this in preparation for 

the hearing in this case (Tr. 205). 

Mr. Kuzar stated that the shaft was inspected every month 

while it was under construction, and the mine was on a five-day 

spot inspection cycle because of high methane liberation 

(Tr. 206-207) . He confirmed that the injuries resulting from the 

Lehman and Revloc shaft explosions occurred on the surface 

(Tr. 208). He confirmed that in order for the underground mine 

gob area to be involved in any explosion from the shaft, the 

shaft explosion would have to travel from the shaft, down the 

borehole , into the mine and then propagate some distance in the 

aine (Tr. 209). 

M$HA Inspector Nevin J. pavis, testified that he has held 

that position for 17 years, and previously worked as a miner and 

aection foreman . He has also conducted seven or eight methane 

948 
ignition investigations, but has not investigated any shaft 

fires. He confirmed that he was at the No. 33 mine on March 11, 

1993, conducting a five-day spot methane inspection. At 

approximately 9:15 A.M. he was contacted on the mine phone by 

aine foreman William Moyer who informed him that there was an 

ignition or a fire at the D-East shaft. He then spoke with MSHA 

Inspector Sam Brunati, who was on the surface, and he confirmed 

what Mr. Moyer had told him (Tr. 213-217). 

Mr. Davis stated that Mr. Moyer informed hi m that he was 

going to send a foreman underground to close the borehole valve, 

and Mr. Davis then called Mr. Brunati and informed him that he 

was close to the borehole area and would go there to see what was 

going on . While on his way to the borehole area, Mr. Davis met 

two mine foremen, and they then met foreman Dan Horn approximately 300 feet from the borehole area. Mr. Horn informed him 

that when he first arrived at the borehole there was basically no 

methane but he had noticed or smelled what he thought was smoke, 

but it had dissipated and he closed the valve at 9 : 28 A.M. (Tr. 217-220) . 

Mr. Davis stated that he checked the borehole area for 

methane and oxygen levels and took some air bottle samples. He 

found no methane and the results of the bottle samples did not 

indicate any problems. He then reported the results of his 

borehole inspection to Mr. Brunati who then related them to 

"some of the people over the shaft area" and "to Mr. Biesinger probably" (Tr. 222). Mr. Davis then met foreman Ralph Naugle 

who was on his way to monitor the air with C02 detectors, and 

mine inspector Steve Alexo who was bringing in the detectors. Mr. Davis then left the area and went to the surface, and since 

his inspection activities were completed, he left the mine 

(Tr. 223) . 

Mr. Davis stated that when he was close to the borehole pipe 

he did not smell smoke, but that "off to the corner or in the 

crosscut there where it was stripped off pretty heavy, it looked 

like it could have been smoke -- or it could have been humidity 

too but I couldn't tell", and that he reported this to. Mr. Brunati (Tr. 224). 

On cross examination, Mr. Davis· stated that the mine area and 

floor at the location where the borehole penetrated the mine was 

wet and that the valve was closed when he got there and he 

observed no water or smoke coming out of the valve (Tr. 225). 

Mr. Davis identified Exhibit 0-1 as the results of the bottle 

•amples that he took, and they show .010 percent methane an .0006 

percent carbon monoxide. The oxygen reading of 20.91 percent was 

normal (Tr. 227-228). 

Referring to his notes (Exhibit G-7), Mr. Davis read a 

notation "Both valves closed at this time, water filled the pipe 

949 
about one and a half hours at four gallons per minute", and he 

indicated that he received this information from engineer Larry 

Neff. He confirmed that Mr. Naugle was going to stay in the 

track entry and walk over to the borehole area every fifteen 

ainutes ~o monitor for carbon monoxide (Tr. 229-230). 

Respondent's Testimony and Eyidence 

I,arry E. Neff, Field Engineer, Cambria Mine 33, testified 

that his duties include major surface and underground 

construction and emergency repair work. He stated that he is 

certified by MSHA to test for methane gas, and that he was one of 

two contact persons for the respondent in connection with the 

construction of the shaft on March 11, 1993. He stated that he 

returned a call from Ray Peterman at 8:30 A.M. that morning and 

was informed that there was an ignition in the shaft and that 

there was a fire at the bottom of the concrete. He advised 

Mr. Neff to dump water down the shaft and that he would calculate 

how much water would be needed to fill the 17 and one-half feet 

area from the shaft to the air seal. Mr. Neff then spoke to 

shift foreman Mike curtis at the mine and asked him to send 

someone to close the borehole valve because it was the only 

connection between the shaft fire site and the underground mine 

(Tr. 232-238). 

Mr. Neff described the borehole valve as a six-inch cast iron 

valve rated at 200 pounds for water, oil or gas. He stated that 

he proceeded to the borehole area with Mr. Davis and met Dan Horn 

who informed him that he had shut the valve at approximately 9:30 A.M. Mr. Horn advised him that he had smelled smoke upon 

his arrival, but not after he shut the valve (Tr. 241). 

Mr. Neff stated that the borehole filled with water at the 

rate of three to four gallons a minute and that it would fill up 

to the water ring and then discharge and cascade down the shaft 

wall. He described the pipe and the water rings and explained 

their functions. In his opinion, the water in the borehole pipe 

would serve as a barrier to the passage of any fire or gases from 

the shaft, and it would also serve as an explosion barrier and 

would redirect it up the shaft and borehole (Tr. 243-248). 

Mr. Neff stated that voids are intentionally left behind the 

concrete shaft lining in order to allow the water behind the 

ahaft wall to travel down into the water rings. In his opinion, if methane accumulated between the concrete and shaft wall and it 

ignited and exploded, it would come in through the center of the 

ahaft and would not destroy the wall (Tr. 250). He did not 

believe that there was any reasonable likelihood that an 

explosion in the shaft would propagate into the mine workings 

because "I know what we had ••• it was like a fire in a SS-gallon 

drum. The fuel was outside it and the fire was outside it. As 

long as you keep the fuel away, what's the problem" (Tr. 252). 

950 
He explained that the only ignition source connection between the 

abaft and the underground mine was closed when the borehole valve 

was closed. He confirmed that he has experienced two prior shaft 

explosions, and in both cases the direction of force was up the 

abaft (Tr. 252). In the instant case, he believed that any fire 

or iqnition source coming down the borehole would be extinquished 

by the water filling up the borehole and effectively sealing it 

(Tr. 255). 

Qn cross-examination, Mr. Neff stated that he had two years 

of formal college education with an associate degree in surveying 

from Penn State and 15 years of field experience (Tr. 256). His 

opinion that the water in the borehole would redirect any 

explosion that met the water was based on "the path of least 

resistance" (Tr. 257). He believed that any methane going down 

the borehole pipe filled with water would come back up the pipe 

because it was lighter. According to his calculation, the water 

started filling up at approximately 9:30 a.m. at the rate of 

two feet a minute, or 120 feet within an hour (Tr. 258). 

Mr. Neff stated that there was no problem with the methane 

liberating in the shaft before the fire, and it was less than 

one percent, but increased to more then two percent after the 

fire started. Although there was a potential for the coal in the 

E seam to burn during the fire, a post-fire inspection indicated 

that this did not happen. In his opinion, the only thing 

necessary to protect the miners in the B and C seams was to close 

the valve and crib it at the bottom of the borehole and allow it 

to fill with water (Tr. 259). He stated that there was no 

consideration given to leaving the active sections at the time of 

the fire because the section foremen were alerted and knew what 

was going on (Tr. 263). He could not speculate the magnitude of 

any explosion blowing through into the B seam if there were no 

water in the borehole, and commented that "I can't see how any of 

its going to go down that hole, this is a six-inch borehole" 

(Tr. 265) . Even if there were no water in the pipe it would 

still be his opinion that it was not reasonably likely that a 

shaft explosion will travel over to and down the borehole into 

the mine. He based this on his experience with two prior shaft 

explosions, both of which went up the shaft (Tr. 27'3). 

Daniel E. Horn, respondent's Head Mining Engineer, 

testified as to his mining and maintenance engineering 

experience, including ventilation, and he confirmed that he 

holds a 1982 B.S. degree in mining engineering from the 

University of Pittsburgh, and is a certified mine foreman and 

registered professional engineer. He has also received mine 

rescue training, has served on the mine rescue team, and is a 

current member of the state mine rescue team. He and Mr. Neff 

developed the specifications for the construction of the D-East 

ahaft, and he served as the project engineer on a day-to-day 

basis (Tr. 273-280). 

951 
Mr. Horn stated that he was serving as the section foreman 

during the mining of the lonqwall on March 11, 1993,. and he 

described the working areas shown on two mine maps, including the 

•hafts, and explained the ventilation (Exhibits 0-2 and 0-3, 

Tr. 281-289). 

Mr. Horn confirmed that shift foreman Mike curtis called him 

and asked him to go to the D-East shaft and close the borehole 

valve because there was a problem, but Mr. CUrtis did not explain his request further. Mr. Horn stated that he went to the 

borehole, checked for methane as he approached it, and noticed 

"a small amount of smoke at the borehole location," and closed 

the gate valve. The immediate vicinity of the borehole was 

heavily cribbed and he stated that "when I got right up to it 

there was a small amount of smoke right where the borehole pipe 

was discharged. It was discharging in a small amount of water" 

(Tr. 291). He tested zero percent methane, the floor and cribs 

were wet, and the borehole valve was "wet and cold to the touch" 

(Tr. 292). He initially believed that hoses were burning, and 

the negative pressure would draw air down the shaft and pipe into 

the mine. However, once the valve is shut, the air is stopped 

and the pipe will begin filling with water (Tr. 293). 

Mr. Horn stated that after leaving the borehole area he met 

Mr. Davis and Mr. CUrtis, and they returned to the area and took 

air readings at the regulator and checked for methane, and 

Mr. Ralph Naugle came to the area to stay and monitor the co. 

Mr. Horn stated that he did not expect that an explosion in the 

shaft would propagate into the mine, and he went back to work 

with his crew. He did not believe that the mine needed to be 

evacuated based on what he knew at 10:00 a.m. when he left the 

borehole area (Tr. 299). After leaving the mine, he went to the 

shaft area and later went down the shaft in the bucket and 

observed that the water in the shaft had reached the edge of the 

concrete (Tr. 302). Once the borehole valve was closed and 

filled with water, he did not believe that any combustion 

products from the fire could travel through the borehole into the 

mine because of the air ventilation differential which would 

course any air and gas mixture up the shaft rather than down the 

water sealed borehole .pipe (Tr. 302). He did not believe it 

reasonable to expect an explosion in the shaft to propagate down 

the borehole rings or into the mine itself because the shaft 

bottom was very wet and the nearest gob was 1,000 feet away 

(Tr. 302-304). He did not believe there was any reason to 

evacuate any miners from the B or c mine seams because they were 

not exposed to any hazards (Tr. 305). 

On cross-examination, Mr. Horn confirmed that he has never 

worked in proximity to a methane explosion and that his opinions 

with respect to the explosion hazards are based on his 

familiarity with ventilation principles, mine gases, and the 

construction of the shaft. He confirmed that be was not present 

952 
on the surface immediately prior to the issuance of the imminent 

danger order (Tr. 306). He stated that the borehole pipe area 

between the lowest water ring and the valve was full of water and 

no air was moving . He believed the water was up to 30 feet in 

the pipe when he and Mr. Davis arrived there (Tr. 309). 

Robert E. Roland, respondent's mine inspector and former 

-.ction foreman and mine rescue team member for 21 years, 

testified that his experience includes fighting two mine fires in 

1977 and approximately 1988, and the investigations of two shaft 

explosions. He has also received training on mine fire fighting 

(Tr. 313-319). 

Mr. Roland stated that he was informed of the shaft fire 

at approximately 8:45 a.m. by a telephone call from Larry Neff. He went to the shaft area and observed the efforts made to 

extinguish the fire and he made notes concerning his observations 

and the co readings that were taken at the top of the borehole. 

He confirmed that water was being dumped down the shaft to 

extinguish the fire and when he looked down the shaft at 

approximately, 1:00 p.m. he thought the fire was out because of 

the decreased -CO readings and the shaft was inundated with water. 

In his opinion "any flame that was down there would have never 

survived the first truck load of water" (Tr. 327, Exhibit o-5) . He saw no flames when he looked down the shaft and he was 

surprised when he later learned that an imminent danger was 

issued because he did not believe there was an underground hazard 

and believed that the fire had been extinguished (Tr. 328). 

Mr. Roland did not believe that any products -of combustion 

would go down the borehole and reach the underground mine because 

the water in the borehole served as a seal and water is an 

acceptable and effective method of sealing off mine fires. 

He did not believe that it was reasonable to expect that an 

explosion in the shaft would propagate down the borehole because 

no flame could propagate through the water (Tr. 329). 

Mr. Roland confirmed that after further discussions with 

Inspector Biesinger he went down the shaft after 3:3_0 p.m., with 

mine rescue team caption Gary Scott, and he saw no evidence of 

any fire until he reached the shaft bottom. He saw "two spots on 

the concrete wall where it had blackened," saw some partially 

burned material floating in the water, but saw no fire. 

CO readings were continuously being taken as he went down the 

ahaft and no CO was present. The methane readings decreased as 

they reached the shaft bottom, and he noted measurements of three 

to four-tenths in his notes (Tr. 333). He confirmed that a 

aethane reading of 3 percent was made as he went down the shaft, 

but he attributed this to the methane that was being flushed out 

of the shaft by the exhaust ventilation (Tr. 334, 340). 

953 
On cross-examination, Mr. Roland believed that methane was 

burning in the shaft during the fire. He estimated that the 

abaft excavation had reached 840 feet, and that the water reached 

the level at the bottom of the concrete at some point after he 

went down the shaft after 3 : 30 p .m. He believed the fire was at 

the bottom of the concrete but that it had been extinquished 

before the water reached that level (Tr. 340). He did not 

believe there was a hazard to underground miners because the only opening into that mine was water sealed (Tr. 341). 

Robert DuBreucg, mine superintendent, testified that he has 

held that posit ion for six years, and formerly served as 

super intendent, assistant superintendent, and section foreman 

engineer at several other mines. He holds a 1970 B.S. degree in 

mine engineering from Penn State University and is a certified 

first grade mine foreman (Tr. 347). He stated that he learned 

about the shaft f ire while at an inspection close-out meeting 

with MSHA inspectors Sam Brunati and Bernie Kordish. Since he 

knew that the only access into the mine from the shaft was the 

borehole, he decided that the borehole valve should be closed so 

that it would ll with water and isolate the mine from anything happening in the. shaft, and this was discussed with Mr. Brunati. 

At 8:45 a .m. , f oreman Mike curtis was instructed to dispatch the 

closest foreman to the borehole to shut the valve, and Dan Horn 

was assiqned that task. Another person was assigned to 

continuously monitor the borehole area with co detectors 

(Tr. 349). 

Mr. DuBreucq stated that Mr . Brunati had inspected the mine 

for a long t i me, and during their brief discussion, nothing was 

said to indicate that he believed the mine was at risk. After 

the valve was closed, Mr. Davis came out at noon and reported 

that he detected no methane or smoke and that someone was 

monitoring the borehole area. After Mr. Colton issued the order 

at 1: 15 p.m., Mr. DuBreucq voiced his disagreement and informed 

Mr. Colton that there was 200 feet of solid rock between the 

bottom of the shaft and the mine , that the only opening in the 

mine was the borehole p i pe that was filled with water and the 

valve was shut off, and that the mi ne was being monitored and 

there was no co or smoke . Mr. DuBreucq stated that Mr; Colton 

told him that he was told to issue the order (Tr. 351). 

Mr. DuBreucq did not believe there was any danger and stated that 

Rif I thought for a second there was any danger those men would 

be affected by that, I'd have yanked them long before 1:15" 

(Tr. 352). He did not believe that an explosion in the shaft 

would propagate down through the borehole pipe that was filled 

with water. According to his calculations, it would take a force 

capable of lifting a 47 million pound slab to knock the valve off 

the end of the borehole pipe (Tr. 353). 

Mr. PuBreucq believed that the hazard was only at the shaft 

and he agreed with the imminent danger order issued for the shaft 

954 
and shaft surface, but not the one issued for the underground 

aine (Tr. 355-356). 

On cross-examinati on, Mr. DuBreucq explained how be 

calculated the amount of f or~e necessary to dislodge the borehole 

valve (Tr. 356-358) . 

MSHA's Arguments 

Citing Old Ben Coal Corp. v . Interior Board of Mine 

Operations Appeals, 523 F. 2d 25 (7th Cir. 1975) f Rochester and 

Pittsburgh Coal Co ., 11 FMSHRC 2159 , 2164 (November 1989); llllh 

Power and Light Co. , 13 FMSHRC 1617, 1627 (October 1991) ; and 

Island Creek Coal Company, 15 FMSHRC 339 , 345 (March 1993) , MSHA 

arques that the courts and the Commission have recognized that an 

inspector must act quickly when confronted with dangerous 

conditions, that he must have considerable discretion i n 

determining whether an imminent danger exists, and that his 

decision must be supported unless he has abused his discretion. 

In support of its case, MSHA asserts that the circumstances 

faced by the 'inspectors at 11:00 A.M., on March 11, 1993, 

justified the issuance of the contested imminent danger order. MSHA maintains that there was an active shaft fire and other 

ignition sources, and an ample source of liberated methane , and 

that i t was reasonable to believe that a methane explosion was 

imminent or impending. 

MSHA asserts that the shaft had been liberating significant 

amounts of methane during its development and excavation, that 

the contractor had experienced problems in implementing 

ventil ation controls sufficient to render the methane harmless, 

and that on the shift prior to the fire, significant methane 

readings had been taken at the shaft. MSHA concludes that in all 

l ikelihood, there was methane being liberated both from the rock 

strata which was cut through during the shaft excavation and from 

the E coal seam, and points out that carbon monoxide and methane 

readings taken by MSHA Inspector McElhoes and state i nspectors indicated that significant amounts of methane were present. MSHA 

states that in order to extinguish the fire, large quantities of 

water were dumped into the shaft, and that the inspectors were 

concerned that as the water level rose, methane would get trapped 

in the void between the excavation periphery and the tin paning 

which was installed behind the concrete bulkhead of the shaft. 

MSHA asserts that the active fire in the shaft was burning 

both methane and the PVC in the dust collection hose line, and 

there was a clear potential for the fire to ignite the coal in 

the nearby E coal seam, and that there may have also been other 

combustibles in the shaft which were not definitely known at the 

time and could not be accurately evaluated from the surface, 

given the 800 foot depth of the shaft. MSHA a l so points to 

955 
Inspector Biesinger's testimony that he was concerned that the 

total combustibles (hydrogen, carbon monoxide, and .methane) in 

the shaft would reduce the lower explosive limit for combustible 

gas in the shaft. (In other words, the gases which were burning 

and being produced as byproducts of the fire in the shaft reduced 

the threshold for additional gas combustion). Given all of these 

factors, MSHA concludes that there was clearly an impending 

danger of a methane explosion. 

MSHA further points out that there was a connection between 

the shaft and the B coal seam through the dewatering borehole 

pipe , and that this connection provided a means for transmission 

of the explosion into the active workings of the mine. Conceding 

the fact that the valve on the borehole pipe had been closed 

prior to the issuance of the imminent danger order, MSHA 

concludes that the inspectors could hardly rely on the valve 

to withstand a massive methane explosion , and that Bethenergy 

acknowledged that it did not know how much force the valve on the 

dewatering borehole pipe could withstand. 

MSHA asserts that although Mr . Biesinger realized that once 

the borehole valve was closed it would start filling up with 

water, he did not know the exact amount of water in the pipe, and 

the flow of water into the pipe fluctuated according to the 

season . Given "the emergency circumstances" facing him at the 

time, MSHA concludes that it was not reasonable for Mr. Biesinger 

to take time out to calculate how much water was in the borehole 

pipe prior to directing that the imminent danger order be issued. 

Further, even if there were water in the borehole pipe, MSHA 

asserts that an explosion could have been propelled through it. 

MSHA argues that with the potential for fatal injury to 

miners in the B and C seams, an inspector must act quickly and he 

cannot rely on computations made in laboratory-like conditions. 

MSHA points out that there were "worrisome conditions" in the B 

seam itself in that there was a working section reasonably close 

to the borehole pipe and the mine was extremely gassy "with vast 

gob areas giving off large amounts of methane". 

MSHA acknowledges that in order for an explosion to affect 

the B seam, it would have had to travel through the water ring, then down the borehole pipe and through the valve into the mine. 

However, MSHA asserts that the force vectors of a methane 

explosion cannot be precisely predicted, and that in an emergency 

situation, the inspectors cannot rely on uncertain theoretical 

predictions of what direction an explosion should travel. 

With regard to Bethenerqy's reliance upon the mine's carbon 

aonoxide detection system, MSHA maintains that this system would 

only have indicated the byproduct of an ignition after it had 

already occurr ed, and does not provide a valid reason for not 

issuing the order. 

956 
MSHA states that the inspectors were concerned about the 

transmission of noxious gases, fumes, and combustion byproducts 

into the active working areas, and it points out that carbon 

aonoxide was being produced by combustion and PVC in the dust 

collection lines was being burned. MSHA maintains that this 

reasonable concern provided another piece of the inspectors' 

rationale for issuing the imminent danger order. 

MSHA argues that Inspectors Kuzar and Biesinger, the 

individuals who made the imminent danger decision, were not 

novices, and that they have impressive backgrounds and knowledge 

regarding mine ventilation and mine explosions, and extensive 

experience with Mine 33 and with prior shaft explosions. MSHA 

concludes that they did not act precipitously, and it points out 

that when mine manager Stickler was asked by Mr. Kuzar whether, 

given the ongoing shaft fire, he could guarantee the safety of 

the miners in the mine, Mr. Stickler replied he could not 

(Tr. 191). Under the circumstances, MSHA concludes that 

Mr. Kuzar could not take the chance of leaving the miners in 

the mine. 

MSHA asserts that the decision by Mr. Kuzar and Mr. Biesinger 

to issue the imminent danger order was reasonable given the 

information available to them at the time and the circumstances 

which were presented, and that they did not abuse their 

discretion. MSHA further asserts that they acted responsibly in 

keeping with the weighty mandate given to them by Congress -- to 

assure the safety and health of the miners. 

Citing Island Creek Coal Company, supra, and Wyoming Fuel 

k2..&., 14 FMSHRC 1282, 1291 (August 1992), MSHA concludes that it 

has clearly met its burden of proof to show by a preponderance of 

the evidence that "the conditions or practices, as observed by 

the inspectors, could reasonably be expected to cause death or 

serious physical harm, before the conditions or practices could 

be eliminated." 15 FMSHRC at 346, 14 FMSHRC at 1291 . MSHA 

further concludes that the imminent danger order was 

appropriately issued . 

Bethenerqy's Arguments 

Citing the statutory language of section 107(a) of the Act, 

and the legislative history, Bethenergy argues that there must be 

aome degree of imminence to support an imminent danger order. In 

aupport of its conclusion that the hazard to be protected against 

by such a withdrawal order must be impending so as to require the 

immediate withdrawal of miners, Bethenergy provides the following 

quotes from the legislative history to support its arguments as 

to when an imminent danger is present: 

957 
" ••• the situation is so serious that the miners must be 

removed from the danger forthwith when the danger is 

discovered without waiting for any formal proceeding or 

notice." 

• ••• the seriousness of the situation demands such 

immediate action because delays, even for a few minutes, 

•&Y be critical or disastrous." 

Imminent danger orders are concerned with "any condition 

or practice ••• which may lead to sudden death or injury 

before the danger can be abated . " 

Imminent danger orders deal with "situations where there 

is an immediate danger of death or serious physical 

harm. " 

Bethenerqy argues that the issuance of an imminent danger 

order in the statutory scheme of enforcement is an extraordinary 

power that is avai lable only when the "seriousness of the 

situation demands such immediate action" . Bethenergy asserts 

that an inspector must determine whether the hazardous conditions 

presents a danger of death or serious injury that is imminent or 

presents an impending threat to life and limb without considering 

the "percentage of probability that an accident will happen . " 

Bethenerqy concludes that only by limiting imminent danger orders 

to such impending threats does the imminent danger provision 

assume its proper function under the Act . Bethenerqy suggests 

that if the section 107(a) imminent danger provisions of the Act 

are interpreted to include any hazard that has the potential to 

cause a serious accident at some future time, the distinction is 

lost between a hazard that creates an imminent danger and a 

violative condition that "is of such nature as could 

significantly and substantially contribute to the cause and 

effect" of a mine safety hazard, pursuant to section 104(d) (1) of 

the Act. 

In support of its argument that Congress intended that there 

be some degree of imminence to support a section 107(a) imminent 

danger order, Bethenerqy cites the following commonly accepted 

dictionary definition of the word "imminent": "ready to take 

place: near at hand: impending: hanging threateningly over one's 

head: menacingly near." Webster's Third New International 

Dictionary CUnabridged) at 1130 (1986). Bethenerqy also cites 

the commission's decisions in Utah Power and Light Company, 

13 FMSHRC 1617, 1622-23 (October 1991), and Wyoming fuel Company, 

14 PMSHRC 1282, 1290-91, (August 1992), in support of the 

necessity of the imminence of the danger associated with 

aection l07(a) orders. 

Applying the aforesaid legal criteria to the facts of this 

case, Bethenergy argues that it cannot properly be concluded that 

958 
an imminent danger existed for the miners working in the B and c 

coal seams at the time the contested order was issued. In 

•upport of its argument, Bethenergy relies on a number of factors 

including the physical structure of the shaft and the borehole, 

the fact that the borehole was filled with water, the fact that 

the fire in the shaft was effectively extinguished by the time 

the order was issued, the mechanics and physics of shaft 

explosions, and the distance from the working sections in each 

aeam. 

Bethenergy maintains that the structure of the shaft and 

borehole precluded the transfer of any shaft explosion into the 

underground B seam through the 6 inch pipe that extended into the 

mine where it was closed off by a valve which was supported by 

crib blocks. Bethenergy asserts that it was unlikely that an 

explosion would travel up the shaft from the area of the fire, 

the only source of ignition in the shaft, then turn more than 

90 degrees to enter the down~ard sloping pipe connection, travel 

to the borehole, enter it through the 4-5 inch opening, and make 

another turn to travel down the borehole. Bethenergy maintains 

that such a scenario directly contravences a fundamental fact 

that explosion "forces follow the path of least resistance and 

would go up the shaft that was open to the sky, and not up the 

shaft, across to the borehole and down the borehole, as explained 

by the credible testimony of Mr. DuBreucq, Mr. Horn, and 

Mr. Neff. 

With regard to MSHA's reliance on two previous shaft 

incidents at Bethenergy's Lehman and Jones Portal Shafts, 

Bethenergy points out that both shafts were opened to the 

atmosphere, both were restricted at the bottom of the shaft, 

both had dewatering boreholes and the explosion forces traveled 

up the shaft in both cases because this path offered practically 

no resistance to the explosion forces. In the Lehman shaft 

explosion there was no damage to the water rings doors, water 

rings or the borehole. 

Bethenergy further points out that the closed valve at the 

end of the borehole was an additional factor that precluded an 

explosion propagating into the mine, and that in order for this 

to occur, the valve would have to be destroyed. However, 

Bethenergy asserts that the valve was rated at 200 psi with a 

safety factor of 3, and it was held in place by crib blocks. 

Further, Mr. DuBreucq testified that in order to impact the valve 

with a force of 600 psi, it would take 47 million pounds of force 

being generated in the shaft, and the top of the shaft would have 

to be capped with a substantial amount of concrete in order to 

direct this much force into the borehole. Mr. DuBreucq concluded 

that an explosion of this magnitude would be unlikely given the 

amount of methane in the shaft. 

959 
Bethenerqy arques that the fact that the borehole was filing 

with water is particularly significant since the .presence of 

water in the borehole would prevent the propagation of an 

explosion and would direct any forces to the open end of the 

borehole at the surface, just as it did at the Lehman &haft. Bethenergy cites Mr. Neff's calculation that the borehol e would 

bave been- filled to the first water ring at the time the order 

was issued . Bethenergy concludes that the propagation of an 

explosion through the water was not possible since there would be 

no fuel to sustain the explosion . 

With regard to MSHA ' s theory that methane might have 

accumulated in the void behind the shaft liner, Bethenerqy 

maintains that Mr. Neff's analysis of an explosion in this void 

is more credible than MSHA's witnesses, and he explained that if 

any of the three confining structures were to fail it would be 

the concrete shaft liner since there is nothing to displace in 

the other two directions because the strata is solid, whereas the 

concrete liner has open air on the other side. Although 

Mr. Biesinger testified that the potential ignition source behind 

the liner would be the fire , Bethenergy points out that if the 

water rose to the level of the bottom of the liner, the fire 

would be extihquished. 

Bethenerqy asserts that MSHA has produced no credible 

evidence to support any conclusion that an explosion would 

involve the borehole and that its theory defies common sense as 

shown by the prior two shaft explosions that went up the shaft 

and did not result in damage to the water ring doors, water 

rings, or borehole . 

Bethenergy arques that Inspectors Kuzar and Biesinger were 

aware of the structure of the shaft, and their claims that they 

decided to issue the order when they learned of the borehole 

connection between the shaft and the mine must be d i scounted. 

Bethenerqy states that the shaft was being constructed in a 

standard method, and Mr . Kuzar conceded he woul d or should have 

known of the existence of the borehole prior to March 11, 1993. 

Further, he knew that such boreholes were used to de-water the 

shafts, and that they normally had valves on them, and knew that 

closing the valve causes the borehole to fill with water, yet he 

and Mr. Biesinger clearly did not consider this information in 

making their evaluation of the potential hazard. 

Bethenerqy states that the evidence shows that at the time 

the order was issued, any explosion hazard posed by the shaft 

fire was decreasing, if not non-existent, because the fire was 

the only source of ignition in the shaft, and it was effectively 

extinquished by the time the order was issued . In support of its 

conclusions, Bethenergy states that the carbon monoxide measureaents at the top of the shaft, the only tangible information 

960 
concerning the status of the fire, showed that by the time the 

order was issued, the fire was in all likelihood extinguished 

and no threat to the miners in mine 33 could have ·existed. 

Bethenergy suggests that even with a fire burning in the shaft, 

MSHA did not show that an explosion was imminent. 

In response to MSHA's assertions concerning the backgrounds 

and experience of Mr. Kuzar and Mr. Biesinger, Bethenergy takes 

the position that they did not apply their knowledge and training 

to evaluate and analyze the situation at hand, and did not 

evaluate the carbon monoxide readings or consider the fact that 

they were not real time measurements of the status of the fire. 

Relying on the co readings that were being made, and the 

testimony of its mine inspector Roland, an experienced fire 

fighter and member of the mine rescue team, Bethenergy concludes 

that the fire was extinguished very early on in the process of 

dumping water down the shaft. 

Discussing the elements necessary for a methane explosion, 

which include an explosive mixture of methane and oxygen, 

Bethenergy points out that the methane measurements from the time 

MSHA arrived at the shaft to the time the order was issued were 

well below the explosive range of 5-15 percent at all times; that 

all methane measurements recorded in the inspector's notes during 

the relevant time period were below 1 percent; and that the 

highest concentration of methane actually measured by MSHA from 

the time Inspector Colton arrived at 9:50 a.m., to the time the 

order was issued at 1:15 p.m. was 0.2 percent. 

Bethenergy concludes that all of the information available to 

MSHA indicated that an explosive mixture was not present, and 

that the inspectors speculated that methane might be contained or 

trapped in the space between the shaft liner and the natural wall 

of the shaft, ignored the information available to them at the 

time, and relied solely on their speculation that an explosive 

mixture of methane might exist. Bethenergy states that the 

"speculative potential for a remote possibility does not warrant 

the issuance of an imminent danger order", and citing Utah Power 

and Light Co .. supra, concludes that the conditions in the shaft 

did not present an "impending" or "menacingly near" hazard 

requiring the immediate withdrawal of miners. 

Bethenergy states that the closest working section to the 

borehole was approximately 2,000 feet away, that the closest 

aection in the c seam was at least 25,000 feet away, 8,ooo of 

which was solid rock. Bethenergy notes the absence of any MSHA 

evidence that an explosion would likely propagate even to the 

closest section, let alone to those in another seam of coal 

approximately 4 miles away. It also notes the lack of any 

explanation by MSHA's witnesses as to how an explosion could 

propagate through the water in the borehole, through the closed 

valve and through the B-seam mine. Although Mr. Kuzar testified 

961 
that an explosion could conceivably propagate to t~e longwall gob, Bethenergy points out that he did not provide any credible 

evidence of how this would occur without additional fuel, 

particularly since there was no methane in the B seam borehole 

area that would propagate any explosion. Bethenergy further 

points out that the borehole area was extremely wet, the entries 

were rock· dusted, and there is no evidence that any other areas 

of the mine were not properly rock dusted. 

Bethenerqy discounts MSHA's argument that the B and C seam 

ventilation were interconnected, and it points out that MSHA's 

witnesses failed to explain how this would affect the potential 

of a hazard from an explosion in the shaft. Moreover, Bethenergy 

asserts that the interconnections are not simple and that the 

working sections in the C seam are ventilated by different air 

shafts than those that serve the shaft area of the B seam as are 

the other mine sections and areas. 

Bethenergy concludes that the MSHA personnel failed to 

consider the actual conditions in the mine at and near the 

borehole location. Inspector Davis had directly observed the 

conditions that morning, and his information was relayed to 

Mr. Biesinger. Mr. Biesinger and Mr. Kuzar were more than aware 

of the general conditions in Mine 33, including the generally wet 

conditions, and it was clear that there could be no reasonable 

expection that the shaft fire would cause an explosion in the 

shaft, that it would propagate up the shaft, across to the 

borehole, down through the water in the borehole, through the 

closed valve, and then through the mine. Bethenergy concludes 

that based on the available information, no imminent danger order 

could properly be issued. 

Bethenergy concludes that the lack of urgency by MSHA's 

personnel demonstrate the absence of an imminent danger. Bethenergy notes that Mr. Biesinger testified that he and 

Mr. Kuzar had decided to issue the order some time between 

11:00 a.m. and 11: 30 a.m., after his telephone discussion with 

Mr. Brunatti at 10:45 a.m., and that Mr. Colton was told to go to 

the mine to issue the order at approximately 12:15 p.m., approximately one hour before he wrote the order at 1:15 p.m., 

Mr. Colton drove to the mine office rather than using the 

telephone to call the mine office, and Mr. Biesinger did not try 

to call mine personnel to tell them that Mr. Colton would be 

coming to the mine to issue an order requiring withdrawal of all 

of the miners underground. 

Bethenergy argues that MSHA's lack of urgency and leisurely 

pace may be contrasted with the actions of the MSHA personnel 

in issuing withdrawal orders at the shaft itself. When MSHA 

personnel learned of the fire, a lOJ(k) order was issued over the 

telephone, and when the 107(a) order was issued at the shaft, it 

962 
was issued orally and then reduced to writing. In both 

aituations the construction crew at the shaft had already exited 

the shaft, yet MSHA acted with $Ome sense of urgency. However, 

when it came to removing the miners at Mine 33 from MSHA's 

perceived imminent danger, the process changed. Rather than 

iasuing an immediate verbal order, the order was delivered orally 

in person, almost two hours after the determination to issue the 

order was made, and when MSHA purportedly decided that an 

explosion could occur at any moment and that such an explosion could reasonably be expected to cause death or serious physical 

harm to the miners underground. 

Bethenergy asserts that the lack of imminence is further 

confirmed by the actions of the two inspectors who were at the 

No. 33 mine. Bethenergy points out that Inspector Davis 

inspected the borehole and knew full well that it connected the 

mine to the shaft, and he was aware that a limited amount of 

smoke had been observed in the area of the borehole by Mr. Horn 

before the valve was closed. He was also aware that there was a 

fire in the shaft and that miners were working underground, yet, 

he did not i~sue any imminent danger order. 

Bethenergy further points out that Inspector Brunati was 

aware of the same facts as Mr . Davis because Mr. Davis had 

reported them to him, and he discussed the situation with 

Mr. DuBreucq. Yet Mr. Brunati did not issue any imminent danger 

order. Bethenergy concludes that the actions of two experienced 

inspectors substantially undermines any argument that an imminent 

danger existed, as does the lack of urgency of the MSHA personnel 

at the shaft. 

Bethenergy argues that the witnesses agreed t hat any 

explosion forces from a shaft explosion would 90 to the surface, 

but disagreed on whether or not such forces would also go down 

the borehole. Although access to the shaft area was supposedly 

restricted, Bethenergy points out that there were numerous people 

near and right at the opening during the period that MSHA 

determined that an explosion was imminent. The air quality 

measurements were not obtained remotely, and the trucks dumped 

their water at the edge of the shaft. Given the fact that the 

two shaft explosions mentioned by the MSHA witnesses both 

involved injuries to persons on the surface, and not underground, 

Bethenergy argues that the relative absence of precautions on the 

surf ace clearly suggest that an explosion was not considered to 

be imminent. 

Bethenergy concludes that MSHA failed to show that the event 

the MSHA personnel were concerned with was even possible , let 

alone reasonable, and also failed to show that based on the 

information available to the MSHA personnel that an imminent 

danger order could properly be issued. Even if the circumstances 

of the shaft fire are evaluated from the perspective of 

96 3 
Messrs. Biesinger and Kuzar, Bethenergy believes it is clear that 

the conclusion that the shaft fire presented an imminent danger 

to the miners underground was not reasonable because they knew 

the borehole was connected at only two locations to the s~~t, 

that the shaft fire was 200 feet below the lowest connectibn, 

that shaft explosions would qo up the shaft to the open, and that 

the working sections were some distance from the bottom of the 

borehole. Further, Mr. Biesinger knew the valve connection was 

closed and Mr. Kuzar knew that there was probably a valve in the 

borehole, but did not inquire as to its status. They both knew 

if the valve was closed that the borehole would fill with water, 

that there was no fuel in the borehole to propagate an explosion since their monitoring of the borehole indicated O.l percent 

methane in the borehole between 11:00 A.M. and 12:30 P.M. They 

also knew that Inspector Davis had visited the borehole and found 

no methane that could propagate an explosion, that remedial 

efforts to put out the fire were occurring, and more importantly, 

they had information available to them that the co readings had 

been steadily and significantly declining. 

Finally, in anticipation of any claim by MSHA that some of 

the information, particularly concerning the co readings, was not 

available when Mr. Biesinger and Mr. Kuzar decided to issue the 

order, Bethenerqy takes the position that they cannot take 

advantage of their own delay, and that MSHA personnel had 

sufficient information available to them that would have enabled 

them to make a reasoned, rational and timely decision. Since 

they did not utilize it and Mine 33 was evacuated for no 

justifiable reason, Bethenergy concludes that the order should be 

vacated. 

Findings and Conclusions 

Section 107(a) of the Mine Act, 30 u.s.c. § 817, provides as 

follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized 

representative of the Secretary finds that an imminent 

danger exists, such representative shall determine the 

extent of the area of such mine throughout which the 

danger exists and issue an order requiring the operator 

of such mine to cause all persons, except those referred 

to in section 104(c), to be withdrawn from, and to be 

prohibited from entering, such area until an authorized 

representative of the Secretary determines that such 

imminent danger and the conditions or practices which 

caused such imminent danger no longer exists. The 

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. 

96 4 
Section 3(j) of the Mine Act, 30 u.s.c. § 802(j), defines an 

•imminent danger" as "the existence of any condition or practice in a coal or other mine which could reasonable be expected to 

cause death or serious physical harm before such condition or 

practice can be abated." 

In Old Ben Coal Corp. v. Interior Board of Mine Operations 

Appeals, 523 F.2d 25, 32 (7th Cir. 1975) (quoting Freeman Coal 

Mining Corp. , 2 IBMA 197, 212 (1973), aff'd ~ nom. Freeman 

Coal Mining Co. v. Interior Board of Mine Operations Appeals, 

504 F.2d, 741 , 743 (7th Cir. 1974), the determining test of 

whether an imminent danger exists was stated as follows: 

[E)ach case must be decided on its own peculiar facts. 

The question in every case is essentially the proximity 

of the peril to life and limb. Put another way: Would a 

reasonable man, given a qualified inspector's education 

and experience, conclude that the facts indicate an 

impeding accident or disaster, threatening to kill or to 

cause serious physical harm, likely to occur at any 

moment, b~t not necessarily immediately? The uncertainty 

must be of a nature that would induce a reasonable man to 

estimate that, if normal operations designed to extract 

coal in the disputed area proceeded, it is at least just 

as probable as not that the feared accident or disaster 

would occur before elimination of the danger. 

In Rochester & Pittsburgh Coal Company v. Secretary of Labor, 

11 FMSHRC 2159, 2163 (November 1989), the Commission adopted the 

position of the Fourth and Seventh Circuits in Eastern Associated 

Coal Corporation v. Interior Board of Mine Operations Appeals, 

491 F.2d 277, 278 (4th Cir. 1974), and Old Ben Coal Corp. v. 

Interior Board of Mine Operations Appeals, 523 F. 2d 25, 33 

{7th Cir. 1975), holding that "an imminent danger exists when the 

condition or practice observed could reasonably be expected to 

cause death or serious physical harm if normal mining operations 

were permitted to proceed in the area before the dangerous 

condition is eliminated." Canterbury Coal Co . , 5 IBMA 51 (1975), 

held that "speculative potential for a remote possibility does 

not warrant the issuance of an imminent danger withdrawal order." 

In affirming the imminent danger order issued in the 1989 

Rogbester & Pittsburgh Company case, supra, at 11 FMSHRC 2164, 

the Commission rejected an argument based on the "relative 

likelihood" of injury resulting from the cited conditions, and 

atated as follows at 11 FMSHRC 2164: 

R & P's argument also fails to recognize the role played 

by MSHA inspectors in eliminating dangerous conditions. 

Since he must act immediately, an inspector must have 

considerable discretion in determining whether an 

965 
imminent danger exists. The Seventh Circuit recognized the importance of the inspector's judqment: · 

Clearly, the inspector is in a precarious 

position. He is entrusted with the safety of 

miners' lives, and he must ensure that the 

statute is enforced for the protection of these 

lives. His total concern is the safety of life 

and limb • •• We must support the findings and the 

decisions of the inspector unless there is 

evidence that he has abused his discretion or 

authority. (Emphasis added) . 

Old Ben, supra, 523 F.2d at 31. 

In Utah Power&· Light Co., 13 FMSHRC 1617, 1621 (October 

1991), the Commission held that there must be some degree of 

imminence to support a section l07(a) order and noted that the 

word "imminent" is defined as "ready to take place: near at 

hand: impending • •• : hanging threateningly over one's head: 

menacingly near. " 13 FMSHRC at 1621. The Commission determined 

that the legislative history of the imminent danger provision 

supported a conclusion that "the hazard to be protected against by the withdrawal order must be impending so as to require the 

immediate withdrawal of miners." IQ.. Finally, the Commission 

stated that the inspector must determine whether an imminent 

danger exists without considering the "percentage of probability that an accident will happen." i.g. 

The facts in this case establish that at the time the 

order was issued Bethenergy ' s No. 33 Mine consisted of two 

working coal seams, the B seam and the c prime seam. Each seam 

had a longwall section and continuous miner sections, and on 

March 11, 1993, the B seam longwall was not operating, but was in 

the process of being moved . On that day, Bethenergy's contractor 

was performing work constructing the D East air shaft which was 

projected to intersect the B seam mine workings at approximately 

1,030 feet, but not the c prime seam. The shaft measured 

approximately 30 feet 2 inches by 18 feet 4 inches, .and it was to 

provide ventilation to the D East area of the B seam. The shaft 

had been constructed to a depth of 841 feet on March 11, and 

there was 200 feet of strata between the bottom of the shaft and 

the B seam. The shaft was constructed with a concrete liner with 

a corrugated metal liner between it and the rock shaft walls. 

A dewatering borehole was located parallel to the shaft 

approximately eight feet away, separated from the shaft by rock 

and soil, and it was constructed with a 6 inch .schedule 40 steel 

pipe, which was grouted into the borehole with pure Portland 

cement. The borehole was connected to the shaft at two water 

ring locations at the approximate 270 foot and 620 foot shaft 

levels. The water rings are designed to collect water from 

966 
behind the shaft liner, and the water flows by gravity through a 

pipe into the 6 inch borehole pipe through a 4 or 5 inch opening. 

The water rings may be reached from inside the shaft by metal 

doors through the concrete shaft liner. The borehole extended 

into the B coal seam and the borehole was equipped with a valve 

at the end of the borehole where it entered the B •eam, and the 

valve had a pressure rating of 200 psi, for oil, water, or gas. 

The location of the borehole pipe where it entered the B seam was 

approximately 200 feet from the shaft bottom and ·it was separated 

by rock strata. 

At approximately 5:15 a.m., on March 11, 1993, smoke was 

detected in the shaft by employees of the shaft contractor. At 

8:30 a .m., the construction superintendent entered the shaft and 

observed a fire near the bottom of the concrete shaft lining. 

MSHA was notified of the incident at 9:00 a.m., and water was 

dumped down the shaft to extinguish the fire, and these 

activities were ongoing during the day until the fire was 

extinguished and the order lifted at 4:40 p.m. 

At approximately 9:15 a .m., MSHA Supervisory Inspector 

Biesinger inst;ructed Inspector Colton to go to the mine to 

investigate the reported fire and to issue a section 103(k) order 

on the shaft site. Inspector Colton arrived at the shaft area at 

9:50 a.m, and he issued the order to control the fire scene. He 

also issued an imminent danger order on the shaft, but did not at 

this time know about the connection between the shaft and the 

borehole and underground mine areas. Mr. Biesinger arrived at 

the scene at approximately 10:45 a.m., with trainee Inspector McElhoes. Mr. Elhoes was assigned to assist in the taking of 

oxygen, methane, and carbon monoxide readings from the shaft 

exhaust fan while fire fighting efforts continued. 

At approximately 9:15 a.m., MSHA Inspector Davis, who was 

underground in the B seam conducting a spot methane inspection, 

was contacted by the mine foreman by phone and informed of the 

shaft fire. Mr. Davis also spoke with MSHA Inspector Sam 

Brunati, who was on the mine surface, and Mr. Brunati confirmed 

that there was a shaft fire. The mine foreman arranged for an 

underground foreman to go to the borehole location and section 

foreman Horn went to the area and closed the borehole valve at 

approximately 9:28 a .m. Mr. Horn testified that when he reached 

the area, he observed "a small amount of smoke" at the borehole 

and that it was discharging "a small amount of water". The area 

was "well cribbed" and wet, and the borehole valve was "wet and 

cold to the touch". He tested for methane, and found none. 

Mr. Horn, who is a mining engineer, assumed that some air 

hoses were burning in the shaft, and he confirmed that any smoke 

from the fire would travel through the borehole pipe and into the 

underground mine. However, once the borehole valve was closed, 

he believed that the pipe would begin filling up and backing up 

967 
with water, and no more air or smoke would enter the mine through 

the borehole because the valve was closed. 

Inspector Davis testified that after speakinq with 

Mr. Brunati about the shaft fire, he went to the borehole 

location; met with Mr. Horn and two other foreman. Mr. Davis 

tested the borehole area for methane and found none. He also 

took air bottle samples, and the results did not reflect any. oxygen problems. Mr . Davis confirmed that the borehole valve was 

closed and he observed no smoke or water coming out of the valve. 

He also noted in his notes that the borehole valves were closed 

and that the pipe was filling up with water at the rate of four 

qallons per minute, and that he had received this information 

from mine field engineer Neff who was with him at the borehole 

location. Mr. Neff calculated that the borehole pipe started 

filling up at 9:30 a.m., and would rise to a level of 120 feet 

within an hour. Mr. Davis confirmed that a foreman was assigned 

to monitor the borehole location for carbon monoxide every 

fifteen minutes. Mr. Davis reported the results of his 

inspection of the borehole area to Inspector Brunati, who 

was still on the surface, and since his inspection duties had 

ended, Mr. Davis left the mine. He assumed that Mr. Brunati 

communicated his findings to Mr. Biesinger, and neither 

Mr. Davis or Mr. Brunati issued any orders requiring the 

withdrawal of miners from the underground mine areas. 

Inspector Biesinger confirmed that he first learned about 

the connection between the shaft and the borehole pipe at 

10:45 a.m. when Mr. Brunati called him to inform him of 

Mr. Davis' findings . Mr. Biesinger confirmed that he was made 

aware of the fact that mine officials had smelled smoke in the 

mine, but shut the borehole pipe valve. Mr. Biesinger assumed 

that the smoke was detected before the valve was closed at 

9:28 a.m., and he also assumed that the reported 2,178 cubic feet 

of air per minute ventilating the entry below the bottom of the 

shaft in the B seam was in compliance with the mine ventilation 

plan. Mr. Biesinger also knew that Mr. Davis tested the 

underground borehole area and detected no methane and that 

someone was stationed at the borehole location with a co 

detector. 

Mr. Biesinger confi rmed that after his 10:45 a.m. 

discussion with Mr. Brunati, he telephoned MSHA subdistrict 

aanager Kuzar, and they discussed the issuance of the imminent 

danger order to remove the miners from the underground mine 

areas. Although Mr. Biesinger testified that he did not 

apecif ically know that miners were in the underground B and c 

aeam areas, he assumed they were because they normally are, and 

he had inspectors at the mine conducting inspections that day. 

He confirmed that he and Mr. Xuzar "jointly" decided to issue the 

imminent danger order at approximately 11:30 a.m. 

968 
Mr. Kuzar confirmed that he was in telephone contact with 

Mr. Biesinger after he learned about the shaft fire, and that he 

had five or six telephone discussions with him in the course of 

the mornjng. Mr. Kuzar testified that the decision to issue the 

imminent danger order was made during his second conversation 

with Mr. Biesinger. Mr. Kuzar confirmed that he was informed 

about the connection of the borehole pipe into the underground 

B seam, but he did not know about the valve at the end of the 

borehole, nor was he informed of the fact that Inspector Davis 

was in the B seam in close proximity to the borehole pipe, and he 

only learned about Mr o Davis' presence underground while 

preparing for the hearing in this case . 

Inspector Colton testified that sometime between 

12:00 and 12 : 30 p.m., Mr. Biesinger instructed him to go to the 

main mine portal and issue the imminent danger order withdrawing 

miners from the underground B and c seams. It took Mr. Colton 

20 to 30 minutes to reach the mine office by automobile, and 

after arriving at the office and meeting with management, 

Mr. Colton orally instructed them to evacuate the miners from 

the underground mine areas, and he reduced the order to writing 

at 1:15 p.m. · The management officials with whom he met voiced 

their objections to the order, and Mr. Colton telephoned 

Mr. Biesinger and informed him of this. Mr. Kuzar confirmed that 

mine operations manager Stickler called him and expressed his 

belief and concern that the order was not justified. After 

Mr. Stickler informed him that he could not guarantee that 

everyone working underground would not be affected by any 

explosion, Mr. Kuzar advised Mr. Stickler that the miners 

needed to be evacuated and that the mine would be back in 

production as soon as possible. 

At approximately 4:00 p.m., members of the mine rescue 

team went down the shaft and reported that the fire appeared to 

be extinguished. The company safety director, Inspector 

Biesinger, a state inspector, and the construction foreman 

subsequently went down the shaft and confirmed that the fire was 

extinguished. At approximately 4:30 p.m., Mr. Biesinger orally 

advised mine management that the imminent danger order was 

lifted, and it was terminated in writing at 4:30 p.m. The order 

was in effect for three hours and twenty-five minutes. 

In this case, an imminent danger order was in effect at 

the shaft and the shaft surface area, and all construction 

workers had been removed from those areas while efforts to bring 

the fire under control continued. Bethenergy does not dispute 

the issuance of this imminent order. Its dispute is with the 

iaminent danger order withdrawing miners from the underground B 

and C coal seams. The critical issue is whether the six-inch 

borehole pipe connection between the shaft and the underground 

969 
mine areas prov ided an imminently ready path for the propagation and acceleration of a shaft explosion into the underground mine 

areas if that event were to occur. 

While it may be true that the presence of ignition 

•ources and methane in the shaft presented a potentially 

hazardous situation at the shaft location at the time of the 

fire, the existence of those conditions, standing alone, is 

insuffici ent to support an imminent danger order withdrawing ainers from the underground mine workings in question. In short, 

the fact that certain f ire conditions created circumstances i n 

which subsequent hazards may occur does not make the conditi ons 

i mminently dangerous. 

MSHA has the burden of proving more than a speculative 

possibility that the underground miners were endangered or at 

r isk because of t he borehole connection between the shaft and 

underground mine workings. In order to support the order, it 

must be established that any shaft explosion resulting from the 

ongoing fire could reasonably be expected to cause death or 

serious harmi. to the underground miners if normal operations were 

permitted to '-proceed in the underground mine areas befor e the 

threat of any impending explosion could be eliminated. It must 

also be shown that the hazard presented had a reasonable 

potential for coming to fruition within a short period of time . 

MSHA's assertion that t he methane and carbon monoxide 

readings taken by Inspector McElhoes at the mine shaft during the 

fire indicated that s i gnificant amounts of methane were present is not supported by the record . Although the record shows that a 

fire was ongoing , I nspector Biesinger testified that the methane, 

oxygen, and carbon monoxide readings taken by Mr. Elhoes and the 

state inspector reflected one-tenth of one percent methane (0 . 1), 

which he acknowledged was "not too much"; 126 parts per million 

of carbon monoxide, which he also acknowledged "is not a great 

amount", but .is an indicator that "some kind of combustion is 

t aking place0• ; and less than 20.5 percent oxygen, which he 

characterized as "less than the usual 21 percent," but also an 

i ndicator that there is combustion in the shaft (Tr. 99-100) . Further, Mr . Biesinger confirmed "a trend downward in the co,,. 

at the time water was being dumped down the shaft, and that Elim 

the imminent danger decision was made, the co had declined from a 

high of 126 parts per million to 19 parts per million (Tr. 156). 

MSHA cites the testimony of Inspector Biesinger at 

transcript page 159, in support of its assertion that even if 

there were water in the borehole pipe, an explosion could have 

been propelled through it (posthearing brief, .pg. 12) •. However, 

Mr. Biesinger was asked if the products of any combustion would 

90 through the water in the borehole if there were no explosion, 

and he replied "It's not likely, no" (Tr. 159). The next 

question asked was whether the main force of an explosion would 

970 
go YR the shaft, and he responded "one would expect it to do 

that, yes" (Tr. 159). Mr. Biesinger confirmed that in the Leh.man 

abaft explosion incident the explosion went down the shaft, and 

when it came up against the water it went back up tbe shaft 

(Tr. 157, 158). 

Bethenerqy's witnesses Horn and DuBreucq, both 

experienced professional mining engineers, and field engineer 

Neff, who along with Mr. Horn developed the specifications for 

the construction of the shaft, were of the opinion that if a 

shaft explosion had occurred, the force of the explosion would go 

up the shaft and to the surface, as it did in the two past shaft 

explosion incidents, rather than up the shaft, through the water 

rings, and down a six inch borehole pipe into the underground B 

and c mine seam areas. They testified credibly in some detail as 

to their reasons for their opinions, and I credit their opinions 

in this regard over those of the inspector's speculative 

conclusions with respect to the reasonable likelihood that an 

explosion in the shaft would propagate down the borehole, through 

the water in the borehole pipe, blow out the valve and enter the 

underground ~ine areas in question after passing through 200 feet 

of rock strata. 

Although I recognize the fact that faced with the 

emergency situation presented by the fire, any judgment call by 

Inspector Biesinger with respect to the existence of an imminent 

danger in the underground workings, when balanced against the 

safety of miners, must be made quickly and without delay. However, when the order is subsequently challenged, any 

imminently dangerous situation which an inspector believed may 

have existed at the time the order is issued must be proven by a 

preponderance of the available credible and probative evidence. 

On the facts and evidence adduced in this case, I cannot conclude 

that MSHA has proven that it was reasonably likely that a shaft 

explosion would travel up the shaft, through the shaft water 

rings and down the borehole pipe through the accumulated water, 

blowing out the valve on its way, and then entering the 

underground mine workings after passing through 200 feet of 

rock strata. 

Although Mr. Biesinger expressed his concern about 

noxious gases and fumes being transmitted through the borehole 

pipe into the B seam working areas, he stated that his concern 

was based on Mr. Brunati's information that someone had smelled 

•moke in the mine, and Mr. Biesinger's assumption that there was 

•an open connection and we had the transfer of air or gas between 

the shaft and the underground portion of the mine" (Tr. 133-134). 

Mr. Biesinger indicated that this was an additional factor that 

influenced his decision to issue an imminent danger order. 

However, the credible and unrebutted evidence adduced by 

Bethenergy establishes that the borehole valve had been closed 

for nearly four hours before the order was issued and that an 

971 
"open connection" no longer existed. Further, according to 

Mr. Neff's unrebutted calculations, the water in ·the pipe had 

risen 120 feet by 10:30 A.M., MSHA Inspector Davis had inspected the underground borehole area and detected no smoke or methane, 

Bethenergy's eng,ineers and foremen had also inspected the area 

and detected no smoke or methane after the valve was closed, the 

area was continuously being monitored for carbon monoxide, and 

there is no credible evidence of any ready sources of ignition. 

Although Inspector Kuzar alluded to "the vast gobs in 

that mine 1 (Tr. 180, 183) , he di d not know how far these areas 

were from the borehole l ocation in the B seam (Tr. 184) . 

~"'urther, his testimony that there have been "problems with 

methane i n the gobs" , was based on the amount of methane drainage 

holes that are required "at times" to remove a panel (Tr. 183), 

and there i s no evidence of the nature of the problem, other than 

the fact that the mine is a gassy mine, and probably the gassiest 

mine in the state. However, the fact that the mine is gassy, and 

that drainage holes are required to bleed off the methane do not 

.iR.§..2 facto , establish a hazardous condition. I take particular 

note of the fact that MSHA stipulated that there were no adverse 

venti lati on conditions where miners were working underground, 

(Tr. 182-183) • 

MSHA presented no evidence of any existing hazardous or 

adverse mining conditions in the underground B and c seams in 

question . Indeed, MSHA Inspector Davis, who along with Inspector 

Brunati were at the mine conducting inspections, was aware of the 

underground conditions, went to the location of the borehole and 

confirmed that the valve had been closed, detected no smoke or 

methane at the borehole location, and confirmed that someone was 

assigned to the borehole location to monitor the co. After 

reporting his findings to Mr. Brunati , who was on the surface 

Inspector Davis left the mine, and there is no evidence that he 

detected any hazards or issued any citations or orders. 

The parties stipulated that at 10:15 A.M., an air· sample 

t aken by Inspector Davis at the B seam borehole location 

reflected .010 percent methane, and . 006 percent carbon monoxide, 

and that these amounts were insignificant. The parties also 

stipulated that with the borehole valve closed there would be a 

limited amount of air movement through the borehole and it would 

not travel to any working section. Mr. Biesinger testified that 

any air passing by the borehole would not go to any working 

aection and it would go to the returns. 

With regard to MSHA's argument that Mr. Kuzar could not 

take the chance of leaving the miners in the mine in light of 

aine manager Stickler' s statement that he could not guarantee the 

safety of miners "given the ongoing shaft fire," I take note of 

the fact that Mr. Kuzar testified that he asked Mr. Stickler if 

he could guarantee the safety of the miners if there was an 

972 
explosion in the shaft (Tr. 191), rather than a~ as arqued by 

MSHA at page 14 of its brief. I find a distinction ·between the 

hazardous nature of a shaft fire that is being addressed and an 

explosion, and I would venture a quess that Mr. Stickler may have 

answered differently if the question were asked in the context of 

a shaft fire, particularly since the miners in the shaft were 

withdrawn by the issuance of the section 103{k) and 107(a) orders 

affecting the shaft and the fire was being brought under control 

and efforts were being made to extinquish it. 

The principal concern expressed by Mr. Kuzar and 

Mr. Biesinger at the time they decided that an imminent danger 

order should issue focused on the connection between the shaft 

and the mine by means of the six inch borehole pipe. However, 

Mr. Biesinger knew that the borehole valve had been closed at 

9:28 a.m., and there is no evidence to dispel his assumption that 

the smoke that was reported around the borehole was detected 

before the valve was closed. Mr. Kuzar testified that he and 

Mr. Biesinger did not discuss the valve, and Mr. Kuzar considered 

the valve to be irrelevant and he had an unsupported opinion that 

it would not st~p any shaft explosion forces coming through the 

pipe. · 

In view of the foregoing, and based on all of the 

evidence adduced in this case, I cannot conclude that the 

conditions in the underground B and C mine seam working areas, 

particularly at the borehole location, posed a hazard to miners. 

Further, I conclude and find that MSHA has not established the 

existence of any hazardous conditions that presented an imminent 

danger of a shaft explosion, or propagation of an explosion from 

the shaft through the borehole, and into the underground 

workings, before the shaft fire was brought under control and 

extinguished. I agree with Bethenergy's assertion that little 

consideration was given to the existing mine conditions in the B 

and C seams at the time the decision to issue the imminent danger 

order was made. 

Although I recognize the fact that an inspector has 

considerable discretion in determining whether an imminent danger 

exists, there must nonetheless be some reasonable degree of 

imminence to support such a finding. In the instant case, while 

Mr. Biesinger was informed of the borehole connection at 

10:45 a.m., the order withdrawing miners from the mine was not 

issued until 1:15 p.m., two and one-half hours later. This 

delayed reaction to the perceived imminent danger undercuts 

MSHA's arqument that an explosion was imminent and that the 

inspectors needed to act quickly to remove the miners from the 

aine. 

I believe that Inspectors Kuzar and Biesinger acted out 

of an abundance of caution in the interest of safety, and rightly 

so, and I have no reason to believe that they were less than 

973 
well-intentioned when they decided to issue the imminent danger 

order evacuating the miners from the underground areas of the 

aine. However, I nonetheless conclude and find that the evidence 

adduced in this case does not support their unsupported 

•peculative conclusion that a shaft explosion was near at hand, 

iapending, or ready to take place. Nor does it support a 

conclusion that if such an explosion were to occur, it would have 

•pread into the underground workings of the 8 and C mine seams. 

Under the circumstances, the contested imminent danger order· IS VACATED. 

ORDER 

On the basis of the foregoing findings and conclusions, 

Bethenergy's contest is GRANTED, and the contested section 107{a) 

Imminent Danger Order No. 3708620, issued on March 11, 1993, 

IS VACATED. 

~~((,,~ Administrative Law Judge 

Distribution: 

R. Henry Moore, Esq., Stephen Smith, Esq., Buchanan Ingersoll, 

P.C., USX Tower, 57th Floor, 600 Grant Street, Pittsburgh, 

PA 15219 (Certified Mail) 

Mark v. Swirsky, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

/ml 

9 74 
OFFICE Of ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 8 199.4, 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

. . 

. . Docket No. VA 93-59-M 

A.C. No. 44-00044-05534 

v . Docket No. VA 93-80-M 

W.S. FREY COMPANY, INC., A.C. No. 44-00044-05537 

Appearances:. 

Before: 

Respondent 

: Docket No. VA 93-89-M 

A.C. No . 44-00044-05538 

Clearbrook Mine and Mill 

DECISION 

Javier I. Romanach, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for the Petitioner; 

Thomas Moore Lawson, Esq., Hazel and Thomas, 

P.C., Winchester, Virginia, for Respondent. 

Judge Barbour 

STATEMENT OF THE PROCEEDINGS 

These cases are before me upon petitions for assessment 

of civil penalties filed by the Secretary of Labor (Secretary) 

pursuant to Sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977 (Mine Act), 30 u.s.c. §§ 815 and 820. The 

petitions allege six violations of mandatory safety standards 

for surface metal and non-metal mines found in 30 C.F.R. Part 56. 

In addition, the Secretary asserts that five of the alleged 

violations constituted ·significant and substantial (S&S) contributions to mine safety hazards, and that three were caused 

by w.s. Frey Company, Inc.'s (Frey) unwarrantable failure to 

comply with the cited standards. 

The single violation alleged in Docket No. VA 93-89-M 

resulted from the Mine Safety and Health Administration's 

(MSHA) investigation of a fatal accident that occurred at 

Frey's Clearbrook Mine and Mill on December 11, 1992. The 

five violations alleged in Docket Nos. VA 93-59-M and VA 93-80-M 

resulted from the agency's investigation of a fatal accident 

that occurred at the Clearbrook facility on December 13, 1992. 

The cases were consolidated and a hearing on the merits 

was conducted in Winchester, Virginia. 

9 75 
STIPUI.ATIONS 

The parties chose to try first Docket Nos. VA 93-59-M 

and VA 93-80-M, the cases pertaining to the December 13, 1992 

accident. With respect to these two cases, the parties 

stipulated as follows: · 

1 . The Administrative Law Judge has jurisdiction to 

hear and decide the case. 

2. MSHA Inspector Elwood S. Frederick was acting in 

his official capacity when he issued Citation No. 4083442. 

3o Citation No . 4083442 was _ properly issued to 

[Frey's] agent. 

4. Abatement of the conditions cited in Citation 

No. 4083442 was timely. 

5. Frederick was acting in his official capacity as a 

federal coal mine inspector when he issued [Order/Citation] 

No. 4082539 on December 14, 1992. 

6. Frederick was acting in his official capacity as a 

federal mine inspector on December 21, 1992 when he issued 

Citation No. 4083441, [Order No.] 4082540 and [Order No.] 

4083444. 

7. Order/Citation No. 4082539, [Citation No.] 4083441, 

[Order No.] 4082540 and [Order No.] 4083444 were properly 

served to Frey's agent. 

8. Abatements of the conditions cited in Order/Citation 

No. 4082539, [Citation No.] 4083441, [Order No.] 4082540 and 

[Order No.] 4083444 were timely. 

9o The Clearbrook Mine and Mill is a surface lime and 

crushed stone operation owned and operated by [Frey). 

Tr. 11-12 (nonsubstantive editorial changes made). 

The parties further agreed that the witnesses be 

sequestered. 

976 
DOCKET NOS . VA 93-59-M AND VA 93-80-M 

THE ACCIDENT OF DECEMBER 13. 1992 

THE SECRETARY'S WITHESSES 

Elwood s. Frederick 

Frederick testified that he took part in MSHA's 

investigation of the fatal accident that occurred at Frey's 

Clearbrook Mine and Mill on December 13, 1992. As a member 

of the investigation team, Frederick visited the facility on 

December 14. Frederick was accompanied by his supervisor, 

Charles McNeal (Tr. 21-22). Frederick and McNeal arrived at 

the mine between 6 : 15 a .m. and 6:30 a.m. (Tr. 122). 

The accident had occurred the previous night in the coal 

storage area of the facility. There, contractor-supplied coal 

used to fuel coal-fired kiln was piled under a open-sided, 

square "shed" (Tr. 41-42). The shed consisted of four pillars 

or beams supporting a roof. The roof was slightly more than 

31 feet above the storage area floor. The shed's purpose was 

to keep rain ·and snow off of the coal. 

Once the coal was dumped in the storage area it was 

pushed into a floor level hole (surge hole) by a front-end 

loader. It then fell through the surge hole into a hopper below the shed floor (Tr. 42- 43) . · At the bottom ot the hopper 

was a surge vibrator (syntron feeder) that shook the coal onto 

a conveyor belt through the feeder opening {the dog house 

opening). The belt transported the coal to a storage tank in 

the kiln building. The coal fired the kiln {Tr. 44, 48). 

The coal occasionally stuck {or hung-up) at the surge 

hole, especially in the winter when the coal had lumps of 

snow in it. The fact that the coal was hung-up was evidenced 

by a lack of coal coming through the feeder and dumping onto 

the belt {Tr. 50.) When this happened, a Frey employee would 

approach the surge hole and use a 9-1/2 foot long· metal bar to 

poke or probe at the coal {Tr. 48, SO). If the hole could not 

be cleared with the bar, the front-end loader would try to dig 

the hole free {Tr. SO). If the hang-up was at the feeder, rather 

then at the surge hole, the employee would use a similar bar 

or pole to pry the coal free from the feeder end of the hopper 

(Tr. 51-52). 

The victim was Denny Bernaldes, the kiln burner helper 

on the second shift. He was found with the upper half of his 

body (shoulders and above) stuck in the syntron feeder and the 

lower half of his body on the conveyor belt. one of Bernaldes' 

leqs was off the conveyor belt {Tr. 70). There was coal around 

977 

·< 
the upper half of his body. The coal had to be removed before 

the body could be extracted from the feeder (Tr. 70). Bernaldes, 

who was dead when he was found, died of asphyxiation. 

Although Frederick stated he "he had no facts to document 

[it]" (Tr. 97), Frederick believed that Bernaldes fell through the surge hole and into the hopper while trying to do free a 

hang-up (Tr. 49 , l2l } o The bar used to free surge hole hang-ups 

was found about 5 feet from the surge hole sticking straight up in the coal (Tr. 184-185). In Frederick's opinion Bernaldes died 

when he became stuck in the dog house opening while trying to 

get out of the hopper ~ The dog house opening measured 14 inches 

wide by 24 inches high (Tr. 117). 

Frederick did not see Bernaldes' body. It was removed 

prior to Frederick's arrival at the facility by the county 

rescue squad . Frederick's infonnation came from interviews 

with Frey personnel. Frederick did not interview the rescue 

squad members who freed the body (Tr. 128-130). Nor did 

Frederick take into consideration Bernaldes' size when he 

concluded how the victim had died (Tr. 132) . 

In response to suggestions that Bernaldes climbed onto 

the belt and stuck his head and shoulders into the feeder 

rather then fell through the surge hole, Frederick stated that 

Halbard Meyers, the second shift kiln operator, told him when 

Meyers found the body, Meyers had to shut off the feeder and 

the conveyor belt (Tr. 116, 128). To get onto the belt and 

crawl into the feeder with the belt running would have been 

practically impossible (Tr. 116). Frederick understood the 

belt ran at a speed of 400 feet per minute (Tr. i17). 

When Frederick arrived at the coal storage area the 

temperature was cold. Some of the coal had chunks of snow 

on it (Tr. 57). The shed itself was roped -off with police 

tape because of the accident (Tr. 158). He could not see 

where the hole was because it was covered with coal. However, 

someone from the company turned on the feeder and this cleaned 

the coal out of the surge hole and the hole became visible 

(Tr. 41-42) . 

Frederick and a Virginia stat~ mine inspector, who was 

at the facility in connection with the state's investigation 

of Bernaldes' death, measured the surge hole opening and found 

it to be 24 inches long and 39 inches wide (Tr. 28-30, 124). 

Using a diagram of the site that he had prepared, Frederick 

testified that it was 7 feet from the surge hole to the syntron 

feeder at the bottom of the hopper (P. Exh. 11; Tr. 32). (In 

other words, the hopper was 7 feet tall.) The belt onto which 

the coal dumped was 24 inches wide (Tr. 34). There was no 

978 
barrier or device to warn a person where the surge hole was 

(Tr. 53). Also, there was no grisly over the hole (Tr. 174). 

In short, there was nothing to prevent a person from falling in. 

Because of what he observed, Frederick issued Frey ·an 

imminent danger withdrawal order and associated citation (Order/ 

Citation No. 4082539) for a violation of section 56.16002(a)(l) . This mandatory safety standard requires that where loose, unconsolidated materials are stored or transferred at surge 

piles, the piles be equipped with mechanical devices or other 

means of handling the materials so that during normal operations 

persons are not required to work where they are exposed to 

entrapment by caving or sliding materials. Frederick explained, 

"There was an unguarded opening at ground level. And, the coal 

has a tendency to hang-up and some indi vidual must come there and 

poke this. Therefore , where anybody can walk directly in and 

fall into this hole, you can work right over to the hole if you 

didn't know where it is at" (Tr. 60-61). Moreover, because the 

coal did not necessarily flow straight down into the hopper, but 

also could funnel down in a cone shape along its angle of repose, 

the size of the area of coal falling through the chute could 

increase as the material fell and a person could be inadvertently drawn into the hole (Tr. 62, 139). 

Frederick stated if someone had to work where he or she was 

exposed to entrapment by caving or sliding material, the cited 

standard required a mechanical means of handing the material. 

Here , where a person trying to free a hang-up might not know 

where the hol e was and could step ·on a bridge of coal temporarily 

covering the hole, or could be drawn into the hole as the coal 

funneled down, such a mechanical means was lacking (Tr. 64-65) . To abate the alleged violation, Frey freed the area of coal and 

welded a plate over the hole. Frey then installed a new hopper 

that was only loaded with a front-end loader (Tr. 65-66). 

Frederick considered the alleged violation to be S&S 

because the coal could suddenly fall and easily draw into the 

hopper a person trying to free a hang-up (Tr. 71) . Such an 

accident was reasonably likely to happen because there was no 

protection around the surge hole and no warning of its presence 

(Tr. 71) . Once in the hopper there was no way out and no one 

could hear the person if he or she yelled for help (Tr. ~' 75) . The coal storage area was positioned so that a person trying to 

free a hang-up would be out of sight of other employees (Tr. 75). 

Frederick believed death would be the likely result (Tr. 73-74) . 

With regard to Frey's negligence, Frederick indicated 

that it was "high" (Tr. 77: Exh. P-1) . He stated that Frey 

management personnel knew the hole was there yet took no 

precautions, such as having a safety belt or line at the job site or having a sign indicating the presence of the hole. 

979 
More important, during the investigation Frederick discovered 

other employees had fallen into the hopper prior to the accident. These persons included Foreman Raymond Murray's brother, 

who was not injured because there were other people present to 

help get him out (Tr. 77 , 152-153) . However, Frederick was 

not aware if any person had brought the conditions at the 

aurge hole to management's attention (Tr. 165) . 

Frederick further testified that as a result of the 

investigation he issued other citations and orders to Frey. 

Pursuant to section 104(d)(l) of the Act, 30 u.s.c . § 814(d)(l), 

he issued Citation No . 4083441, alleging a violation of 

section 56 . 150050 The mandatory safety standard requires 

safety belts and lines to be worn when there is a danger of 

falling. Frederick beli eved Bernaldes did not wear a safety 

belt and line when he was working around the surge hole (Tr. 79) . 

Frederick testified he also cited Frey because "they had no safety belts and lines at the job site" (Tr. 80). 

To put it another way, "We wrote [the violations] because 

O• • there was no safety belt and line there where there was 

a hazard of falling into that bin" (Tr. 171). Frederick 

explained, "Where employees work where there is a hazard 

of falling into ••• surge bins or hoppers • • • they must be 

provided with a safety belt and they must wear a safety 

belt and either have it tied off or have a second person in 

attendance" (Tr. 80-81). An employee was in danger of 

falling while attempting to free a hang-up. An employee 

could be standing directly along side the hole, not know it, 

and "go down with the material" (Tr. 81). Snow made the 

coal slippery and there was no place to tie off a safety 

line, except 30 or 40 feet away on one of the columns of the 

shed (Tr. 83-84). In Frederick's opinion, the safety belts 

and lines should have been kept at the coal shed (Tr. 167-168). 

He stated, "They could ••• store them in a box like most 

companies do" (Tr. 168). 

Frederick maintained that employees interviewed during the investigation indicated they did not wear safety belts or 

lines when working in the area, although he could not recall 

which employees made the statement (Tr. 85). 

Frederick considered the alleged violation to be S&S 

because of the hazard of falling into the hopper and being 

buried by the coal. He also believed that if business at the 

facility continued as usual, it was highly likely that such a 

fatal accident would occur (Tr. 86-87). Indeed, Frederick 

concluded that the alleged violation contributed to the victim's 

death. Frederick stated that had Bernaldes been wearing a safety 

belt and line, "he would have been able to get out" · of the hopper 

-l~· 88). 

980 
Frederick believed management's negligence was "high" and that the alleged violation was due to Frey's unwarrantable 

failure to comply with section 56.15005 (Tr. 88). He testified 

that during the investigation it was revealed that management 

was advised several times about having safety belts at the job 

site but had done nothing about it (Tr. 88-89). Nonetheless, 

management had assigned the victim to go to the coal storage 

area, an area where the location of the surge hole could not be 

defined and where no safety belts or lines were present (Tr. 91). 

Frederick next testified about Order No. 4082540, issued 

pursuant to Section 104(d)(l) of the Act, alleging a violation 

of section 56 . 18020 , a mandatory standard forbidding an employee 

to work alone wher e hazardous conditions exist that could 

endanger his or her safety, unless. the person could communicate 

with others, could be heard or could be seen (Tr. 91 : Exh . P-3) . He issued the order because the victim was working alone in 

the coal shed in the vicinity of the surge hole (Tr. 94). To 

Frederick, the very nature of the job of freeing a hang-up at 

night meant that the person doing it had to work alone. Further, 

the person could be assigned to free a hang-up several times 

during the shift and no method of communication was provided for 

the person. .. If he or she fell into the hopper there was no way 

to be heard or seen, and thus no way of getting help to get out 

(Tr. 96-99). For example , employees sent to do the job were not 

provided with a radio (Tr. 98) . 

Raymond Murray, the foreman, should have realized the 

hazard and had the condition corrected- (Tr. 99-102, 180) . However, Frederick had no information that Murray actually knew about the problem (Tr. 180). 

Frederick testified he also issued Order No. 4083444 , another order of withdrawal pursuant to section 104(d)(1) of 

the Act . The order charged a violation of 30 C.F.R. § 56.17001, 

a mandatory safety standard requiring an operator to furnish 

lighting sufficient to provide safe working conditions in and on 

all surface structures and work areas. According to Frederick, 

there was only one overhead light in the coal shed, 31 feet 

above the shed floor. Frederick asked Meyers, the kiln burner 

operator, if Meyers could see anyone at the surge hple when he 

was standing at the open doors of the kiln building and looking 

at the coal shed, which was approximately 110 feet away from the 

kiln building. Frederick testified that Meyers told him that he 

could not see anyone, that it was too dark (Tr. 102-103, 181). 

In Frederick's opinion, at night, if the area had sufficient 

light, persons in the shed could have been seen (Tr. 192-193). 

The overhead light in the shed was not centered exactly 

over the surge hole, but was a little off center, perhaps by 2 

or 3 feet (Tr. 105, 151). The light was covered with. a plastic 

lens, and the lens was covered with coal dust (Tr. ____ 10-t ~ 182). 

981 
Frederick agreed, however, that the front-end loader was 

equipped with lights and 'that when the loader was in the shed, 

it would provide illumination (Tr. 187-188). According to 

Frederick, the problem was that the front-end loader was not 

continuously in the shed (Tr. 189). Frederick further agreed that he had not been to the facility after dark and that the 

inspection party did not test the lighting to gauge its intensity {Tr. 122-123). The alleged violation was abated when 

Frey installed additional lights in the coal shed (Tr. 193). 

Frederick found the alleged violation of section 56. 17001 

to be S&S (Tr. 106). He believed insufficient illumination 

contributed to Bernaldes' death. The accident occurred at night, and coal does not reflect light. The lack of adequate light made it easy for Bernaldes to step where the hole was and fall 

into the hopper (Tr. 108). · 

He also found the alleged violation was the result of 

Frey's "high negligence" and unwarrantable failure because 

"the foreman should [have] been checking his people and 

[have] seen that th[ere] was not enough lighting in th[e] 

area" (Tr. 111). Frederick was unsure how long the condition 

had existed (Tr. 112). 

Finally, Frederick testified that he issued Citation 

No. 4083442, alleging that Frey had violated 30 C.F.R. 

Section 56.18009, a mandatory standard requiring a competent 

person designated by the operator to be in attendance at the 

mine when persons are working in order to take charge in case 

of an emergency. Frederick stated he determined a foreman was 

not present at the time of the accident. Frederick testified 

that when the foreman was asked who was "in charge of the 

operation when he was not present," the foreman responded 

Meyers was in charge (Tr. 114). When asked about this, Meyers 

stated, "If I'm in charge, nobody ever told me" (Tr. 114). 

In Frederick's opinion, Meyers had done "a very good job" 

when be discovered Bernaldes' body; in that he immediately 

ran and called 911 to alert the rescue squad (Tr. 114). 

Dwayne Johnson 

Dwayne Johnson was plant superintendent at the Clearbrook 

Mine and Mill from November 4, 1991, until the end of January 

1993 {Tr. 197-198). As such, he was in charge of coal handling and kiln production and in overall charge of the area where the 

accident occurred {Tr. 199). 

Johnson described how coal was transported ··to the kiln 

and explained that the conveyor feeding coal to the kiln storage 

bin was located under the coal shed dumpling area. The syntron 

982 
feeder drew the coal from the surge pile into the hopper and 

then fed it onto the conveyor belt {Tr. 199). 

Johnson maintained that coal "constantly" was bung-up at 

the surge hole. While large pieces of coal tended to wedge 

against· one another, even the finer coal, if wet, would stick 

together and clog the hole (Tr. 200-202). 

Approximately 250 to 300 tons of coal were usually piled around the surge hole. As the feeder drew the coal down into 

the hopper, the loader would "take it from the sides and 

continue to feed the draw hole" (Tr. 201). If coal was piled 

over the hole, the angle of the draw could be such that the 

hole at the top of the pile could move off center by as much 

as 6 or 7 feet (Tr. 241-242). However, the draw area usually formed in the shape of a symmetrical inverted cone {Tr. 261). 

When coal became hung up at the hole, an employee would 

take a metal bar and would poke at it in order to loosen it. 

The bar distanced the person trying to free the hang-up from 

the surge hole (Tr. 271). However, when trying to pry loose a 

hang-up, an employee might well be within the draw and not know 

it (Tr. 258, 309). Employees were not formally trained in how 

to free hang-ups; they taught one another (Tr. 258). 

Johnson maintained that hang-ups usually occurred at the 

surge hole (Tr. 235). If coal hung up at the feeder, an employee would try to free the hang-up by going into the conveyor tunnel 

and by using a bar to poke at the hang-up through a small 

hole in the feeder or through the dog house opening (Tr. 221, 

233-234). 

Johnson testified he had discussed with management officials the practice of freeing hang-ups with the bar and 

that "it was the opinion that the pipe was sufficient ••• that 

[the employee assigned to free a hang-up] could use the pipe and stay away from the hole well enough to make the coal flow 

without actually being on the pile" {Tr. 204, 265). According 

to Johnson, he and Vincent Lord, Frey's plant superintendent, 

decided that the bar was long enough to allow the employee to 

prevent himself or herself from being drawn into the hopper in 

that the employee could wedge the bar across the hole or could 

push away from the bole with it (Tr. 204-205). 

Johnson believed that during the day an employee could see 

the location of the surge hole, but that at night an employee 

would have difficulty seeing it. If the hole was covered and 

the employee walked onto the coal pile, the employee easily could place himself over the draw point. 

983 
Johnson maintained that after Bernaldes' death he was 

told by other employees that they had fallen into the surge hole or had seen others fall in. For example, Calvin Light, 

a truck operator, told Johnson that he had fallen into the hole 

but was able to extricate himself by using the bar (Tr. 227). 

In addition, Gary Dillow, a kiln burn helper, told Johnson 

that he was standing on the pile when it gave way and he slid 

into the hole • ..I.tL.. 

Johnson stated that the company rejected the idea of 

putting a grizzle over the surge hole because it would have 

increased problems with the flow of the coal (Tr. 206, 253). 

Further, in the company's opinion, it was not economically 

feasible to otherwise alter the coal feeder system (Tr. 206-207) . 

Turning to the conditions on Sunday, December 13, 1992, 

Johnson stated that because of the weather, the company's coal 

supplier had di fficulty delivering coal. Therefore, the coal 

inventory was "down to zero" (Tr. 207) . After an urgent request 

from Johnson, the supplier trucked-in three or four loads of 

coal on the afternoon of December 13. The coal was spread in 

different piles i n the coal storage shed. Two of the piles, 

one of which \was over the feeder, were approximately 4 or 5 feet 

high and 10 or 12 feet wide (Tr. 272) . It was cold and the 

moisture in the piles was frozen (Tr. 209, 267). According to 

Johnson, "you had to stay with [the coal] and constantly work 

on it to get it to go in [the hopper]" (Tr. 276). 

Johnson was asked about the use of safety belts in the 

coal storage area. He stated that although the company had 

a policy that safety belts would be worn at bins and hoppers, 

employees did not wear them when freeing hang-ups (Tr. 277) . A single safety belt was located in the kiln burner building 

{Tro 210 , 280) . In Johnson's opinion, management officials 

knew of the work habits of Frey's employees in the coal storage 

area in that they frequently traveled past the area to go to the 

kiln and in so doing could see how the employees were working 

(Tr. 210-211) . Johnson admitted, ~owever, that while he was 

with Frey, he never indicated in his preshift inspection reports 

that more safety belts were needed (Tr. 283). 

If a hang-up occurred at the surge hole it was. the job of 

the assistant kiln burner to go to the hole and free it while 

the kiln burner stayed in the kiln burner building to run the 

kiln. on Sundays the only way an assistant kiln burner would 

have had another person on the scene to help free a hang-up 

would have been to go the shop and get the front-end loader 

operator to come to the coal shed to assist (Tr. 212). There 

was no system for an employee working to free a hang-up to 

984 
communicate with the rest of the plant. There had been some 

discussions about supervisors using two-way radios to communicate. It was never suggested that radios be provided for 

rank-and-file-employees, and, in any event, radios never were 

purchased for either supervisors or employees (Tr. 214-215, 

303-304). 

Johnson also was asked about the lighting in the shed and 

be stated that there was a single overhead light (Tr. 215-216). 

He was of the opinion that it would have been "very difficult" to 

see the surge hole at night (Tr. 216). The black coal absorbed 

light (Tr. 218) . If the surge hole "crusted over," a person 

working at the hole would not be able to see any warning cracks 

in the crust. The cracks indicated the crust was going to give 

way . (.1£.., Tr. 219). Johnson agreed that he had probably never 

indicated on his pre-shift inspection reports that the lighting 

at the coal storage shed was insufficient (Tr. 283-284). Johnson 

also agreed that Bernaldes had a flashlight, but Bernaldes did 

not take it to the shed . He further stated that Bernaldes never 

complained the lighting was inadequate (Tr. 285). 

Johnson\ described Bernaldes' position as assistant to 

Meyers. During the course of the shift, Bernaldes had a series 

of jobs requiring him to be here and there around the kiln 

building, the coal shed and the feeder (Tr. 246-247). Meyers 

had no supervisory authority. It was company policy on weekends to have two supervisors report early in the morning. If 

everything was in order, they left later in the day with the 

understanding they could be called at home and would come back 

if there were any problems (Tr. 298, 316). Ray Murray, the 

foreman on duty on Sunday, December 13, had been at the plant 

and had gone home (Tr. 298-299). Johnson had also been at the 

plant earlier that day and had gone home. At approximately 

11:30 p.m., Johnson was called by Meyers who told Johnson that 

he, Meyers, had found Bernaldes and that he thought Bernaldes 

was dead. Johnson stated he was at the plant within 15 minutes. 

Murray too was called and came to the plant. 

Johnson testified he arrived at the plant immediately after 

the emergency medical technicians. He followed the technicians 

into the coal tunnel (Tr. 220). According to Johnson, Bernaldes 

was lying on the conveyor belt with his head and arms in the 

feeder. His body was lying on its left side and his right leg 

was over the top of the skirt board that ran along the side of 

and about 6 inches above the conveyor belt. Bernaldes' left 

leg was on the belt (Tr. 221, 285, 677, 288). Johnson did not 

believe Bernaldes entered the feeder by climbing on the belt 

(Tr. 680). In Johnson's opinion, because of the speed of the 

conveyor belt, it was "virtually impossible" for a person to get inside the dog house opening while the .. belt was running (Tr. 225, 

286). If a person put his or her foot on the belt, it ~ould 

throw the person off or, if a person did somehp~ qet on the 

985 
belt, the vibration from the feeder would throw the person off. 

There were no band rails to help climb onto the belt (Tr. 225-

226). If the belt was not moving, a person could crawl up on it 

and into the feeder, but the person would need a flashlight to 

see inside. Bernaldes did not have a flashlight when his body 

was found. The person would need a bar to poke at the hang-up 

and no such bar was found immediately adjacent to Bernaldes 

(Tr. 286-287). 

Johnson believed that around 6:30 p.m. on the evening of 

December 13 , Bernaldes had the front-end loader operator fill 

the hopper to the top of the surge hole and level with the 

ground. He speculated that around 9:30 p . m. , Bernaldes started 

the belt and the feeder to move the coal from the hopper to the 

kiln storage bins. Approximately 10 to 15 minutes later he left 

the kiln building and returned to the coal storage shed. By then 

a crust of coal had frozen over the surge hole. Bernaldes 

stepped on the crust and the coal gave way. Bernaldes fell into 

the hopper. The bar, which Bernaldes was not carrying, was of 

no assistance to him. The only way for Bernaldes to get out 

was through the dog house opening. In trying to wiggle out, 

Bernaldes' shoulders stuck in the opening. Later, the front-end 

loader operator came to the shed and dumped coal in the hopper and Bernaldes suffocated. 

To remove his body the rescue· squad had to use a hose to 

wash the coal from around his head and shoulders. Bernaldes' 

body was then slid out of the feeder (Tr. 230-232). 

Halbard Meyers 

Halbard Meyers was the kiln operator on the second shift. Second shift hours were from 3:30 p.m. to 11:30 p.m. Bernaldes 

was Meyers's assistant. As such, Bernaldes' duties were to make 

certain the belt was running, to free coal hang-ups, to maintain 

the pumps, and to oil and grease specified equipment. 

In describing Bernaldes duties regarding coal hang-ups, Meyers stated that the first thing Bernaldes did was to enter 

the coal tunnel and use a bar to try to dislodge a hang-up by 

poking inside the syntron feeder (Tr. 321-322, 351)'. If coal 

did not begin to flow, Bernaldes went to the coal shed and used 

the bar located there to poke through the surge hole. If that 

did not free the hang-up, he called the maintenance shop and 

the front-end loader operator came and dug out the surge hole 

(Tr. 321-322, 341). 

Meyers stated that all employees were instructed to follow 

that procedure (Tr. 323). The training was given by other 

employees and did not involve the use of safety belts or lines 

(Tr. 330). 

9 86 
Meyers stated that he had freed hang-ups frequently, but 

never alone and at night during the winter (Tr. 324, 341). He 

also stated that he once had been caught in the coal as it fell 

into the hopper up to his right knee when he was on top of a 

"pretty good size coal pile" (Tr. 346). He used the bar to push 

himself out (Tr. 347). Another employee told Meyers that he had 

fallen into the surge hole but had pulled himself out (~, 353-

354). Meyers testified that he told Charlie Morrison, Prey's aafety director, that Frey employees were having problems qetting 

the coal to feed into the hole, and that he, Meyers, had raised 

the problem during the latter part of 1988 at a company safety 

meeting. Meyers stated he discussed the matter because he was 

afraid an employee would fall in the hole (Tr. 348-350) . 

Turning to the events of December 13, Meyers testified that 

he last saw Bernaldes alive at 9:30 p.m. At that time, Bernaldes 

was getting ready to go to the coal tunnel and "start picking the 

belt" {Tr. 326). Meyers explained that this meant to pick large pieces of rock off of· the belt (Tr 1 344). 

Meyers stated that between that time and when he found 

Bernaldes' b~dy, the conveyor belt was running {Tr 355). The 

control panel in the kiln building was the place where the belt 

could be turned on and off and Meyers frequently was in and out 

of the control room that night {Tr. 488-489). Meyers never saw 

Bernaldes during these visits {Tr. 492). Moreover, Meyers could 

see the indicator light during the relevant two hour period and 

it indicated the belt was running (Tr. 489-490). 

Around 11:30 p.m. Meyers started to take his lunch box to 

the car, stopping first at the coal tunnel to look for Bernaldes. 

He did not see him so he went to his car and got his flashlight 

to look for Bernaldes around the plant. He walked around the 

coal storage area (Tr. 327). The flashlight was not that bright 

but he could "vaguely" see, although he could not see the surge 

hole (Tr. 328). Meyers then went into the conveyor tunnel to 

look for Bernaldes. He found Bernaldes lying on the conveyor 

belt. The belt and syntron feeder were running (Tr. 327). 

Bernaldes' was lying on his left side at an angle. His 

right foot was on the belt and his left foot was on the railing 

alongside the belt. Part of his body, from the shoulders up, was 

in the feeder (Tr. 328-329). Meyers turned the feeder off and 

ran to the kiln building where he told some third shift employees 

who had arrived to call "911." A short time later Meyers called 

"911" to make certain the first call had been made (Tr. 338). 

Meyers then called Johnson and Murray. ~ 

987 
FREY'S WITHESSES 

Charles Morrison 

Charles Morrison, Frey's director of personnel and safety, 

was the_company's first witness. Morrison stated that he had 

been employed by Frey for six years, and for the last five he 

had been the personnel and safety director (Tr. 368). In pre- paring for the hearing, Morrison measured the dog house opening 

of the syntron feeder. The opening was 19 inches high and 

13 inches wide (Tr. 368-369) . He also indicated that because 

of coal buildup on the bottom of the feeder, usually the height 

of the opening was reduced by 3 or 4 inches (Tr. 369) . Morrison 

identified a drawing of the opening (Resp. Exh. 17). 

Morrison also identified a scale drawing of the feeder 

unit (Resp . Exh. 18). The unit included a box into which the 

coal fell. The dog house opening was at the front of the box. 

The back of the box was 16 inches high and the box got progressively larger toward the opening (Tr. 370). From the 

back wall to the opening the box measured 30 inches. ~ 

Regarding the coal shed, Morrison testified the light 

was installed directly above the surge hole in order to give 

direction to miners if they needed to find the hole (Tr. 371). 

Morrison described the light as a soo watt, dusk-to-dawn light 

(Tr. 626). After the accident Morrison took a reading with a 

light meter in the shed. He measured 4.8 foot candles of light. 

Morrison testified that a General Electric company handbook 

recommended 5 foot candles for a congested parking lot and 

2-1/2 foot candles for a rarely traveled path. The handbook 

did not cover mining operations (Tr. 656). 

Morrison stated that at night from the bay doors of the 

kiln building he could see people in the coal shed. He knew 

because he had stood in the opened doorway and looked at the 

coal shed the night of the accident. Although he could not 

identify who the people were, he could definitely see them 

(Tr. 634). 

Safety belts or lines were not located in the coal shed. 

Morrison implied that state mine inspectors required Frey to 

keep such equipment "centrally located so people know where 

they are • • • and can go get them and • • . use them when they 

need them" (Tr. 629). 

Morrison did not recall Meyers raising at the company 

safety meetings the problem of people slipping into the surge 

hole. Morrison testified that he reviewed the minutes of the 

meetings and found no reference to the topic. He observed 

that Meyers attended only two such meetings (Tr. 639-641). 

988 
However, after the accident one employee, Calvin Light, told 

Morrison that he had started to slide into the surge hole 

(Tr. 659). 

Morrison identified photographs of the coal shed area 

taken the day after the accident. The photographs represented the conditions that existed at the time of the accident, 

including the position of the bar stuck in the coal pile (Resp. 

Exhs. 1-3; Tr. 374). A photograph of the kiln burner building 

taken from the shed showed the bay doors that could be opened 

to give a view of the shed from the kiln burner building (Resp. 

Exh. 4; Tr. 376). 

Morrison further identified photographs of the conveyor belt. He testified that the skirt board on the left hand side 

of the belt (if one faced the dog house opening) was taken off 

to assist in the removal of Bernaldes' body. However, the 

board on the right hand side was clearly shown in two of the 

photographs (Resp. Exhs. 7 and 9). According to Morrison, in 

addition to keeping coal on the belt, the skirt boards could 

serve as hand rails (Tr. 380-381). 

Morrisqn described how, at Frey's direction, another 

employee, who was somewhat taller than Bernaldes, was able 

to climb onto the belt frame and place his head into the dog house opening without touching the belt (Tr. 382-383, 637-638; 

Resp. Exhs. 11 and 12). Morrison believed this is what Bernaldes 

had done. He stated, "I can't see any way .•• Bernaldes dropped 

7 feet into that very narrow, 19 [inch] by 30 [inch], box and 

came out ••• of that dog house opening, which is 13 by 19 inches, 

and ••• did so without any coal in his pockets, in his socks, 

anywhere on his stone-washed jeans" (Tr. 386). 

Morrison explained that after the accident and after 

things had "calmed down a little bit," company personnel 

started interviewing employees and taking notes (Tr. 665). 

The investigation extended from just after the accident to 

approximately 2 months prior to the hearing, when company 

representatives completed their last interviews with rescue 

squad members (Tr. 667). 

Morrison identified a copy of the accident report he 

completed on December 16, 1992, and sub-mitted to MSHA (Gov. 

Exh. 12). In the report Morrison had stated that Bernaldes 

fell through the surge hole {Tr. 644). Morrison testified that 

he completed the report three days after the accident and prior 

to speaking with the rescue squad personnel (Tr. 389, 645). 

Approximately six weeks after the accident, the father of a 

member of the rescue squad told Morrison the rescue squad members 

could not believe the reports in the newspapers concerning how 

the accident occurred. One week later Morrison spoke to rescue 

squad personnel (Tr. 671-672). Once he was advised of the 

989 
cleanliness of the body, the lack of abrasions on the lower body, and Bernaldes' size, he came to the conclusion Bernaldes tried to 

climb into the feeder from the bottom and that it was physically impossible for him to have fallen from above and come out the dog house opening (Tr. 646-647). 

Morrison speculated that the feeder might have clogged and Bernaldes might have climbed up on the belt, stuck his 

head and arms into the dog house opening and tried to grab 

something to unclog it when the coal caved in on him. Morrison 

stated that, although it made no sense to do such a thing, it 

also made no sense for Bernaldes to be walking around on top without the pry bar (Tr. 674) . 

Will Baker 

Will Baker, an employee of the Frederick Country Sheriff's 

Office, was Frey's next witness. Baker stated that he went to 

the mine following the discovery of Bernaldes body and that he 

was the second or third person from the Sheriff's Department to 

arrive . Baker spent most of his time at the mine talking to 

Meyers. Baker saw Bernaldes' body before it was removed from 

the feeder, but was candid to state that at that time, aside from 

Bernaldes feet, he did not get a good look at it (Tr. 393-394) . Nonetheless, Baker was of the opinion the body was bigger than 

the dog house opening (Tr. 395). Baker also saw the body after 

it was removed from the feeder and he described it as being very black above the upper chest (Tr. 396) . 

Ralph Freeman Robinson III 

Ralph Robinson was a member of the rescue squad. Without 

objection, Robinson was ruled qualified to testify as an expert 

in confined space rescue (Tr. 410-411). He stated that upon 

arriving in the tunnel area, he observed Bernaldes' body sticking 

out of the dog house opening from mid-sternum down (Tr. 412). 

Bernaldes' right arm was over his head and he was lying on his 

left side with his left arm underneath him (Tr. 413, 419). Most 

of his body was resting on a metal shaker plate, not on the belt 

(Tr. 442). His right leg was to one side of the conveyor belt 

wrapped around a pole or piece of angle iron. Robinson believed 

Bernaldes had used his right leg as a brace to keep himself in 

position (Tr. 413). In his opinion, this indicated that 

Bernaldes was trying to go into the dog house opening, not come 

out (Tr. 414). 

Robinson stated that the Bernaldes was "clean" from the 

waist down, even though it was very dirty inside the feeder 

(Tr. 415). Bernaldes clothes were in tact, not ripped or torn, 

and his body did not appear to be in anyway deformed by the 

accident (Tr. 421). The tape around his ankles (used to keep 

990 
coal dust out of his socks and shoes) was not smudged with coal 

dust (Tr. 422). 

Reading from the autopsy report that indicated Bernaldes 

weighed 270 pounds and was six feet tall, Robinson stated that 

from viewing the body and the dog house opening he did not 

believe a person of Bernaldes' size could have come through 

the opening (Tr. 426-428). Bernaldes' hip size was 38 inches. 

Robinson believed Bernaldes would have suffered broken bones if 

he had fit through the 19 inch by 13 inch opening, and Bernaldes 

had no broken bones (Tr. 431, 445; Resp. Exh. 20). Robinson 

believed Bernaldes could have gotten only his feet and upper 

thighs through the opening before he became stuck. In Robinson's 

opinion, there was no way he could have twisted his body to get 

the rest of himself through (Tr. 432-433). The dog house opening simply was not big enough (Tr. 433). 

Brenda Sue Gray 

Brenda Gray, a rescue squad paramedic, was part of 

the team called to the mine. Her description of the position 

of Bernal des.' body was essentially the same as that of Robinson. 

In her opinion, the fact that Bernaldes' right leg was wrapped around a metal post along the side of the belt indicated he was 

trying to keep himself in that position, not trying to wiggle 

out of the feeder (Tr. 452). 

Gray stated she raised the victim's shirt and tried to 

detect a femoral pulse, but could not. She noticed that 

Bernaldes' body had very little coal dust on it and that the 

exposed portions of his body were relatively clean. She stated 

this on the report she filed (Tr. 454, 455). She believed if 

Bernaldes had fallen through the surge hole he would have 

been covered with coal dust (Tr. 458). When she heard he had 

fallen though the surge hole, she disagreed. She thought he 

had climbed up on the frame of the belt, stabilized himself with 

his right leg, and poked his head into the opening (Tr. 458). 

It was, she stated, a "tight fit" (Tr. 454). Given the size of 

Bernaldes' hips, she did not believe his waist would have fit 

through the dog house opening (Tr. 459, 467). 

Chester Locke 

Chester Locke, the captain of the rescue squad, was in 

charge of the squad's activities. Unlike Robinson, Locke 

recalled Bernaldes' hips and legs as resting on the belt 

itself (Tr. 484). Because of Bernaldes' size and the relative 

cleanliness of his clothing outside the feeder, Locke also 

felt Bernaldes was trying to enter the dog house opening from 

the bottom (Tr. 475-476). If his hips had made it through the 

opening, Locke .believed his shoulders and head would have come 

through as well (Tr. 483). 

991 
Locke believed that the conveyor belt would have had 

to have been off before Bernaldes climbed onto it (Tr. 480}. 

If the belt had been running Bernaldes would have been 

fiqhting the belt as it ran opposite the way he wanted to qo. 

Bernaldes' clothing would have been torn or he might have 

suffered abrasions, neither of which occurred (Tr. 481). 

Tbomas E. Robinson. Sr. 

Thomas Robinson was the kiln foreman. Robinson 

was not at the mine on the day of the accident (Tr. 530). 

Robinson explained that "everyone" had complained about 

coal hang-ups, especially when the coal was wet (Tr. 536). 

He agreed he had probably "hollered" at Johnson about it. l!L_ 

He too explained how coal hang-ups were cleared. The miner 

assigned to the job started at the· bottom and tried to open 

the feeder by poking the bar through the hole in the feeder 

(Tr. 506) . If that procedure was unsuccessful, the person 

would get the front-end loader operator to open the surge hole 

(Tr. 506-507). If the loader was not successful, the miner 

took the bar and used it to loosen the coal (Tr. 508-509). 

The bar was., always on the surface, usually leaning against a 

pier of the ·coal shed, although sometimes it was stuck into a 

coal pile (Tr. 510). The purpose of the 9-1/2 foot bar was to 

keep the miner away from the hole (Tr. 512). Robinson was 

asked how far away from the hole a miner would stand in order 

to be safe, and he responded, "I would stand far enough away where I would know I wasn't going to slide in there. Sometimes 

its's 2 or 3 feet, 4 feet, whatever you think is safe" (Tr. 528). 

Robinson stated that he never had fallen into the surge hole, 

nor heard of anyone who had done so (Tr. 516). 

According to Robinson, a miner would stand back away from 

the hole and poke at the hole (Tr. 511). The miner "bore" out 

the hole (Tr. 531). The miner would know where the hole was 

located because it was directly under the light (Tr. 518). 

When the syntron feeder was drawing from a large coal pile, the 

funnel created by the draw could b~ 9 feet across (Tr. 522-523, 

533). 

Vincent Lord 

Vincent Lord, Frey's plant superintendent, was not 

present at Clearbrook Mine and Mill the night of the accident. 

He arrived just before midnight (Tr. 580-581). He testified 

that, although Bernaldes held the job of alternate burner, on 

the night he was killed he was acting as an oiler. Bis duties 

as an oiler required him to ensure the pumps were pumping, to 

watch the conveyor belts and to make certain coal fed into 

the bin. Bernaldes' duties on the niqht of the accident 

992 
also included acting as Meyers' assistant (Tr. 539-540). If 

Bernaldes did not perform his duties correctly, it was Meyers' 

responsibility to report Bernaldes to the foreman. 

Lord described the "experiment" conducted to determine if 

a person could climb onto the belt and place his head in the 

feeder without touching the belt. (The belt and syntron feeder 

were disconnected for the test (Tr. 595.)) Although Lord was 

not present when the test was conducted, he understood the man 

was able to stay free of the belt by crawling on the belt frame 

and skirts (Tr. 560 ; Resp. Exhs. 11, 12). 

The Clearbrook facility is the subject of two complete 

inspections a year by MSHA, during which MSHA inspectors are 

present day and night {Tr. 568-569) . Prior to the accident the 

conditions at the surge pile for which Frey was cited were never 

alleged to constitute violations of federal or state safety 

regulations (Tr. 569-571) . 

Like other of Frey's witnesses, Lord testified that company 

procedures in freeing hang-ups required an employee to first try 

to free the coal from the syntron feeder. "[I]f the bottom is 

not open you are not going to open the top" (Tr. 589). The next 

thing tried was to free it with the loader at the surge hole and, 

if that failed, to use the bar to open up the hole (Tr. 590). 

When using the bar, employees were instructed to stand back from 

the hole 4 to 6 feet (Tr. 591). Lord acknowledged it would not 

be safe to stand at the edge of the hole (Tr. 599). 

Lord stated that prior to December 13, 1992, he never 

had been advised that anyone had slipped into the surge hole 

(Tr. 552). He did not recall discussing with Johnson the safety of employees using the bar to open the hole or employees using 

the bar to get free of the hole if they slipped in (Tr. 610). 

Subsequent to the accident, he heard that from two to four people 

had slipped in at one time or another (Tr 548). 

Lord discussed the lighting of the coal shed. He noted 

that front-end loaders used in the shed were each equipped with 

four lights (Tr. 576) . Bernaldes had a flashlight, although he 

had not used it the night of the accident (Tr. 579). In Lord's 

opinion, if the bay doors of the kiln burner building were 

opened, a person looking from the doors to the coal shed could 

see a man walking in the shed (Tr. 582). The distance from the 

kiln burner building to the shed was approximately 110 feet 

(Tr. 583). The shed could be seen also from a doorway to the 

deck of the kiln burner building, a door the kiln burner had 

to use when checking if the kiln bin was being filled with 

coal from the belt (Tr. 585-586). 

993 
With regard to oral communication at the facility, Lord 

stated the acquisition of radios had been discussed, but only 

in terms of the foremen communicating with one another (Tr. 579). 

He agreed that if a miner yelled for help from the coal shed, 

he could not be heard in the kiln burner building (Tr. 593). 

on weekends, a shift foreman who worked the day shift was 

in charge in case of an emergency. After the afternoon shift, 

the kiln burner (Meyers at the time of the accident) was in 

charge and he was responsible for telephoning the foreman or 

plant superintendent (Tr. 594). 

Lord was asked to give his opinion regarding how Bernaldes 

died. He stated that at first he believed Bernaldes had fallen 

through the surge hole. "But after further seeing all the 

evidence • .• and looking at the configuration of the opening and 

the size of the opening and the size of his body and the position 

that his body was found in," Lord tound it "very, very difficult 

to see that he could have gone down through the top" (Tr. 613). 

On the other hand, Lord could not think of a reason why Bernaldes 

would have tried to crawl into the dog house opening (Tr. 614-

615). 

MOTION TO STRIKE 

At the close of the testimony, counsel for Frey renewed 

a motion to strike that he had made when the Secretary rested 

after presenting his case-in-chief. Counsel noted the Secretary bore the burden of proof and argued the evidence offered by the 

Secretary was insufficient to establish any of the alleged 

violations (Tr. 358-365). I reserved a ruling (Tr. 365). I 

herein deny the motion. 

counsel renewed the motion after all of the evidence had 

been submitted (Tr. 692-693). Counsel argued the only conclu- . sion to draw from the testimony was that Bernaldes, for whatever 

reason, entered the feeder from the bottom and did not fall 

into the hopper from above. In addition, the evidence did not 

establish that a hazardous condition existed in the coal shed, 

and, without a hazardous condition· to endanger workers violations 

could not be found (Tr. 696-697). 

The Commission's rules provide that on a procedural 

question not regulated by the Act, the Commission's rules, 

or the Administrative Procedure Act, the judge be quided by 

the Federal Rules of Civil Procedure. 29 C.F.R. §2700.l(b). 

Heither the Act, the Commission's Rules, the Administrative 

Procedure Act, or the Federal Rules apply to the specific 

situation at hand. Nevertheless, the essence of Frey's motion 

is not unknown at law. Frey is contending that even if all 

evidence presented by the Secretary is regarded as true, the 

government has failed to establish its case and judgment must 

994 
be entered for Frey. As set forth more fully below, while I 

do not find favorably for the Secretary regarding all of his 

allegations, I cannot find that his evidence, if unrefuted, 

is so wholly deficient as to fail to establish three of the 

violations alleged. Moreover, only an analysis of the evidence of both parties allows me to reach the conclusion that 

the Secretary has not prevailed with regard to the other 

two alleged violations. 

DISCUSSION FINDINGS AND CONCLUSIONS 

Order/Citation No. 

4082539 

POCKET NO. VA 93-80-M 

Date 

12/14/92 

30 C.F.R. § 

56.~6002(a)(l) 

Proposed Penalty $3,500 

The order/citation, issued pursuant to sections 107(a) 

and 104(a} of the Act, 30 u.s.c. §§ 817(a), 814{a), states: 

A fatal accident occurred at this operation when an employee fell into a coal chute to the 

syntron \feeder. There was an unguarded opening on 

top of this chute. The coal has a tendency to bridge 

over or hang up in this chute. Normal operating procedures require an employee to work near this 

opening when hang ups occur. A method shall be 

provided to eliminate the need for employees to 

free hang ups in this unguarded opening. 

Exh. P-1. The order/citation was modified subsequently as 

follows: 

This modification is to change the wording from 

coal chute to surg[e] hole and add a paragraph. 

The paragraph should read as: The surg[e) hole 

to the syntron feeder was not equipped with a mechanical device or other means to·handle material so that 

persons are not required to work where they are 

exposed to entrapment by caving or sliding materials. 

IsL.. 2. 

Section 56.16002(a}(l) states: 

(a) Bins, hoppers, silos, tanks and surge piles, 

where loose unconsolidated materials are stored, 

handled or transferred shall be -- ( l) Equipped with mechanical devices or other 

effective means of handling materials so that during 

995 
normal operations persons are not required to enter 

or work where they are exposed to entrapment by the 

cavinq or slinqinq of materials[.] 

THE YIOLATION 

The violation alleged by the Secretary is set forth in the 

modification of the order\citation. It states that the surge 

hole for the surge pile was not equipped with a mechanical device 

or other means to handle the coal so that employees were not 

required to work where they were exposed to entrapment by caving 

or sliding coal. 

The testimony of all of the witnesses confirms the coal 

piled in the coal storage shed fed.through the surge hole into 

the hopper and syntron feeder and hence to the conveyor belt 

that carried it to the kiln plant. The coal was piled in the 

shed in a loose, unconsolidated fashion -- a surge pile. Indeed, 

it had to be so piled in order to fall through the surge hole. 

Being a storage and transportation system containing both a 

surge pile and a hopper, the facility clearly came within 

subsection (a) of section 56.16002. 

The principal question is whether persons were required to 

enter or work in an area during normal operations where they 

were exposed to entrapment by caving or sliding coal. If they 

were, the standard required the facility to be equipped with a 

mechanical device or another effective means of handling coal. 

I conclude that the testimony overwhelmingly establishes that 

persons were required to free hang-ups at night in the coal shed 

during normal operations at which time they were exposed to the 

danger of entrapment. 

I accept Frederick's testimony that coal piled in the 

storage shed had a tendency to hang-up (Tr. 60). The bar used ~y miners to free the hang-ups in th~ storage shed testified to 

this fact as effectively as the witnesses. I further accept the 

testimony of Johnson that the hang~ups were more frequent when 

the coal was wet and when the temperature fell below freezing, 

as it did the night of the accident (Tr. 200-202, 276, 536). I 

further find that when such hang-ups occurred, the surge hole 

could "crust over,"and I conclude the repeated nature of the 

hang-ups made them normal occurrences at the facility. 

I also accept as a fact of physics that the coal did not 

always fall straight down into the hopper. (Loose, unconsolidated materials do not always fall in that way.) Rather, and 

as explained by Frederick and Johnson, like any such piled 

material, the coal was drawn down in a funnel pattern, or, as 

Johnson put it, in the shape of a "inverted cone" (Tr. 60, 261). 

I further find that the cone was not always symmetrical. This 

physical attribute of the draw was what Johnson described when 

996 
he stated that the coal could be "feeding in at an angle to the 

(surge] hole" depending, among other things, upon the consistency 

of the coal (Tr. 241). In addition, I accept as a fact that the 

radius of the funnel varied depending upon the size of the coal 

pile. 

As most completely described by Frederick and Johnson, but 

as agreed by all of the witnesses, I find that during normal 

operations it was a practice at the Clearbrook Mine and Mill for 

employees to stand at the coal pile when freeing a hang-up and 

poke at the coal with the 9 foot bar. I also conclude, given the inconsistency with which the coal could fall or draw, that 

the employees working to free hang-ups could not always determine 

where the coal would draw. Consequently, miners working in the 

coal shed to free hang-ups were in fact in danger of being pulled into the hopper by the falling coal. I base this conclusion upon 

the logical assumption that if a miner could not be certain 

exactly how the coal pile would draw, there would inevitably come 

a time when he or she would guess wrong and stand on coal that 

was a part of the draw. 

This conclusion is reenforced by the testimony regarding 

training and practice in freeing hang-ups. I note Lord testified 

that employees were instructed to stand 4 to 6 feet away from 

the hole (Tr. 591, 599) . However, _ Johnson testified employees 

were not trained by Frey in how to free hang-ups, that employees 

taught one another. Frey offered no evidence to establish it 

formally trained its employees in this task, and I accept Johnson's statement, with which Meyers agreed. I conclude, 

therefore, that employees were not formally instructed to stand a 

specific distance from the surge hole. Thomas Robinson, who had 

not heard Lord's testimony, stated the distance to stand away 

from the surge hole and be safe varied. He described a safe 

distance as "sometimes two or three feet, four feet, wherever you 

think is safe" (Tr. 528). Given the nature of the task at hand, 

I believe Robinson accurately described the practice. Therefore, 

rather than being an act of certainty, freeing a hang-up required 

individuals to judge that about which they could not be certain, 

i.e., the distance to stand to be outside the draw of falling 

coal. 

That employees' judgements were not always accurate was 

confirmed by the testimony of Frederick, Johnson, Meyers, 

Morrison and Lord, all of whom stated they had been told 

post-accident that other miners had been caught by the sliding 

coal and had been dragged into the hopper or toward the hopper 

(Tr. 77, 228, 277, 353-354, 548, 552, 659). 

I further agree with Johnson that employees were at 

times in danger of falling into the hopper when the coal was 

not drawing. I credit his testimony that in the winter·the 

coal could crust over and, therefore, that the surge hole 

9 97 
could have a thin "bridge" of coal over it. While I believe 

the testimony established that the single light in the coal 

shed for all practical purposes was directly over the surge hole, it strikes me as entirely credible that an employee intent on determining why coal was not flowing, easily could 

forget the light was over the hole, step on the coal bridge and fall into the hopper. Further, I believe Johnson was right 

in maintaining this was likely to happen at ~ight when light 

from th~ single lamp, approximately 31 feet above the surge hole, was absorbed by the coal on the floor so that telltale 

cracks in the coal bridge were not easily noticed (Tr. 216-219). 

I conclude, therefore, that the cited conditions in the coal 

shed violated section 56.16002(a)(l). 

S&S and GRAVITY 

The Commission has held that a violation is "S&S" if, based 

on the particular facts surrounding the violation, there exists a 

"reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

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

Further, the Commission has offered guidance upon the interpretation of its National Gypsum definition by explaining four factors 

the Secretary must prove to establish that a violation is S&S. 

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

Commission stated: 

[T]o establish that a violation of a mandatory standard is significant and substantial under 

National Gypsum the Secretary ••• must prove: (1) the 

violation of a mandatory safety standard; (2) the 

discrete safety hazard contributed top by the violation; (3) a reasonable likelihood that the hazard 

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

reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

I have concluded a violation of 30 C.F.R. § 56.16002(a}{l} 

existed. I also find the evidence establishes a discrete safety 

hazard in that the lack of a mechanical device or other means for 

handling the coal when it became hung-up subjected miners trying 

to free the hang-ups to the danger of being caught in the surging 

coal as it broke free and of being pulled into the hopper below 

or of falling through the crusted coal. Either the initial fall 

or coal falling on top of the miner once he or she was in the 

hopper was reasonably likely to result in serious bruises or 

broken bones. Moreover, if the accident occurred when no other 

miner was around and help was not immediately available, death 

from suffocation was reasonably likely, especially since the 

front-end loader operator might well arrive in the coal shed 

998 
after the miner had fallen and push or dump coal unknowingly on 

the miner. 

The remaining question is whether the eviden·ce establishes 

that there was a reasonable likelihood the hazard contributed 

to would result in an event in which there was an injury. The 

relevant time frame for determining whether a reasonable likelihood of injury existed includes both the time that the violative 

condition existed prior to the citation and the time that it 

would have existed if normal mining operations had continued. 

U.S. Steel Mining Co. Inc., 6 FMSHRC 1573, 1574 (July 1984), 

Halfway. Inc., 8 FMSHRC s, 12 (January 1986). 

I am persuaded that the lack of a mechanical device or 

other means to prevent miners from.being drawn into the surge 

hole meant that sooner or later, in the context of continued 

mining operations, such an accident was. bound to happen. In 

this regard, I find especially compelling the testimony of the 

various witnesses, both those called by the secretary and those 

called by Frey, who learned post-accident about other miners who 

had been caught in the draw. Moreover, as I have noted, I am 

persuaded al~o that the fact that miners were required to free 

hang-ups at night and in freezing weather, meant that it was only 

a matter of time before a miner would inadvertently step on the 

crusted over surge hole and fall into the hopper. An injury or 

fatality was reasonably likely once either of these things 

happened. Therefore, I conclude that the violation was properly found to be S&S. 

In determining the gravity of the violation, I must 

consider both the potential hazard to the safety of the miners 

and the likelihood of the hazard occurring. As I have noted, 

the violation subjected miners to serious injury or death. 

Given the fact that miners were continually sent to the coal 

shed to free hang-ups, it was highly likely that an accident 

of this kind would happen. Therefore, I conclude the violation 

was extremely serious. 

The Secretary tried to establish that Bernaldes' death was 

the result of such an accident. In my opinion, the Secretary did 

not succeed. A review of the testimony offered by the Secretary 

illustrates its deficiencies. Frederick testified that he had "no 

facts to document" his belief Bernaldes fell through the surge hole and into the hopper (Tr. 97, 121) . Frederick neither saw 

the body nor interviewed those members of the rescue squad who 

did (Tr. 128-130, 132). Further, Frederick agreed that if, as he 

believed, Bernaldes had fallen into the hopper and gotten stuck 

at his shoulders in the dog house opening, it was "very possible" 

Bernaldes would have had coal dust on and inside his clothing, 

and the .testimony of the rescue squad members establishes 

Bernaldes' clothing and body were relatively clean below the 

point where he became stuck (Tr. 138). 

999 
When Meyers last saw Bernaldes alive, Bernaldes was 

beaded toward the tunnel to pick coal from the belt (Tr. 326). 

Meyers did not know what Bernaldes did after that. While 

neither Frederick or Johnson believed Bernaldes would have 

climbed up on the belt frame and stuck his head into the feeder, 

Johnson agreed that it was possible for a person to get up on 

the frame of the conveyer without touching the belt (Tr. 685). 

I cannot inf er from this testimony that Bernaldes fell 

into the hopper from above, especially considering the unre-. futed testimony of Frey's witnesses that Bernaldes clothing and body were relatively free of coal dust below the point 

where he had become stuck and that his body was free of broken 

bones, and largely free of scrapes and bruises. It is true that 

Morrison originally believed Bernaldes had fallen from above and, 

indeed, reported such to MSHA, but he changed his mind -- as well 

he might -- after discussing the situation with rescue squad personnel (Gov. Exh. 12, Tr. 644). They uniformly believed that 

a person of Bernaldes' size would not have gotten all of the way 

through the feeder, and, given Bernaldes weight and hip size, 

their belief is convincing. 

I, therefore, find that the relatively clean state of 

Bernaldes' clothing and of his body below the shoulders, 

Bernaldes' lack of broken bones and significant abrasions, 

as well as Bernaldes' size and the size of the feeder box and 

dog house opening -- together with the deficiencies in the 

Secretary's evidence -- preclude a conclusion that Bernaldes 

fell though the surge hole. · 

I am also persuaded that it made absolutely no sense for 

Bernaldes to climb onto the frame of the conveyor and stick 

his head and upper body into the feeder. Lord, the plant superintendent, could think of no reason why Bernaldes would have 

done so, and neither can I (Tr. 614-615). It seems extremely 

unlikely he was trying to look up into the dark feeder. He did 

not have a flashlight (Tr. 285-286). Moreover, if the coal were 

hung-up in lower part of the hopper or feeder, freeing it would 

not have required Bernaldes to assume the position in which his 

body was found. He could have poked at the hang-up with the bar 

kept near the feeder for that purpose. Obviously, . the lack of a 

reason for Bernaldes to put himself in such an extremely dangerous position strongly militates against finding he did. 

In the end, the evidence does not permit a finding regarding 

how Bernaldes met his death. Nevertheless, even without such a 

finding, the extreme seriousness of the violation has been 

established. If Bernaldes did not fall through the surqe hole, 

I am convinced, as I have already found, that sooner or later a 

Frey employee would have done so. In other words, the lack of 

a mechanical device or other means to handle material so that 

1000 
persons were not exposed to possible entrapment from caving or 

sliding coal created conditions in which serious injury or death 

was virtually inevitable given time. 

NEGLIGENCE 

I again note the testimony of Johnson, Morrison and Lord 

that following Bernaldes' death they became aware of employees 

who had been caught in the surging coal. In and of itself, 

this bespeaks a failure of communication at the facility and, 

in my opinion, is indicative of a fundamental failure of Frey 

management personnel to meet the standard of care required of 

them. Also indicative of Frey's fundamental failure is Frey's 

practice of having employees instruct one another on how to 

free hang-ups. In my opinion, the lack of operator-initiated 

training typifies Frey's noncholance to the hazard involved . 

The testimony establishes that the task of freeing hang-ups 

was inherently dangerous. As Lord's testimony indicates, Frey 

management personnel realized it was hazardous for employees to 

stand too close to the surge hole (Tr. 599). Management also 

should have realized, given the nature of task and the manner in 

which coal fel~, that inevitably an employee would be too near 

the surge hole ·or would walk over the crusted surge hole, 

especially since hang-ups were not unusual occurrences. (Thomas 

Robinson credibly testified that "everyone" complained about them 

{Tr. 536).) 

The surge hole had been in existence since 1967 and Frey had never been cited for violations relating to conditions at 

the surge pile (Tr. 552, 569-571). If these facts stood alone, 

they might indicate conditions at the surge pile were not such 

as to require a heightened standard of care on Frey's part. 

However, they do not stand alone. Rather, the overwhelming 

impression gathered from the record is that the employees 

assigned to free hang-ups at the surge pile were sent to do a 

very dangerous job and that Frey was simply lucky a serious 

injury or fatality had not occurred prior to Bernaldes' death. 

Thus, Frey's failure to provide a mechanical device or other 

means to handle the coal so that its employees were not exposed 

to entrapment or caving from the sliding material represented a 

major and fundamental departure from the care the circumstances 

required. Frey was highly negligent. 

ORDER NO. 

4082540 

DATE 

12/21/92 

The order states in part: 

30 C.F.R. § 

56.18020 

PROPOSED PENALTY 

$6,000 

A fatal accident occurred at this operation 

on December 13, 1992 when an employee fell into a 

surg[e] hole in the coal storage shed. The shed 

1001 
was poorly illuminated and the floor was slippery 

around the top of the open hole. The victim was 

working alone and was required to free hangups in 

the surg[e] hole. He could not be seen or heard and 

there was no method provided for him to communicate 

with others. The accident occurred on the afternoon 

shift between 9:50 P.M. and 10:45 P.M. The victim 

was not found until 11:30 P.M •••• (This is an 

unwarrantable failure violation.) 

Exh. P-J. Section 56.18020 states: 

No employee shall be assigned, or allowed, or 

be required to perform work alone in any area where 

hazardous conditions exist that would endanger his 

safety unless he can communicate with others, can be 

heard, or can be seen. 

THE YIOI..ATION 

To establish a violation of section 56.18020, the Secretary 

must prove that an employee was required to work in an area where 

hazardous conditions existed that endangered his or her safety. 

I have found that the conditions under which Frey's employees (including Bernaldes) worked when they were sent to the surge 

pile area to free hang-ups were extremely hazardous. Indeed, 

they constituted an accident waiting to happen. While I have 

also found that the Secretary has not proven how Bernaldes met 

his death, the testimony of Bernaldes' immediate superior, 

Meyers, makes clear that one of Bernaldes' duties was to ensure 

there were no hang-ups and this required him to visit the coal 

shed and to free those that occurred (Tr. 321-322, 341). The 

testimony also makes clear that hang-ups were not infrequent. 

Therefore, I find the nature of Bernaldes' job required him to 

encounter the conditions alleged in the order. 

The Secretary also must prove the employee was required 

to work alone. In this regard, the testimony establishes that 

when Bernaldes went to the shed on the weekend, he usually 

was working by himself. No one else was in the shed. If the 

front-end loader operator was needed, Bernaldes would call for 

the front-end loader operator to come to the shed {Tr. 212). 

In this regard, I accept Meyers' specific description of how 

Bernaldes freed hang-ups {Tr. 321-322, 341). Bernaldes was 

working under Meyers' direction. 

The Secretary must also establish that when Bernaldes 

worked to free a hang-up Bernaldes' contact with others was 

insufficient to satisfy the protective purposes of the standard. 

Cotter Corp., 8 FMSHRC 1135,· 1137 (August 1986) (interpreting 

then identical mandatory safety standard 30 C.F.R. § 57.18-25 

{1984)). The Commission has stated that to be sufficient under 

1002 
the standard, the communication or contact must be "of a regular 

and dependable nature commensurate with the risk presented in 

a particular situation" and that "as the hazard increases, the 

required level of communication or· contact increases." Old Ben 

Coal co., 4 FMSHRC 1800, 1803 (October 1982} (interpreting 

identical mandatory standard 30 C.F.R. § 77.1700). 

Here, I accept Frederick's opinion that if Bernaldes had 

fallen into the hopper, no person would have heard his cries 

for help (Tr. 98). The kiln building where Meyers was working 

was too far away for oral communication and the front-end loader 

operator was not always present in the shed. While I credit the 

testimony of Morrison that at night a person in the coal shed 

could be seen from the bay doors of the kiln building and of 

Lord that a person could be seen from the kiln building's deck 

(Tr. 634, 585-586), I note that there was no testimony regarding how frequently the bay doors were opened and no testimony 

regarding how frequently anyone would have looked from the doors 

when they were opened. Although Lord testified the kiln burner 

went onto the deck, the kiln burner's purpose, according to Lord, 

was to determine whether the kiln bin was filled with coal, not 

to check for the presence of a worker in the coal shed (Tr. 585-

586) . Any s~ghtings of Bernaldes .by the kiln burner would have 

been inadvertent to the task at hand. Even if Bernaldes had been 

seen, the person seeing him might not have been certain it was 

Bernaldes. As Morrison testified, people could be seen from the 

open doors, but "you might not be able to identify exactly who 

they were" (Tr. 634). 

Finally, no testimony was offered from which to find that 

a miner was assigned to check regularly on the status of a person freeing hang-ups and certainly no testimony was offered that 

anyone checked specifically on Bernaldes. 

I conclude, therefore, that when Bernaldes went to the 

coal shed to free hang-ups there was no oral communication 

with him and visual communication was inadvertent and imprecise. 

I have found that freeing hang-ups at night in the coal shed 

was extremely hazardous. I further find that when Bernaldes 

was required to do the job, the level of communication or 

contact between Bernaldes and any other miners was inadvertent 

and haphazard. In other words, there was no communication or 

contact of a regular or dependable nature commensurate with the 

risk involved. Consequently, I find that the violation occurred. 

S&S and GRAVITY 

As Frederick noted, if Bernaldes was caught in the surging 

coal and was pulled into the hopper, or otherwise fell into the 

bopper, there was no way to let another person know where he was 

(Tr. 99, 593). The danger was that injuries associated with the 

1003 
fall would be aggravated for lack of timely rescue or, worse yet, would be compounded by the loader operator dumping or pushing 

coal through the surge hole and unknowingly covering Bernaldes. 

Thus, a discrete safety hazard existed. 

The question is whether sending Bernaldes to free hang-ups 

at night when others had only occasional and inadequate visual 

contact with him was reasonably likely to result in an injury. 

I have found it was reasonably likely Bernaldes would, sooner or 

later, have fallen into the hopper. I further find that given 

the lack of adequate communication, the accident would not have 

been timely detected. Thus, it was reasonably likely that 

injuries suffered from the fall into the hopper would have been 

made worse -- perhaps fatally worse -- by the violation. This 

is es·pecially so because in the context of continued mining 

operations, the front-end loader operator, who would have come 

to fill the hopper eventually, would not have been able visually 

to detect the accident. 

Injuries resulting from an inability to assure timely 

assistance would have been of a reasonably serious nature. For 

these reasons I conclude the violation properly was designated 

S&S. 

I also conclude the violation was extremely serious. 

Regular and dependable communication and contact, while it would 

not have excluded the possibility of injury, would have gone a 

long way to eliminate the potential of an existing injury being 

aggravated or compounded and would have reduced the chances of a 

fatality. 

UNWAFRANTABLE FAILURE and NEGLIGENCE 

The Commission has held that within the context of the 

Mine Act, "unwarrantable failure" is aggravated conduct consituting more than ordinary negligence by a mine operator 

in relation to a violation of the Act. Emery Mining Corp., 

9 FMSHRC 1997, 2004 (December 1987); Youghiogheny and Ohio 

coal Co., 9 FMSHRC 2007, 2010 (December 1987) (Y&O). The 

Commission also has stated the fact an operator "knew or 

should have known" of conditions constituting a violation is 

not sufficient, in and of itself, to establish unwarrantable 

failure, for that would make such failure indistinguishable 

from ordinary negligence. The thrust of Emery/Y&O is that 

unwarrantable failure represents more than an operator's 

actual or constructive knowledge of violative conditions •. Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 (October 1993). 

The commission has specified factors that may be indicative of such aggravated conduct. They include: (1) the extent 

of the hazard created by the violative condition, (2) the length 

ot time the condition has been left uncorrected, and (3) whether 

1004 · 
the violation was the result of deliberate activity on the 

part of the operator. E1Dery, 9 FMSHRC at 2004-2005; ~' 

9 FMSHRC at 2011; Ouinland Coals. Inc., 10 FMSHRC 705, 708-709 

(June 1988). · 

The testimony regarding unwarrantable failure was sparse. Frederick noted that the foreman should have known about the lack 

of communication and contact. Lord emphasized that no previous 

violations for conditions at the coal shed had been issued to 

Frey (Tr. 180, 569-571}. 

Despite the paucity of direct testimony on the issue, I am 

of the opinion that the totality of facts surrounding the violation requires a finding that it was due to Frey's unwarrantable 

failure to comply. First, the condition under which Bernaldes 

was assigned to work was extremely hazardous. The failure of 

Frey to recognize this in any meaningful way, and the long period of time Frey allowed the condition to exist (the surge hole had 

been in use since 1967 and the coal shed was completed a few 

years before the accident} justify a conclusion that not only 

were Frey management personnel myopic to the hazard involved, 

they were inexcusably so. For me, Frey's inexcusable lack of 

diligence is reflected by testimony that only after the accident 

did Frey learn that some of Frey's employees working on the coal 

surge actually had been caught in the surging coal. 

It is true, as Lord pointed out, that Frey had not been 

cited previously with respect to the conditions at the surge 

pile. However, I do not infer from this that the violation 

was minor or hard to detect, or that Frey's failure to correct 

it was in some respect excusable or the result of inadvertent 

inattention. There is nothing in the record to establish that· government inspectors ever were at the mine when Frey's employees 

were freeing hang-ups, and inspectors are no more clairvoyant 

than the rest of us. Nor is this a situation where Frey has 

demonstrated a good faith, albeit mistaken belief that its 

actions were in compliance with the standard, for there is no 

evidence at all of hazard recognition on Frey's part (~ 

generally, Utah Power and Light co., 12 FMSHRC 965, 972 (May 

1990). Rather, the evidence supports finding a glaring and 

total failure of such recognition. 

I conclude that the violation resulted from Frey's negligence in assigning Bernaldes the task of freeing hang-ups at 

night without any adequate communication or contact, and more 

than that, it resulted from Frey's inexcusable and unwarrantable 

failure to comply. 

Qitation No. 

4083441 

Date 

12/21/92 

30 C.F.R. § 

56.15005 

1005 

Proposed Penalty 

$6,000 
The citation states: 

A fatal accident occurred at this operation 

on December 13, 1992 when an employee fell into 

the surg[e] hole in the coal storage shed. The 

victim was not wearing a safety belt and line and 

none were available at the accident site. The area 

around the hole was slippery and sloped toward the 

opening. Company operating procedures required 

employees to work on this incline to free hangups in the hole. The mine operator was aware of this 

condition. This was an unwarrantable failure 

violation. 

Exb. P-2. Section 56.15005 states~ in part, that "safety belts 

and lines shall be worn when persons work where there is danger 

of falling •. .. " 

THE VIOLATION 

The requirements of the standard are straightforward -- that persons wear safety belts and .lines where there is a danger 

of falling. The citation primarily is written in terms of 

Bernaldes' accident -- that Bernaldes was not wearing a safety belt and line when he fell into the surge hole. It is true that 

when Bernaldes' body was found, he was not wearing a safety belt 

or line. However, I have concluded that the Secretary has not 

established how Bernaldes met his death on December 13 and therefore cannot find a violation of the standard based solely upon what happened to Bernaldes. 

The citation further alleges that a violation of section 

56 . 15005 existed because safety belts and lines were not stored 

in the coal shed (Tr. 79, 170-71) . This allegation goes beyond 

the wording of the standard, which mandates when safety belts and 

lines are to be worn, and which does not specify where they shall 

be kept or provided. compare 30 C.F.R. §§ 56.150001, 56.15031. 

This does not, however, end the matter. The citation 

also is written in terms of the company's operating procedures, 

that is, of Frey's requirement that employees work on the 

surge pile to free hang-ups. I interpret this to mean that, 

in addition to the other allegations, the Secretary i s alleging 

that there was a practice for .those working to free hang-ups 

not to wear safety belts and lines. In this regard, I note 

the statement of proposed assessment makes this same allegation ("The operator was cited for a violation of • • • [section] 

56.15005 because employees were not using safety belts and lines 

where there existed the danger of falling while performing the 

task of freeing up material that had accumulated in the surge 

hole" (Narrative Findings for a · Special Assessment 2.)) Frey 

1006 
did not object to testimony that was offered to support this 

allegation and Frey did not claim surprise or prejudice at its 

receipt. 

I find the Secretary has proven this part of the alleged 

violation. I accept Frederick's testimony that when investigating the accident, he heard one or more of Frey's employees 

state that safety belts and lines were not worn in the coal 

shed (Tr. 85-86). While Johnson testified that Frey had a 

safety policy of requiring safety belts to be worn at bins 

and hoppers, there was no testimony to establish how this 

policy was enforced and no testimony that it ever was applied 

at the surge pile (Tr. 210). I believe that what Frederick 

heard was true. Meyers credi bly t~stified that when employees 

instructed one another regarding how to free hang-ups, the 

instruction did not involve the use of safety belts or lines, 

and his testimony was unrefuted (Tr. 330). Further, Meyers 

credibly testified that, although he observed employees working 

on the surge pile, he never saw them wearing safety belts. ~ 

I, therefore, find it was a practice for employees freeing 

hang-ups at the surge pile not to wear safety belts of lines. 

As I ha·:ye previously found, the danger of being drawn 

into the hopper by the surging coal was present when employees 

were sent to the coal shed to free hang-ups, as was the danger 

of inadvertently stepping on crusted-over coal and of falling 

through. Therefore, it should have been the practice at the 

coal shed to require the wearing of safety belts and lines. 

It was not, and I therefore find that a violation of section 

56.15005 occurred. 

S&S and GRAVITY 

The violati on was both S&S and extremely serious. For 

reasons previously stated, in the context of continued mining 

operations, it was reasonably likely that an employee trying 

to free a hang-up would be drawn into the hopper or would 

inadvertently fall into it. The wearing of a safety belt and 

line would either have prevented the accident or have significantly lessened the chance of serious injury or death by 

allowing the employee an immediate and safe way to get out of 

the hopper (Tr. 88). · 

UNWARRANTABLE FAILURE and NEGLIGENCE 

There was little specific testimony with respect to 

unwarrantable failure and negligence. Frederick stated that 

he regarded Frey's negligence as "high" because, in essence, 

management knew the surge hole was there and did not require 

belts and lines be worn" (Tr. 77) . 

1007 
Despite the fact that Frederick's testimony was restricted 

to his assumptions about what management knew, I conclude, as 

with the violation of section 56.18020, that the totality of the 

evidence requires a finding that the violation was due to Frey's 

unwarrantable failure, as well as its high ·negligence. 

I again note that the conditions under which Bernaldes and 

others worked to free hang-ups were extremely hazardous. The 

record is devoid of testimony that Frey, in any meaningful way, recognized the hazards. This is particularly emphasized by the 

fact that, as Johnson and Meyers observed, there was no formal 

training regarding how to free hang-ups, that employees trained 

one another, and that, as Meyers emphasized, the wearing of 

safety belts and lines was not a part of the training (Tr. 258, 

330). 

As I have also noted, the surge hole and shed had been in 

use at the Clearbrook facility for some time, yet during this 

period, Frey conspicuously and totally failed to recognize the 

hazards to which it subjected its employees when assigning them 

to free hang-ups. 

ORDER NO. 

4083444 ' ~ 

12/21/92 

The order states: 

30 C.F.R. § 

56.17001 

PROPOSED PENALTY 

$3,000 

A fatal accident occurred at this operation 

on December 13, 1992, when an employee fell into 

a surg[e] hole in the coal storage shed. Company 

operating procedures required employees to work 

around this hole on afternoon shift. Illumination 

consisted of a single dust to dawn light about 

31 feet overhead which did not provide sufficient 

illumination to readily see the surg[e) hole. The 

mine operator was aware of this condition. This was 

an unwarrantable failure. · 

Section 56. 17001 states, in part, "Illumination sufficient 

to provide safe working conditions shall be provided in and on 

all • . . loading and dumping sites, and working areas .• " 

THE VIOLATION 

The question is what constitutes "[i]llumination sufficient 

to provide safe working conditions?" As the Commission has 

pointed out, the "[r)esolution requires a factual determination 

based on the working conditions in a cited area and the nature 

of illumination provided.'' Capitol Aaaregates. Inc., 3 FMSHRC 

1008 
1338 (June 1981). Given the evidence, I conclude such a factual 

determination cannot be made and, therefore, that the Secretary has failed to prove the violation alleged. 

The essence of the allegation is that the lighting in 

the coal shed was insufficient for workers at night. There 

was a single light in the shed, 31 feet above the shed floor 

and over the surge hole. Frederick testified that its lens 

was covered with coal dust (Tr. 102, 182). Frederi ck appears 

to have issued the violation based upon what he believed Meyers 

could see when standing in the kiln building looking toward the 

shed (Tr. 181-182). However, the question is not what someone 

in the kiln building could see, but rather what a person working 

in and around the surge pile at night could see, and the Secretary offered no testimony in this regard. 

Frederick was never in the coal shed at night, nor did 

the Secretary offer evidence with regard to the actual amount 

of light the single lamp provided . {For example, no evidence 

of light meter tests was presented. ) Further, no Frey employees 

who had worked around the coal shed on the afternoon shift were 

called to ~estify. Although Johnson believed that it would have 

been "very difficult" to see the surge hole at night, there was 

no indication Johnson spoke from personal experience. Johnson 

admitted that when he worked for Frey and completed preshift 

reports for the company, he never indicated the lighting in the 

shed was insufficient (Tr. 216, 283-284). 

Because the testimony offered by the Secretary is inadequate 

to support a finding regarding the nature of the illumination 

provided in the coal shed at night for those working around the 

surge hole, I conclude the alleged violation of section 56. 17001 

has not been established. 

My conclusion in this regard is buttressed by the fact 

Frey presented testimony from Morrison to the effect that after 

the accident, the company measured.the amount of light given off 

by the single lamp and found that it measured 4 . 8 foot candles. 

According to Morrison, a General Electric Company handbook recommended 5 foot candles for a parking lot and 2 1/2 foot candles 

for a rarely traveled path (Tr. 656). While not determinative of 

the adequacy of light in the coal shed, the company's evidence 

underscores the deficiencies of the Secretary's case. 

DOCKET NO. VA 93-59-M 

CITATION NO. .DAll 

4083442 12/21/92 

30 C.F.R. § 

56.18009 

PRQPOSED PEHALTY 

$50 

The citation states "A competent person designated by the operator to take charge in case of an emergency was not 

in attendance on the afternoon shift. The foreman was absent 

1009 
but on call during weekends which is normal practice at this 

operation." 

Section 56.18009 states, "When person are working at the 

mine, a competent person designated by the mine operator shall 

be in attendance to take charge in case of emergency." 

THE YIOI.ATION 

The term "competent person" is defined in the requlations 

as "a person having abilities and experience that fully qualify him to perform the duty to which he is assigned." 30 c.F.R. 

§ 56.2. The Commission has provided guidance for the interpretation and application of standards, such as section 56.18009, 

which incorporate definitions set forth in section 56.2. In 

analyzing another standard requiring the designation of a 

competent person to perform generally specified duties, the 

Commission noted that the standard was drafted in general terms 

to be adaptable to varying circumstances at the mine. ~ 

Wyoming Corp., 11 FMSHRC 1622, 1629 (Sept. 1989) (interpreting 30 C.F.R. § 57.18002(a)). The Commission found that within 

the context of a such an adaptable standard, the term "competent 

person" means "a person capable of recognizing hazards that 

are known by· the operator to be present in a work area or the 

presence of which is predictable in the view of a reasonably 

prudent person familiar with the mining industry." 11. FMSHRC 

at 1622 (interpreting 30 C.F.R. § 57.18002). 

The citation alleges that on the afternoon shift during 

the weekend, it was a practice at the Clearbrook facility not to 

have a competent person designated as required by the standard. 

According to Johnson, it was company policy during these times 

to have supervisors report in the morning and leave later in the 

day with the understanding that they could be called at home if 

any problems occurred (Tr. 298, 316). Lord confirmed that a 

foreman was in charge during the d~y shift on weekends, but that 

once the afternoon started, the kiln burner, who was Meyers at 

the time of the accident, was in charge and that the kiln burner 

was responsible for telephoning the foreman or plant superintendent in case of an emergency (Tr. 594). Lord's testimony was 

not refuted. 

The Secretary failed to establish that the kiln burners 

left in charge, including Meyers, were not competent persons. 

At the time of the accident Meyers had worked at the Clearbrook 

Mine and Mill for more than nine years. He had trained as a 

qreaser and oiler before being placed in charge of the kiln 

(Tr. ~32-333). Contrary to what Frederick appeared to think, 

the standard does not require the person designated to be a 

foreman. Rather, as noted, the person -must be capable of 

recognizing known hazards. The Secreta?'Y·did not develop the 

record with respect to the hazards that should have been know by 

1010 
any designated person, nor did he establish Meyers' knowledge, 

or lack of it, with respect to such hazards. If anything, the 

record suggests that Meyers was fully competent to take charge 

in emergencies. Certainly, the Secretary had no .quarrel with 

the manner in which he responded to the December 13 accident. 

Frederick stated he had done a "very good job" (Tr. 114). 

To the extent the Secretary relies upon Frederick's 

recollection of what Meyers stated ("If I'm in charge, nobody 

ever told me" (Tr. 114)) to establish Frey's normal practice 

was to fail to designate a person to be in charge, I find it 

unpersuasive. Meyers was called by the Secretary as a witness, 

but was not asked about his purported statement to Frederick. 

Hearsay statements, such as that reported by Frederick, 

are admissible in administrative proceedings. However, there 

are limits to the weight they may be given. When a person who 

is purported to have made the statement is called as a witness 

by the party relying upon the statement and is not asked about 

it, in my view, the statement is entitled to little or no weight. 

This is especially true here where the manner in which Meyers 

responded in the face of Bernaldes accident implied he fully understood he was supposed to "take charge," and when his 

conduct was consistent with what Robinson and Lord testified 

was company policy (Tr. 516-517, 594). 

Therefore, I conclude the Secretary has not proven the 

alleged violation. 

DOCKET NO. VA 93-89-M 

THE ACCIPENT OF PECEM8ER 11. 1992 

STIPULA'}JIONS 

Prior to taking evidence on this portion of the case, 

counsel additionally stipulated as follows: 

1. The Administrative Law Judge has the jurisdiction 

to hear and decide this case. 

2. Inspector Elwood Frederick was acting in his 

official capacity as a federal metal/non-metal mine inspector 

on December 21, 1992 when he issued Citation No. 4083445. 

3. citation No . 4083445 was properly issued to 

[Frey's] agent. 

4. Abatement of the conditions cited in Citation 

No. 4083445 was timely. 

1011 
5. The Clearbrook Mine and Mill is a surface mine and 

crushed stone operation owned and operated by [Frey]. 

Tr. 706-707 (nonsubstantive editorial changes made). 

THE SECRETARY'S WITHESSES 

Charles w. McNeal 

Charles w. McNeal is a MSHA supervisory metal/non-metal. mine inspector. In the company of Frederick, McNeal participated in MSHA's investigation of a fatal accident that occurred 

at Frey's Clearbrook facility on December 11, 1992. 

McNeal and Frederick arrived at the mine on December 12 

and proceeded to the accident site. McNeal described the site 

as located along the main road into and out of the facility, 

approximately 200 feet from the mine entrance. The site was on 

the left hand side of the road and under 7,200 volt power lines 

(Tr. 724) . 

Upon ,arriving at the site, McNeal and Frederick observed a 

semi-dump truck. The truck belonged to one of Frey's customers. 

The truck's tires were burned (Tr. 725). The truck had been 

involved in an accident the previous day. 

McNeal described how he believed the accident occurred. 

A water spray bar was located at the entrance to the facility 

(on the right hand side of the road as trucks leave the facility) 

(Tr. 760-761). The bar was positioned above the trucks. On 

leaving the facility, loaded trucks were driven under the bar, 

the spray was activated and the truck's loads were wet down 

(Tr. 753). McNeal believed the truck involved in the accident 

entered the property and the driver crossed to the left hand side 

of the road and used the water spray bar to wet the bed of the 

empty truck. (A front-end loader 9perator told McNeal that he, 

the . loader operator, had seen the truck at the spray bar 

(Tr. 755)). The truck left the water spray bar, moved back to 

the right side of the road and proceeded along the road for about 

200 feet. The driver again pulled over to the left hand side of 

the road (Tr. 727). Although no one saw what happened next, 

McNeal surmised that the truck driver then raised the truck bed 

to clean it and the bed hit one of the 7200 volt power lines 

(Tr. 727, 759). The power line was not deenergized or guarded 

(Tr. 727, 759). The truck caught fire. In trying to leave the 

truck's cab, the driver contacted the truck's energized frame and 

was electrocuted. Approximately 1-1/2 hours passed before the 

power company cut off electricity to the line and the truck bed 

was lowered (Tr. 727). 

1012 
The distance from the ground to the bare power wires was 

28 feet. When fully raised, the truck bed extended 30 feet above 

the ground. The truck bed was made of aluminum (Tr. 741-742) . 

McNeal testified further that he was told by Bob Morqan, 

a Virqinia state mine inspector, that another accident occurred 

in 1988 at nearly the same site when the bed of a truck was 

raised into a power line (Tr. · 128). Accordinq to McNeal, Morqan 

told him the previous accident occurred within 15 feet of the 

December 11 accident and that it involved the same power line 

(Tr. 733) . (MSHA did not investiqate the 1988 accident. McNeal 

did not know why (Tr. 776)) . 

McNeal and Frederick returned to the MSHA off ice and 

reviewed their findings. They agreed that a violation of 

section 56.12066 had occurred. Therefore , Frederick issued 

to Frey Citation No . 4083445. 

Section 56.12066 requires bare power lines to be quarded 

or deenergized when metallic equipment can come in contact with 

them. McNeal explained the citation was issued to Frey, rather 

then the owner of the truck, because "the mining company is 

responsible for the safety of customers who visit [its] property 

(Tr. 750) . 

McNeal believed it hiqhly likely a truck that pulled over 

at the site would raise its bed into the unquarded wires. Frey 

had many customers who required the materials they purchased 

to be clean and dry. Therefore, ·the truck drivers frequently 

cleaned the beds of the trucks before loading. McNeal explained 

that a truck driver "qoes [to] th[e] water spray bar, deposits 

water in the [truck] bed, pulls up from there a little ways, 

pulls off the road and dumps his bed •••• [W]e've been told they 

do it often" (Tr. 747-748). As he further explained: 

you've qot this particular spot that is 200 feet 

down from this water spray bar which, on occasion 

not every truck that comes in here does that -- a 

truck will pull under to deposit water in his bed 

when he had to have this dry, clean material that 

he has to deliver and he has to have a clean bed in 

the truck and wash the bed of the truck out. And 

there's a real nice spot there to pull off that road 

and raise that bed of that truck under that power 

line. It happened twice. 

Tr. 765-766. 

McNeal maintained that the accident site was level with 

the road. It also was an area where the power lines, which here 

ran parallel· with the road, were closest to the road (Tr. 767, 

1013 
768-769). There were no signs warning of the presence of the 

power lines (Tr. 772) . 

McNeal agreed that there were several other places along the road where a trucker could stop, could raise the bed of the 

truck and not come in contact with power lines (Tr. 765). McNeal 

stated that to his knowledge there was no designated area on the 

facility where incoming trucks could dump their residual contents 

before picking up their loads (Tr. 760). 

Injuries resulting from raising a truck bed into a power 

line could be fatal or nonexistent. If the driver stayed inside 

the truck's cab, nothing would happen. If the driver left the 

cab and touched the truck frame or· the surrounding ground while 

the truck frame was energized, current would flow through the 

dri ver's body and the driver could be electrocuted (Tr. 748-749). 

McNeal believed the company's negligence was high because 

a similar accident had occurred within 15 feet of the site, yet the company, in NcNeal's words, had done "nothing, absolutely 

nothing" (Tr. 750). 

Elwood s. Frederick 

Frederick testified when he first saw the truck, it 

was sitting at the accident site with its bed in the "down" 

position (Tr. 787). The overhead 7,00 volt power line was 

spliced where the truck bed had hit the line. In addition, 

Frederick maintained that 15 feet from the splice sleeve 

were other splices in the line . These indicated where the 

previous accident had occurred (Tr. 787-788, 791, 802). 

With regard to the previous accident, Frederick did 

not remember who told the MSHA investigators it had occurred, 

but he believed both company personnel and the Virginia 

state mine inspectors mentioned it- (Tr. 789). As he recalled, 

he and McNeal were accompanied during the investigation by 

Dwayne Johnson, then plant superintendent, by Charles Morrison, 

Frey's director of personnel and safety, and by Vincent Lord, 

who subsequent to the accident replaced Johnson as plant 

superintendent (Tr. 788) . As Frederick understood it, when 

the 1988 accident occurred, there was a stockpile in the area, 

but it was removed following the accident (Tr. 789, 804). There 

were no signs or barricades to indicate the presence of power 

lines, and Frederick was of the opinion that as a result of the 

1988 accident, Frey was on notice that warning signs should have 

been posted or other corrective measures taken (Tr. 790). As 

of December 11, 1992, the power lines were neither guarded nor 

deenergized and these conditions constituted a violation of 

section ·56.12066 (Tr. 796). 

101 4 
Regarding the S&S finding, Frederick was asked how likely 

it was that the truck bed would have been raised. into the power 

line and he responded "well, this occurred" (Tr. 792). He added 

that the area of the accident must have been a very popular spot 

for truckers to pull over because two accidents had happened 

there (Tr. 807). In his opinion, an accident was reasonably 

likely because controlling independent truckers was extremely 

difficult and, if a driver had something to dump, the driver 

would pull into the area, and raise the truck bed (Tr. 794, 795). 

As he put it, truck drivers "do a lot of dumb things" (Tr. 808). 

Frederick could not recall what the side of the road across from 

the accident site looked like (Tr. 812). 

The finding of "high" negligence was based upon the previous 

accident and the fact that, in the intervening four years, the 

company had done nothing to change conditions in the accident 

area, except move the stockpile (Tr. 796-797) . Frederick added 

that Frey did not own the power lines. Frey had contacted the 

power company about taking remedial actions following the 1988 

accident, but nothing had happened (Tr. 798-801). 

Dwayne Johnson 

On December 11, 1992 Dwayne Johnson was plant superintendent. He stated that around 10 : 00 a.m. that day he was in the 

office when he was informed that a truck was on fire . Johnson 

grabbed a fire extinguisher, got in his truck and drove to the 

site of the fire. It was snowing hard. The truck's bed was 

raised. The truck was emitting a lot of smoke and sparks were 

coming from its wheels. Another Frey employee was at the 

accident scene. He and Johnson could not see the truck driver. 

The smoke cleared and they saw the driver lying on his back 

beside the truck. Johnson ran with the fire extinguisher toward 

the truck. About 25 feet from the truck Johnson could feel 

electricity. He backed away and looked up. Despite the snow, 

he could see that the truck bed was in contact with one of the 

overhead power lines (Tr. 815-816, 827-828). 

Lord arrived and Johnson told Lord to call the power 

company and have them shut off the power. The fire department 

also was called. When they arrived, the firemen used a nonconductive pole to pull the driver away from the truck. The 

firemen tried to revive the driver, but had no success. The 

body was removed by ambulance. 

The power company subsequently turned off the power and 

the fire was extinguished. The truck's bed was lowered and 

the power company put sleeves on the line where the bed had 

contacted it (Tr. 816-817). (The sleeves are what Frederick 

referred to as splices.) 

1015 
Prior to the accident, the power lines were not guarded. 

'l'he road was used by all traffic going in and out of the 

facility (Tr. 817) . According to Johnson, the area where the 

accident occurred was the first open area after entering the 

facility. At this area , a truck driver could pull over to the 

left or ·right of the road (Tr. 829). In the case of the victim, 

•He just happened to pull to the left." ~ It was common to 

pull either way. ~, 830 . There are no markings on the road 

indicating the right or left side of the road. 

Prior to the accident, Johnson had never seen a semi-dump 

truck raise its bed in the accident area. However, he had seen 

smaller trucks do i t (Tr. 818) . It was common for smaller trucks 

to raise their beds in the are a (Tr. 821). Johnson has seen it 

done dozens of times in a year (Tr. 828) . When the beds of the 

smaller trucks were raised, they were not within 10 feet of the 

power lines (Tr. 826) . Trucks generally raised their beds to 

remove contaminants or snow (Tr. 819). If Frey personnel 

observed a truck with contaminants in its bed, the driver would 

be told not to clean the bed on Frey property (Tr. 820, 824-825, 

834) . 

Although Johnson was not with the company when the previous 

accident occurred, the story of how a driver had raised his 

truck's bed and hit power lines was commonly told at the 

facility. After the accident of December 11, Johnson became 

aware that the previous acqident had occurred in the same area, 

because he could see the sleeves on the power lines from the 

previous accident (Tr. 822). 

Vincent Lord 

Vincent Lord, who became the plant superintendent after 

Johnson left, stated that there were approximately 150 to 

200 truck trips per day into and out of the facility, involving 

approximately 100 trucks (Tr. 839, 859). The trucks came onto 

the property empty and were weighed. If the drivers were 

unfamiliar with the site, they were directed where to go and 

how to load. The trucks were supposed to enter the property 

with clean beds. If their beds were not clean and, if Frey 

officials knew, the trucks were sent to a designated ·area to 

clean the beds (Tr. 836-837). 

The water spray line was installed to wet down particular 

material that was shipped to the State of West Virginia and 

that was required to arrive wet (Tr. 837). Although the line 

was used for other purposes, such as rinsing off .cars, to flush 

dust off of loads or to clean beds, Frey tried to discourage 

such use (Tr. 838). 'l'he only way to control the use of the 

spray was for Frey personnel to reprimand truck drivers if the 

personnel saw the drivers using the water for other than its 

intended purpose (Tr. 839). 

1016 
It had long been a policy at the facility for trucks not 

to raise their beds on the company's property. Lord could not 

recall any truck ever raising its bed in the area where the 

accident occurred , except the truck involved in the 1988 accident 

(Tr. 840, 861). He did recall seeing trucks raise their beds in 

areas near the accident area. While most of those trucks were 

smaller than the semi-dump truck involved in the accident, some 

were as large as the semi-dump truck (Tr. 860-861). 

On the day of the accident, Lord had no trouble seeing · the power lines through the snow (Tr. 841) . Lord identified 

a photograph of the burning truck with its bed raised into 

one of the high voltage wires (P. Exh. 13). The photograph 

was taken the morning of the accident. The truck had pulled 

up next to a stockpile of material on its left (ML_, Tr. 842) . 

The truck had crossed over onto the left hand side of the road 

against the traffic (Tr. 834) . Lord also identified a photograph of the truck taken from the rear (P. Exh. 14). Lord 

stated that the area on the right side of the road, across from 

the area where the accident occurred, was a low, flat area 

similar to the accident site on the left, but with no overhead 

power lines (Tr. 844) . There was also a small stockpile on the 

right (Tr. s\45) . In Lord's view, in addition to the area on the 

right, other flat, level areas were present where a truck could 

pull over along the road. 

Lord testified he understood that the deceased driver had 

completed a safety course within the past month and that the 

course had included, among other topics, the danger of raising 

a truck bed into power wires (Tr. 847-849). Lord also stated 

that he understood OSHA regulations required that stickers 

warning of the danger of raising the truck bed into wires be 

placed inside the truck cab (Tr. 849). 

Lord acknowledged the 1988 accident involved the bed of a 

truck hitting a power line in the vicinity of the December 11 

accident (Tr. 856). Lord believed that at the time the 1988 

accident occurred, Frey had notified MSHA of the accident and 

the agency had done nothing (Tr. 851). The company was not 

cited for any violations by the state following the state's 

investigation of the accident. ~ As best Lord could recall, 

the state suggested the company work with the power company 

to get the company to move the power lines, raise them, or put 

warning signs or devices on them (Tr. 859). After the 1988 

accident, the company tried to get the power company to do one 

of these things (Tr. 852, 856). Frey made multiple requests of 

the power company, but got no results (Tr. 852, 860). As Lord 

explained, "They ••• claimed ••• that the line is ours. We 

claim[ed] that they build the line and the line is theirs" 

(Tr. 853). 

1017 
Charles w. Morrison 

Charles Morrison testified that he called MSHA following the 1988 accident. After describing the accident to an MSHA 

official, the official told him MSHA did not need to investigate 

it (Tr. 863). In contrast, the state investigated the accident 

and state officials recommended that the area be barricaded, or 

that warning markers be placed on the lines (Tr. 875-876, 882). 

The state mine inspector recommended that Frey try to work with 

the power company, which Frey repeatedly tried to do (Tr. 863-

864, 876, 879). 

Morrison also identified the 9SHA regulation requiring the 

outside of equipment with hoists (such as the semi-dump truck) to 

be posted with signs warning that it is unlawful to operate the 

truck within 10 feet of overhead high voltage lines. One such 

sign also was required inside the equipment's cab (Tr. 865-865). 

Truckers were supposed enter Frey's property with clean 

beds. When they did not, and, when Morrison saw truck drivers 

raise their beds on Frey's property, he would tell them not to 

do it (Tr. 871-872). 

MOTION TO STRIKE 

At the close of the Secretary's case, counsel for Frey moved to strike the testimony of the Secretary's witnesses. 

Counsel was particularly concerned with the testimony of Johnson 

regarding the likelihood of injur.y. Counsel stated that, even if 

his testimony were credited in the light most favorable to the 

Secretary, it would not establish that an injury was reasonably 

likely in that he testified truck beds were raised "all over the 

place , " and not in one particular spot (Tr. 835). I reserved a 

ruling. 

The Motion is DENIED. As with the initial motion to strike, 

I conclude if I were to totally credit Johnson's testimony, there 

are portions of it that certainly are relevant to the question of 

whether, in the context of continued operations at the mine, the 

cited conditions were reasonably likely to result in an injury. 

CITATION NO. DATE 

4083445 12/Ql/92 

The citation states: 

30 C.F.R. § 

56 . 18009 

PROPOSED PENALTY 

$9,500 

A fatal accident occurred at this operation on 

December 11, 1992 when a customer truck driver raised 

the bed of his truck into an overhead 7,200 volt bare 

power line 28 feet above. A similar incident occurred 

1018 
at this location on May 18, 1988 when another customer 

truck driver raised the bed of his truck into the same 

power line. 

Section 56.12066 states, "Where metallic tools or 

equipment can come in contact with.trolley wires or bare 

powerlines, the lines shall be guarded or deenergized." 

THE VIOLATION 

McNeal and Frederick agreed that in the area where the 

accident occurred, the high voltage lines were 28 feet above 

the ground. They also stated that the facility was at times 

visited by semi-dump trucks whose beds, if raised, extended 

30 feet above the ground (Tr. 741-742, 787-788). The height 

of the power lines and the raised beds of semi-dump trucks was 

not disputed by Frey's witnesses. Lord agreed with McNeal and 

Frederick that the facility was at times visited by semi-dump 

trucks of that, or a similar, size and he recalled seeing trucks 

of that size raise their beds on mine property (Tr. 860-861). 

McNeal, Frederick and Johnson testified that the powerlines were 

not guarded or deenergized, and Frey does not argue otherwise 

(Tr. 727, 787-788, 790, 817). 

It is clear, therefore, that the beds of semi-dump size 

trucks if raised in the area where the December 11, 1992 accident occurred, could contact the powerlines that were bare and 

were not guarded or deenergized. Not only could it happen in 

theory, it happened in fact, and I· find the violation existed 

as charged. 

S&S and GRAVITY 

I conclude that the Mathies test for determining the S&S 

nature of a violation has been easily met. 

A violation of mandatory safety standard 56.12066 existed. 

The evidence establishes a discrete safety hazard in that by 

failing to quard or deenergize the power wires, Frey subjected 

the drivers of semi-dump sized trucks in general, and the 

deceased driver in particular, to the possibility of death or 

serious injury. As Frederick noted, once the bed touched a wire, 

the driver could avoid injury only if he or she remained in the 

cab of the truck. If the driver left the cab -- and if the truck 

caught fire, as happened in the case Of the deceased driver, a 

driver almost surely would have attempted to flee -- serious 

•hock injury or electrocution was virtually certain (Tr. 748-

749). 

As is frequently the case, when the alleged S&S nature 

of a violation is challenged, the essential question is 

whether the Secretary has also established a reasonable 

1019 
likelihood that the hazard contributed to will result in 

an injury. The testimony establishes that the raising of 

truck beds was an ongoing problem at the facility. McNeal 

was the first witness to explain that many customers of 

Frey's products required materials purchased from Frey to 

be clean and dry and, therefore, that trucks that entered 

the facility often raised their beds to clean them prior to 

being loaded (Tr. 747-748). Frederick's and Johnson's 

testimony corroborated McNeal's (Tr. 794-795). Lord did 

not deny the practice occurred. Indeed, he remembered seeing trucks raise their beds on Frey property, even near power 

lines (Tr. 860-861). 

This is not to say that the practice was condoned by Frey. 

I credit the testimony of Johnson and Morrison that drivers 

were not supposed to clean their beds on Frey property {Tr. 820, 

834. 871-872). I further credit Johnson's testimony that if Frey 

personnel saw drivers dumping contaminants, they told the drivers 

not to do it, and that Johnson had seen Lord so instruct drivers 

(Tr. 825) . I note, as well, Morrison's similar testimony regarding Lord (Tr. 871-872). This said, the testimony amply 

documents that Frey's objections did not prevent the practice and 

that the raising of beds remained an ongoing problem. I believe 

that Frederick was correct when he observed that it was difficult 

for Frey to control the actions of the truckers {Tr. 793-794). 

I also conclude that the area where the accident occurred 

was one that invited such conduct. McNeal and Johnson credibly described the area as level and with room enough for a semi-dump 

truck to pull over (Tr. 765-766, 829, 830). I recognize that the 

area across from the accident site (the area on the right side of 

the road when headed into the facility) was an even more inviting site at which to clean truck beds in that it was equally level, 

afforded ample room and had no overhead power lines (Tr. 766-

767). I believe it is just common sense that an incoming truck 

would have been more likely to puli to the right hand side of 

the road than to left. Nonetheless, this does not exclude 

finding that it was reasonable likely trucker drivers would pull 

to the left side and, having done that, would raise their beds. 

I believe it important to remember, as did Johnson, that 

the road was not divided with a median line, somethipg that 

might have made a trucker think twice before crossing to the left 

side of the road (Tr. 831). Indeed, the road itself appears not 

to have been well defined at all. Johnson described it as not as 

a road per se, but more like "a big, open level area" (Tr. 830). 

All of which, in my opinion, made crossing to the left, while 

perhaps less likely than crossing to the right, an easy thing 

to do. 

1020 
The power wires ran above the area and parallel to the 

road (Tr. 767, 768-769). Obviously, a truck driver with a bed 

long enough to hit the wires would have been out of his or her 

mind to purposefully raise the bed under the wires. The hazard 

presented by the violation was from an inadvertent accident, not 

from a suicide. Even though warned by notices inside and outside 

the cab of the truck and, even though trained in the hazards 

posed by overhead wires, truck drivers intent on cleaning their 

beds would not always have noticed the wires without visual signs 

or warning devices present and external to the truck to remind 

the drivers of the wires' presence. 

Given the many daily truck trips into and out of the 

facility, given the continuing practice on Frey's property of 

cleaning truck beds by raising them, and given the conducive 

nature of the area where the accident occurred to the performance of the practice, I conclude it was reasonably likely that sooner 

or later, in the context of continued normal operations at the 

facility, a truck the size of a semi-dump would have pulled to 

the left, raised its bed into the overhead unguarded and 

energized power wires. I also conclude that this would have 

lead to the serious, if not fatal, injury of the driver. 

As all· of the witnesses recognized, the very accident 

that triggered the citation occurred before, and in virtually 

the same spot. From all that appears on the face of the record, 

the interval between the accidents was simply fortuitous, as 

was the fact the first accident appears not to have resulted in 

a fatality. Having happened twice, had the conditions continued 

unabated, the accident could have happened again at any .time and 

with a result as disastrous as that of December 11. The 

violation was S&S. 

The violation also was extremely serious. Traumatic shock 

injury or death were the potential.hazards, and the likelihood 

of an accident causing such injuries was very great indeed. 

NEGLIGENCE 

Negligence is the failure to meet the standard of care 

required by the circumstances and it is difficult to imagine a 

situation in which an operator could have been less responsive 

to meeting its required standard of care than was Frey. In fact, 

more than simply failing to meet the required standard of care, 

the record compels the conclusion, and I find, that Frey hardly 

even tried. 

The Mine Act requires that Frey comply with the mandatory 

standards, not only to protect its own employees, but also to 

protect all individuals working at its facility. This is an 

extensive responsibility, but it is one that Frey assumed in 

choosing to operate, control and supervise its Clearbrook 

1021 
facility. If Frey were not on notice before the 1988 accident 

that in the accident area, truck beds could and would be raised 

into the energized power wires, it subsequently was. As Johnson 

testified, the story of the 1988 accident was known throughout 

the facility (Tr. 822) . McNeal described Frey's response as 

"nothing, absolutely nothing," and McNeal was hardly exaggerating 

(Tr. 750) . 

It is clear that after the 1988 accident the practice of 

raising truck beds on Frey's property continued . It is equally 

clear that after the 1988 accident Frey knew full well what 

should have been done to guard aga~nst the practice in the 

accident area. I credit the testimony of Lord and Morrison 

that Virginia mine officials who investigated the first accident recommended that either the power lines be moved, raised, 

or that warning devices be installed on the lines (Tr. 852, 

875 8.76). Had any of these recommendations been instituted, 

Frey would have gone a long way toward eliminating the hazard . In addition, Frey might well have been in compliance with 

section 56.18009, and, most important, the deceased driver 

might yet be alive. 

Unfortunately these speculations must remain just that 

because Frey's efforts to alleviate the danger posed by the 

situation in the accident area were limited essentially to 

disputing with the power company who was responsible for taking 

remedial measures. Frey could not get the power company to do 

the work (Tr. 852, 860, 882). Therefore, Frey did virtually nothing to change the conditions in the area that allowed the 

accident to occur. (Frey did remove a stockpile from the area, 

but that did little to make it a less attractive place to pull 

over. ) 

The result was another acc ident. This time one that 

resulted in death. The fact that the deceased driver contributed to the accident with a negligent action of his own 

does not diminish Frey's lack of care. Many of the mandatory 

safety standards are designed to protect miners from themselves. 

Frey was required to take remedial measures precisely because a 

truck driver might act in the negligent manner of the victim. 

The failure of MSHA to cite the violation in the four years 

that passed between the first accident and the second does not 

indicate that Frey was any less irresponsible. Whatever the 

deficiencies of MSHA's investigation process and the inadequacies 

of its inspections, they are not exculpatory of Frey's qlaring, irresponsible and totally inexcusable failure to meet the 

standard of care required. 

1022 
OTHER CIYIL PENALTY CRITERIA 

In the 24 months prior to the issuance of the subject 

citations and orders, 32 violations of the mand~tory safety 

standards were cited at the Clearbrook Mine and Mill (Exh. P-6). 

This number falls between a small and medium history of previous violations and is not such as should increase civil penalties 

otherwise assessed. Further, the Clearbrook Mine and Mill is 

a medium sized facility and Frey is a small operator. Sec. 

~ 47. Frey offered no evidence to indicate the size of any penalties assessed would have an effect on its ability to 

continue in business, and I so find. Finally, Frey exhibited 

good faith in achieving rapid compliance after being cited for 

all of the violations found herein. I also note the parties' 

stipulation that the violation of section 56.12066, cited in 

Citation No. 4083445 (Docket No. VA 93-89-M), was timely abated. 

QIVIL PENALTIES 

The Secretary has proposed a civil penalty of $3 , 500 

for the violation of ·section 56.16002(a)(l) set forth in 

Order/ Citation No. 4082539 . The violation was extremely 

serious. Frey repeatedly sent its employees into harm's way and its failμre to correct conditions that were inordinately 

hazardous represented heightened negligence on the company's 

part. Given these factors, I find the Secretary's proposal 

inadequate. Rather, I conclude a civil penalty of $10,000 is 

appropriate for the violation. 

For the violation of section 56 . 18020, set forth in 

Order No. 4082540 , the secretary has proposed a civil penalty 

of $6,000. Again, I find the proposal inadequate given the 

extreme seriousness of the violation and the inexcusable 

failure of Frey t o recognize the hazard to which the violation 

subjected i ts miners. I, therefore , conclude a civil penalty 

of $10,000 is appropriate for the violation. 

For the same reasons, I also find inadequate the Secretary's proposal for a civil penalty of $6,000 for the violation 

of section 56.15005 1 set forth in Citation No. 4083441. Again, 

I conclude a penalty of $10,000 is warranted. 

Finally, the extreme seriousness of the violation of 

section 56.18009, set forth in Citation No. 4083445, and 

Frey's inexcusable negligence in allowing the violation to 

exist, coupled with the fact that the violation unquestionably contributed to the death of a customer truck driver, 

in my view calls for a civil penalty far in excess of the 

$9,500 penalty proposed by the Secretary. (The Commission 

has recently stated the "potential for death •• posed by the 

violation is appropriate in applying the gravity criterion." 

Polese Brothers Co., 16 FMSHRC ~'Docket No. CENT 92-110-M 

1023 
(4/11/94), .sl..iR QR. at 7). I conclude a penalty of $35,000 is 

appropriate. But for the company's small size and the fact 

that the truck driver negligently helped to occasion his own 

death, an even larger penalty would have been justified. 

ORDER 

Order/Citation No. 4082539, Order No. 4082540, and 

Citation No . 4083441 are AFFIRMED and Frey is ORDERED to pay 

civil penalties of $10,000 each for the violations set forth · in each. Citation No. 4083442 is AFFIRMED and Frey is ORDERED 

to pay a civil penalty of $35,000 for the violation set forth 

therein. Order No . 408322 2 and Citation No . 4083442 are VACATED. 

Frey is ORDERED to pay the civil penalties within 30 days 

of the date of this decision and upon receipt of payment these 

matters are DISMISSED. 

Distribution: 

J)vV;'c/ /( £JovfLDavid F . Barbour 

Administrative Law Judge 

Javier I. Romanach, Esq., Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd. , Room 516, 

Arlington, Va 22203 {Certified Mail) 

Thomas Moore Lawson, Esq., Hazel and Thomas, P.c., 

107 North Kent Street, P.O. Box 2740, Winchester, VA 22061 

{Certified Mail) 

10 24 
ADMINISTRATIVE LAW JUDGE ORDERS 

OFFICE OF ADMINISTRATIVE LAW Jll>GES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 7 1994 

SECRETARY OF LABOR, TEMPORARY REINSTATEMENT PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) Docket No. KENT 94-396-D 

ON BEHALF OF BARB CO 94-02 

DANNY SHEPHERD, 

Complainant Mine No. 1 

v. 

IRISHMAN ELKHORN COAL 

COMPANY, 

Respondent 

. . 

·: 

ORDER OF TEMPORARY REINSTATEMENT 

Before: Judge Feldman 

The Secretary has filed an application for Temporary 

Reinstatement pursuant to Section 105(c) (2) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815(c) (2), on behalf 

of Danny Shepherd. Shepherd was employed by the Irish Elkhorn 

Coal Company at its No. 1 Mine from September 30, 1993, until 

October 8, 1993, when he was discharged. 

The Secretary's reinstatement application is supported by an 

affidavit of Lawrence M. Beeman, Chief, Office of Technical 

Compliance and Investigation for coal Mine Safety and Health, 

Mine Safety and Health Administration. Beeman's affidavit 

alleges that Shepherd engaged in several protected activities, 

including his refusal to operate a continuous mining machine in 

an unsafe condition, his distribution of miners' rights booklets 

to mine personnel and his statements to miners that they did not 

have to work under various unsafe conditions. 

The Secretary's application was served upon Billy R. Watson, 

general manager of the respondent, and attorney c. Graham Martin, 

on February 4, 1994. Commission Rule 45(c), 29 CFR. § 2700.45(c) 

in part provides: "Within ten days following receipt of the 

Secretary's application for temporary reinstatement, the person 

against who relief is sought shall advise the Commission's Chief 

Administrative Law Judge or his designee and simultaneously 

notify the Secretary, whether a hearing on the application is 

requested. If no hearing is requested, the Judge assigned to the 

matter shall review immediately the Secretary's application and, 

1025 
if based on the contents thereof the Judge determines that the 

miner's complaint was not frivolously brought, he shall issue 

immediately a written order of temporary reinstatement." 

The Secretary's application was followed by a letter 

filed on February 22, 1994, requesting Shepherd's reinstatement 

in view of the respondent's failure to request a hearing in this 

matter. Therefore, Commission Rule 45(c) requires me to review 

the Secretary's application to determine if Shepherd's complaint 

has not been frivolously brought. 

The "not frivolously brought" standard set forth in Section 

105(c), 30 u.s.c. § 815(c), is satisfied when there is a 

reasonable cause to believe that the underlying discrimination 

complaint is meritorious. J. Walter Resources v. Federal Mine 

Safety and Health Review Commission, 920 F.2d 738, 747 (11th Cir. 

1990). Thus, the Secretary must prevail on an application for 

temporary reinstatement if the facts supporting the application 

are not insubstantial or frivolous. Id. at 747. Beeman's 

affidavit submitted in support of the Secretary's application specifies alleged protected activities that are contemporaneous 

with Shepherd's employment termination which occurred on or about 

October 8, 1993. Consequently, I conclude that Shepherd's 

complaint is not clearly without merit or pretextural in nature. 

Therefore, I find that Shepherd's complaint has not been 

frivolously brought. 

Accordingly, the Irishman Elkhorn Coal Company IS ORDERED to 

immediately reinstate Danny Shepherd to the position from which 

he was discharged on or about October 8, 1993, or, to an 

equivalent position, at the same rate of pay and with the 

equivalent benefits. Shepherd's entitlement to backpay and 

benefits shall be calculated from the date of this order. 

Distribution: 

/ 

// ( . ---=-

v,:::-~ / -..!. ··· : .. ___ ~ 

Jerold Feldman 

Administrative Law Judge 

(703) 756-5233 

Carl c. Charneski, Esq. Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Tony Oppegard, Esq., Mine Safety Project, 630 Maxwelton Court, 

Lexington, KY 40508 (Certified Mail) 

Billy Watson, General Manager, Irishman Elkhorn Coal Company, 

Inc., P.O. Box 729, Hindman, KY 41922 {Certified Mail) 

1026 
nDBDL llDIJI SUB'.l'Y DD mL'l'll Jm'V];ft COKllISSIOB 

OFFZCB OP AJ>KZNZSTRATIVB LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIJCB 

FALLS CHtTRCB, VIRGINIA 22041 

MAR 1 5 1994 

MADISON BRANCH MANAGEMENT, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, {MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

MADISON BRANCH MANAGEMENT, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

PROTECTIVE SECURITY SERVICES, 

Respondent 

0 

. 

. . 

. . 

. • 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEVA 93-218-R 

Order No. 3976643: 3/1/93 

Docket No. WEVA 93-219-R 

Citation 3976644; 3/1/93 

Docket No. WEVA 93-220-R 

citation 3976647; 3/4/93 

Job. No. 3 46-05815 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 93-373 

A.C. No. 46-05815-03520 

: Madison Branch Job No. 3 . . 

. . Docket No. WEVA 93-412 

A.c. No. 46-05815-03521 

Mine: Job No. 3 

SOL No. 93-41226 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 03-415 . 

A.C. No. 46-05815-03501HWZ 

Job No. 3 

ORPER DENYING BESPONPEN'TS' MOTIONS FOR SUMMARY DECISION . aim 

NOTICE OP HEARING 

These consolidated proceedings concern Petitions for the 

Assessment of Civil Penalties filed by the Secretary against 

Protective Security services {the independent contractor) and 

Madison Branch Management (the operator) for alleged violations 

1027 . ._ ... 
related to the fatality of a night watchman. The victim, 

employed by Protective Security Services, succumbed to carbon 

monoxide poisoning at Madison Branch Management's No. 3 Surface 

Mine during the early morning hours of March 1, 1993. During a 

conference call on January 5, 1994, the respondents, through 

counsel, informed me they wished to file Motions for Summary 

Decision on the jurisdictional issue. Accordingly, on 

January 13, 1994, I continued this matter in order to give the 

parties an opportunity to file the subject motions. I now have 

for consideration the respondents' Motions for summary Decision 

and the secretary's Opposition, as well as the parties' 

responsive pleadings. 

Tqe fundamental facts of this case that give rise to the 

jurisdictional question can be briefly stated. Allen Garrett, 

the decedent, was employed by Protective Security Services as a 

part-time weekend security guard. Garrett was assigned to work 

weekends at Madison Branch Management's No. 3 surface mine 

facility near Lynco, in Wyoming County, West Virginia. Garrett 

routinely reported to work at the mine site on Saturday nights at 

10:00 p.m. He was relieved by another security guard on Sunday 

mornings at 10:00 a.m. Garrett would then report back to work on 

Sunday night at 10:00 p.m. and would leave at 6:00 a.m. Monday 

morning when personnel from Madison Branch Mining would report to 

work. There was no coal production during the weekend shifts 

when Allen Garrett and other security personnel employed by 

PrOtective Security Services were present. Garrett's job duties 

included observing activities at the mine site and making written 

reports of his observations. Garrett was not permitted to 

operate any equipment, nor engage in any activity other than 

observing and reporting. 

On Sunday, February 28, 1993, at approximately 10:00 p.m., 

Garrett reported to the No. 3 Mine in his Ford Bronco II vehicle. 

Garrett's shift was scheduled to terminate the following morning 

on March 1, 1993, at 6:00 a.m. At approximately 6:10 a.m. that 

morning, a truck driver observed Garrett's vehicle parked at the 

top of the main haulroad. The truck driver approached Garrett to 

ask him to move his vehicle. He found Garrett lying unconscious 

on the floor of his vehicle. Garrett was immediately transported 

via ambulance to a local hospital where he was pronounced dead on 

arrival. The cause of death was carbon monoxide intoxication. 

Investigating authorities concluded that Garrett fell asleep 

in his vehicle and succumbed to carbon monoxide poisoning 

sometime between 12:48 a.m., when the last entry in Garrett's log 

book was made, and 6:10 a.m. when he was found by the truck 

driver. At the time Garrett was discovered, the engine in his 

vehicle was running, the dome light was on, and, the heater was 

running on high. 

1028 
The respondents assert they are not subject to the Federal 

Mine Safety and Health Act of 1977 (Mine Act) because Protective 

security Services is not an "operator" and Allen Garrett was not 

a "miner" within the statutory definition of those terms. In 

furtherance of their jurisdictional objection, the respondents 

rely on the statutory language and legislative history a~ well as 

the Circuit Court decisions in National Indus. Sand Ass'n v. 

Marshall, 601 F.2d 289 (3rd Cir. 1979), and Old Dominion Power 

Company v. Secretary of Labor & FMSHRC, 772 F. 2d 92 (4th Cir. 

1985). They maintain these authorities support their contention 

that Protective Security Services is not an "operator" because it 

did not have a continuing presence at the mine and because it was 

not engaged in the extraction process. 

Section 3(d) of the Mine Act defines the term "operator" 

as "any owner, lessee, or other person who operates, controls, 

or supervises a coal or other mine or any independent 

contractor performing services or construction at such mine." 

30 u.s.c. § 802(d). The term "miner" is broadly defined in the 

Mine Act, as "any individual working in a coal or other mine." 

30 u.s.c. § 802(g). The phrase "coal or other mine" includes 

mine property, whether on the surface or underground. 30 u.s.c. 

§ 802(h) (l). In examining these terms, it is noteworthy that the 

predecessor legislation to the current Mine Act, known as 

the Federal Coal Health and Safety Act of 1969, 30 u.s.c. 

§ 801 et seg., defined "operator" as "any owner, lessee, or 

other person who operates, controls or supervises a coal mine." 

The current Mine Act adopted in 1977, expanded the definition of 

"operator" to include "any independent contractor performing 

services or construction at such mine." 30 u.s.c. § 802 (d). 

Thus, as noted by the Commission in Otis Elevator Company, 

11 FMSHRC 1896, 1901 (October 27, 1989, aff'd Otis Elevator Co. 

v. Sec'y of Labor, 921 F.2d 1285 (D.C. Cir. 1990), the history of 

the Mine Act clearly reflects a legislative intent to broaden the 

Secretary's enforcement power over a wide range of independent 

contractors as well as mine operators. 1 In this regard, ·the 

Commission has broadly construed the terms "operator" and "miner" 

1 The Senate subcommittee report regarding section 3(d) of 

the Mine Act ref erred to independent contractors engaged in mine 

"construction" or "extraction." S. Rep. No. 181, 95th Cong., 1st 

sess. 14 (1977). The Conference Report referred to independent 

contractors as those "performing services or construction .•. who 

may have a continuing presence at the Mine." s. Conf. Rep. No. 

461, 95th Cong. 1st Sess. 37 (1977). In Otis Elevator, the o.c. 

Circuit analyzed the legislative intent of section 3(d). The 

court concluded section J(d) was inclusive and stated "Congress 

has written section 3(d) to encompass 'ADY independent contractor 

performing services at a mine' (emphasis added)." 921 F.2d at 

1291. 

1029 
to be applicable to those performing services as a construction 

worker, elevator mechanic, laboratory technician or clerk-typist 

working at a mine site. ~ i.ancashire Coal company, 13 FMSHRC 

875, 886 (June 1991), rev'd on other grounds, Lancashire Coal Co. 

y. Sec'y of Labor, 968 F.2d 388 (3rd Cir. 1992). Thus, the. statutory language and legislative history are not supportive of 

the respondents' jurisdictional objections. 

Nor, am I persuaded by the respondents' primary reliance on 

the Third and Fourth Circuit holdings in National Sand and 

Old Dominion, respectively. The National sand decision noted 

there may be a point at which the services provided or the degree 

of involvement in mining activities is so remote or infrequent 

that such services cannot be properly considered as performed by 

"operators." 601 F. 2d at 701. In Old Dominion, the court 

concluded only those independent contractors involved in mine 

construction or extraction, or, that have a continuing presence 

at the mine, should be considered as "operators." 772 F.2d 

at 96. Thus, the court determined an electric utility's meter 

reader, who briefly entered the mine premises approximately once 

each month, had mine contacts that were "so rare and remote from 

the mine construction or extraction process [that the utility 

did] not meet [the statutory] definition of •operator'." 

772 F.2d at 96, 97. 

considering jurisdictional objections similar to those 

proffered by the respondents, the Commission in Otis Elevator, 

concluded that the Court's decisions in National Sand and Old 

Dominion should be narrowly construed. 11 FMSHRC at 1898, 

1901-02. As noted above, National Sand and Old Dominion were 

concerned with activities that were, "so infrequent or 

de minimis" (601 F.2d at 701) or "so rare and remote" (772 F.2d 

at 97) that these activities did not give rise to Mine Act 

jurisdiction. I do not construe the services. regularly provided 

by Protective Security Services personnel during eight to ten 

hour shifts each weekend beginning in the early morning hours on 

Saturdays and ending at 6:00 a.m. on Mondays as ~ minimis. 

Moreover, these services provided throughout each weekend at the 

mine site constitute the requisite "continuing presence" to 

afford Protective Security Services "operator" status under the 

Mine Act. As the D.C. Circuit Court of Appeals concluded in 

affirming the commission's narrow application of National Sand 

and Old Dominion, " ..• contracts to perform services at 

mines •.• subject [the independent contractor] to regulation under 

the Mine Act." see Otis Elevator, 921 F.2d at 1291. 

The respondents also rely on the fact that no coal 

production occurred at the Madison Branch Mine site during the 

decedent's last shift or during the shifts of any other security personnel employed by Protective security Services. The 

production status at the time an individual is exposed to a 

hazard attributable to a statutory violation or a violation of a 

1030 
mandatory safety standard is not dispositive. The goal of the 

Mine Act is to "prevent death and serious physical harm" to any 

individual working at a mine site. 30 u.s.c. §§ 801, 802(9). 

Thus, it is the employee's presence at the mine site, rather than 

mine extraction activities, that provides the basis for Mine Act 

jurisdiction. 

Finally, Protective Security Services' reliance on Falcon 

Coal Company. Inc. v. Clemons, 873 F.2d 916 (6th Cir. 1989), and 

Frost v. Benefits Bd., No. 85-4034, 821 F.2d 649 (6th Cir. 

June 26, 1987) (unpublished) is misplaced. These cases held that 

a night watchman, and, a delivery man who transported lunches to 

coal miners working underground, were not "miners" and, 

therefore, not entitled to black lung benefits under the Black 

Lung Benefits Act . 30 U.S.C.A. Section 802 (h) (2), (i) 402(d). 

However, entitlement to black lung benefits is not at issue in 

this proceeding. 

In view of the above, I conclude that the security services 

provided to Madison Branch Management provide an adequate basis 

for concluding that protective Security Services is an "operator" 

as defined by .section 3 (d) of the Mine Act. An owner-operator is 

liable for the \violative act of its contractor. Bulk 

Transportation ·services, Inc., 13 FMSHRC 1354, 1359-60 

(September 1991). In such instances, the Secretary has the 

discretion to proceed against both the owner-operator and the 

contractor. Id. Having concluded that there is a jurisdictional 

basis for the citations issued to Protective Security Services, 

the independent contractor in this matter, it follows that there 

is a jurisdictional basis for the citations issued to Madison 

Branch Management. 

Although I have concluded the respondents are subject to the 

Mine Act, I have not addressed the propriety of the citations in 

issue. The substantive merits of these citations involve issues 

of fact that must be resolved through the hearing process. 

ORDER 

Consequently, I conclude that there is a jurisdictional 

basis for the citations in issue. Accordingly, the r·espondents' 

Motions to Dismiss on jurisdictional grounds ARE DENIED. 

1031 
In view of my disposition of the jurisdictional issue, the 

parties are advised that the consolidated hearinq in these 

proceedings will be conducted in the vicinity of Beckley, 

West Virginia, commencing at 9:00 a.m. on Tuesday, 

April 12, 1994. The parties will be further advised of the 

hearing location in Beckley. 

Distribution: 

~~--~ ) ·----- > 

Jerold Feldman 

Administrative Law Judge 

Patrick L. DePace, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

James A. Walker, Esq., White & Browning Bldg., Suite 201, 201 1/2 

Stratton Street, P.O. Box 358, Logan, WV 25601 (Certified Mail) 

Mr. George L Mathis, Protective Security Service & Investment, 

P.O. Box 1466, Logan, WV 25601 (Certified Mail) 

Christopher B. Power, Esq., Robinson & McElwee, P.O. Box 1791, 

Charleston, WV 25326 (Certified Mail) 

Mr. Durwin Logan, Madison Branch Management, Inc., P.O. Box 250, 

Mann, WV 25635 (Certified Mail) 

Robert Stropp, Esq., UMWA, 900 15th St., N.W., Washington, o.c. 

20005 (Certified Mail) 

/11 

1032 
FEDERAL K_ .. ..3 SAFETY AND HEALTH REVrn .uKKISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

THUNDER BASIN COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, MINE 

SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

MAR 2 5 19!M. 

CONTEST PROCEEDINGS 

Docket No. WEST 94-238-R 

Citation No . 3589040; 2/22/94 

Docket No . WEST 94-239-R 

Order No. 3589101; 2/22/94 

Black Thunder Mine 

ORDER DENYING TEMPORARY RELIEF 

On February 22, 1994, contestant filed an application for 

temporary relief from Order No. 3589101 which was issued earlier 

the same day pursuant to section 104(b) of the Act. An expedited 

hearing on the application was held in Falls Church, Virginia, on 

March 17 , 1994. For the reasons stated below I deny the 

temporary relief requested. 

Background Facts 

In September 1990, eight miners employed at contestant's 

non-union mine near Wright, Wyoming, signed a form designating 

Dallas Wolf and Robert Butero as their representatives under 

section 103(f) and Part 40 of volume 30 of Code of Federal 

Regulations. 1 Wolf and Butero are employees of the United Mine 

Workers of America (UMWA) and not of Contestant. Dallas Wolf is 

the principal UMWA organizer in the Powder River Basin. The 

eight Thunder Basin employees listed themselves as alternate 

miners' representatives. 

Thunder Basin coal corporation refused to recognize the 

validity of this designation. The primary reason for this 

refusal is that contestant believes that the designation of Wolf 

and Butero is an abuse of walkaround provisions of the Federal 

Mine Safety and Health Act because it is motivated solely by a 

desire to aid the UMWA in its effort to organize the mine. The 

company contends that it thus infringes on its rights under the 

National Labor Relations Act to exclude union organizers from its 

1

The principal function of a miners' representative is to 

accompany MSHA personnel during their inspections of operators' 

worksites. 

1033 
property (Affidavit of Marshall B. Babson, Exhibit 3 to 

Contestant's reply brief) . 2 

In March, 1992, contestant obtained an injunction in the 

United States District Court for the District of Wyoming 

prohibiting MSHA from enforcing the Part 40 designation of the 

UMwA employees3 • However, both the United States court of 

Appeals for the Tenth Circuit and the United States Supreme Court 

held that the District Court did not have jurisdiction to issue 

the injunction. Thunder Basin coal Company v. Martin, 969 F.2d 

970, 973 (10th Cir. 1992); Thunder Basin Coal Co. v. Reich, 62 

U.S.L.W. at 4062 (U.S. Jan. 19, 1994) . 

on January 21 , 1994, Thunder Basin's President, 

J . A. Herickoff wrote MSHA District Manager William Holgate 

inviting MSHA to issue a citation in order to achieve swift 

resolution of the legal validity of the designation of the UMWA 

employees. Contestant also stated that it expected MSHA to 

specify an abatement time "sufficient for the parties to pursue 

resolution of this important issue before the Commission and the 

courts." 

MSHA accommodated contestant in its request for a citation. 

However, it declined · to set an abatement period which would delay 

posting of the UMWA designation until Thunder Basin ' s challenge 

to the validity to that designation was resolved before the 

Commission and reviewing Federal courts. At 8:10 a.m., on 

February 22, 1994, MSHA inspector James M. Beam issued Citation 

No. 3589040 to contestant for failure to post the UMWA 

designation on the bulletin board near the mine's bath house. He 

set ah abatement period of 15 minutes {Citation No. 3589040, 

blocks 2 and 18). 

When 15 minutes elapsed, inspector Beam issued Order 

No. 3589101 pursuant to section 104(b) of the Act . Within hours 

contestant filed an application for temporary relief with the 

Commission and an application for an expedited hearing on its 

application. Subsequently, MSHA informed contestant that it 

intends to propose a $2,000 daily penalty for the company's 

refusal to post the disputed designation (Oral argument Tr. 64). 

2

Thus far Thunder Basin Coal has successfully resisted the 

UMWA's persistent efforts to organize its mine. In 1987, the 

UMWA lost an election conducted pursuant to the National Labor 

Relations Act at the Black Thunder Mine by a vote of 307 to 56. 

3After it received the designation of Wolf and Butero, 

contestant received forms designating a number of its own 

employees as MSHA walkaround representatives. These employee 

designations have been recognized and posted by Thunder Basin. 

1034 
The Commission has no authority to grant the temporary relief 

requested by Contestant 

5 

Section 101(b) (2) of the Federal Mine Safety and Health Act 

provides: · 

An applicant may· file with the commission a written 

request that the Commission grant temporary relief from 

any modification or termination of any order or from 

any order issued under section 104 together with a 

detailed statement giving the reasons for granting such 

relief. The Commission may grant such relief under 

such conditions as it may prescribe, if-

(A) a hearing has been held in which all 

parties were given an opportunity to be 

heard; 

(B) the applicant shows that there is 

substantial likelihood that the findings of 

the commission will be favorable to the 

applicant; and 

(C) such relief will not adversely affect the 

health and safety of miners. 

No temporary relief shall be qranted in the case of a 

citation issued under subsection (a) or (f) of section 

104 ••• (emphasis added). 

Although contestant characterizes its application as a 

request from relief from the section 104(b) order, it is in 

reality a request for relief from the section 104(a) citation. 

What contestant seeks is a Commission order prohibiting MSHA from 

proposing daily penalties for its refusal to post the "UMWA" 

miners' representative designation. Although MSHA issued what 

it terms a "no area affected" section 104(b) order, it did not 

need to do so in order to propose daily penalties. 

Section llO(b) of the Act, as amended, provides: 

Any operator who fails to correct a violation 

for which a citation has been issued under 

section 104(a) within the period permitted 

for its correction may be assessed a civil 

penalty of not more than $5,000 for each day 

during which such failure or violation 

continues. 

rhus, under the statutory scheme MSHA could propose daily 

penalties for contestant's failure to abate Citation No. 3589040 

as soon as the 15 minutes provided for abatement expired. It did .. · 

1035 
not need to issue a section 104(b) order to do so4 • As the Act 

specifically prohibits temporary relief from the citation, I have 

no authority to grant contestant's application. 

The overall scheme of the Act confirms the aforementioned ~eading of statutory language. The provisions for temporary 

relief appear to be directed to situations where MSHA has 

prohibited operation of a mine, or portions thereof, pursuant to 

a withdrawal order. Such an order has the potential of causing 

immediate, certain, and unwarranted economic damage to the 

operator. Where employees are not withdrawn by such an order, no 

such danger exists. Although the legislative history of the Act 

does not deal expansively with this issue, it does indicate that 

temporary relief was not intended to prevent MSHA for goading an 

operator into compliance with the threat of daily civil 

penalties. 

At page 623 of the legislative history, Senate Report 95-181 

discusses the temporary relief provision: 

While there is no provision for temporary or 

interim relief from abatement requirements 

generally, section 106(b) does authorize the 

Commission under certain circumstances 

designed to assure that the health and safety 

of miners shall not be threatened, to grant 

temporary relief from further abatements once 

the initial abatement period has run and a 

failure to abate closure order has been 

issued under section 105(bl (emphasis added). 

At page 618 of the legislative history the Senate Report 

describes the orders for which temporary relief may be sought as 

those which are issued in situations in which miners are 

withdrawn from an area. There is nothing in the legislative 

history that indicates that the Commission is empowered to 

facilitate the operator's pre-emptive strike against daily 

penalties proposed pursuant to section llO(b). 

The harm to the operator in the instant case is that it 

either posts the disputed UMWA designation or runs the risk that 

it may be assessed daily penalties proposed by MSHA. The 

statutory mechanism for dealing with such situations is for the 

Commission to review the penalty assessment. 

If the Commission concludes that the time allowed for 

abatement was unreasonable, or that the underlying citation was 

invalid, it will vacate the penalties proposed by MSHA. Even if 

4Indeed, the issuance of the section 104(b) order tends to 

confuse the issues in this case. 

1036 
it finds that the citation is valid and the abatement period 

appropriate, the commission is not bound by MSHA's penalty 

proposal. Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1152 

(7th Cir. 1984). The Act contemplates that an operator who 

refuses to abate a citation within the time allotted by MSHA runs 

the risk that it will be assessed the daily penalties set forth 

in section llO(b) if MSHA's position is vindicated. The statute 

does not contemplate any Commission relief for the operator in 

this situation. 

Assuming that the Commission has authority to grant temporary 

relief in the instant case, contestant has not established that 

it is entitled to such relief 

Section 105(b) provides that temporary relief can be granted 

if a hearing has been held, the applicant shows there is a 

substantial likelihood that it will prevail before the 

Commission, and the health and safety of miners will not be 

adversely affected. The first condition has been satisf ied5 

As to the third condition, I conclude that any compromise of 

health and safety from granting temporary relief is purely 

speculative. It may well be that participation in an MSHA 

inspection by Mr . Wolf and/or Mr. Butero may enhance the safety 

at contestant's mine, or have no affect. Contestant argues that 

it is already a very safe operator, and the evidence it has 

proffered supports that proposition. However, it is possible 

that Mr. Butera, in particular, who is a safety and health 

official of the UMWA with exposure to comparative operations, 

would have insights in regard to safety and health conditions at 

the Black Thunder Mine. Finally, contestant's assertion that 

participation by the UMWA will compromise safety is equally 

speculative. 

The primary hurdle to granting contestant's request for 

temporary relief is its inability to show that there is a 

substantial likelihood that the findings of the Commission will 

be favorable to it in light of the Commission's decision in KerrMcGee Coal Corporation, 15 FMSHRC 352 (March 1993), appeal 

pending, D. c. cir. No. 93-1250). Contestant argues that it has 

evidence not in the record in Kerr-McGee which should cause the 

5several employees of contestant, who are sympathetic to its 

position in this case, sought party status a few days before the 

expedited hearing in this case . As the interests of these 

employees are virtually identical to those of contestant, the 

undersigned chose not to can'bel the hearing and so informed 

counsel for the contestant and the Secretary of Labor (Tr. 5-6). 

Indeed, to delay consideration contestant's application for 

temporary relief would appear to be contrary to the wishes of 

these employees. 

1037 
Commission to rule in its favor, Application for Temporary 

Relief, p. 15, n. 15 and Attachment 2 to Exhibit c of the 

Application. 

The decision in Kerr-McGee indicates that the Commission was 

tully aware that the designation of Wolf and Butero by Kerr-McGee 

employees. was done in part, if not primarily, to advance the UMWA 

effort to organize that mine. Indeed, the Commission affirmed 

the administrative law judge's decision denying Kerr-McGee's 

motion to reopen the record to introduce internal UMWA documents 

which arguably revealed the organizational motive in the 

walkaround representative designation. 

The Commission affirmed the judge's finding that such 

evidence was cumulative and ruled that error, if committed, was 

harmless 15 FMSHRC at 357-8. In light of the Commission's 

rulings on the internal union documents in Kerr-McGee, it is 

impossible for the undersigned to conclude that the Commission 

is likely to reach a different result in the instant case based 

on the documents proffered in the Application for Temporary 

Relief. 

In short ~he black letter law on the issue involved in this 

case is the Ker·r-McGee holding that designation of union 

employees as walkaround representatives at a non-union mine which 

they are trying to organize is not invalid per se. That decision 

is controlling and leads me to conclude that contestant has not 

established that it is likely to prevail on the merits. 

Contestant argues also that it needs only to show that it 

will prevail on the issue of whether the 15 minute abatement 

period was unreasonable, not on the issue of whether the 

underlying citation was valid. To the undersigned this is a 

distinction without a difference. If the prevailing case law is 

that the Part 40 designation of Wolf and Butero is valid, it is 

not substantially likely that contestant will prevail on the 

issue of the abatement period. 

The company position is that MSHA must give it an 

opportunity to overturn Kerr-McGee before requiring it to abate 

the citation issued for failure to post the UMWA walkaround 

designation. Such an argument is analogous to granting a stay of 

the Commission's Kerr-McGee decision, which is prohibited by 

section 106(c) of the Act. The fact that Kerr-McGee is now 

legally required to comply with the Commission's decision in its 

case indicates to the undersigned that it is not substantially 

likely that Thunder Basin will prevail before the Commission on 

the issue of whether the 15 minute abatement period was 

reasonable. If the company is legally required to post the UMWA 

designation, 15 minutes seems not to be an unreasonable amount of 

time to accomplish this task. 

1038 
Contestant contends that an adverse ruling on this 

application will cause it significant and irreparable harm. I 

assume that recognition of the Wolf and Butero walkaround 

designation ·will be advantageous to the UMWA organizational 

effort to some extent. If that were not the case contestant 

vould not be so adamant in refusing to post the designation. on 

the other hand, it is difficult to believe that the recognition 

of the walkaround designation will determine the outcome of the 

UMWA organizational drive. 

However, I conclude that whatever advantage the UMWA may 

obtain is irrelevant to the disposition of this application. 

Moreover, whatever advantage the UMW gains will be at least 

counterbalanced by the negative impact on the organizational 

campaign when contestant takes down the designation form if it 

ultimately prevails in its challenge to its validity. 

CONCLUSION 

For the reasons stated herein, I conclude that I have no 

authority to grant the relief requested by contestant. Assuming 

that I have such authority, I conclude that contestant has not 

satisfied the. criteria set forth in section 105(b) (2) of the Act. 

1039 

Administrative 

~~ Law Judge 

(703) 756-6210 
Distribution: 

Thomas c. Means, Esq., Timothy M. Biddle, Esq., Crowell & Moring, 

1001 Pennsylvania Ave., NW, Washington, D.c. 20004 (Certified 

Mail) 

Margar•tMiller, Esq., Office of the Solicitor, u. s. Department 

of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 

(Certified Mail) 

Colleen Geraghty, Esq. , Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Thomas F. Linn, Esq. , Atlantic Richfield Company, 555 17th Street, 20th Floor, Denver, co 80202 (Certified Mail) 

Charles W. Newcom, Esq. , Sherman & Howard, 633 17th Street, Denver, co 80202 (Certified Mail) 

Mr. Ray Mcintosh , P. o. Box 414, Wright, WY 82732 (Certified 

Mail) 

Mr. Roy Earle Knutson, Jr., 601 N. Plains Drive, Gillette, WY 

82716 (Certified Mail) 

Mr. Everett Kraft, P. O. Box 127, Upton, WY 82730 (Certified 

Mail) 

/jf 

10 4 Q • tJ.S. GOV'ElUIMENT PRINTING OFJ'ICE: 1994-301-878il 3378